Brian Christian Abram v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Brian Christian Abram

Appellant

Vs.                   No. 11-02-00368-CR B Appeal from Dallas County

State of Texas

Appellee

A jury convicted appellant, Brian Christian Abram, of capital murder.  The trial court assessed the required punishment of confinement for life.  In his first two points of error, appellant argues that there was legally and factually insufficient evidence to prove that he intentionally killed Johnny Barrett, Sr. In his third and fourth points of error, appellant argues that there was legally and factually insufficient evidence to prove that appellant robbed or attempted to rob Johnny Barrett, Sr.  In his fifth point of error, appellant argues that the trial court erred in instructing the jury on the law of conspiracy. In his sixth point of error, appellant argues ineffective assistance of counsel.  We affirm.

                                                                Background Facts

Barrett and his wife, Fannie Barrett, lived with their two sons, Johnny Barrett, Jr. (Junior) and Jacoby Barrett, in a Dallas apartment.  After losing his job because of a back injury, Barrett began to sell marihuana.  One of his customers was Torey Pirtle, a friend of Junior=s. Junior, unemployed, had recently moved in with his parents and sold crack cocaine.

On the evening in question, Barrett was watching television in the living room; Fannie and Jacoby were asleep in the master bedroom.  Junior was asleep in the other bedroom.  Pirtle knocked on the door and asked to see Junior. Junior agreed to go with Pirtle, and the two of them left the apartment.  Pirtle wanted Junior to show him where a Awet house@ was located because Pirtle wanted to purchase some liquid PCP (phencyclidine).  Appellant, Corey Williams (Pirtle=s cousin), and another man were waiting in Pirtle=s car, a burgundy Caprice.  Junior knew Williams and had seen appellant and the other man Aaround.@

Junior testified that, as they reached the car, Pirtle said that he had left his cocaine wrapped in a dollar bill back in the Barrett apartment and asked Junior if Junior had his apartment keys.  Junior did have his keys, and the two of them went back to the apartment; however, they did not find the cocaine.  When Pirtle and Junior returned to the car, appellant said that he found the wrapped cocaine in the car. Junior recalled that appellant and Williams, who were sitting in the back seat, did not move over for him; instead, one of them got out, and Junior sat between the two of them.  Pirtle sat in the front passenger seat.

They smoked marihuana on the way to the Awet house.@  After purchasing two bottles of PCP, everyone but the driver smoked PCP soaked cigars. Junior testified that the PCP made Pirtle and Williams Ahyper and jumpy,@ that he hallucinated, and that his reactions slowed down.  Junior recalled that the PCP did not make appellant hyper.

When they returned to Junior=s apartment complex, Pirtle asked Junior for the gate code.  Pirtle got out of the car and punched in the code.  When Pirtle got back in the car, he pointed a revolver at Junior=s head and said:  AYou know what time it is?@  Pirtle demanded:  AWhere is the stuff?@  Junior said that he knew then that they were trying to rob him.  Appellant and Williams tried to hold Junior as he struggled. Pirtle hit Junior in the head with the gun.  Williams then held a butcher knife at Junior=s throat while appellant and Pirtle got out of the car and went to the Barrett=s apartment.

Fannie testified that she woke up to go to the bathroom.  As she started toward the bathroom, appellant grabbed her around the neck and put a gun to her head.  Appellant then pushed her into the living room and made her sit on a sofa.  Fannie testified that Pirtle was pointing a revolver at her husband and that appellant was pointing an automatic pistol at her.  Pirtle asked Barrett:  AWhere is the stuff?@  Barrett told Pirtle that Pirtle had everything that he had.  Pirtle then went into the bedroom three times, staying there about three minutes each time.  Fannie recalled that Pirtle brought out a cigar box the first time and her purse the second time.  Although she did not remember seeing Pirtle hand the cigar box to appellant, she noticed that appellant had the box in his hand when Pirtle went to the bedroom the third time.  Barrett followed Pirtle into the bedroom the third time.  It was then that Fannie heard shots from the bedroom.  Fannie ran out the patio door, and Pirtle ran after her.  Pirtle tried to drag Fannie to the car but was unsuccessful. Junior said that he heard his mother scream, but that his reactions were still too slow for him to break away and help her.  Williams still held a knife to Junior=s throat and told Junior that he was going to die.  When Pirtle could not get Fannie into the car appellant and Pirtle got back into the car, and the four men took Junior to Pirtle=s apartment.

