Hyon Sup Shin v. State ( 2010 )

Opinion issued July 29, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00767-CR

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HYON SUP SHIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Case No. 1157994

MEMORANDUM OPINION

          Appellant Hyon Sup Shin was convicted by a jury of robbery.  See Tex. Penal Code Ann. § 29.02(a) (1) (Vernon 2003).  The jury found that Shin did not use or exhibit a deadly weapon during the commission of the robbery.  The jury assessed punishment at imprisonment for seven years and four months.  In three points of error, Shin contends that the evidence is legally and factually insufficient to support his conviction and that his trial counsel was ineffective.  We affirm.

Background

          The complainant, Marco Uroiste, met Shin while playing an online computer game.  Over a period of time, the two discussed meeting so Uroiste could buy computer hardware from Shin for himself and his friends.  Uroiste agreed to drive from College Station to Houston to meet Shin at a shopping mall.  He brought approximately $1,500 in cash to purchase the hardware and placed the money in a small steel safe.

          Uroiste testified at trial that he and Shin met at the mall.  Shin asked Uroiste to follow him to a friend’s apartment, and Uroiste agreed, assuming they were going to get the hardware.  In the parking lot, Uroiste met Carlos Barrientos, an acquaintance of Shin. Two other men approached them in a corridor of the apartment complex, and Uroiste testified that these two men walked by him closely and stared.  Shin then said that he needed to go back to his car to get his apartment key, and Uroiste said he would get the money.

As Uroiste opened his car’s trunk to retrieve the safe, the two men who had previously approached him returned and asked for marijuana.  When Uroiste began to walk away, one of the men tried to punch him.  Barrientos then grabbed Uroiste and hit him, and Shin and the other two men hit him as well.  Uroiste also testified that Shin had a butcher knife and that Shin sprayed him with mace.

Uroiste escaped and ran away.  As one of the men chased him, Uroiste turned around and hit him with the safe, which caused it to open.  The men then grabbed the money.  Three of them left the scene in Barrientos’s car, and the fourth ran away on foot.

Uroiste got in his car and attempted to follow Barrientos’s car.  He later noticed that his left arm was soaked in blood, and he passed out.  When he regained consciousness, he drove back to the apartment complex.  There he was approached by some people who encouraged him to stay and wait for the police. Uroiste got back in his car and again attempted to find the three men who had fled in Barrientos’s car.  He began to feel sick, so he pulled into a parking lot and called his girlfriend.  Because the parking lot was deserted and he was concerned he might pass out due to loss of blood, Uroiste drove his car to the nearest apartment complex so he could ask for help.  A woman notified the authorities, and an ambulance took him to the hospital.  The hospital records introduced at trial showed that Uroiste had a knife wound to his upper back.

Sylvia Perez testified at trial that she and her husband lived at the apartments where the incident occurred.  Looking out her window, she saw five men hitting Uroiste.  She did not see anyone with mace or a weapon. She also did not see Uroiste’s safe. After the fight, Uroiste returned to the apartments.  Perez did not observe that he had any injuries.

Perez’s daughter also saw the incident and testified at trial.  She saw one of the men hit Uroiste with a bottle.  She saw money fall from Uroiste’s hand or pocket, and she watched the other men pick it up.

Shin testified at trial during the guilt-innocence phase.  He said that he knew Uroiste from online gaming and that Uroiste had called him to say he wanted to meet in person and smoke marijuana.  Shin said that Uroiste asked him for help in buying marijuana. Shin eventually agreed to help and drove to the shopping mall with Barrientos to meet Uroiste.  He testified that he showed Uroiste a sample of marijuana and that they agreed to go to the apartment complex to complete the sale. When they got to the apartment complex, two men approached them and asked to buy marijuana.  The men saw Uroiste with his safe and attacked him.

Shin testified that he joined in the fight to help Uroiste.  Barrientos entered the fight and used pepper spray, which hit Uroiste.  Shin said that no one in the fight had a knife or meat cleaver.  When Uroiste ran away, the two men began chasing him, and Shin and Barrientos got into a car and left.  They did not pick up Uroiste’s money, which had fallen out of the safe.

