Kevin Mitchell Wyatt v. State

Affirmed as Reformed and Memorandum Opinion filed May 24, 2011

In The

Fourteenth Court of Appeals

NO. 14-10-00872-CR

NO. 14-10-00873-CR

NO. 14-10-00874-CR

NO. 14-10-00875-CR

Kevin Mitchell Wyatt, Appellant

v.

The State of Texas, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause Nos. 1182847, 1182848, 1182895, 1185370

MEMORANDUM OPINION

The State charged appellant Kevin Mitchell Wyatt by indictment of the offenses of unauthorized use of a motor vehicle, evading arrest or detention with a vehicle, possession of a controlled substance, and aggravated robbery.  A jury found appellant guilty of all charged offenses and assessed punishment at twenty years’ confinement for unauthorized use of a motor vehicle, twenty years’ confinement for evading arrest or detention with a motor vehicle, ten years’ confinement for possession of a controlled substance, and seventy-five years’ confinement for aggravated robbery.  Appellant challenges his convictions in five issues in this appeal.  We reform the judgment in cause no. 1182848, the conviction for evading arrest or detention in a vehicle, and affirm that judgment as reformed; we also affirm the other judgments.  

Background

On the evening of September 6, 2008, Charles Bock pulled into the parking lot of a Barnes & Noble store.  Bock had just gotten out of his vehicle, a Lexus RX 300, when he turned around and saw appellant standing there with a gun in his right hand.  Appellant told Bock to “[p]ut everything on the ground, and everything that’s in your hands, put it on the ground.”  Bock put his wallet on the ground and kept his keys in his hand. Appellant took the keys from Bock and told him to “go lay down in the grass” in front of his car.  Bock obeyed, and appellant then pulled the pager out of Bock’s pocket, got into Bock’s Lexus, and drove away. 

Four days later, on the night of September 10, 2008, Officer David Ciers of the Houston Police Department was parked in a marked patrol car on the right shoulder of Highway 290, with a handheld laser device clocking vehicles for speed.  Officer Ciers clocked appellant in a Lexus going ninety miles per hour.  Officer Ciers attempted to initiate a traffic stop; he was unsuccessful, and a high-speed chase ensued. 

Deputy Timothy Robinson of the Harris County Sheriff’s Office joined the pursuit until it ended when appellant drove into the parking lot of a car wash.  Appellant jumped out of the vehicle, and Officer Ciers chased him on foot until appellant jumped over a fence leading to an apartment complex.  Canine units from the Sheriff’s Department and the Houston Police Department searched for the suspect.  A tenant and his wife directed the officers to a specific apartment and indicated that was where they had last seen the suspect. 

Meanwhile, Bonnie Boyd, who dated appellant, testified that appellant arrived at her apartment late the night of September 10, 2008, saying, “They are coming.” He told her he loved her and took her into the bathroom.  Appellant further told Boyd that the police were chasing him and that he had “ditched the car.”  Appellant was trying to get rid of the drugs he had—about a hundred dollars’ worth of crack cocaine, or about ten rocks—by smoking it in the bathroom.  Both appellant and Boyd smoked the cocaine. Appellant took the battery out of Boyd’s cell phone so that she could not use it and the police would not hear the phone ring inside the apartment. 

Deputy Robinson testified that officers were knocking at both the front and back doors of the apartment to which the neighbors directed.  The officers heard muffled voices and continued knocking for several minutes until Bonnie Boyd answered the door, let the officers into the apartment, and consented to their search of her apartment.  Deputy Robinson found appellant in the bedroom under the covers with his clothes and shoes on, sweating profusely, and pretending to be asleep.  Boyd gave the officers permission to search the apartment.  The officers found a Lexus first aid kit in the bedroom, a crack pipe in the bathroom, and a BB gun in a kitchen drawer.  Forensic testing on the crack pipe revealed that it contained cocaine residue. 

Appellant pleaded “not guilty” to the charges of unauthorized use of a motor vehicle, evading arrest or detention with a vehicle, possession of a controlled substance, and aggravated robbery.  Each offense was enhanced by two felony convictions to which appellant pleaded “not true.”  After finding appellant guilty of each offense and each enhancement paragraph true, the jury assessed punishment at twenty years’ confinement for unauthorized use of a motor vehicle, twenty years’ confinement for evading detention, ten years’ confinement for possession of a controlled substance, and seventy-five years’ confinement for aggravated robbery. 

