Jerome Leland Countiss II v. the State of Texas

Affirmed and Memorandum Opinion filed August 22, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00354-CR
NO. 14-22-00355-CR
JEROME LELAND COUNTISS II, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause Nos. 1653183 and 1653184
MEMORANDUM OPINION
A jury found appellant Jerome Leland Countiss II guilty of aggravated
robbery with a deadly weapon and aggravated assault of a public servant. He
challenges the sufficiency of the evidence supporting the jury’s verdict, and he also
alleges ineffective assistance of counsel. After reviewing the record and the
parties’ arguments, we affirm the trial court’s judgments.
Background
A Harris County grand jury indicted appellant on the first-degree felony
offense of aggravated robbery with the use of a deadly weapon and the first-degree
felony offense of aggravated assault of a public servant. Appellant pleaded not
guilty to both charges. The cases proceeded to trial before a jury, which heard the
following evidence.
In November 2019, Lakeshia Harris worked the evening shift as a cashier at
a convenience store. Appellant entered the store wearing an orange face mask and
approached the counter as Harris was “getting ready to close the [cash] drawer”
after serving a previous customer. Harris immediately saw that appellant was
carrying a gun, which was later identified as a .45 caliber semi-automatic pistol.
Harris thought, “I am about to die.” Appellant said to Harris, “give me something
for my crack pipe.” At first, Harris was confused because she did not understand
what he was saying because “it was just a shock.” But then her response was, “you
can have whatever you want.” Harris had money in her hand, which she placed on
the counter. She then ran out of the store.
Appellant left the store. After Harris saw him leave, she went back into the
store, locked the doors, and called 911. Harris also called her boss and “told her
that [Harris] had got robbed.”
On cross-examination, Harris testified that appellant did not ask her
specifically for money. She did not see whether appellant took the money she
placed on the counter because she “ran out the door.” Harris agreed that she was
not physically injured during the incident.
Baytown Police Department (“BPD”) Officer Norman Anderson is a
certified peace officer. In November 2019, he worked as a patrol officer. On the
2
day at issue, he heard a call on the police radio for available officers to respond to
“an armed robbery in progress,” which is a priority call. Officer Anderson
responded by proceeding to the convenience store. Harris gave Officer Anderson a
description of appellant, and a nearby witness indicated the direction in which
appellant left on foot. Officer Anderson began searching for a suspect with “a
brown jacket and . . . something wrapped around his head.” Officer Anderson
located someone walking down the street matching that description; the person was
later identified as appellant.
Officer Anderson stopped his police car, activated his overhead lights
(which automatically activated his dash cam), stepped out of the driver’s door, and
called for appellant to stop. Officer Anderson drew his service weapon because
the suspect was reportedly armed. Officer Anderson saw a “bandanna or
something” in appellant’s hand but “not a weapon at that point.” However, “a
second or so” later, Officer Anderson saw that appellant had a gun “[j]ust prior to
him firing it.”
Officer Anderson heard the shot and saw the muzzle blast. The bullet hit the
driver’s side headlight of Officer Anderson’s car, which was very close to where
he was standing: “it wouldn’t take an inch or two raising [appellant’s] weapon that
it would have been right on target for where [Officer Anderson] was standing.”
Officer Anderson “returned fire with two shots.” Officer Anderson testified
that he did not recall appellant turning away from him. Officer Anderson thought
appellant “was still actually turned sideways towards” the officer. Officer
Anderson “was just shooting at center mass and didn’t realize until he had turned
that I was actually firing at him from behind.” Appellant was non-lethally shot in
the buttock and fell to the ground, and Officer Anderson saw appellant “reaching
towards his gun,” which had also fallen to the ground. Backup officers arrived and
3
secured appellant, who was then transported to a nearby hospital for medical
treatment and later to Baytown jail.
BPD Detective Edgar Elizondo investigated the officer-involved shooting.
Detective Elizondo spoke with appellant at the jail. Appellant said that “he had
been at the hospital all week, so he [did not] understand why he was in custody.”
Detective Elizondo explained to appellant that he had been in the hospital for a
single night, not all week, because appellant had been shot. According to
Detective Elizondo, appellant “kept on playing like he didn’t know what was going
on” and “played dumb.”
