Roy Edward Lynch, Jr. v. State of Texas ( 2001 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-00-538 CR ____________________

ROY EDWARD LYNCH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D000270-R

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O P I N I O N

A jury found Roy Edward Lynch, Jr., guilty of aggravated robbery and assessed his punishment at eighty five years in the Texas Department of Criminal Justice, Institutional Division, along with a fine of $10,000. With three issues, Lynch appeals.

In his first issue, Lynch contends the evidence was insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). When reviewing the factual sufficiency of the evidence, we view all the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In our review, we must be careful not to intrude on the jury's role as the sole judge of the credibility of the witnesses or the weight to be given their testimony. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

According to Korey Bellard, he and Lynch drank beer and played video games at Bellard's home on the evening of February 19, 2000, before leaving there around midnight and going to Andrea Ryan's house. During the time at Bellard's home and the ride over to Ryan's, Lynch started mentioning a need for money. Along with other persons, Bellard and Lynch remained at Ryan's home for approximately two hours, drinking and playing games. Then Bellard and Lynch left, taking Clarence Griffin and his cousin, Cetric, with them. After dropping the Griffin relatives "off in Sunset" "a little bit after 2:00," Bellard decided to visit his girlfriend, with whom he had earlier had a fight. Bellard passed by her house, turned around, and then, at Lynch's request, dropped him off at the Exxon Speedy Stop. Bellard next drove in the driveway of his girlfriend's home with the intent of going inside, but decided instead to telephone her from the store. According to Bellard, he was "tired" and "buzzed," and did not call his girlfriend. Rather, he parked his vehicle in front of a dumpster between the store and his girlfriend's driveway and started to "doze off." A few minutes later, Lynch got into the vehicle and he and Bellard drove off. Bellard noticed a truck following them and he became nervous. After picking up a chain at Bellard's for Lynch's dog, Bellard took Lynch home, and Bellard went to his own home. Lynch did not tell Bellard what happened at the store. Around 5 a.m. police officers arrived at Bellard's home to question him, and he told them that Lynch had been his passenger. Later in the day, he asked Lynch what had happened, and was told, "I told you I was going to get my money." Lynch also indicated he drew a gun on the clerk and customer in the store, but Bellard had not seen Lynch with a gun on the night of the robbery.

Dennis Beers was working the graveyard shift at Speedy Stop at the time of the robbery. At 3 a.m., the only other person in the store was a customer, Gary Foreman. Beers and Foreman were talking when a man, wearing a bandana entered the store, pointed a gun at them, and then held the gun to Foreman's head, while telling Beers to hand over the money. The robber alternated between pointing the gun at Beers's head and Foreman's. After taking the money, the robber instructed them to lie on the floor. The two lay on the floor for a few seconds before Beers called "911." Beers also testified that Lynch was similar in size and shape to the person who robbed him, that he feared he would be shot, and that approximately $90 was taken by the robber.

Gary Foreman testified that he arrived at the store around 3 a.m. when the robber came in and demanded money while pointing a gun at the clerk and him, Foreman. The robber demanded money from both the clerk and Foreman. After taking the money, the robber ordered them to get on the floor. Shortly afterwards, Foreman went outside to determine which way the robber went. As he looked toward the carwash, he saw a vehicle driving off. Foreman followed the vehicle to get the license number. After doing so, he called the police on his cell phone and reported the information along with his location. The vehicle was a dark colored Chevy Blazer, which the police traced to Bellard. Foreman testified that Lynch was about the same size and weight as the robber, who had been disguised. Bellard testified he was 5'7" tall and weighed about 130 pounds. Joseph Vonture, Lynch's only witness, conceded that Lynch was approximately 6' tall and weighed around 195 pounds.

Rodney Griffin verified that he, his brother, Clarence, and cousin, Cetric, were with Bellard and Lynch during the late evening and early morning hours of February 19 and 20, just preceding the robbery. He further stated that occasion was the only one in which they had all been together. According to Clarence Griffin, the group was together only one time - on the occasion when Bellard and Lynch took him and his cousin home. In a statement given to the police on February 20, the afternoon after the robbery, Lynch stated he was at home the evening before from approximately 9:30 p.m. until around 12:30 or 1 a.m., when Bellard arrived, contending he was being followed. Lynch got into Bellard's brown Chevy Blazer, and they went riding to see if the person would still follow Bellard. After the two rode around for approximately thirty minutes without seeing anyone, Bellard took Lynch home.