Analysis

Legal sufficiency to show bodily injury

          In his second point of error, Shin claims that the evidence is legally insufficient to support his conviction for robbery because there is no evidence that he caused bodily injury to Urioste by kicking him with his foot or striking him with his hand.  See Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2003).  The argument that the bodily injury had to have been caused by Urioste kicking him with his foot or striking him with his hand flows from the jury’s determination that Shin did not use or exhibit a knife during the commission of the offense.

The Penal Code defines “bodily injury” to mean “physical pain, illness, or any other impairment of physical condition.”  See Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2009).  Shin argues that Urioste used the word “pain” only six times in his testimony and that each time it was in reference to cuts or lacerations.  He claims that the cuts and lacerations occurred when Urioste allegedly fell or rolled over broken glass.  Shin thus contends that all of Urioste’s specific references to pain had nothing to do with Shin kicking Urioste with his foot or striking Urioste with his hand.

          Even if we were to accept Shin’s contention, the record also includes Urioste’s testimony that Shin and the other three men struck him “probably over a hundred times” and that he was struck with a bottle.  The jury could make a reasonable inference that being struck “probably over a hundred times,” including being struck with a bottle, would cause Urioste’s lacerations and pain.  See Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet. ref’d) (“People of common intelligence understand both physical pain and some of the natural causes of pain.”).

          The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, 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, 318–19, 99 S. Ct. 2781, 2788–89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  We hold there is legally sufficient evidence that Shin caused bodily injury to Urioste by kicking him with his foot or striking him with his hand.

We overrule the second point of error.

Factual sufficiency of the evidence

          In his first point of error, Shin claims the evidence is factually insufficient to support his conviction for robbery.  He identifies various propositions for which he contends the State failed to present any evidence.  He contends there was no evidence to show that he made a conscious decision to commit, or planned to commit, the charged offense of robbery. He claims there was no evidence to show that he planned or acted in concert with the two men who approached him and Uroiste while they were at their cars in the apartment complex.  He contends there was no evidence that he knew in advance that the two men encountered in the parking lot would assault Uroiste or that he planned the assault in concert with the others.  He argues that there was no evidence that he knew in advance that Uroiste would be bringing a large sum of money with him in a safe.  Finally, he contends there was no evidence to show that he knew Uroiste was carrying cash in a safe and that it would be necessary for them to return to the cars to retrieve the safe from Uroiste’s trunk in order to complete the transaction.  Shin claims the State did not meet its burden of proof to establish any of these matters.

In his brief, Shin does not directly attack the factual sufficiency of the elements of robbery.  Instead, he argues that the evidence at trial was more consistent with his version of events—that the altercation resulted from a drug deal gone bad, in which he, Barrientos, and Urioste were all attacked by the other two men at the apartment complex. We review this argument using the ordinary standards for factual-sufficiency review.  Thus we view all of the evidence in a neutral light.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We will set aside the jury’s verdict only if the evidence supporting the conviction is so weak that the jury’s verdict is clearly wrong and manifestly unjust, or if the jury’s verdict is otherwise against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that the evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not substitute our judgment for that of the fact-finder.  King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).  The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact‑finder’s evaluation of credibility and demeanor.  Cain, 958 S.W.2d at 408B09.  As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.  The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt.  Watson, 204 S.W.3d at 415.

Under the jury charge, to which Shin did not object, the jury could have found Shin guilty of robbery if it found that while in the course of committing theft of property, and with the intent to obtain or maintain control of the property, Shin intentionally, knowingly, or recklessly caused bodily injury to Urioste by kicking him with his foot, striking him with his hand, or stabbing him with a knife.  See Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2003).  Consequently, none of the various matters identified by Shin as lacking evidentiary support was an element of the offense that the State had the burden to prove.  In particular, it was not necessary for the jury to find that Shin planned the robbery in advance or in concert with others, as suggested by Shin’s arguments.