As they arrived at Pirtle=s apartment, Junior broke away and ran to his cousin=s house across the road.  Junior called his aunt who told him that his mother had been taken by the police and that he needed to go to the police station.  At the station, Junior gave the detectives a seven-page statement that was later introduced into evidence.  Junior identified Pirtle as one of the men and referred to Williams by his nickname ACarmichael.@

Both Fannie and Junior testified that Barrett kept money, jewelry, and marihuana in various cigar boxes.  The police found one cigar box near the front door where appellant was standing when Fannie ran out of the patio door.  Appellant=s fingerprint was on that cigar box. Fannie identified the cigar box as being the one normally kept on the dresser in the bedroom that held jewelry and marihuana.  She testified that Barrett=s ring was missing from the box.  She also testified that she last saw Pirtle with her purse and that it had not been recovered.  Fannie identified another cigar box that the police found near the love seat in the living room; it contained cash and marihuana.  In the parking lot where Fannie told the police that she had struggled with Pirtle, the police found Pirtle=s palm print on the window of a Hyundai Elantra. Fannie also testified that the men were in a red Caprice.

The murder occurred during the early morning hours; and, that same day, the police arrested Pirtle and Williams.  They found the butcher knife in Williams=s Oldsmobile which was located outside of Pirtle=s apartment.  The police found a gun inside Pirtle=s apartment under a mattress; however, the record does not show that it was the revolver used by Pirtle.  The police found a left Nike tennis shoe in the burgundy Caprice and a Nike tennis shoe in the Barrett apartment.  Fannie and Junior separately identified appellant in a six-photo lineup, and the police arrested appellant the day after the murder.

The medical examiner testified that Barrett was shot six times with a .38 caliber weapon. Four of the shots were in his face.  The remaining two wounds suggested that Barrett was in a defensive posture when he was shot.  There was testimony that a .38 caliber weapon is usually a revolver.  The police did not find any shell casings in the bedroom, and that also is consistent with the weapon being a revolver.

The jury charge instructed the jury on the law of parties; instructions on conspiracy were included.  The charge also instructed the jury that, unless it found from the evidence beyond a reasonable doubt that at the time of the offense Pirtle had the specific intent to cause the death of Barrett, it could not convict appellant of capital murder.  The jury found appellant guilty of capital murder.

                                            Legal and Factual Sufficiency of the Evidence

To determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, supra; Clewis v. State, supra.  Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).  This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@  Johnson v. State, supra at 9.

Capital murder is committed if a person intentionally or knowingly causes the death of an individual during the course of committing a robbery.  TEX. PENAL CODE ANN. ' 19.03(a)(2) (Vernon Supp. 2004). In his first four points, appellant argues that the evidence was legally and factually insufficient to show that he intentionally or knowingly caused the death of Barrett or that he robbed or attempted to rob Barrett.

Under the law of parties, a person may be found guilty of capital murder if the offense was committed by his own conduct, by the conduct of another for which he was criminally responsible, or by both. TEX. PENAL CODE ANN. ' 7.01(a) (Vernon 2003).  TEX. PENAL CODE ANN. ' 7.02 (Vernon 2003) provides in part:

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

The evidence was legally and factually sufficient under Section 7.02(a)(2) & (b).  For appellant to be guilty of capital murder as a party under Section 7.02(a)(2), the jury had to find from sufficient evidence that appellant aided or encouraged Pirtle in committing the offense of capital murder, not just the robbery.  Duke v. State, 950 S.W.2d 424 (Tex.App. B Houston [1st Dist.] 1997, pet=n ref=d).  The trial court so instructed and charged the jury.  Fannie=s testimony and Junior=s testimony was replete with examples of how appellant aided Pirtle in robbing Barrett and of how appellant aided Pirtle in murdering Barrett.  Fannie saw appellant holding the cigar box with jewelry and marihuana; the police found appellant=s fingerprint on that box.  By guarding Fannie in the living room, appellant aided Pirtle in taking the life of Barrett.  Both Pirtle and appellant were using their guns during the robbery, and appellant should have anticipated the murder.  A jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon.  Jones v. State, supra at 647; Ross v. State, 861 S.W.2d 870, 873 (Tex.Cr.App.1992).  The jury could have inferred from the evidence that appellant had the requisite intent to kill.  The fact that Pirtle shot Barrett six times demonstrates that he intentionally and knowingly murdered Barrett.  Under Section 7.02(a)(2), appellant was criminally responsible for the offense of capital murder committed by Pirtle.  As we will discuss in the next section, the evidence was also legally and factually sufficient to convict appellant as a party under Section 7.02(b).  We overrule appellant=s first four points.

