Adedji Olalincoln Adekeye v. State

Affirmed and Majority and Dissenting Opinions filed June 12, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-01097-CR
NO. 14-12-01098-CR
ADEDJI ALALINCOLN ADEKEYE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause Nos. 1349025 & 1349026
MAJORITY OPINION
Appellant was convicted of attempted aggravated robbery and unlawful
possession of a weapon. Punishment was assessed at thirty-five years’
imprisonment on the first count, and ten years’ imprisonment on the second. In
multiple issues, we are asked to consider whether the evidence is sufficient to
support the conviction for attempted aggravated robbery, and whether appellant
was denied the effective assistance of trial counsel. We affirm.
BACKGROUND
This case is about a thwarted robbery attempt. The crime occurred near a
hair salon in a mostly vacant shopping center. The owner of the salon was sitting
near the storefront, waiting for customers to arrive, when she noticed a suspicious
woman walking by. The woman was wearing an unkempt wig and ripped jeans,
and her movements were very slow. The woman passed by the salon twice in one
minute. Within another two or three minutes, a white, older-model SUV parked in
front of the salon. The salon owner grew concerned because the vehicle had no
license plates and it was parked in reverse, as if to make a quick getaway.
The salon owner could see that the driver of the SUV was the same woman
with the wig who had just walked by her store. Two male occupants were also
inside the vehicle. One was bald and heavyset, and the other was slender. The
slender man was turning his head from side to side, scoping out the area. The salon
owner observed the heavyset male putting something on top of his head, but it was
not fitting. The owner then saw the same man donning a pair of gloves and raising
a handgun, as if to load to it with a magazine. The owner panicked and directed a
coworker to call the police, believing that she was about to be robbed.
The owner watched as the heavyset male opened a passenger door with a
bag in his hand. Before the man could fully touch the pavement, a shopper with a
baby stroller walked in front of the salon, prompting the man to return to the
vehicle. The man waited a few moments to try again. Just as he prepared to exit the
vehicle a second time, a car drove by and parked two spaces away. The woman in
the white SUV decided to move the vehicle to another spot. By the time she had
parked, more cars had arrived at the shopping center and sirens could be heard in
the distance. The SUV promptly drove away.
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A police officer encountered the SUV not far from the shopping center. With
lights and sirens engaged, a short chase ensued. At one point the SUV slowed
down to a rolling stop, and the two male passengers jumped from the vehicle and
ran off on foot. They discarded a black bag, a mask, gloves, and a handgun, which
were all later recovered.
The police officer stayed with the SUV as it sped away, but he called for
backup and gave descriptions of the two male passengers. A perimeter was
established and a search team was called in, including dogs and a helicopter. Police
were eventually led to a dump truck, where they found the bald, heavyset male
hiding inside. He was sweaty and claimed to have been sleeping. Police
apprehended the man and took him to the hair salon, where the salon owner
identified him as the male passenger who had exhibited the gun. During trial, the
owner made an in-court identification of appellant as the same bald, heavyset male.
Police detained the driver of the SUV after another short chase. She was also
taken to the salon owner, who positively identified her as the woman with the
unkempt wig and ripped jeans. Appellant’s only defense witness, his mother,
established that the female driver was also appellant’s pregnant girlfriend. The
slender male passenger was never caught.
SUFFICIENCY OF THE EVIDENCE
In his first and third issues, appellant challenges whether the evidence is
sufficient to support his conviction for attempted aggravated robbery. Appellant
asserts that there is no evidence that he had the specific intent to target the hair
salon in a robbery or other criminal act. He also contends that, if he were involved
in the act described, his actions only rose to the level of preparation, rather than
criminal attempt.
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When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id.Under the law of criminal attempt, a person commits an offense if, with
specific intent to commit an offense, he does an act amounting to more than mere
preparation that tends but fails to effect the commission of the offense intended.
See Tex. Penal Code § 15.01(a). A person commits an aggravated robbery if, while
in the course of committing a theft, he uses or exhibits a deadly weapon and
intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death. See id. §§ 29.02(a)(2), 29.03(a)(2). “In the course of committing a
theft” means conduct that occurs in an attempt to commit, during the commission,
or in immediate flight after the attempt or commission of theft. Id. § 29.01(1).
