Joseph Paul Green v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00221-CR, 04-03-00222-CR & 04-03-00223-CR
Joseph Paul GREEN,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2002-CR-2762-A, 2002-CR-6510-A & 2002-CR-6511-A
Honorable Sid L. Harle, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 18, 2004

AFFIRMED

Joseph Paul Green ("Green") appeals his convictions of aggravated robbery with a deadly weapon, felon in possession of a weapon, and aggravated assault with a deadly weapon. Green challenges the sufficiency of the evidence to support his convictions and contends that he was deprived of his right to effective assistance of counsel. We overrule Green's contentions and affirm the trial court's judgments.

Sufficiency of the Evidence

Green challenges the legal and factual sufficiency of the evidence to support his conviction of felon in possession of a weapon and the factual sufficiency of the evidence to support his convictions of aggravated robbery and aggravated assault with a deadly weapon.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment 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). The trier of fact is required to evaluate the credibility and demeanor of the witnesses and determine the weight to be given contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We are not permitted to re-weigh the evidence, rather we defer to the trier of fact's findings, particularly those based on credibility determinations. Id. at 407-09.

In this case, the complainant, Nathan Nichols, testified that he was approached by two men he did not know who complimented him on his car which Nichols was cleaning in his driveway. Green was one of the men, and Thomas Huddleston was the other man. Nichols testified that Green pulled out a handgun and demanded that he go inside with them, but he refused. Nichols testified that Green threatened to kill him. Green and Huddleston demanded Nichols's keys, but he told them the keys were inside. As Huddleston went inside Nichols's house, Nichols heard a car door slam and saw a neighbor outside. Nichols began yelling for help and for someone to call 911. As the men left, Nichols's common-law wife came outside and told Nichols that she had called 911. Nichols told her to get his cell phone. Green and Huddleston got into their car and started down the street. As Nichols was following them, he called 911 and stayed on the phone with the operator. Eventually, the police stopped Green and Huddleston, and Nichols identified them in a one-on-one identification.

Green and Huddleston testified that they went to Nichols's house to return something that Huddleston had previously purchased from Nichols but for which he was unable to pay. They testified that Nichols knew both of them. Nichols became very upset that Huddleston did not have the money and refused to accept the item back. Nichols told Green and Huddleston to meet him down the street. They drove off and waited for Nichols. When Nichols arrived, he pulled out a gun. The gun discharged, and Nichols dropped it. The gun discharged a second time. Huddleston picked the gun up, and the two men drove off. Eventually, their car was stopped by the police.

Green contends that Nichols's testimony is contradicted by other evidence; however, the testimony of Green and Huddleston is similarly contradicted. For example, Green and Huddleston testified that they never shot at Nichols's car; however, the 911 operator testified that she heard shots being fired. Although Nichols's testimony regarding the number of shots fired was contradicted by testimony regarding the number of shots the type of gun could fire and the operator's testimony that she heard only four shots, the jury could disbelieve Nichols's testimony regarding the number of shots fired while believing the testimony that shots had been fired given the operator's testimony. In addition, the State introduced expert testimony that the handgun would not fire upon being dropped. Furthermore, both Green and Huddleston admitted on cross-examination that they lied to the detective regarding their presence in the location of Nichols's house that night. Finally, the defense called Derrick Dobbins to testify that Nichols knew Green and Huddleston. Dobbins had met Green in prison and was his friend. On rebuttal, a tape-recorded conversation was introduced into evidence between Nichols and Dobbins in which Dobbins acknowledges that Nichols did not know Green or Huddleston. When Dobbins was recalled by defense counsel after the rebuttal testimony, he invoked his Fifth Amendment right and refused to testify.

The jury is the sole judge of the credibility of the witnesses. The jury chose to believe Nichols's version of the events, and Nichols's testimony is sufficient to support the convictions. Because the jury could have believed from the testimony that Green was in possession of the handgun, we need not address Green's argument regarding whether he was in possession of the shotgun located in the trunk of his car during the search.

Ineffective Assistance of Counsel

Green also contends that he was deprived of effective assistance of counsel. To prevail on a claim for ineffective assistance of counsel, Green must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, Green must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

"There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. In cases where "the alleged derelictions primarily are errors of omission de hors the record (1) rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Id.

Each of the complaints Green raises with regard to trial counsel's performance relates to the failure of trial counsel to take some action, including failing to file pre-trial motions, failing to request discovery, failing to investigate, failing to raise an issue regarding Nichols's potential involvement in drug dealing, failing to object to the State's motion in limine as being untimely, failing to understand the ballistics information, and failing to consult with an independent firearms expert. The record, however, is silent as to the reason trial counsel chose not to take those specific actions. Furthermore, the failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. Mares v. State, 52 S.W.3d 886, 891 (Tex. App.--San Antonio 2001, pet. ref'd). Trial counsel may have decided not to pursue the questioning regarding Nichols's involvement in drug dealing out of concern that it could call into question Green's possible involvement in such activity. Because the record is silent, Green has failed to rebut the presumption that trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (holding record insufficient to support claim of ineffective assistance where record was silent regarding reason counsel failed to call expert witnesses, failed to file a pre-trial motion, and failed to adequately prepare witnesses). This opinion does not preclude Green from resubmitting his ineffective assistance claim via an application for writ of habeas corpus. See Thompson, 9 S.W.3d at 814.

Conclusion

The judgments of the trial court are affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. Because an error of omission is based on a failure to take an action, unless a record is developed challenging the reason for the failure to act at a post-trial hearing, the reason for the failure to act will be outside or not revealed in the trial record.