                                             The Instruction On Conspiracy Was Correct

The trial court did not err in including an instruction on conspiracy in the jury charge. The court was merely giving an alternative Aparties@ charge as provided in Section 7.02(b).  Montoya v. State, 810 S.W.2d 160, 165 (Tex.Cr.App.1989), cert. den=d, 502 U.S. 961 (1991).  Under Section 7.02(b), if the evidence shows that there was a conspiracy to commit the felony of robbery, that the felony of capital murder was committed by one of the conspirators in furtherance of the robbery, and that the murder should have been anticipated as a result of carrying out the conspiracy to commit robbery, then all conspirators are guilty of capital murder, though an individual conspirator may have had no intention to commit it.

To determine whether a defendant participated in an offense as a party, we may examine the events occurring before, during, and after the commission of the offense; and we may rely on actions of the defendant that show an understanding and common design to commit the offense.  Ransom v. State, 920 S.W.2d 288, 302 (Tex.Cr.App.1994).  Circumstantial evidence alone may show that one is a party to the offense.  Wygal v. State, 555 S.W.2d 465, 468-69 (Tex.Cr.App.1977).   Here, the evidence was sufficient for the jury to infer that the four men had planned the robbery before picking Junior up to go to the Awet house.@  Pirtle made certain that Junior had keys to the Barrett apartment before they drove to the Awet house.@  Neither appellant nor Williams moved over when Junior got into the back seat of Pirtle=s car; instead, they placed Junior between them.  Williams conveniently had a butcher knife which was used to keep Junior in the car.  Although three of the men smoked the PCP-laced cigars with Junior, the jury could have reasonably inferred that the three conspirators limited their intake of the drug.  Junior remembered that appellant did not become hyper or rowdy from the PCP. Junior=s and Fannie=s testimony described Pirtle, Williams, and appellant as being in control of their actions. The evidence was factually and legally sufficient to show that the three men conspired to commit the robbery, that Pirtle committed the murder of Barrett in furtherance of the robbery, and that appellant should have anticipated the murder.  We overrule appellant=s fifth point of error. 

                                                Ineffective Assistance of Counsel Claim

In his sixth and final point, appellant argues that he received ineffective assistance of counsel because his trial counsel failed to object to the admission of testimony regarding his post-arrest silence.  Detective Rick Berry, a witness for the State, testified that he arrested appellant and read appellant his Miranda warnings.^[1]  Detective Berry testified that appellant spoke with him for approximately one hour. The prosecutor then asked the following questions:

Q:  And without going into what was said, did you then ask him whether he would put it into a written statement?

A:  I did, yes.

Q:  Did he begin to put it into a written statement?

A:  He did, yes.

Q:  Then what happened?

A:  At that point, he asked if he had to give me a written statement and I said, no, he did not have to give me a written statement.

He asked me could he have a lawyer present while he gave me B if he gave me a statement.  I said, it was his option to have a lawyer, if he so desired. And he said that he would prefer to have a lawyer with him, if he gave any kind of written statement.

Q.  So what did you do at that point?

A.  At that point, I ended the interview. 

To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his counsel=s performance fell below an objective standard of reasonableness and that there is a Areasonable probability@ that the result of the proceeding would have been different but for counsel=s deficient performance.  Strickland v. Washington, 466 U.S. 668 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001).  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-pronged test is to determine whether counsel=s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result.  Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993)).

Our review of trial counsel=s representation is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance.  Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 1053 (2001).  When the record is silent on the motivations underlying counsel=s tactical decisions, appellant cannot usually overcome the strong presumption that counsel=s conduct was reasonable.  See Thompson v. State, supra at 813.  In order to defeat the Strickland presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997)).  In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions.  Thompson v. State, supra at 813-14.

In the present case, the record is silent as to why appellant=s trial counsel chose not to object to the prosecutor=s questions to Detective Berry.  His trial counsel may have wished to minimize any effect of the testimony on the jury.  The prosecutor did not refer to the testimony.  The record is insufficient to overcome the strong presumption that counsel=s conduct was reasonable.   Moreover, appellant has also not met the second Strickland test.  He has not shown a reasonable probability that the result of the proceeding would have been different even if his counsel had objected to the testimony.  As related earlier, the evidence of appellant=s guilt was extensive.  We overrule appellant=s final point.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

January 8, 2004                                                            TERRY McCALL

Do not publish.  See TEX.R.APP.P. 47.2(b).                JUSTICE

Panel consists of:  Arnot, C.J., and

Wright, J., and  McCall, J.

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).