Intent can be inferred by a person’s conduct and surrounding circumstances.
See Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). Based on the
record as a whole, a rational jury could have determined that appellant had the
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requisite intent to commit an aggravated robbery of the hair salon. The evidence
showed that appellant was seated in a car that was parked in a reverse position
directly in front of a hair salon. The placement of the car was indicative of a person
wanting to make a quick escape after criminal misconduct.
The evidence also showed that appellant lingered inside the vehicle while
another male passenger monitored the area. Appellant was observed putting
something on top of his head, and the jury could have inferred that the object was
the mask that was recovered by police. Appellant was also seen donning a pair of
gloves and raising a handgun, as though he were loading it with a new magazine.
Appellant twice attempted to exit the vehicle with a bag in hand. On both
occasions, appellant’s return to the vehicle coincided with the arrival of third-party
shoppers. A jury could have inferred from this conduct that appellant was
attempting to minimize the risks of detection before he finally effectuated a
robbery.
Appellant contends that the evidence is insufficient because the testimony
was not always consistent. The salon owner claimed that appellant was sitting in
the front passenger seat of the SUV wearing a beige-colored shirt. By contrast, the
responding officer testified that appellant was sitting in the rear passenger seat
wearing a bright yellow shirt. Neither of these statements goes to an element of
attempted aggravated robbery. The witnesses were in agreement that appellant was
involved in the robbery attempt. His placement within the vehicle and the
description of his clothing does not alter our determination that a jury could have
found every essential element of the offense beyond a reasonable doubt.
Appellant also contends that his conduct may have had other explanations
that fell outside the scope of the indictment. Appellant suggests that he “perhaps”
intended to rob another business, instead of the hair salon. He also conjectures that
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he might have intended to commit an “other type of crime,” such as an assault on a
customer in an adjoining business. Appellant seems to argue that the evidence is
insufficient unless the State disproves other reasonable hypotheses for his
behavior. But the State has no such burden. See Geesa v. State, 820 S.W.2d 154,
159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28
S.W.3d 570 (Tex. Crim. App. 2000). The evidence was sufficient to convict
appellant as charged because the salon owner testified to facts demonstrating an
attempted aggravated robbery on her business. The conviction was further
supported by testimony that appellant had fled from police, which is circumstantial
evidence of guilt that a jury may consider. See Bigby v. State, 892 S.W.2d 864, 883
(Tex. Crim. App. 1994).
Appellant finally contends that there is no evidence showing that he
committed an act amounting to more than mere preparation. Appellant asserts that
he abandoned a plan to commit an aggravated robbery before it rose to the level of
actual attempt. We disagree.
Section 15.01 of the Texas Penal Code, the statute establishing the offense
of attempt, draws an “imaginary line” between mere preparatory conduct, which is
usually non-criminal, from an act which tends to effect the commission of the
offense, which is always criminal conduct. See Flournoy v. State, 668 S.W.2d 380,
383 (Tex. Crim. App. 1984). Where the imaginary line falls must be determined on
a case-by-case basis. See Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App.
[Panel Op.] 1982); Sorce v. State, 736 S.W.2d 851, 857 (Tex. App.—Houston
[14th Dist.] 1987, pet. ref’d). A person may commit an attempt even if he could
have taken further actions without actually committing the intended offense. See
Hackbarth v. State, 617 S.W.2d 944, 946 (Tex. Crim. App. [Panel Op.] 1981);
Sorce, 736 S.W.2d at 857.
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The evidence showed that overt acts were taken in furtherance of an
aggravated robbery. Appellant’s girlfriend surveyed the hair salon, the intended
target. Minutes later, she backed a vehicle into a parking spot in a reverse position.
The parking spot was situated directly in front of the hair salon. By parking the
vehicle so close to the hair salon and in a direction that would aid in a getaway,
appellant participated in an act that tended but failed to effect the commission of an
aggravated robbery.
