JOEL ZUBIRI, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 4, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00794-CR
............................
JOEL ZUBIRI, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-19406-UH
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OPINION ON REHEARING
Before Justices Morris, Wright, and Francis
Opinion By Justice Morris
        We have before us appellant's motion for rehearing. We withdraw our opinion of April 29, 2008 and vacate our judgment of that date. This is now the opinion of the Court.
        A jury convicted Joel Zubiri of capital murder. He now complains on appeal that the evidence against him is insufficient to corroborate accomplice witness testimony in the case and insufficient to support his conviction. Appellant further complains that there is insufficient evidence to corroborate accomplice witness testimony about extraneous offenses committed by him. He also argues the trial court erred in how it instructed the jury about accomplice witness testimony. And, lastly, he complains he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
        According to the testimony of three accomplice witnesses, appellant and another young Hispanic man robbed two ice cream vendors at gunpoint while two friends waited nearby in a truck to help them escape.   See Footnote 1  The driver of the truck was a young Hispanic woman who was the girlfriend of the other robber. The final accomplice was a young Caucasian man who was also in the truck. By the accomplices' version of events, appellant and the other young man wore ski masks during the robberies. When appellant and the friend attempted to rob a third ice cream vendor, the vendor fought them off, possibly by throwing rocks at them. For a time, they retreated from the vendor. In an alley, they both crouched down by a car. When appellant saw that the vendor was still pursuing them, the other robber tried to convince him to leave with him, but he did not. Appellant waited for the vendor to pass by then “jump[ed] up at him” and started repeatedly shooting at the vendor from a distance of approximately six feet. Afterward, he and the other robber escaped in the truck. Not long after, the vendor died from his gunshot wounds. Appellant was fourteen years old at the time of the offense.
        Several people in the neighborhood where the shooting took place noticed two Hispanic young men at the scene. The taller of the two men was wearing long jean shorts and a black hooded sweatshirt with a large number thirteen on the back. Two of the State's witnesses testified they could see the young men arguing with the ice cream vendor before the shooting. Other witnesses testified they saw one or both of the young men shooting. Another witness saw the vendor throwing rocks at the men as the man in shorts was shooting at him and the shorter man stood nearby. That witness estimated the distance from the shooter to the vendor to be approximately ten feet. Afterward, one witness saw a woman with light colored hair let the two men into a truck.
        Appellant's accomplices testified that during the robberies appellant had been wearing a sweatshirt with the number thirteen on the back, which he had borrowed from the Caucasian accomplice, and long jean shorts. Appellant is notably taller than the other Hispanic man who admitted his involvement in the robbery. In addition, when officers came to question appellant the morning after the shooting, he picked up a pair of long jean shorts from the floor near his bed to wear. Cartridge casings and bullet jackets found at the scene were linked to the gun owned by the other robber. All the accomplice witnesses claimed this was the gun appellant had used in committing the offense.
        One witness from the neighborhood was able to identify appellant at trial. She also identified appellant in a photographic lineup six months after the offense. The day of the offense, the witness went to her front door to call her children inside when she heard gunshots being fired. She saw her daughter across the street and yelled for her to come home. At that time, she saw two Hispanic boys running around the corner right past her house. She watched “for seconds” as appellant ran past her house. He turned around at one point and looked at her “straight in the eye” as she yelled at appellant and his companion to stop. She recalled that the hood of appellant's sweatshirt was up and pulled snugly around his face. At the time, she saw him holding a gun in the pocket of the sweatshirt. After appellant ran past her, the witness went to the ice cream vendor. In a weak voice, the vendor told her that two Hispanic boys had tried to rob him.
        Several members of appellant's extended family testified in his defense, claiming that he had been at or on the way to Town East Mall at the time of the shooting. According to the alibi testimony, appellant had left for the mall with his cousins by approximately 5:00 p.m. that night or earlier. Before the shooting, a witness to the conflict between the ice cream vendor and the robbers called 911 at 4:46 p.m. The cousins did not tell police about their alibi evidence. When a police detective in the case interviewed one of the cousins about appellant, the cousin “leaned back in his chair and kind of smiled and said he's a stone cold killer, isn't he.”
Discussion
        In his first issue, appellant complains the evidence is insufficient to corroborate the accomplice witness testimony against him. Under article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). To weigh the sufficiency of corroborative evidence, we eliminate from consideration the testimony of any accomplice witnesses and examine the remaining evidence to ascertain if there is evidence that tends to connect the accused with the commission of the offense. The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt or to directly link the accused to the commission of the offense. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997).   See Footnote 2 
