Burrow, Robert v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed November 23, 2005

Affirmed and Memorandum Opinion filed November 23, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00425-CR

NO. 14-04-00426-CR

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ROBERT BURROW, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 983,040 & 983,041

_________________________________________________________

M E M O R A N D O M O P I N I O N

Appellant, Robert Burrow, appeals his convictions for robbery and aggravated assault. In five issues, appellant claims that (1) the trial court erred by refusing to grant his request to shuffle the jury venire, (2) the trial court erred by failing to submit a reasonable-doubt instruction regarding extraneous offenses during the punishment phase, (3) appellant was denied effective assistance of counsel, (4) the evidence is legally insufficient, and (5) the evidence is factually insufficient. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

On May 22, 2003, complainant, Donna Robin, stopped at a gas station in Houston, Texas. She was cleaning her windshield when she noticed appellant taking her purse and briefcase from the front passenger side of her car. Appellant attempted to flee, but Robin pursued him. She threw the squeegee at appellant=s legs, causing him to trip. They both fell down and struggled over the purse and briefcase. Robin cried for help, and appellant ran off, leaving the stolen items behind.

Rueben Ramos was making a delivery at the gas station that morning and saw the struggle. He pursued appellant as appellant fled from the scene. Ramos caught up with appellant and tackled him. During the ensuing struggle, appellant pulled a knife. Two other people helped Ramos take the knife away and detain appellant until the police arrived. A jury found appellant guilty of robbery and aggravated assault. Punishment was assessed at twenty years= confinement for the robbery, and thirty years= confinement for the aggravated assault.

II. Jury Shuffle

In his first issue, appellant claims that the trial court erred by refusing to grant his timely request for a jury shuffle. We agree. A defendant has an absolute right to have the jury venire shuffled upon timely demand. Tex. Code Crim. Proc. Ann. art 35.11 (Vernon Supp. 2005); Williams v. State, 719 S.W.2d 573, 575 (Tex. Crim. App. 1986). A motion for jury shuffle is timely if it is made before the commencement of voir dire. Williams, 719 S.W.2d at 575. Voir dire begins when the State is recognized by the court and begins its examination, after the jurors have been qualified and the court has made its preliminary remarks. Id. at 577. Here, the trial court had introduced the parties and had begun to explain the voir dire process when appellant made his request to shuffle. The State had not yet been recognized, and the venire members had not yet been questioned. Accordingly, we find that appellant=s motion was timely made, and the trial court erred by denying the motion.

We will reverse a trial court=s improper denial of a motion to shuffle the jury only if we find that appellant was harmed by the error. Ford v. State, 73 S.W.3d 923, 924B25 (Tex. Crim. App. 2002). The right to a jury shuffle is statutory, not constitutional. Id. at 924; Tex. Code Crim. Proc. Ann. art 35.11. Harm is caused by nonconstitutional error if one of the defendant=s substantial rights was affected. Ford, 73 S.W.3d at 924B25. However, in Ford, the Court of Criminal Appeals held that a harm analysis focusing on the outcome of a case is Anot quite apt in the context of a case in which the jury itself is the object of the error.@ Id. at 926. The relevant inquiry is therefore Awhether the jury shuffle statute=s purpose was thwarted by the error.@ Id.

Here, the trial court erred by denying appellant the opportunity to use the jury shuffle as a strategical tool. See Wilkerson v. State, 681 S.W.2d 29, 30 (Tex. Crim. App. 1984) (holding that denying a defendant his right to a jury shuffle after the trial court shuffled the jury panel sua sponte would Athwart the very intent behind the passage of the statute@); Roberts v. State, 139 S.W.3d 1, 2 (Tex. App.CTyler 2003, pet. ref=d) (noting that trial court=s erroneous sua sponte shuffle Adeprived Appellant of a tactical advantage@). However, the purpose of a jury venire shuffle is to ensure compilation of a random list of jurors. Ford, 73 S.W.3d at 926. When the venire panel is assembled in random order, a trial court=s erroneous denial of a demand to shuffle does not militate the conclusion that the listing was nonrandom. Id. Appellant does not point to, and we do not find, any indication in the record that the listing of the panel members was not random. Indeed, when the judge asked whether there were any objections to the jury as seated, counsel for appellant replied that he had no objections.[1] In the absence of any indication that the process of assembling the jury panel was subverted in some way to achieve a nonrandom listing, we find that, under Ford, no harm was shown. See id. Accordingly, appellant=s first issue is overruled.