Detective Elizondo testified that, at the time of trial, BPD “still don’t know
what was stolen” from the convenience store. According to Harris, she placed
$200 on the counter before running out of the store, but Detective Elizondo said
that “on the [surveillance] video it doesn’t seem like he took money. [BPD] can’t
tell on the video what exactly was taken.”1
After the State rested its case-in-chief, appellant moved for a directed verdict
on the aggravated robbery charge. Appellant argued that the State did not present
any evidence that he stole, or intended to steal, any property. The trial court
denied the motion.
Appellant proceeded with his case. Appellant’s defensive theory was that he
was not guilty by reason of insanity. His aunt, Valerie Vandiver, testified that,
prior to the events in question, appellant was going through a separation from his
wife and began to visit Vandiver’s house “quite often.” Vandiver “began to notice
almost immediately that something was wrong.” In her opinion, “he appeared to
1
In his opening argument, appellant’s counsel said, “Ladies and gentlemen, you’re going
to see that Mr. Countiss took money, agreed, from the cashier area; but you’re also going to see
that he dropped money on the ground on his way out of the store.”
4
have some mental illness going on.” As an example, appellant told Vandiver that
he had been in recent contact with her father, appellant’s grandfather. But
Vandiver’s father passed away in 2000. Appellant also gave Vandiver and her
husband, Archie, bandannas; she testified that appellant told her “that we needed to
wear those so he would know that it was us and not the clones of us.” Appellant
allegedly believed that his mother and sister had been killed and replaced by
clones. Vandiver testified that appellant “seemed to be getting more out of touch
with reality as time passed.”
The day before the events at issue, Vandiver told appellant that he needed to
get mental health treatment in order to continue staying at Vandiver’s house.
Appellant “got angry about that” and got “into a scuffle with” Archie. After
Vandiver broke up the scuffle, appellant “jumped in his truck and took off.”
On cross-examination, Vandiver agreed that “some of [appellant’s]
behaviors could also be consistent with drug use” and it was possible that, when
appellant was not in her presence, he was using drugs.
At the conclusion of trial, the jury found appellant guilty on both counts as
charged. The trial court assessed punishment in each case at forty-five years’
confinement, to run concurrently.
Analysis
In his first two issues, appellant argues that the evidence is insufficient to
support the jury’s guilty verdict on the aggravated robbery charge because the
State did not prove beyond a reasonable doubt that appellant committed or
intended to commit a theft and, relatedly, that the trial court erred in denying
appellant’s motion for directed verdict premised on the same contention. In his
third issue, appellant argues that the evidence is insufficient to support the jury’s
5
guilty verdict on aggravated assault of a public servant because there is no
evidence that appellant committed aggravated assault against Officer Anderson.
Because these three issues turn on the legal sufficiency of the evidence to support a
conviction, we address them together. See Espino-Cruz v. State, 586 S.W.3d 538,
542 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d); Gabriel v. State, 290
S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
A. Sufficiency of the Evidence
1. Standard of review
In determining whether the evidence is legally sufficient to support a
conviction, “we consider all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see also
Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume
that the jury resolved conflicting inferences in favor of the verdict, and we defer to
its determination of the evidentiary weight and witness credibility. See Braughton,
569 S.W.3d at 608; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d). The scope of our review includes all the evidence
admitted at trial, whether it was properly or improperly admitted. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and
circumstantial evidence, as well as any reasonable inferences that may be drawn
from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App.
2016). Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. See Hooper, 214 S.W.3d at 13.
6
2. Aggravated robbery
A person commits the offense of robbery, “if, in the course of committing
theft as defined in Chapter 31 and with intent to obtain or maintain control of the
property, he . . . intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death.” Tex. Penal Code § 29.02(a)(2). “In the course
of committing 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). The offense of robbery becomes aggravated robbery if the person
“uses or exhibits a deadly weapon.” Id. § 29.03(a)(2).
According to appellant, he is not guilty of this offense because there is no
evidence that he “took any money or anything of value from the convenience
store.” Thus, he was not “committing theft.” A person commits the offense of
theft if he unlawfully appropriates property with intent to deprive the owner of the
property. See id. § 31.03.
Aggravated robbery requires that an accused use or exhibit a deadly weapon
in the course of committing or attempting a theft. Id. However, the offenses of
robbery and aggravated robbery do not require that a defendant actually complete a
theft or obtain the property sought. See Watts v. State, 516 S.W.2d 414, 415 (Tex.
