JONATHAN R. GUNTER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as REFORMED and Opinion Filed September 29, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00324-CR
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JONATHAN R. GUNTER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 194th Judicial Court
Dallas County, Texas
Trial Court Cause No. F09-00002-M
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OPINION
Before Justices Bridges, O'Neill, and Lang-Miers
Opinion By Justice O'Neill
        Appellant Jonathan R. Gunter appeals his conviction for aggravated robbery. After a jury found appellant guilty of the offense, it assessed punishment at thirty years' confinement. The judgment also contains an affirmative finding that appellant used or exhibited a deadly weapon in the commission of the offense. In four issues, appellant contends (1) the evidence is factually insufficient to support his conviction, (2) the trial court erred in including an affirmative deadly weapon finding in the judgment, (3) the trial court erred in admitting unfairly prejudicial photographs into evidence, and (4) he received ineffective assistance of counsel. For the following reasons, we reform the trial court's judgment to delete the deadly weapon finding and affirm the judgment, as reformed.         The grand jury indicted appellant for aggravated robbery. The victim was Jimmy Dean. The indictment contained two paragraphs. The first paragraph alleged appellant committed aggravated robbery by, in the course of committing theft of property, causing serious bodily injury to Dean by striking Dean in the head with his foot. The second paragraph alleged appellant committed aggravated robbery by, in the course of committing theft, causing bodily injury to Dean and using or exhibiting a deadly weapon, to wit: his foot and a firearm.
        At trial, the State presented evidence that on the night of the offense, Michael Robinson and complainant Jimmy Dean met on the street in the Oak Lawn area of Dallas where there are numerous restaurants, bars, and night clubs. As they stood talking, appellant and Bobby Singleton, confronted Robinson and Dean and began cussing and using racial and gay epithets. Robinson feared the two men, who had been drinking and were aggressive. He lived nearby and ran to his apartment to retrieve a knife.
        While Robinson was gone, appellant punched Dean in the face and Dean lost consciousness. When Dean came to, he was lying on the ground being beaten by appellant and Singleton. Singleton was stomping on Dean's head and appellant was kicking him in the torso. The assault continued until Robinson returned with the knife and yelled. Appellant turned toward Robinson and pulled out a gun. Appellant and Singleton then retreated. A security guard approached. Robinson testified he yelled to the security guard that the men had beaten someone up and warned that appellant had a gun. Robinson saw appellant drop the gun along a fence line. The security guard apprehended appellant, who did not resist. Singleton tried to flee but was soon apprehended by another security guard. Dean's keys, lighter, and pocket knife were found on appellant and Singleton.
        Security guards did not find the gun at the location where Robinson testified he saw appellant drop it. Rather, Singleton directed the security guards to the gun several yards from that location. Robinson testified he had assumed Singleton had picked up the gun and tossed it after appellant dropped it. Robinson testified he was absolutely positive appellant was the one with the gun. The police report - prepared by a non-testifying police officer in training- however indicated that after the offense Robinson told police that Singleton was the person with the gun.
        After the security guards apprehended appellant and Singleton, they waited for police to arrive. The two men began to argue. Appellant tried to deflect blame on Singleton, accusing him of bringing the gun and hitting the victim with it.
        Dean was badly beaten in the attack and suffered numerous injuries. Dean's back was fractured, the lower part of his jaw was dislocated and his chin split apart. Dean's chin and jaw are now held together by metal. He lost his sense of smell.
        The jury was charged on the law of parties. The jury found appellant guilty of aggravated robbery. Following a sentencing hearing, it assessed punishment at thirty years' confinement.
        In his first issue, appellant contends the evidence is factually insufficient to support his conviction. In conducting a factual sufficiency review, we consider all the evidence in a neutral light. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We give deference to the jury's determinations concerning witness credibility and weight of the evidence, but may reverse a verdict to prevent “manifest injustice.” Id. at 518, 525; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008). We may conclude the evidence is factually insufficient if either (1) the supporting evidence is “too weak” to support the jury's verdict or (2) considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Laster, 275 S.W.3d at 518.
        A person commits robbery if in the course of committing theft and with intent to obtain or maintain control of the property he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02(a)(1) (West 2003). A person commits aggravated robbery if he commits robbery and (1) causes serious bodily injury, or (2) uses or exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03 (West 2003 ).
        A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (West 2003). In determining the sufficiency of the evidence under the law of parties, this Court may look to events occurring before, during, and after the offense that show an understanding and common design to commit the offense. King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000); Edwards v. State, 106 S.W.3d 833, 839-40 (Tex. App.-Dallas 2003, pet. ref'd).