In five issues on appeal, appellant contends that (1) the evidence is legally insufficient to support his conviction for aggravated robbery because the State failed to prove that he used or exhibited a deadly weapon, to wit: a firearm, as charged in the indictment, (2) the evidence is legally insufficient to support his convictions for possession of a controlled substance and aggravated robbery because the State failed to prove that he committed those offenses in the State of Texas, (3) the evidence is legally insufficient to support his conviction for possession of a controlled substance because the State failed to prove that he possessed cocaine, (4) the trial court improperly listed the range of punishment in the jury charge as two to twenty years in prison while the indictment only allowed a sentence of up to two years in the state jail, and (5) he received ineffective assistance of counsel. 

Legal Sufficiency

Appellant brings legal sufficiency challenges in his first, second, and third issues.  When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  We defer to the fact finder’s responsibility to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from the facts.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Our duty as a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime.  Williams, 235 S.W.3d at 750. 

Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  The same standard of review is used for both circumstantial and direct evidence.  Id.  Each fact need not point directly and independently to the guilt of the appellant as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.  Id. 

Use and Exhibition of a Firearm

In his first issue, appellant challenges the legal sufficiency of the evidence supporting his conviction for aggravated robbery, alleging the State failed to present any evidence that the weapon used during the robbery was a firearm.  A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  Tex. Penal Code Ann. § 29.02(a)(2) (West 2003).  A robbery is aggravated if the person uses or exhibits a deadly weapon in the course of committing the robbery.  Tex. Penal Code Ann. § 29.03(a)(2) (West 2003).  

The State alleged in the indictment, in relevant part, that appellant:

unlawfully, while in the course of committing theft of property owned by CHARLES BOCK and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place CHARLES BOCK in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to wit:  A FIREARM.

A deadly weapon is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.”  Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2009).  Therefore, a firearm is a deadly weapon per se.  Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).  A firearm is “any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”  Tex. Penal Code Ann. § 46.01(3) (West Supp. 2009).  A “gun” is a much broader term than “firearm” and may include such non-lethal instruments as BB guns, blow guns, pop guns, and grease guns.  O’Briant v. State, 556 S.W.2d 333, 336 (Tex. Crim. App. 1977); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). 

Appellant complains that Bock never described the type of gun used in the robbery, and the State never presented any gun as demonstrative of the type appellant used.  Instead, appellant asserts that the only evidence describing the possible gun used was the BB gun found in Boyd’s apartment.  We disagree.

Bock testified that appellant pointed a gun at him. Bock, who is a former Marine and is “familiar with weapons,” testified that the gun “appeared to be a weapon to me.”  Bock described the gun as similar to a “Glock-type gun.”  Bock further stated that “[a]s far as the actual recall of giving a registered name to it, I just looked at this and saw that it was a weapon.” Bock could not say of his own knowledge whether it was a real gun—he did not see the action work to determine if it would work like a real gun.  Bock testified that when appellant told Bock to lie in front of the car, “that’s when I was really unsure of what was fixing to happen.”  His testimony showed that as far as Bock knew, he thought appellant would shoot him—“[i]t was questionable” whether or not he would live.

Deputy Robinson recovered a BB gun from Boyd’s apartment. Deputy Robinson did not have any indication or personal knowledge that the BB gun was involved in the aggravated robbery; it was merely a piece of evidence recovered from the apartment.  Boyd testified that the BB gun belonged to her.