The evidence also showed that the salon owner witnessed appellant putting
something on top of his head. Although she denied affirmatively stating that the
object was a mask, the jury could have determined that the object was in fact the
mask that was recovered by police. Furthermore, the salon owner saw appellant
exhibiting a gun, followed closely by his attempted exit from the vehicle with a
bag in hand. The exhibition of a weapon is an act that tends to effect the
commission of an aggravated robbery. Indeed, it is undisputed that appellant’s
actions placed the salon owner in fear of imminent bodily injury or death. Viewed
in the light most favorable to the verdict, the evidence supports a finding that
appellant took actions beyond mere preparation in furtherance of an aggravated
robbery.
Our dissenting colleague asserts that evidence of flight may not be
considered in reviewing appellant’s attempt conviction. Although flight may not
constitute an act that tends to effect an intended offense, it is still circumstantial
evidence of guilt that bears on the defendant’s intent as he was performing other
actions. Compare Hines v. State, 458 S.W.2d 666, 668 (Tex. Crim. App. 1970) (op.
on reh’g) (conviction for attempted burglary supported by evidence that defendant
entered a backyard at night, placed his hand on a door, then fled after being
detected) with Bledsoe v. State, 578 S.W.2d 123, 125–26 (Tex. Crim. App. [Panel
7
Op.] 1979) (conviction for attempted burglary of a vehicle reversed where the
defendant was only seen near the vehicle and there was no evidence of flight after
being confronted). Here, appellant performed specific acts that resulted in his
detection and the calling of police—namely, he exhibited a weapon and attempted
to exit a vehicle under circumstances indicative of an attempted aggravated
robbery. Evidence of flight supports a finding that these acts tended but failed to
achieve that robbery.
Our dissenting colleague also asserts that appellant never “attempted to enter
a business,” as alleged in the indictment. But an attempt conviction can still be
supported by legally sufficient evidence even if other actions could have been
taken to accomplish the intended offense. See Slomba v. State, 997 S.W.2d 781,
782–83 (Tex. App.—Texarkana 1999, pet. ref’d) (conviction for attempted
aggravated robbery supported where defendant rushed at a bank employee as she
was entering the building, but failed to intercept). All that remained in this case
was for appellant to fully exit the SUV, walk the short distance to the hair salon,
and complete the theft of property. We conclude that a rational jury could have
determined that appellant crossed the “imaginary line” and that his conduct
amounted to more than mere preparation. Cf. Godsey v. State, 719 S.W.2d 578,
583 (Tex. Crim. App. 1986) (attempted murder conviction supported where there
was only one “last proximate act,” the pulling of the trigger); accord New v. State,
606 S.E.2d 865, 866–87 (Ga. Ct. App. 2004) (attempted aggravated robbery
conviction supported where defendant was observed moving his vehicle to
different spots around a restaurant while wearing a mask and surreptitiously
watching a group of people).
Appellant suggests that he abandoned the attempt because he twice returned
to the vehicle after trying to exit it. Abandonment, or renunciation, is an
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affirmative defense, but appellant never submitted it as a theory in the jury charge.
See Tex. Penal Code § 15.04(a). Furthermore, abandonment must be voluntary,
and the defense is not available if the abandonment is motivated in whole or in part
“by circumstances not present or apparent at the inception of the actor’s course of
conduct that increase the probability of detection or apprehension or that make
more difficult the accomplishment of the objective.” Id. § 15.04(c)(1). Even if the
defense had been charged, a rational jury could have determined that appellant did
not voluntarily abandon the offense because his return to the vehicle was actually
motivated by the arrival of other shoppers, who increased the probability of
detection or apprehension.
Appellant’s first and third issues are overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second and fourth issues, appellant asserts that he is entitled to a new
trial because his defense attorney’s performance was constitutionally defective.
Appellant complains of more than a dozen acts and omissions from his trial
counsel. We review these claims under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
Under Strickland, appellant must prove that his trial counsel’s representation
was deficient and that the deficient performance was so serious that it deprived him
of a fair trial. Id. at 687. Counsel’s representation is deficient if it falls below an
objective standard of reasonableness. Id. at 688. This deficiency will deprive
appellant of a fair trial only when counsel’s performance prejudices appellant’s
defense. Id. at 691–92. To demonstrate prejudice, appellant must show a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the claim of
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ineffectiveness. Id. at 697. This test is applied to claims arising under both the
United States and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 53,
56–57 (Tex. Crim. App. 1986).
