Affirmed and Memorandum Opinion filed November 29, 2007
Eric Lenard Smith v. The State of Texas--Appeal from 180th District Court of Harris County
Affirmed and Memorandum Opinion filed November 29, 2007.
Fourteenth Court of Appeals
ERIC LENARD SMITH, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause Nos. 1026199, 1026200, 1026201 and 1026202
M E M O R A N D U M O P I N I O N
Eric Lenard Smith appeals a conviction for the aggravated kidnapping of Veronica Armendariz and three convictions for the aggravated robbery of Armendariz, Jeffrey Escobar, and Natalie Goffney, respectively, on the grounds that (1) the evidence was legally and factually insufficient to support his convictions; and (2) he was denied effective assistance of counsel during both the guilt/innocence and punishment phases of the trial. We affirm.
Sufficiency of the Evidence
In reviewing legal sufficiency, we view all of the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the rational inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, __ S.W.3d __, __ (Tex. Crim. App. 2007). In reviewing factual sufficiency, we view the evidence in a neutral light to determine whether the evidence supporting the verdict is so weak, or so outweighed by the contrary evidence, that the verdict is clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S.Ct. 282 (2007).
In this case, for each of the four offenses, appellant contends that the evidence is legally insufficient because it fails to show that he: (1) participated in the offense; (2) used or exhibited a firearm during the offense; or (3) was criminally responsible for the conduct of his co-defendants, Jerry Medel and Leslie Rodriguez. The jury charge for each offense authorized the jury to convict appellant if Medel or Rodriguez committed the offense, using or exhibiting a firearm, and appellant, with the intent to assist the commission of the offense, aided or attempted to aid Medel or Rodriguez in committing it.
The record contains evidence that at around 3:30 a.m. on May 7, 2005: (1) the complainants drove to Escobar=s apartment and parked and exited their vehicles; (2) as Goffney, her boyfriend, Hugh Ausobsky, and Escobar headed toward Escobar=s apartment, Armendariz stayed behind to retrieve some items from her car; (3) Medel exited a Matrix (automobile) that had followed the complainants into the parking lot, approached Goffney, Escobar, and Ausobsky, and pulled out a gun; (4) while pointing the gun at Escobar, Medel demanded that Escobar, Goffney, and Ausobsky hand over their belongings; (5) Rodriguez and appellant also got out of the Matrix and followed Medel, and, while Rodriguez yelled at everyone to get on the Afloor,@ she started taking Goffney=s shirt and shoes; (6) appellant also started taking the complainants= belongings, among which was Escobar=s pocket knife that appellant opened and pointed at Escobar and then at Ausobsky, while continuing to collect their property; (7) while Escobar, Goffney, and Ausobsky were laying on the floor, appellant, Medel, and Rodriguez were yelling at them, and appellant and Medel kicked Escobar several times hard in the side and back; (8) appellant then approached Armendariz and inquired aggressively about what she had in her bag; (9) Rodriguez joined appellant, demanded Armendariz=s shirt and belt, then pulled the shirt off and hit and kicked Armendariz; (10) although Medel instructed Rodriguez and appellant to take off and leave Armendariz at the scene, appellant pushed Armendariz into the Matrix and the three then took off with Armendariz; (11) as Medel drove out of the parking lot, Armendariz was sitting arched over with her head placed in a 20-pack beer box with appellant sitting next to her; (12) while in the car, Armendariz felt appellant holding something that felt like a cold gun against the back of her ear, which caused her painful scratches, and appellant also threatened her sexually and grabbed her breasts, causing bruises; (13) although Armendariz was not sure whether appellant had exhibited a gun or knife when he first approached her in the parking lot, she was sure appellant had a gun during the car ride; (14) when the Matrix was soon thereafter stopped by police for a traffic violation, Rodriguez and Armendariz were still inside, and appellant and Medel attempted to flee on foot, but were quickly captured; (15) after Goffney, Ausobsky, and Escobar were brought to the scene, each of them separately identified appellant, Medel, and Rodriguez as the robbers and identified their property that had been recovered from the Matrix; and (16) at trial, Goffney, Ausobsky, and Escobar identified Medel and appellant as the robbers. Because the foregoing evidence shows that appellant actively participated and assisted in the robbery and kidnapping, during which a gun was exhibited and used to threaten the complainants, the evidence is legally sufficient to support appellant=s convictions.
In support of his factual sufficiency challenge, appellant contends that: (1) some or all of the complainants stated that appellant had no gun and didn=t threaten them with a gun; (2) the complainants contradicted each other about various details, such as which robber threatened them with a knife; (3) Armendariz could not positively identify appellant and Medel as the robbers; (4) appellant was not the driver of the Matrix; (5) appellant appeared to be inebriated and thus unfocused and lacking in intent to be responsible for the acts of the co-defendants; (6) none of the witnesses saw appellant kidnap Armendariz; (7) Armendariz never actually saw a gun being held to the back of her head and did not mention a gun being put to the back of her head in her handwritten statement; and (8) because all of the witnesses agreed that it was Medel who had the gun, it was possible that appellant was acting involuntarily and under duress. However, even if these contentions are supported by the record, they are either not probative of whether appellant participated in the robbery and kidnapping or are not of such a magnitude as to render the evidence factually insufficient. Therefore, appellant=s first two issues, challenging the legal and factual sufficiency of the evidence, are overruled.