Joseph Vonture attempted to establish an alibi for Lynch. Vonture, who was living in the Vinton, Louisiana area at the time of the robbery testified Lynch came to live with him several weeks before the robbery, and lived there for approximately two months. On direct, Vonture testified Lynch was with him the entire evening of February 20, sitting around the house and playing dominoes until Vonture went to bed, around 3 or 4 a.m., presumably, but not clearly, meaning the morning of February 21. However, the robbery occurred in the early morning hours of February 20, 2000. And, on cross-examination, Vonture testified that he was not sure if Lynch was with him all day on February 19.

Having heard the witnesses' testimony and considering Lynch's statement - given shortly after the robbery - that clearly places him in Orange County during the early morning hours of February 20 and not in Louisiana, as Lynch argues, a rational trier of fact could have found, beyond a reasonable doubt, that Lynch committed the robbery. Further, viewing all of the evidence impartially, we cannot conclude the evidence is so weak, or the evidence preponderating against a guilty verdict to be so overwhelming that a guilty verdict is clearly wrong and unjust. Issue one is overruled.

In his second issue, Lynch maintains he was wrongly convicted on the uncorroborated testimony of an alleged co-conspirator. Lynch argues that without the testimony of Bellard, there is little to this case. However, Bellard was never charged with an offense. And, Lynch did not object to the jury charge on the ground that it should have instructed Bellard was an accomplice as a matter of law. Moreover, the jury was instructed to disregard Bellard's testimony if it determined he was an accomplice and his testimony was not corroborated by other evidence tending to connect Lynch with the commission of the offense.

The Texas Court of Criminal Appeals has explained:

A person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense. Mere presence during the commission of the crime does not make one an accomplice, nor is one an accomplice for "knowing about a crime and failing to disclose it, or even concealing it. And we have held that, even where the evidence shows that the witness was present during the commission of the crime and participated in concealing that crime, such evidence was not sufficient to raise the issue of accomplice status. . . .

Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000) (citations omitted).

Lynch erroneously assumes Bellard to be an accomplice. Though, as Lynch argues, Bellard testified he was told by Lynch of plans to "do something" and even though Bellard was present at the scene, this evidence is not enough to make him an accomplice. See id. Certainly, the jury was free to believe he was not one. See Solomon v. State, 49 S.W.3d 356, 362 (Tex. Crim. App. 2001). Issue two is overruled.

In his third issue, Lynch asserts his trial counsel was ineffective. Lynch maintains that, during voir dire, a potential juror, who was a county jail employee, stated he knew Lynch because Lynch was incarcerated there. Trial counsel did not object to the prospective juror's statement and made no motion for mistrial, both of which actions, Lynch argues, would have been taken by a reasonably prudent attorney. Lynch further argues there is a reasonable probability that, but for the omission, the jury's verdict would have been different, and that there is "no way to say that this omission did not prejudice" him.

To prevail on a claim of ineffective assistance of counsel, an appellant must show both deficient conduct and prejudice. In other words, Lynch must demonstrate his attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and there is a reasonable probability that but for his counsel's ineffectiveness, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The presumption of reasonable effectiveness cannot ordinarily be overcome absent evidence in the record of the attorney's reasons for his conduct. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Here, there is no record of the attorney's reasons, which may have included a desire not to emphasize the information. An adequate record for appellate review usually is developed in a motion for new trial hearing or on writ of habeas corpus, explaining counsel's thought processes and trial strategy. Moreover, Lynch argues, but does not establish that but for counsel's conduct, the result would have been different. Issue three is overruled.

We affirm the judgment and the sentence.

AFFIRMED.

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DON BURGESS

Justice

Submitted on September 20, 2001

Opinion Delivered October 10, 2001

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.