A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). As a
reviewing court, we look to the totality of the representation and to the
circumstances of the case, not to isolated instances in the record reflecting errors of
commission or omission. Id. Moreover, we consider the adequacy of assistance as
viewed at the time of trial, rather than through hindsight. Id. at 482.
Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). Ordinarily, counsel must be accorded an
opportunity to explain his actions before being condemned as unprofessional and
incompetent. See Bone v. State¸ 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Any
allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial
counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005).
When a defendant moves for a new trial on a claim of ineffective assistance,
as appellant has done in this case, we review the trial court’s ruling for an abuse of
discretion, reversing only if the ruling was clearly erroneous and arbitrary. See
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Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). A trial court
abuses its discretion if no reasonable view of the record could support its ruling. Id.Under this standard, we view the evidence in the light most favorable to the trial
court’s ruling. Id. In the absence of express findings, we presume that the court
made all necessary findings in favor of the prevailing party. Id.Failure to Investigate
Appellant asserts that counsel failed to perform a laundry list of items, all in
connection with his basic duty to investigate and prepare for trial. Specifically,
appellant complains that counsel did not (1) obtain a full copy of the offense
report, (2) view and photograph the salon and the SUV, (3) interview possible
witnesses, (4) request the criminal histories of the State’s witnesses, (5) review the
State’s subpoena list, and (6) request statements that were allegedly made by both
appellant and his girlfriend after they had been taken into custody. In addition to
these complaints, appellant also asserts that counsel failed to present the trial court
with pretrial motions. Appellant does not specify the relief that should have been
requested in these motions, but based on the context of the complaint, he seems to
argue that counsel failed to move for discovery of such information that could have
been found through reasonable investigation.
The record shows that counsel hired a private investigator, but as to these
other matters of discovery, the record is silent regarding counsel’s trial strategy.
Assuming for the sake of argument that counsel failed to meet an objective
standard of reasonableness, appellant has not shown that he suffered any prejudice.
There is no evidence that information beneficial to appellant’s defense would have
been discovered but for counsel’s unprofessional errors. Accordingly, these claims
of ineffective assistance of counsel must fail as a matter of law. See Stokes v. State,
298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
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Failure to Sever
In his next claim, appellant argues that counsel was ineffective because he
failed to request a severance. Appellant cites to section 3.04 of the Texas Penal
Code, which gives the defendant a right to have separate trials if he has been
charged with more than one offense arising out of the same criminal episode.
Because only one criminal episode was alleged in this case, counsel could have
severed the attempted robbery charge from the unlawful possession charge and
proceeded with two different trials and two different juries.
Appellant insists that a severance would have been preferable to the
consolidated trial that he received. The reason, he argues, is that the proof
admissible in the unlawful possession case would have been inadmissible in the
case for attempted robbery. Appellant refers to the element in unlawful possession
prosecutions that the defendant must have been convicted of a prior felony. See
Tex. Penal Code § 46.04. Appellant stipulated that he was a felon in this case, but
the stipulation specifically advised the jury that the conviction was for another
aggravated robbery. Because the other pending charge in the consolidated trial was
for a similar offense, this evidence had a tendency to be unfairly prejudicial.
Appellant accordingly argues that counsel had no reason for failing to request a
severance.
Counsel testified about his strategies in a hearing on a motion for new trial.
He said that he tried the two charges together because he did not want the State to
have “two shots of getting a guilty verdict.” This strategy invoked legitimate
concerns over the laws governing punishment. If a defendant is found guilty of
more than one offense in a consolidated trial, then his sentences must run
concurrently. Id. § 3.03(a). But if the offenses are severed, the trial court has the
discretion to order the sentences to run either concurrently or consecutively. Id.
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§ 3.04(b). Thus, appellant could have received stacked sentences if counsel had
requested a severance. Here, the sentences could not be stacked because of the
consolidated trial. Appellant has not rebutted the presumption that counsel’s
decision was motivated by sound trial strategy.