Crim. App. 1974); Elizondo v. State, No. 01-07-00743-CR, 2009 WL 276754, at
*3 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009, pet. ref’d) (mem. op., not
designated for publication). The Court of Criminal Appeals has held that “[n]o
completed theft is required in order for the proscribed conduct to constitute the
offense of robbery,” explaining:
Section 29.02 is broader in scope than the prior robbery offense,
[former Penal Code art. 1408] however, because it applies to violence
used or threatened ‘in the course of committing theft,’ which is
defined in Section 29.01 to include not only violent conduct
7
antecedent to a completed theft, but also violence accompanying an
unsuccessful attempted theft and violence accompanying an escape
immediately subsequent to a completed or attempted theft. This
factor adds two new methods of committing robbery. The first—use
or threat of violence in an attempted theft—simply combines into the
robbery offense the prior separate offense of assault with intent to rob,
Penal Code art. 1163. The practical effect is to provide an identical
penalty range, which is justified because the conduct is equally
dangerous whether or not the theft is completed and it is usually
fortuitous that the theft falls short of completion. The second—use or
threat of force in escaping—broadens the scope of robbery. Here, too,
the conduct is as dangerous as force or threats antecedent to the theft.
White v. State, 671 S.W.2d 40, 42-43 (Tex. Crim. App. 1984) (internal quotation
omitted) (emphasis added).
Here, appellant exhibited a semi-automatic pistol to Harris, who was holding
cash, and he demanded that she give him something for his crack pipe. Harris put
money on the counter before fleeing the store. Although the video was
inconclusive, appellant’s counsel told the jury that appellant took money off the
counter but dropped it before leaving the store.
We conclude that the evidence is legally sufficient to support a finding,
beyond a reasonable doubt, that appellant acted while in the course of committing
theft. Contrary to appellant’s argument, the fact that he did not ultimately and
successfully secure possession of another’s property is not fatal to the conviction
for aggravated robbery. Tex. Penal Code §§ 29.02(a)(2), 29.03(a)(2); see White,
671 S.W.2d at 42-43; accord also Morgan v. State, 703 S.W.2d 339, 340-41 (Tex.
App.—Dallas 1985, no pet.) (the fact that appellant abandoned stolen property
before assaulting employee did not render evidence insufficient to support robbery
verdict). Further, by exhibiting the gun and making a demand for property, the
jury could have reasonably found that appellant was attempting theft with intent to
obtain or maintain control of the property. Tex. Penal Code § 29.02(a)(2).
8
In his second issue, appellant challenges the trial court’s denial of his motion
for directed verdict for the same reasons advanced in his first issue. Because we
have concluded that sufficient evidence supports the jury’s guilty verdict, we
overrule appellant’s second issue as well. See Salazar v. State, No. 04-10-00086-
CR, 2010 WL 4523785, at *2 (Tex. App.—San Antonio Nov. 10, 2010, no pet.)
(mem. op., not designated for publication) (“After reviewing the record, we
conclude this evidence is legally sufficient to support the jury’s verdict; therefore,
the trial court did not err in denying appellant’s motion for a directed verdict.”);
see also Gabriel v. State, 290 S.W.3d 426, 436 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
3. Aggravated assault of a public servant
A person commits the offense of aggravated assault “if the person commits
assault as defined in § 22.01 and the person . . . uses or exhibits a deadly weapon
during the commission of the assault.” Tex. Penal Code § 22.02(a)(2). A person
commits the offense of assault if the person “intentionally or knowingly threatens
another with imminent bodily injury.” Id. § 22.01(a)(2). Aggravated assault is
elevated from a second-degree offense to a first-degree offense if committed
against a person the actor knows is a public servant while the public servant is
lawfully discharging an official duty. Id. § 22.02(b)(2)(B).
Appellant argues that the evidence is insufficient to prove that he committed
aggravated assault against Officer Anderson because:
No other officer was on the scene to observe the facts asserted by
Officer Anderson. No attempts were made to locate and interview
any witnesses who could support the allegations made by Officer
Anderson. The Jury only had before it the assertion from a lone law
enforcement officer that the events transpired as he alleged.