        Here, the State presented testimony of one eyewitness who claimed she had seen appellant running from the scene with a gun and had observed him long enough to identify him. The witness identified appellant both in a photographic lineup and at trial. Moreover, the sole non-accomplice witness to the shooting described the shooter as a young Hispanic man, taller than his companion, wearing a black hooded sweatshirt and long denim shorts. Other witnesses confirmed that one of the robbers was dressed in a hooded sweatshirt with long jean shorts. The morning after the offense, appellant - a young Hispanic man - picked up long denim shorts from the floor near his bed to wear when officers took him for questioning. The record showed he is taller than the other robber. In addition, appellant's cousin described him to police as a killer. We conclude the evidence sufficiently corroborates the accomplice witness testimony. We resolve appellant's first issue against him.
        In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting the robbery element of his capital murder offense. He specifically complains the evidence is insufficient to show he caused the death in the course of committing robbery. The indictment alleged appellant caused the decedent's death by shooting him in the course of committing and attempting to commit the offense of robbery.
        When reviewing challenges to the legal sufficiency of the evidence, we apply well- established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watston, 204 S.W.3d at 417.
        Accomplice testimony in appellant's case showed that appellant and his companions had devoted their afternoon to robbing vulnerable ice cream vendors. The vendor shot by appellant specifically said the young men had tried to rob him. Appellant argues that because he and his accomplice had already attempted to rob the vendor and fled before he fired the fatal shots, the shooting cannot be said to have taken place “in the course of” the robbery or attempted robbery.
        The Texas Court of Criminal Appeals has defined the “in the course of committing”element of capital murder as conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. For a murder and robbery to qualify as capital murder, the intent to rob must be formed before or during the murder. See Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). If there is evidence from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the decedent's property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of robbery. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995).
        In this case, the evidence showed appellant and his cohort attempted to rob the ice cream vendor and then fled from the scene. But before appellant made his escape in the truck, he hid and waited for the vendor to pass him, then he shot him. It is irrelevant to our analysis that appellant's control of the vendor's money had been thwarted and that he may have abandoned the theft component of the offense at the time of the shooting. See Lawton v. State, 913 S.W.2d 542, 552 (Tex. Crim. App. 1995), disavowed on other grounds by Moseley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998). We conclude the evidence is legally and factually sufficient to support appellant's conviction for capital murder. We resolve his second and third issues against him.
        In his fourth issue, appellant complains the trial court erred by permitting the State to present evidence of the two robberies committed by appellant and his accomplices before appellant shot the third vendor. Appellant contends the evidence was inadmissible at trial because the accomplice witness evidence of the extraneous offenses was not corroborated. We conclude that, even if the trial court erred in admitting the evidence, any error was harmless.
        Under the Texas Rules of Appellate Procedure, we must disregard any nonconstitutional error that does not affect an appellant's substantial rights. See Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if we, after examining the record as a whole, have a fair assurance that the error did not influence the jury or had but a slight effect. See Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). The accomplice testimony in this case combined with the eyewitness testimony established that appellant attempted to rob the ice cream vendor before he shot him. Therefore, even if the trial court erred in admitting evidence of the two other robberies committed by appellant that day, any effect on the jury verdict was slight. Appellant was not harmed by the admission of the evidence. We resolve his fourth issue against him.
        In his fifth and sixth issues, appellant complains the trial court failed to instruct the jury that testimony of one accomplice witness could not corroborate the testimony of another accomplice witness. Although appellant did not object to this alleged error at trial, he now contends that failure to include the instruction and including instead a flawed instruction on accomplice witness testimony amounted to fundamental error and egregious harm. Due to the lack of an objection, we may only reverse the case on this issue if any error in the accomplice testimony instruction caused appellant egregious harm. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
        On the subject of accomplice testimony, the trial court instructed the jury as follows:
 