As outlined above, Bock testified that appellant pointed a “gun” at him and described the gun as similar to a “Glock-type gun.” “Testimony using any of terms ‘gun,’ ‘pistol’ or ‘revolver’ is sufficient to authorize the jury to find that a deadly weapon was used.”  Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979); see also Price v. State, 227 S.W.3d 264, 266–67 (Tex. App.—Houston [1st Dist.] 2007, pet. dism’d, untimely filed) (holding, based on testimony by one victim that the appellant put a gun in her face and second victim that the appellant pointed a gun at him, the jury could have found beyond a reasonable doubt that the gun the appellant used and exhibited during the robbery, which was never recovered, was a firearm); Brown v. State, 212 S.W.3d 851, 860–61 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (op. on reh’g) (holding evidence was legally sufficient to support finding that the gun used was a firearm based on witness testimony that a gun was pointed at her and the children); Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding evidence was legally sufficient to allow the jury to conclude that the appellant used a firearm where the victim testified that appellant pointed a gun at her and she was afraid she was going to die that night, even though she was not asked to identify the type of weapon and the record contained no other relevant evidence on that point). 

Moreover, when appellant pointed the gun at Bock and ordered him to lie on the ground, Bock feared that appellant was going to kill him.  Where the accused threatens the victim with a gun, the act itself suggests that the gun is a firearm rather than merely a gun of the non-lethal variety.  Edwards v. State, 10 S.W.3d 699, 701 (Tex. App.—Houston [14th Dist.] 1999), pet. dism’d, improvidently granted, 67 S.W.3d 228 (Tex. Crim. App. 2002); Toy v. State, 855 S.W.2d 153, 159 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d). 

The fact finder is free to draw reasonable inferences and make reasonable deductions from the evidence as presented within the context of the crime.  Cruz v. State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Toy, 855 S.W.2d at 159; Benavides, 763 S.W.2d at 588–89.  Absent any specific indication to the contrary at trial, the jury may draw the reasonable inference or make the reasonable deduction the gun used in the commission of the crime was a firearm.  Cruz, 238 S.W.3d at 388; Davis, 180 S.W.3d at 286; Benavides, 763 S.W.2d at 589.  Although Deputy Robinson recovered a BB gun from Boyd’s apartment, he did not have any indication that it was involved in the aggravated robbery.  Here, without regard to the recovery of a BB gun, the jury was permitted to draw the reasonable inference or make the reasonable deduction that the gun appellant used during the robbery was a firearm.

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational jury could have found beyond a reasonable doubt that the gun used in the robbery was a firearm.  Accordingly, we overrule appellant’s first issue. 

Jurisdiction

In his second issue, appellant challenges the legal sufficiency of the evidence supporting his convictions for aggravated robbery and possession of a controlled substance because the State failed to prove that appellant committed the offenses in the State of Texas.  Texas has jurisdiction over an offense if the conduct comprising the offense occurs inside this state.  Tex. Penal Code Ann. § 1.04(a)(1) (West 2003); Gunter v. State, 327 S.W.3d 797, 799 (Tex. App.—Fort Worth 2010, no pet.); Torres v. State, 141 S.W.3d 645, 654 (Tex. App.—El Paso 2004, pet. ref’d); St. Julian v. State, 132 S.W.3d 512, 515 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).  Jurisdiction can be proven circumstantially.  James v. State, 89 S.W.3d 86, 89 (Tex. App.—Corpus Christi 2002, no pet.). 

With respect to the offense of aggravated robbery, Bock testified that the Barnes & Noble parking lot where the aggravated robbery occurred is located in Harris County.  Officer Ciers testified that, because Bock’s car was stolen in Harris County, he allowed the Harris County Sheriff’s Department to assist him in recovering evidence in the county.  With respect to the offense of possession of controlled substance, the State introduced into evidence the Harris County Sheriff’s Department’s voluntary consent for search and seizure form Boyd signed permitting the search of her apartment located “13050 Champions Park Dr. #401 Houston TX 77069 in Harris County, Texas,” where the cocaine was recovered. 

The evidence reflects that the aggravated robbery and possession of cocaine occurred in Harris County.  Evidence that an offense occurred within Harris County is sufficient to establish that the State of Texas has jurisdiction over the offense pursuant to section 1.04(a).[1]  We conclude that the evidence is legally sufficient to establish that the offenses occurred in Harris County, Texas.  Accordingly, we overrule appellant’s second issue. 

Possession of Cocaine

In his third issue, appellant challenges the legal sufficiency of the evidence supporting his conviction for possession of a controlled substance because the State failed to prove that he possessed cocaine.  Appellant argues that, although the evidence shows that the cocaine on the crack pipe was seized from the apartment where appellant was found, there is no evidence affirmatively linking him to the contraband. 