9
Appellant contends that Officer Anderson is not credible and for that reason
the verdict lacks sufficient evidentiary support. This contention is wholly
unmeritorious. Appellant’s argument turns precisely on the kind of question that
the jury alone is empowered to resolve—credibility and weight-of-evidence
determinations. See Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).
We defer to the jury’s determinations of these matters, and we will not substitute
our judgment for that of the jury.
Appellant also argues that the State failed to prove that appellant touched or
fired the handgun in question and that there is no evidence that the bullet that
punctured Officer Anderson’s headlight was fired from the handgun allegedly
belonging to appellant.
These contentions are likewise unpersuasive. Officer Anderson identified
appellant as the assailant who shot directly at him, narrowly missing him by a few
inches. This direct testimony is sufficient. The State was not required to provide
additional evidence, such as ballistics testing, to buttress Officer Anderson’s
eyewitness account. See Jenkins v. State, No. 06-08-00146-CR, 2009 WL 670722,
at *2 (Tex. App.—Texarkana Mar. 17, 2009, pet. ref’d) (mem. op., not designated
for publication) (“While the record contains no physical evidence such as
fingerprints, ballistics tests, or DNA reports to prove guilt, the absence of such
evidence does not prevent the State from proving its case.”); Shipman v. State, No.
07-96-0105-CR, 1997 WL 254225, at *1 (Tex. App.—Amarillo May 15, 1997, no
pet.) (not designated for publication) (rejecting appellant’s argument that trial court
should have granted an instructed verdict because of the “complete absence of
ballistic evidence, linking the [appellant’s] gun to the bullet that killed the
deceased”).
We overrule appellant’s first, second, and third issues.
10
B. Ineffective Assistance of Counsel
In his fourth issue, appellant contends that his trial counsel provided
constitutionally ineffective assistance by failing to call as a witness a psychiatric or
psychological expert. We examine claims of ineffective assistance of counsel
under the familiar two-prong standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). Under Strickland, the defendant 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. Strickland, 466 U.S. at 687.
Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. But a deficient performance will deprive the defendant
of a fair trial only if it prejudices the defense. Id. at 691-92. To demonstrate
prejudice, the defendant 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 ineffectiveness. Id. at 697.
Our review of trial counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable
professional assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App.
2007); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (op. on reh’g). If counsel’s reasons for his or her conduct do not
appear in the record and there exists at least the possibility that the conduct could
have been grounded in legitimate trial strategy, we defer to counsel’s decisions and
deny relief on an ineffective assistance claim on direct appeal. See Garza, 213
S.W.3d at 348. If counsel has not had an opportunity to explain the challenged
actions, we may not find deficient performance unless the conduct was “so
11
outrageous that no competent attorney would have engaged in it.” Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the majority of cases, the
record on direct appeal is simply too undeveloped and insufficient to permit a
reviewing court to fairly evaluate the merits of an ineffective assistance of counsel
claim. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Robison, 461 S.W.3d at 203.
Appellant argues that his trial counsel rendered ineffective assistance by not
calling an expert witness to testify regarding appellant’s alleged insanity. But
appellant did not file a motion for new trial, and thus trial counsel has not been
provided an opportunity to explain the strategy, if any, for not calling an expert
witness. Without an explanation for trial counsel’s strategy, we will not engage in
speculation. See Jackson v. State, No. 14-16-00694-CR, 2018 WL 717040, at *3
(Tex. App.—Houston [14th Dist.] Feb. 6, 2018, no pet.) (mem. op., not designated
for publication) (“We do not know what information trial counsel had or how he
evaluated the potential benefits and drawbacks of requesting a sanity evaluation or
how counsel weighed the various considerations that might have informed the
decision. Without an explanation, we only could speculate as to trial counsel’s
reasons for not requesting a sanity evaluation, and we are not to engage in
speculation.”); Stafford v. State, 101 S.W.3d 611, 613 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (holding that finding counsel ineffective on silent record for
failing to request sanity evaluation would call for speculation). Further, the record
does not demonstrate that counsel’s failure to call a psychiatric or psychological
expert was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed, 187 S.W.3d at 392. Therefore, we conclude that, under these
circumstances, appellant simply has not shown that his trial counsel was
ineffective. We overrule appellant’s fourth issue.
12
Conclusion
We affirm the trial court’s judgments.
______/s/ Kevin Jewell___________
Kevin Jewell
Justice
Panel consists of Justices Jewell, Hassan, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
13