        You are instructed that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense.
 
 
 
        Gilbert Garcia, John Claxton, and Monica Jiminez are accomplices.
 
 
 
        Now, if you believe from the evidence beyond a reasonable doubt that an offense was committed, then you cannot convict the defendant upon the testimony of Gilbert Garcia and/or John Claxton and/or Monica Jiminez unless you further believe there is other evidence in the case, outside of the evidence of the said Gilbert Garcia and/or John Claxton and/or Monica Jiminez tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.
 
        The first paragraph of these instructions sets out verbatim the law of accomplice testimony provided in the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Appellant contends that by disjunctively separating the three accomplices in its further instruction, the court permitted the jury to use the testimony of one accomplice to corroborate the testimony of another accomplice witness. The State, in turn, contends that a sensible reading of the court's instruction “reveals that the trial court was instructing the jury thoroughly that the accomplices could not corroborate each other as individuals or as a group, an instruction beneficial to appellant and more comprehensive than an instruction requiring only that the accomplices could not corroborate each other as a group.”
        Under the egregious harm standard, the complete omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is so unconvincing as to render the State's overall case for conviction clearly and significantly less persuasive. See Herron, 86 S.W.3d at 632. We will apply the same standard to appellant's allegation of a flawed accomplice witness instruction.
        At trial, several eyewitnesses testified that they saw two young Hispanic men near the ice cream vendor before he was shot. The taller of the two men was wearing long jean shorts and a hooded sweatshirt with the number thirteen on the back. One witness saw the taller young man in shorts shoot the ice cream vendor. And an eyewitness identified appellant, both at trial and in a photographic lineup six months after the offense, as the young man in jean shorts running from the scene with a gun despite claims by the accomplices that appellant's face was obscured by a ski mask as he left the shooting scene. The morning after the shooting, appellant (a young Hispanic man, taller than his accomplice) dressed himself in long jean shorts before being taken away for questioning by police. And afterward, appellant's cousin described him to police as a killer.
        We cannot say the corroborating, non-accomplice evidence in appellant's case is so unconvincing as to render the State's overall case for conviction clearly and significantly less persuasive. Therefore, appellant was not egregiously harmed by any error in the accomplice witness instructions. We resolve appellant's fifth and sixth issues against him.
        In his seventh issue, appellant complains he received ineffective assistance of counsel at trial. He specifically complains about counsel's failure to object to the accomplice witness instructions discussed above in issues five and six and failure to cross-examine the State's one non-accomplice witness who positively identified appellant at trial and in a photographic lineup. We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claims, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. McGill v. State, 200 S.W.3d 325, 332 (Tex. App.-Dallas 2006, no pet.).
        An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)).
        Here, we have already concluded that any error caused by appellant's lawyer failing to request an instruction that testimony of one accomplice witness cannot corroborate another or in failing to object to the court's application of the accomplice witness law to appellant's case did not amount to egregious harm because the non-accomplice evidence was not so unconvincing as to render the State's overall case for conviction clearly and significantly less persuasive. In addition, we concluded in appellant's first issue that the non-accomplice evidence in the case sufficiently corroborated the accomplice testimony. Accordingly, we conclude appellant has failed to show under the second prong of Strickland that, but for counsel's failing to address any problems with the accomplice witness instructions in the jury charge, the result of his trial would have been different.
        We now address appellant's complaint that his trial attorney did not cross-examine the sole non-accomplice witness who identified him at trial and in a photographic lineup. The record does not reveal why appellant's attorney chose to refrain from cross-examining the witness. It is possible counsel did not want to appear to agitate this crucial neutral witness for the State, or it is possible counsel thought the witness would appear more believable, rather than less, upon cross-examination. Because it is possible counsel was pursuing a reasonable trial strategy, we conclude appellant has failed to show deficient performance under the first prong of Strickland. We resolve appellant's seventh issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060794HF.U05
 
Footnote 1 The other robber exercised his Fifth Amendment privilege not to testify at this trial. The State introduced his testimony from a previous proceeding into evidence.
Footnote 2 The accomplice witness rule creates a statutorily imposed review that is not derived from the federal and state constitutional principles that define the legal and factual sufficiency standards. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 627 (2007). A review of the sufficiency of the corroboration does not serve the same purpose as a sufficiency review. Moreover, under a factual sufficiency review, we view all the evidence in the record, including accomplice witness testimony. See Pena v. State, 251 S.W.3d 601, 609-10 (Tex. App.-Hous. [1st Dist.] 2007, pet. ref'd). For this reason, we decline appellant's request that we address his issue under the factual sufficiency review standard.