A person commits an offense if he knowingly or intentionally possesses less than 1 gram of cocaine.  Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2010). To prove unlawful possession of a controlled substance, the State must establish that the accused: (1) exercised control, management, or care over the substance, and (2) knew the matter possessed was contraband.  Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  When, as here, the controlled substance is not in the exclusive control of the defendant in the place or premise where it is found, the State must make a showing of links between the accused and the controlled substance.  Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006).  “Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.”  Id. at 162.  However, presence or proximity combined with other direct or circumstantial evidence, i.e., links, may be sufficient to establish the elements of possession beyond a reasonable doubt.  Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). 

The term links is used “merely as a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing ‘possession’ or ‘control, management, or care’ of some item such as contraband.”  Evans, 202 S.W.3d at 161 n.9.  The Texas Court of Criminal Appeals has identified a nonexclusive list of links relevant to determining whether evidence is sufficient to prove a knowing possession.  Id. at 162 & n.12.[2] The State need not establish all of the links.  See Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.”). 

Appellant argues that his mere presence in the apartment where the crack pipe was found is not sufficient to demonstrate that he knowingly possessed the cocaine.  However, the evidence establishes more than appellant’s mere presence at the location were the cocaine was found.  Boyd testified that when appellant arrived at her apartment on September 10, 2008, he stated that “[t]hey are coming” and took her into the bathroom.  While in the bathroom, appellant then told her that the police were chasing him and he had ditched the car.  At appellant’s suggestion, Boyd and appellant smoked about $100 worth of cocaine in an attempt to get rid of the drugs.  

Additional circumstantial evidence linking appellant to the crack cocaine included appellant’s flight from the police and his presence during the search.  The crack pipe, which contained cocaine residue, was in plain view and accessible to appellant.  Appellant was in the bedroom adjacent to the bathroom where the crack pipe was found, and his behavior indicated a consciousness of guilt, i.e., he was in the bed under the covers, fully dressed with shoes, sweating profusely, and pretending to be asleep. 

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant exercised control, management, or care over the cocaine.  Accordingly, we overrule appellant’s third issue. 

Range of Punishment

In his fourth issue, appellant contends that in the jury charge the trial court improperly stated the range of punishment for evading arrest or detention as two to twenty years in prison because the indictment only allowed a sentence of up to two years in the state jail and, therefore, his sentence is illegal and falls outside the proper range of punishment. 

The offense of evading arrest or detention is a state jail felony if “the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section.”[3]  A state jail felony is punishable by confinement in a state jail for any term of not more than two years or less than 180 days and a fine not to exceed $10,000.  Tex. Penal Code Ann. § 12.35(a), (b) (West Supp. 2009).  “If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.”  Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2009); see also Ingram v. State, 213 S.W.3d 515, 519 (Tex. App.—Texarkana 2007, no pet.) (“[I]f the state-jail felony is punishable under Section 12.35(a) and the defendant has previously been convicted of two felonies, sequentially, then punishment is for a second-degree felony.”). 

The enhancement paragraphs in the indictment for the charge of evading arrest or detention in a vehicle allege as follows:

            Before the commission of the offense alleged above (hereinafter styled the primary offense), on JUNE 21, 1989 in Cause No. 0532355, in the 178TH District Court of HARRIS County, Texas, the Defendant was convicted of the felony offense of ROBBERY.

            Before the commission of the primary offense, the Defendant committed the felony of FORGERY and was convicted on SEPTEMBER 02, 1987, in Cause No. 0472813in the 183RD District Court of HARRIS County, Texas.

Appellant previously had been convicted on June 21, 1989, of the felony offense of robbery in cause no. 532355 in the 178th District Court of Harris County, Texas, and had been convicted on September 2, 1987, of the felony offense of forgery in cause no. 472813 in the 183rd District Court of Harris County, Texas.  During the punishment stage of the trial, the State introduced into evidence, without objection, the “pen packets” containing the judgments from the forgery and robbery convictions, the second of which was for an offense (robbery) that occurred after the first previous conviction (forgery) had become final.  The trial court instructed the jury, without objection, on enhancement pursuant to section 12.42(a)(2). 