The Prior Conviction
Continuing with a related claim, appellant argues that if it was reasonable to
have a consolidated trial, then it was objectively unreasonable to advise the jury of
his particular type of felony conviction. Appellant correctly observes that this level
of proof is not required to prosecute a charge of unlawful possession. See McIlroy
v. State, 188 S.W.3d 789, 793 (Tex. App.—Fort Worth 2006, no pet.). Counsel
could have just stipulated that appellant was a convicted felon, without saying
anything more. This tactic would have eliminated the “especially obvious” risk of
unfair prejudice associated with mentioning a prior conviction that is similar to a
pending charge. See Old Chief v. United States, 519 U.S. 172, 185 (1997) (“Where
a prior conviction was for a gun crime or one similar to other charges in a pending
case the risk of unfair prejudice would be especially obvious . . . .”). Appellant
accordingly claims that counsel was ineffective because he advised the jury of the
nature of his previous offense. Appellant similarly complains that counsel was
ineffective because (1) he did not object during the arraignment when the
prosecutor read an allegation that he had a prior conviction for aggravated robbery,
(2) he did not request a limiting instruction on the use of the prior conviction,
(3) he elicited witness testimony that emphasized the nature of the prior conviction,
and (4) he referred to the prior conviction in his closing statement.
Much of counsel’s testimony during the new trial hearing focused on his
reasons for stipulating to the specific nature of appellant’s prior offense. Counsel
agreed that it was error to make that stipulation, but he tried to excuse his mistake
13
by claiming that he thought that the jury had already convicted appellant and that
the trial had moved to punishment. The trial court expressly rejected this testimony
as not credible. The court further found that counsel had a clear strategy to discuss
the conviction during the guilt–innocence phase. That strategy was to advise the
jury that the felony conviction had occurred when appellant was fifteen years old,
that appellant had served his time, and that he was now gainfully employed and a
better person overall.
The trial court did not make a separate finding that counsel’s strategy was
objectively reasonable, nor did it comment on the issue of prejudice. Even if we
assumed that counsel’s performance was objectively unreasonable, there is still no
showing of prejudice under the second prong of Strickland.
Appellant only briefly addresses the issue of prejudice. In a single sentence,
appellant makes a summary conclusion that his conviction should be reversed
because counsel’s error was serious and the evidence of guilt was not
overwhelming. We disagree.
Based on our review of the record as a whole, the State presented a strong
case of appellant’s guilt. The eyewitness testimony of the salon owner placed
appellant at the scene of the crime with a weapon in hand. A police officer further
testified that appellant ran off on foot after being pursued in a vehicle. In the
process, either appellant or his fellow passenger disposed of a bag, mask, gloves,
and firearm, which fully corroborated the salon owner’s testimony. Finally,
appellant was found hiding at the base of a dump truck, sweaty and claiming to
have been sleeping. This evidence of guilt is overwhelming. Appellant has not
shown a reasonable probability that the outcome of trial would have been different
but for counsel’s unprofessional errors.
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Failure to Request an Instructed Verdict
Appellant argues next that counsel should have requested an instructed
verdict because the evidence was insufficient to show that he intended to commit a
robbery, as opposed to another crime. Appellant similarly argues that an instructed
verdict was available because there was no evidence that the salon owner was the
intended target of any criminal action.
Counsel did not testify about his reasons for not requesting an instructed
verdict on these specific grounds. Furthermore, we have already concluded that the
evidence was sufficient to support a conviction for the attempted aggravated
robbery of the hair salon. Any request for an instructed verdict would have been
futile. Therefore, appellant has not shown that counsel’s performance was
constitutionally deficient. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. 1991)
(ineffective assistance claim will not stand on allegation that counsel failed to
engage in the filing of futile motions).
The Plea Bargain
The next claim centers on counsel’s improvident advice during the plea-
bargaining process. Appellant was offered a plea bargain of ten years’
imprisonment on both charged offenses, with the sentences to run concurrently.
Counsel advised appellant that the State did not have a strong case and that he
should proceed to trial. Counsel also told appellant that ten years was “about as
worse as it can get” and that a harsher sentence would not be expected if appellant
were ultimately convicted.