Appellant=s third issue asserts that he was denied effective assistance of counsel at the guilt/innocence phase of trial because his counsel failed to: (1) file a motion for an investigator; (2) file a motion for severance; (3) ask questions during voir dire on the law of parties; (4) make an opening statement; (5) object to improper jury argument; and (6) poll the jury. Similarly, appellant=s fourth issue claims that he received ineffective assistance of counsel during the punishment phase of trial because his counsel failed to file a motion for severance and failed to object to improper closing argument.
To prevail on an ineffective assistance claim, appellant must show that: (1) his trial counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Wiggins v. State, 539 U.S. 510, 521, 534 (2003); Cannon v. State, __S.W.3d __, __ (Tex. Crim. App. 2007). A trial counsel=s ineffectiveness must be affirmatively demonstrated by the record, and the record must ordinarily reflect the reasons for counsel=s actions in order to rebut the presumption that those actions were reasonable. See Mata v. State, 226 S.W.3d 425, 430-31 (Tex. Crim. App. 2007). To warrant reversal where, as here, trial counsel has not been afforded an opportunity to explain those reasons, the challenged conduct must be so outrageous that no competent attorney would have engaged in it. Roberts, 220 S.W.3d at 533-34.
In this case, appellant contends that an investigator could have investigated the background of the co-defendants to determine whether or not a motion for severance needed to be filed. However, appellant acknowledges that his prior appointed counsel filed a motion for an investigator, and the record does not reflect whether an investigation was done or what information was provided. The record thus fails to show that appellant=s retained attorney did not have an investigator or what, if any, information an investigation would have revealed that his attorney did not have.
Appellant also contends that his counsel should have filed a motion for severance to prevent the prejudicial effect of Medel=s prior felony convictions and the fact that Medel was more culpable and the instigator of the robberies. Although appellant may have been entitled to a severance, he has failed to show what evidence could have been excluded, or other procedural advantage gained, if appellant had been tried alone rather than with Medel. Additionally, appellant fails to consider that he, too, had a substantial prior criminal record and that his trial counsel could have thought that he would receive a lesser sentence or otherwise gain sympathy from the jury if he was tried with a more aggressive co-defendant.
Appellant further asserts that his counsel was ineffective in failing to ask questions during voir dire concerning the law of parties. However, appellant fails to indicate: (1) what matters concerning the law of parties counsel should have asked about that had not already been covered by the prosecutor; or (2) what responses would have been given by the venire panel members who sat on the jury that might have caused appellant to challenge them for cause or to use his peremptory strikes on them rather than the other panel members he actually struck.
Appellant similarly contends that his trial counsel should have made an opening statement to challenge the State=s case and be an advocate for appellant. Again, however, appellant fails to specify what aspects of the State=s case could have been weakened with opening statement or what aspects of his defense could have been better advocated with an opening statement; and appellant ignores the tactical reasons for not giving an opening statement.
Appellant also argues that counsel should have polled the jury to assure that the guilty verdict was unanimous. However, appellant cites no evidence suggesting that any juror might have answered in the negative if polled or otherwise indicating a reasonable probability that polling the jury would have produced a different outcome.
Lastly, appellant contends that his trial counsel should have objected to improper jury argument during both the guilt/innocence and punishment phases of trial. Yet, appellant fails to cite authority that the unchallenged arguments were actually improper and fails to indicate how an objection to these arguments, even if sustained, could have produced a better outcome than refraining to object in order, for example, to avoid drawing more attention to the arguments.
Because appellant=s third and fourth issues thus fail to demonstrate ineffective assistance of counsel, they are overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Judgment rendered and Memorandum Opinion filed November 29, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.*
Do not publish C Tex. R. App. P. 47.2(b).
 A jury found appellant guilty in all four cases and sentenced him to twenty years confinement for each aggravated robbery and to forty years confinement for the aggravated kidnapping.
 Although present during the offenses, Ausobsky was not a complainant in these cases.
 See Tex. Code. Crim. Proc. Ann. art. 36.09 (Vernon 2007) (stating that upon a timely motion to sever, the court shall order a severance when there is evidence showing that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant).
 See Miles v. State, 644 S.W.2d 23, 25 (Tex. App.CEl Paso 1982, no pet.) (acknowledging that there could be trial strategy in trying someone with a better record in a case with a person with prior convictions in hopes of receiving a lighter sentence).
 See Goodspeed v. State, 187 S.W.3d 390, 392B93 (Tex. Crim. App. 2005) (holding that, in the absence of a record of counsel=s reasons for his actions, failure to ask any questions in voir dire was not so outrageous that no competent attorney would have engaged in it).
 See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.CFort Worth 1996, no pet.) (acknowledging that because presenting an opening statement provides the State with a preview of the defense strategy, the failure to present an opening statement is a valid tactical decision).
 See McDade v. State, No. 06 01 00134 CR, 2002 WL 31719501, at *5 (Tex. App.CTexarkana Dec. 5, 2002, no pet.) (not designated for publication) (holding that failure to request polling was not ineffective assistance where record did reflect a need for polling).
 See Pittman v. State, 9 S.W.3d 432, 436 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (stating that a trial counsel=s decision not to properly preserve error may have been to prevent drawing attention to the matter).
* Senior Justice Richard H. Edelman sitting by assignment.