Appellant waived this complaint on appeal by failing to object to any purported lack of notice of the State’s intent to enhance the offense from a state jail felony to a second degree felony.  See Tex. R. App. P. 33.1(a) (requiring that a complaint be made to the trial court by a timely request, objection, or motion in order to preserve error); Callison v. State, 218 S.W.3d 822, 826 (Tex. App.—Beaumont 2007, no pet.) (finding waiver where the appellant never raised any objection at trial or in a post-trial motion to the State’s failure to comply with requirements regarding notice of its intent to seek an enhanced penalty); Fairrow v. State, 112 S.W.3d 288, 293 (Tex. App.—Dallas 2003, no pet.) (finding the appellant’s motion for new trial preserved complaint that the trial court assessed illegal sentence because the State did not give the appellant notice of its intent to seek enhancement). 

Even if appellant had preserved error, we conclude that appellant’s twenty-year prison sentence is not outside the proper range of punishment and, as explained below, appellant was not deprived due process for lack of sufficient notice of the State’s intent to enhance his sentence pursuant to section 12.42(a)(2). 

Appellant contends that, even if the enhancements were found to be true, the enhancements do not authorize the punishment of the offense as a second degree felony because the indictment did not track the language of section 12.42(a)(2), and the State did not provide written notice to the defense of its intent to enhance the punishment pursuant to that section. Due process does not require pretrial notice “‘that the trial on the substantive offense will be followed by a habitual criminal proceeding.’”  Pelache v. State, 324 S.W.3d 568, 576 (Tex. Crim. App. 2010) (quoting Oyler v. Boles, 368 U.S. 448, 452 (1962)); see also Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006) (“Under Oyler, due process does not even require that the notice be given before the guilt phase begins, much less that it be given a number days before trial.”).  However, “a defendant must receive reasonable notice and opportunity to be heard relative to the recidivist charge, even if due process does not require that notice be given prior to the trial on the substantive offense.”  Oyler, 368 U.S. at 452. “In determining whether appellant received sufficient notice of the State’s intent to enhance punishment, we look to the record to identify whether appellant’s defense was impaired by the timing of the State’s notice.”  Pelache, 324 S.W.3d at 577.  

As explained above, the indictment alleged two prior felony convictions for forgery and robbery—the robbery offense occurred after the forgery conviction had become final.  Also, on March 12, 2010, the State filed its notice of intention to use appellant’s prior convictions, including the previous convictions for “Forgery, 183rd, 7 years TDC, 9/9/87” and “Robbery, 178th, 25 years TDC, 6/21/89,” to enhance the range of punishment.  At the beginning of the punishment phase, the State read the enhancement paragraphs contained in the indictment.  The State introduced the “pen packets” containing the judgments from the forgery and robbery convictions into evidence without objection.  Finally, the trial court instructed the jury on the enhancements pursuant to section 12.42(a)(2) without objection. 

Appellant did not request a continuance, did not, by conduct, appear surprised by the allegations, and did not argue that he was unprepared to defend against the prior conviction allegations.  See id. “‘[W]hen a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance in order to prepare one, notice given at the beginning of the punishment phase satisfies the federal constitution.’”  Id. (quoting Villescas, 189 S.W.3d at 294).  Moreover, the applicable enhancement statutes provided notice that the offense of evading arrest or detention with a vehicle, enhanced with two prior felony convictions, would be punishable as a second-degree felony.  See id. at 578 (“[T]he applicable statutes did inform appellant, before he rejected the state’s plea-bargain offer and before jeopardy attached to the robbery offense, that he was subject to the sentence enhancement with any other prior convictions under § 12.35(c)(2)(A) and under § 12.42(a)(3) in the event that he was convicted of the lesser-included, state-jail-felony offense of theft from a person.”).  Here, appellant was not denied the right of due process by any purported lack of sufficient notice that the offense of evading detention with a vehicle would be punishable as a second degree felony.  Accordingly, we overrule appellant’s fourth issue.