        Here, the jury could have found appellant guilty as a principal based on Robinson's testimony that appellant himself used a firearm, a deadly weapon per se. Alternatively, the jury could have found appellant guilty as a party by finding appellant assisted Singleton's commission of the offense and Singleton used his foot or a firearm as a deadly weapon. Finally, the jury could have found appellant guilty as a party by concluding appellant assisted Singleton's commission of the offense and Singleton caused serious bodily injury to Dean.
        In this issue, appellant does not attack any particular element of the offense or theory of criminal responsibility. Instead, he generally attacks the credibility of the State's evidence asserting their witnesses are not worthy of belief. According to appellant, Dean's testimony is “suspect” because he had drunk three beers and possessed a pocket knife on the night of the offense. Appellant asserts Robinson's testimony is “even more questionable” because he had a prior class C misdemeanor assault conviction against a female and because there are certain discrepancies in his testimony concerning what expletives were used during the offense.         Appellant also claims there is evidence in the record showing his innocence. Specifically, appellant asserts his failure to flee when confronted by armed security guards shows he did not commit the offense. Appellant also asserts the State's failure to show he had blood on him following the attack showed he was not an assailant. Appellant further claims his statements after the offense that he just “stomped” on the victim and blaming Singleton for bringing the gun shows his innocence.         
        We conclude appellant has not directed us to any meaningful challenges to the credibility of the testimony of Dean or Robinson. Nor has he directed us to any significant evidence of his innocence. After reviewing all the evidence in a neutral light, we conclude appellant has not shown the evidence is either “too weak” to support the jury's verdict or the jury's verdict is against the great weight and preponderance of the evidence. We resolve the first issue against appellant.
        In his second issue, appellant contends the trial court erred in including a deadly weapon finding in its judgment. The jury was charged it could find appellant guilty by concluding he committed robbery and either caused serious bodily injury or caused bodily injury and used or exhibited a deadly weapon. The jury was also charged on the law of the parties. The jury was not given a special issue on whether appellant used a deadly weapon in the commission of the offense. The jury returned a general verdict of guilty as charged in the indictment.
        The trier of fact is responsible for making the affirmative finding concerning use or exhibition of a deadly weapon. Ex parte Thomas, 638 S.W.2d 905, 907 (Tex. Crim. App.1982). Therefore, when the jury is the trier of fact, the jury must make the finding. Adams v. State, 685 S.W.2d 661, 671 (Tex. Crim. App. 1985); Thomas, 638 S.W.2d at 907. The finding must be express; an implied finding will not suffice. Lafleur v. State, 106 S.W.3d 91, 98 (Tex. Crim. App. 2003). The jury can make an express affirmative deadly weapon finding: (1) by finding the defendant guilty as charged in the indictment if the indictment alleges use of a deadly weapon; (2) by finding the defendant guilty as charged in the indictment if the indictment names a weapon that is a deadly weapon per se; or (3) by making an affirmative finding to a special issue on use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App.1985). A jury can also make a deadly weapon finding by finding appellant guilty of a lesser included offense if the offense is a homicide offense and the indictment alleges use of a deadly weapon. See Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2010); id. at 666 (Hervey J. concurring).
        In the instant case, the indictment contained two paragraphs, both alleging that appellant committed aggravated robbery. The first paragraph alleged appellant committed aggravated robbery by committing robbery and intentionally and knowingly causing serious bodily injury to Dean by striking him with his foot. It did not contain a deadly weapon allegation. The second paragraph did allege appellant used a deadly weapon. The question is whether the jury expressly found appellant used a deadly weapon, not whether they would have so found if so charged. Because the jury's verdict does not specify whether the jury found appellant guilty under the first or second paragraph and because the first paragraph did not require the jury to consider any deadly weapon allegations, we cannot conclude the jury made an express finding as to use of a deadly weapon.   See Footnote 1  Patterson v. State, 950 S.W.2d 196, 198-99 (Tex. App.-Dallas 1997, pet. ref'd); Weaver v. State, 855 S.W.2d 116, 122 (Tex. App.-Houston [14th Dist.] 1993, no pet) .         We recognize the first paragraph did require the jury to find appellant caused serious bodily injury by striking complainant's head and face with his foot. A deadly weapon is anything in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Penal Code Ann. § 4.07(a)(17)(B) (West 2003). Nevertheless, neither the indictment, nor the application paragraph, nor the verdict with respect to this paragraph alleged the foot was a deadly weapon. Thus, we cannot conclude the jury's finding of guilt constitutes an express affirmative finding. Cf. Crumpton, 301 S.W.3d. at 664 (Tex. Crim. App. 2010) (deadly weapon finding appropriate when jury found the appellant guilty of a lesser homicide offense as included in the indictment when murder indictment included a deadly weapon allegation). We conclude the trial court erred in including a deadly weapon finding in its judgment. Therefore, we reform the judgment to delete the deadly weapon finding.