Shin’s substantive argument is that the evidence shows that Urioste came to Houston to buy marijuana, rather than to purchase computer hardware.  Under Shin’s view of the evidence, he, Barrientos, and Urioste were all attacked by the other two men at the apartment complex.  Shin also points to the fact that Urioste did not call the police, but instead drove while he was injured, as establishing that this was a drug deal, rather than an attempt to purchase computer hardware.  Shin argues that the evidence of this version of what happened is so strong that the jury was not rationally justified in finding him guilty.  He thus concludes that “viewing all the evidence in a neutral light, the jury was not rationally justified in finding guilt beyond a reasonable doubt; the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt and, the contrary evidence is strong enough that the beyond‑a‑reasonable‑doubt standard was not met.”

We disagree.  There is evidence in the record that Shin, while in the course of committing theft of property owned by Urioste, and with the intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly caused bodily injury to Urioste by kicking him with his foot or striking him with his hand.  Urioste testified that Shin hit him, kicked him, and sprayed him with mace.  Urioste also testified that Shin was part of the group of men that picked up the money that fell out of Urioste’s safe.  There was evidence adduced at trial from Sylvia Perez that she did not see anyone with mace or a weapon, and she did not see Urioste’s safe or any of his injuries.  Also, Shin testified that he joined the fight to help Urioste and nobody had a knife.  Nevertheless, the jury rejected Shin’s view of the evidence, and Shin does not substantively argue that the evidence of one or more elements of the offense of robbery is factually insufficient.  See Cain, 958 S.W.2d at 407 & n.5, 408–09.

Even if the jury disbelieved the evidence that Urioste met Shin to buy computer hardware, and even if the jury believed that Urioste met Shin to buy drugs, those matters are not inconsistent with the jury’s determination that Shin is guilty of robbery.  The evidence supporting the conviction is not so weak as to render the jury’s verdict clearly wrong and unjust.  See Johnson v. State, 23 S.W.3d at 11.

We overrule the first point of error.

Ineffective assistance of counsel

          In his third point of error, Shin claims his trial counsel was ineffective for the following reasons: (1) failing to file a motion in limine; (2) failing to file a motion to adopt the objections made by Barrientos’s counsel; (3) failing to present evidence in support of his motion for community supervision; (4) failing to subpoena or call character witnesses at the punishment phase of trial; and (5) failing to call Shin to testify at punishment.

To be entitled to a new trial based on ineffective assistance, a defendant must show that his counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and there is a reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986).  The defendant bears the burden to prove ineffective assistance of counsel.  See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

          Allegations of ineffective assistance of counsel must be firmly founded in the record.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  The review of trial counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). When the record is silent on the motivations underlying trial counsel’s tactical decisions, the appellant usually cannot overcome the strong presumption that trial counsel’s conduct was reasonable.  See Thompson, 9 S.W.3d at 813.

In most cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  Because the reasonableness of trial counsel’s choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews that record and concludes trial counsel was ineffective.  See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  Without proof from the defendant that there is no plausible professional reason for his trial counsel’s act or omission, the reviewing court may not speculate on why his counsel acted as he did.  See Bone, 77 S.W.3d at 835–36.

There was no motion for new trial filed in this case. Furthermore, Shin has not provided any authority that specifically addresses how this Court can conclude that the types of alleged “failures” by Shin’s trial counsel constitute ineffective assistance of counsel.  In particular, (1) failing to file a motion in limine did not preclude Shin’s counsel from making specific objections at trial as may have been appropriate, (2) Shin does not address any specific objection made by Barrientos’s counsel or how making that objection would have affected his case, and (3) there is no appellate record of what evidence Shin’s counsel could have, but failed to, present in support of the motion for community supervision or during the punishment phase of the trial.  Accordingly, we decline to speculate on why counsel acted as he did.  See id.

We overrule point of error three.

Conclusion

          We affirm the trial court’s judgment.

                                                          Michael Massengale

Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Do not publish. Tex. R. App. P. 47.2(b).