Ineffective Assistance of Counsel

In his fifth issue, appellant claims that his trial counsel rendered ineffective assistance.  Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (West Supp. 2009).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984).  To prevail on an ineffective assistance of counsel claim, the appellant must show that (1) counsel’s performance was deficient by falling below an objective standard of reasonableness and (2) there is a probability, sufficient to undermine the confidence in the outcome, but for counsel’s unprofessional errors the result of the proceeding would have been different.  Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008) (op. on reh’g). The defendant must prove ineffectiveness by a preponderance of the evidence.  Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).  Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.  Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  

Appellant asserts that trial counsel rendered ineffective assistance by failing to make a motion for an instructed verdict of not guilty in his aggravated robbery case because there was no evidence that appellant used or exhibited a firearm during the robbery.  Appellant further contends that trial counsel rendered ineffective assistance by failing to make a motion for an instructed verdict of not guilty in his aggravated robbery and possession of a controlled substance cases because there was no evidence that the offenses occurred in the State of Texas. 

Counsel is not deficient for failing to take action that is without legal basis.  Saldana v. State, 287 S.W.3d 43, 63–64 (Tex. App.—Corpus Christi 2008, pet. ref’d); see also Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“It is not ineffective assistance for counsel to forego making frivolous arguments and objections.”).  As we determined in appellant’s first and second issues, the evidence is legally sufficient to establish that appellant used or exhibited a firearm during the aggravated robbery and that the aggravated robbery and the possession of cocaine occurred in the State of Texas.  Therefore, appellant has not shown that the trial court would have erred in denying any motion for instructed verdict on these grounds.  See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (treating complaint of a trial court’s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence.); see also Gill v. State, 111 S.W.3d 211, 217 (Tex. App.—Texarkana 2003, no pet. (holding defense counsel’s failure to move for instructed verdict was not ineffective assistance because he had no ground on which to move for an instructed verdict as the State had presented more than a scintilla of evidence that would have supported a guilty verdict). 

Appellant also asserts that trial counsel rendered ineffective assistance by failing to object to the punishment jury charge in his evading arrest or detention case because the indictment did not allow for enhanced punishment pursuant to section 12.42(a)(2).  For appellant to succeed on this claim, he must demonstrate that the trial court would have erred in overruling any such objection.  See Alexander v. State, 282 S.W.3d 701, 709 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); Green v. State, 191 S.W.3d 888, 894 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).  As we concluded in the analysis of appellant’s fourth issue, the jury charge did not improperly allow for enhancement of the offense of evading arrest or detention to a second degree felony under section 12.42(a)(2).  Therefore, appellant has not shown that the trial court would have erred in denying any such objection if it had been made by trial counsel.[4] Accordingly, we overrule appellant’s fifth issue.[5]

Reformation of the Judgment

The State requests that we correct the judgment in cause no. 1182848, the conviction for evading arrest or detention with a vehicle, to properly reflect appellant’s pleas to the enhancement paragraphs and the jury’s findings.  The judgment incorrectly states that appellant pleaded “true” to the second enhancement paragraph and that the jury found the enhancement paragraphs “not true.”  The record actually reflects that appellant pleaded “not true” to both enhancement paragraphs, and the jury found both enhancement paragraphs “true.” 

Courts of appeals have the authority to modify a trial court’s judgment and affirm it as modified.  Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).  When a court of appeals has the necessary information and evidence before it for reformation, it may reform the erroneous judgment on appeal.  Storr v. State, 126 S.W.3d 647, 654–55 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); see also Ramirez v. State, No. 07-09-0157-CR, — S.W.3d —, 2011 WL 1085185, at *6 (Tex. App.—Amarillo Mar. 24, 2011, no. pet. h.) (“This Court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so.”). 

Therefore, we reform the judgment in cause no. 1182848, the conviction for evading arrest or detention in a vehicle, to reflect that appellant entered a plea of “not true” to the second enhancement paragraph and that the jury found both enhancement paragraphs true. See Tex. R. App. P. 43.2(b) (allowing courts of appeals to modify judgments and affirm as modified); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (reforming the judgment to reflect the appellant’s plea of “guilty” to plea of “not guilty”); Storr, 126 S.W.3d at 655 (reforming judgment to reflect appellant’s plea of “guilty” to plea of “not guilty”). 