III. Reasonable Doubt Instruction

In his second issue, appellant contends that the trial court erred by omitting a reasonable doubt instruction for extraneous offenses during the punishment phase. The State may offer punishment phase evidence as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a) (Vernon Supp. 2004). When evidence of extraneous offenses or bad acts is admitted during the punishment phase, the trial court is required to instruct the jury sua sponte on the reasonable doubt standard of proof. Huizar v. State, 12 S.W.3d 479, 482B84 (Tex. Crim. App. 2000).

Here, the State introduced evidence implicating appellant in two purse-snatching incidents that occurred earlier in the same area on the same day. The trial court failed to instruct the jury on the State=s burden of proof under article 37.07. Accordingly, we hold the trial court erred by failing to give the required instruction. See Huizar, 12 S.W.3d at 484.

However, appellant did not request the instruction, nor did he object to the trial court=s omission. In the absence of a request or objection, jury charge error does not require reversal unless Aegregious harm@ is found. Id. at 484B85; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Egregious harm exists when an error is so great that it deprives the defendant of a fair and impartial trial. Almanza, 686 S.W.2d at 171. This degree of harm can be found when an error affects the very basis of a case, deprives the defendant of a valuable right, vitally affects a defense theory, or makes the case for punishment clearly and significantly more persuasive. Mathews v. State, 999 S.W.2d 563, 565 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The reviewing court must determine the actual harm in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record. Almanza, 686 S.W.2d at 171.

The State presented evidence that a 73-year old woman had been the victim of a theft approximately one hour before the gas station robbery. The perpetrator of the described theft exited a Volkswagen Passat,[2] and items from the woman=s purse were found at the gas station. The victim was not able to identify appellant as the assailant.

The State provided further evidence that approximately one hour before the gas station robbery, someone attempted to steal another woman=s purse in the same area. Again, a Volkswagen Passat was used during commission of the crime, but the victim stated that appellant was not the person who took her purse, and she could not identify appellant as the driver of the Passat.

Appellant denied any involvement in the other two offenses. Appellant also claimed that he did not know the man in the Passat but, instead, had accepted a ride from him immediately before the gas station robbery. However, appellant did not contest the fact that items from a victim=s purse were found on the ground near where he and the complainant had struggled. Further, a detective testified that although there was not enough evidence to charge appellant with the other two offenses, he believed appellant was involved.

After reviewing this evidence and the record as a whole, we conclude that appellant did not suffer egregious harm by the trial court=s failure to supply a reasonable doubt instruction during the punishment phase. The State provided substantial circumstantial evidence from which a jury could have concluded beyond a reasonable doubt that appellant committed the extraneous offenses. In addition, although the prosecutor referenced the extraneous offense evidence at the end of her closing argument and suggested appellant was on a Arobbery spree,@ the primary focus of her argument was on appellant=s prior criminal convictions and the multiple excuses he gave for his behavior. See Allen v. State, 47 S.W.3d 47, 51B53 (Tex. App.CFort Worth 2001, pet. ref=d) (finding no egregious harm based on the totality of the evidence and notwithstanding the State=s use of extraneous offenses in punishment argument).

Moreover, the range of punishment for both the aggravated assault and the robbery was confinement from 5 to 99 years or life. See Tex. Penal Code Ann. '' 12.32, 12.42(b), 22.02(b), 29.02(b) (Vernon 2003 & Supp. 2005). The jury=s punishment assessment, twenty years for the robbery and thirty years for the aggravated assault, fell at the lower end of the range of punishment. See Tabor v. State, 88 S.W.3d 783, 789 (Tex. App.CTyler 2002, no pet.) (finding no egregious harm when sentence was Awell-within@ the punishment range for the offense). Therefore, we can not conclude that appellant was egregiously harmed. Appellant=s second issue is overruled.

III. Ineffective Assistance of Counsel

In his third issue, appellant contends that he was denied effective-assistance-of-counsel because his attorney failed to object to the trial court=s omission of the reasonable-doubt instruction during the punishment phase. In evaluating an ineffective-assistance-of-counsel claim, we apply a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, we must determine whether the attorney=s performance was deficient, i.e., that the performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687B88. If we find the attorney=s performance deficient under the first prong, then we must determine whether the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687.