Ten years’ imprisonment is the maximum term for a third degree felony,
which is what appellant faced on the unlawful possession charge. See Tex. Penal
Code §§ 12.34, 46.04(e). But the attempted aggravated robbery charge was a first
15
degree felony after the enhancement, and appellant faced a range of punishment
between five and ninety-nine years’ imprisonment or life. Id. §§ 12.32, 15.01(d),
29.03(b).
Appellant made a counteroffer of three years’ imprisonment, but the
prosecutor refused to consider it. Appellant then proceeded to trial, where he was
fully admonished by the court that he would face the potential of more than ten
years’ imprisonment if convicted on the attempt charge. Now that he has been
convicted and sentenced to more than three times the plea offer, appellant
complains that counsel failed to give competent advice.
Appellant claims that counsel assured him that he would be found not guilty
or receive no more than ten years in prison. The record is not so clear on this first
point. Counsel advised appellant that he believed the State’s case was “not strong
enough to warrant a conviction.” There was no testimony that counsel specifically
promised a not guilty verdict. In fact, counsel expressly disavowed any notion of
having guaranteed an acquittal. In the absence of findings on this issue, we must
review the record in the light most favorable to the trial court’s ruling. See
Okonkwo, 398 S.W.3d at 694. Based on counsel’s own testimony, the court could
have determined that counsel did not make the promise that appellant has asserted,
and that appellant’s claim accordingly lacked merit.
Appellant also contends that counsel assured him that his maximum
sentence was ten years’ imprisonment, the same as the plea bargain. Again, the
evidence is somewhat inconsistent. Counsel testified at one point that he advised
appellant that ten years was “the worst” sentence he could receive. Later, counsel
qualified this statement, asserting that he advised appellant that ten years was
“about as worse as it can get.” The qualification suggests that counsel knew that
appellant faced more than just ten years’ imprisonment. Based on this testimony,
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the trial court could have found that counsel did not give mistaken advice, as
appellant has asserted.
Even if appellant’s advice had been wrong, appellant must still satisfy the
second prong under Strickland that the advice resulted in prejudice. Where, as
here, the bad advice arises in the plea-bargaining process, the defendant must show
a reasonable probability that (1) he would have accepted the earlier offer if counsel
had not given ineffective assistance, (2) the prosecution would not have withdrawn
the offer, and (3) the trial court would not have refused to accept the plea bargain.
See Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). Appellant does
not address the prejudice prong at all in his brief. He makes no assertion that he
would have accepted the plea bargain had counsel not given faulty advice. The trial
court could have determined, based on the counteroffer, that appellant believed that
any sentence longer than three years was unacceptable. Appellant has not
established that he is entitled to relief on this claim.
The Mask
Appellant also contends that counsel was ineffective because he failed to
object to an abandonment, or alteration to the face of the indictment. In the attempt
case, the indictment alleged that appellant “attempted to enter a business wearing a
ski mask and gloves and carrying a handgun.” The prosecutor moved to strike the
word “ski” at the close of evidence because it was a variance from the proof, but
not a fatal variance. Counsel stated on the record that he had no objection.
Appellant now complains that counsel was ineffective, but his brief contains
just a short, four-sentence recitation of the facts. There is no citation to authority.
Nor is there any legal analysis addressing counsel’s allegedly deficient
performance. We overrule this issue as inadequately briefed. See Tex. R. App. P.
38.1(i).
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Suggestive Identification
Appellant’s next complaint focuses on the salon owner’s out-of-court
identification, which he contends was impermissibly suggestive. Appellant asserts
that counsel should have moved to suppress the identification or otherwise
requested a reliability instruction.
Counsel testified that his basic defensive strategy was to dispute appellant’s
identity, but the record is silent on his reasons for not moving to suppress the salon
owner’s identification or requesting a reliability instruction. Accordingly, appellant
has failed to rebut the strong presumption that counsel’s omissions were motivated
by sound trial strategy. See Greene v. State, 124 S.W.3d 789, 791–92 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d).
The Mother’s Testimony
Appellant argues next that counsel was ineffective because he elicited
damaging testimony from appellant’s mother, the only defense witness. The
mother testified that the female driver of the white SUV was appellant’s pregnant
girlfriend. She also testified that appellant was very close to a male friend who
drove a white jeep, and there was some suggestion that this third party was the
other male passenger who had fled from police.