Conclusion

We affirm the judgments as to appellant’s convictions for unauthorized use of a motor vehicle, possession of a controlled substance, and aggravated robbery and affirm the judgment as to appellant’s conviction for evading arrest or detention in a vehicle as reformed to reflect that appellant entered a plea of “not true” to the second enhancement paragraph and that the jury found both enhancement paragraphs “true.”  

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] See Leyva v. State, 552 S.W.2d 158, 162–63 (Tex. Crim. App. 1977) (taking judicial notice that El Paso County is in Texas); Gunter, 327 S.W.3d at 800 (holding officer’s testimony that he worked for the Fort Worth Police Department, responded to an accident in Tarrant County, and took the appellant to the Tarrant County jail, and witness’s testimony that appellant said he had lived in Tarrant County since 1993, were sufficient circumstantial evidence for the jury to implicitly find the DWI offense occurred in Texas); Walker v. State, 195 S.W.3d 250, 257–58 (Tex. App.—San Antonio 2006, no pet.) (holding evidence that the house where the offense occurred was located in Guadalupe County was sufficient to establish that the offense occurred in Texas); St. Julian, 132 S.W.3d at 515 (holding that witness’s testimony that cocaine was found in hotel room located in Harris County was sufficient to establish that the offense occurred in Harris County); James, 89 S.W.3d at 89 (holding circumstantial evidence, including testimony that the appellant’s house, which was near the house where the offense occurred, was located in Beaumont, and that the assault occurred in Jefferson County was sufficient to prove that jurisdiction was in Texas); Garcia v. State, 819 S.W.2d 634, 636 (Tex. App.—Corpus Christi 1991, no pet.) (observing that witness testified the offense took place in Goliad County and taking judicial notice that Goliad County is in the State of Texas); Hewitt v. State, 734 S.W.2d 745, 747 (Tex. App.—Fort Worth 1987, pet. ref’d) (holding witnesses’ testimony referring to “Tarrant County,” “Texas Department of Public Safety,” the legal drinking age in Texas, and specific Tarrant County communities and heavily travelled thoroughfares was sufficient evidence to support a finding that the DWI offense occurred in the State of Texas). 

[2] These links are as follows: (1) whether the defendant was present when a search was conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant made furtive gestures or attempted to flee; (8) whether there was an odor of contraband; (9) whether other contraband or drug paraphernalia were present; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) whether the defendant was found with a large amount of cash; (13) whether the conduct of the defendant indicated a consciousness of guilt.  Evans, 202 S.W.3d at 162 n.12.

[3] See Act of June 16, 2001, 77th Leg., R.S., ch. 1334, § 3, 2001 Tex. Gen. Laws 3292 (amended 2009) (current version at Tex. Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2009)).  The current provision, section 38.04(b)(1)(B), is identical to its predecessor, which was located at section 38.04(b)(1). 

[4] Moreover, appellant did not raise any of his ineffective assistance of counsel claims in the trial court by way of a motion for new trial.  When the record is silent as to trial counsel’s strategies, we will not conclude that counsel’s performance was deficient “unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  To find that trial counsel was ineffective based on any of appellant’s assertions would call for speculation about counsel’s actions.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); see also Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (“[W]ithout some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic plan.”).  On the record before this court, appellant has failed to rebut the strong presumption in favor of effective assistance of counsel, and we cannot conclude that counsel’s performance was deficient. 

[5] Appellant avers that he received ineffective assistance of counsel with regard to his conviction for unauthorized use of a motor vehicle.  However, he has not presented any argument regarding any such ineffective assistance of counsel as to that conviction, but nonetheless requests a new trial on that conviction in addition to the other convictions “if this Court finds that trial counsel was ineffective, . . . since appellant was impacted in all four cases, in either the guilt stage or the punishment stage of the jury trial.”  Appellant has waived any claim of ineffective assistance of counsel on appeal regarding his conviction for unauthorized use of a motor vehicle.  See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”).  In any event, as discussed above, we hold that appellant has not shown that his trial counsel rendered ineffective assistance of counsel as to his convictions for evading arrest or detention with a motor vehicle, possession of a controlled substance, or aggravated robbery.