An isolated instance of failure to object does not necessarily render counsel ineffective. Johnson v. State, 629 S.W.2d 731, 736 (Tex. Crim. App. 1981); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (AAn appellate court should be especially hesitant to declare counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel=s actionsCwhether those actions were of strategic design or the result of negligent conduct.@). Here, the record as a whole reflects that appellant was afforded reasonably effective assistance of counsel. There is no evidence on record indicating the strategy appellant=s attorney employed at trial, and appellant does not point to any other instance which would tend to show that the attorney=s performance was deficient. Accordingly, appellant has not overcome the strong presumption that the attorney=s decision fell within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814; Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.CSan Antonio 2000, pet. ref=d.) (finding ineffective assistance claim based on counsel=s failure to request reasonable doubt instruction during punishment a Amoot consideration@ after Thompson).

Even if counsel=s performance were deficient under the first prong, appellant was not deprived of a fair and impartial trial. As previously discussed, we find no Areasonable probability@ that the result of the proceedings would have been different if the jury had received the reasonable-doubt instruction. Appellant=s third issue is overruled.

IV. Legal and Factual Sufficiency of the Evidence

In appellant=s fourth and fifth issues, he challenges the legal and factual sufficiency of the evidence to support his conviction for robbery. In reviewing the evidence for legal sufficiency, we must view all evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We must resolve any inconsistencies in the testimony in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence may be factually insufficient if the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or when contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).

A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. ' 29.02(a)(1) (Vernon 2003). ABodily injury@ is defined as Aphysical pain, illness, or any impairment of physical condition.@ Tex. Penal Code Ann. ' 1.07(a)(8) (Vernon Supp. 2005). Appellant contends that there was insufficient evidence to support the jury=s finding that appellant caused bodily injury.

At trial, the complainant testified that appellant was pushing her arm and pushing her away while he was pulling on her purse to try to get it back from her. She also testified that although she did not have to see a doctor and it was Anothing major at all,@ her arm was sore, her ankle was bruised, and the injuries caused her Aregular pain.@

Viewing all evidence and resolving all inconsistencies in favor of the verdict, we find the complainant=s testimony legally sufficient to support the jury=s finding that appellant caused bodily injury as defined by the Texas Penal Code. See Lane v. State, 763 S.W.2d 785, 786B87 (Tex. Crim. App. 1989) (holding evidence legally sufficient to prove bodily injury during the commission of a theft when appellant caused a bruise by twisting wallet out of victim=s hands); Lewis v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (holding evidence of bodily injury legally sufficient when appellant caused a small bruise by twisting the victim=s arm back as he tried to take her briefcase). Appellant=s fourth issue is overruled.

Viewing the evidence in a neutral light, we also find the evidence factually sufficient. Although the offense report indicated that the complainant was Aunharmed@ by the incident, and a police officer testified that she told him she Adid not feel that she injured,@ the record also indicates that she was not asked whether she felt any physical pain at that time. A rational jury could have interpreted the complainant=s statement as an indication that she was not seriously injured, but concluded beyond a reasonable doubt from her testimony that she sustained physical pain that amounted to Abodily injury.@ We are not free to reweigh the evidence and substitute our interpretation for that of the fact finder. Santellan v. State, 939 S.W.2d 155, 164B65 (Tex. Crim. App. 1997). Accordingly, appellant=s fifth issue is overruled.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 23, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

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

[1] The State argues that appellant=s statement that he had no objection to the jurors as seated waives any error on appeal. However, the State cites cases in which a pretrial motion to suppress was overruled and the defendant affirmatively asserted that he had no objection when the evidence was offered at trial. See, e.g., Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). The State does not cite, and we have not found, any cases addressing waiver in the context of the defendant=s absolute statutory right to a jury shuffle. Because the record reflects both the appellant=s timely request for the shuffle and the court=s denial of that request, we find that error was sufficiently preserved. See Tex. R. App. P. 33.1(a). Appellant=s subsequent response that he had no objection to the jury as seated is, however, relevant to the harm analysis.

[2] During guilt-innocence, the State presented evidence that a Volkswagen Passat was in the parking lot of the gas station during the offense in question, and that appellant appeared to know someone in the Passat.