        In his third issue, appellant contends the trial court erred in admitting prejudicial photographs into evidence. At trial, the State introduced nine photographs of Dean taken at the hospital following the attack. Appellant objected that the photographs were “more prejudicial than probative.” The trial court overruled the objection and admitted the photographs. On appeal, appellant asserts the trial court abused its discretion in doing so. He concedes the photographs were relevant to whether Dean suffered serious bodily injury and thus to a fact of consequence. However, he asserts the photographs were so gruesome and horrific that they were likely to impress the jury in some irrational, but indelible way.
        Rule 403 allows for the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. See Tex. R. Evid. 403. In the context of the trial court's admitting photographs, we should consider: the number of photographs, the size of the photographs, whether they are in color or black and white, the detail shown in the photographs, whether the photographs are gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photographs to the appellant's detriment. Shuffield v. State, 189 S.W.3d 782, 786-87 (Tex. Crim. App. 2006).
        Here, appellant complains of the admission of nine photographs into evidence. The photographs were relevant to show Dean suffered serious bodily injury. The photographs are 8 x 10 and although the photocopies in our record are black and white, we will assume those presented to the jury were in color. Appellant complains the photographs are unfairly prejudicial because they are gruesome and “horrific.” However, other than the fact the victim is intubated, the photographs show no more than the injuries the victim suffered. Because the gruesomeness of the photographs emanates from nothing more than the crime itself, we cannot conclude the trial court abused its discretion in admitting them. See Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). We resolve the third issue against appellant.
        In his fourth issue, appellant asserts he received ineffective assistance of counsel. Appellant filed a motion for new trial asserting the verdict was contrary to the law and evidence. He also requested a new trial in the interests of justice. The motion did not itself allege ineffective assistance of counsel. However, the motion referenced his trial counsel's affidavit in which trial counsel states he did not provide “effective representation.” Counsel then lists several acts and omissions that he now believes were in error.   See Footnote 2  The trial court did not conduct a hearing within seventy-five days of sentencing and the motion was overruled by operation of law.
        To prevail on an ineffective assistance of counsel claim, an appellant must first show that his counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Specifically, an appellant must prove, by a preponderance of the evidence, that his counsel's representation fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833. Claims of ineffective assistance must be firmly founded in the record. Bone, 77 S.W.3d at 834.
        To establish his claim of ineffective assistance, appellant relies entirely on the affidavit attached to the motion for new trial. However, this affidavit was not introduced into evidence at a timely hearing. An affidavit in support of a motion for new trial must be offered into evidence at a hearing to be considered on appeal. Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); Jackson v. State, 139 S.W.3d 7, 21 (Tex. App.-Fort Worth 2004, pet. ref'd). Although the trial court allowed the affidavit be admitted for “record purposes only” at an untimely hearing on the motion for new trial, this Court cannot consider any evidence introduced at an untimely motion for new trial hearing. Parmer v. State, 38 S.W.3d 661, 667 (Tex. App.-Austin 2000, pet. ref'd); Johnson v. State, 925 S.W.2d 745, 748 (Tex. App.-Fort Worth 1996, pet. ref'd). We conclude appellant has not established his claim of ineffective assistance. We resolve the fourth issue against appellant.
        We reform the judgment to delete the deadly weapon finding and affirm the judgment, as reformed.
        
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
        
Do Not Publish
Tex. R. App. P. 47
090324F.U05
 
Footnote 1 We note appellant must serve the same amount of time regardless of whether the judgment contains a finding because he was found guilty of aggravated robbery, a 3(g) offense. See Tex. Gov't Code Ann. § 508.145(d) (West Supp. 2010); Tex. Code Crim. Proc. Ann. art. 42.12, § 3(g)(F) (West Supp. 2010).
Footnote 2 He stated (1) he did not offer evidence of appellant's extreme intoxication, (2) he agreed to stipulate to the admission of Robinson's written statements which referred to the offense as a “hate crime,” (3) he “persuaded” appellant not to testify, (4) he did not object to “several objectionable instances” because he did not want to highlight prejudicial evidence, (5) he did not present evidence that appellant is bi-polar, and (6) he did not request probation at punishment.