Appellant argues that there was no reason for eliciting this testimony
because it actually had the tendency to link appellant to the commission of an
offense. Counsel testified that he called the mother “basically to talk about the
car.” At trial, the mother said that the white jeep belonging to the third party had
tinted windows that could not roll down. The salon owner testified, by contrast,
that the windows of the white SUV were partially rolled down. Counsel’s apparent
strategy was to cast doubt on the salon owner’s testimony and suggest that the
18
vehicle and its occupants were not associated with appellant, but with some other
person. This strategy may have been risky and imperfectly executed. However, it is
not objectively unreasonable to undercut the prosecution’s theory with evidence
that the defendant may have been different from the description provided by the
complaining witness.
Counsel did not specifically explain his reasons for questioning the mother
about appellant’s pregnant girlfriend. The State suggests that counsel’s strategy
may have been to gain sympathy with the jury. Assuming that counsel had no
objectively reasonable strategy for eliciting this testimony, we cannot conclude that
appellant was prejudiced. As we stated previously, the evidence of appellant’s guilt
was overwhelming, based solely on the testimony from the State’s witnesses. We
can perceive no reasonable probability that the outcome of the trial would have
been different had appellant’s mother not testified at all.
Voir Dire
Appellant also claims that counsel was ineffective because he struck two
venirepersons for cause. The venirepersons stated that they had friends and
relatives who had had unfavorable interactions with law enforcement. There were
some indications that these venirepersons might harbor some animosity towards
the State. Counsel moved to strike them for cause, even though he commented that
the venirepersons might actually be sympathetic to the defense: “It may be to my
advantage, but I just want to be fair with the process.”
Appellant argues that there was no reasonable strategy for striking the two
venirepersons. However, both venirepersons stated that they had scheduling
conflicts that prevented them from serving on the jury. Counsel’s strategy was not
addressed in the hearing on the motion for new trial. It is plausible that counsel
struck the venirepersons for cause, having foreseen that they could not be seated
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anyways, in an effort to gain respect from the trial judge. Appellant has not
rebutted the presumption that counsel’s actions were motivated by sound trial
strategy. Similarly, because the venirepersons could not have been seated, there is
no showing of prejudice.
Closing Argument
Appellant’s next complaint focuses on a statement made during closing
argument. Counsel summarized the evidence and then stated, “We will never get to
know how this one [appellant] gets to be in the car.”
Appellant has made no attempt to show that counsel’s performance fell
below an objective standard of reasonableness. Appellant’s brief merely recites the
facts of the closing argument. There is absolutely no legal analysis. It is not the
role of this court to supply legal arguments on behalf of the parties. We overrule
this issue as inadequately briefed. See Tex. R. App. P. 38.1(i).
Jury Question
Appellant’s final complaint concerns a question submitted by the jury during
its deliberations. The jury sent a note requesting the court to recite portions of the
testimony from the salon owner and the responding police officer. The jury
indicated that it was confused by these witnesses’ conflicting statements regarding
appellant’s position in the vehicle. The trial court responded with an instruction
that “a request to have the court reporter’s notes read cannot be complied with
unless the jury disagrees as to the statement of a witness.” The jury replied with
another note certifying that there was a disagreement over the officer’s testimony.
The jury indicated that the statement in dispute was the location of the two male
suspects in the vehicle at the time of the rolling stop. The court allowed this
portion of the testimony to be recited, but nothing else.
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Appellant asserts that counsel was ineffective because he did not object to
the court’s failure to provide the salon owner’s testimony as well. However, the
jury never certified that there was a disagreement over her testimony. Thus, any
objection would have been futile. Appellant has not shown that counsel’s omission
amounted to a constitutionally deficient performance.
CONCLUSION
We conclude that the evidence is sufficient to support appellant’s conviction
for attempted aggravated robbery. We further conclude that appellant has not
established any claim to ineffective assistance of counsel. We overrule all four
issues and affirm the judgment of the trial court.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Christopher, and Brown. (Brown, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).
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