Gerald Wayne Jefferson v. The State of Texas--Appeal from 228th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-099-CR

GERALD WAYNE JEFFERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 228th District Court

Harris County, Texas

Trial Court # 607,785

O P I N I O N

This is an appeal by Appellant Jefferson from his conviction for aggravated robbery, enhanced by one prior felony conviction, for which he was assessed 40 years in the Institutional Division of the Texas Department of Criminal Justice.

Frederick Houghton was driving home in Houston on May 15, 1991, when he was pulled over to the side of the road in response to a car behind him flashing a blue light. Appellant exited the car which had pulled Houghton over, with a gun in one hand and a flashlight in the other hand, identified himself as a police officer, and then held the gun to Houghton's head and robbed him of his wallet, jewelry and a beeper.

Trial was to the court without a jury. Appellant was found guilty and assessed 40 years in the penitentiary.

Appellant appeals on three points:

Point one asserts that Appellant's court-appointed counsel denied Appellant effective assistance of counsel by counsel's commission of various acts and omissions which, taken together, denied Appellant constitutionally satisfactory legal services, and by failing to provide Appellant with reasonably effective legal assistance.

The standard of review for effectiveness of counsel is gauged by a totality of the representation of the accused. Harrison v. State, (Tex. Crim. App.) 552 S.W.2d 151, 152. The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight, rather, the right to effective assistance of counsel means counsel reasonably likely to render reasonably effective assistance of counsel. Ex parte Cruz, (Tex. Crim. App.) 739 S.W.2d 53, 57-58. Thus, to obtain a reversal because of ineffective assistance, Appellant must show (1) that counsel's performance was so deficient that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687; Hernandez v. State, (Tex. Crim. App.) 726 S.W.2d 53, 56-57. Appellant carries the burden of proving ineffective assistance by a preponderance of the evidence. Cannon v. State, (Tex. Crim. App.) 668 S.W.2d 401, 403.

In point of error one Appellant alleges thirteen instances in which his trial lawyer purportedly provided ineffective assistance of counsel:

(1) Appellant complains his trial counsel was ineffective because he met with Appellant only twice before trial and refused additional meetings. Appellant, however, does not show why the two meetings were insufficient in order to prepare for trial, nor does he describe what additional information, if any, he would have imparted to his trial counsel had additional meetings occurred. Thus, Appellant has failed to demonstrate to this court that, but for counsel's failure to meet further with him, the result of his trial would have different. Strickland, supra, p. 687.

(2) Appellant claims trial counsel was ineffective because he purportedly failed to follow up on leads that the State's principal witness had been coerced and shown a solitary picture of Appellant not in a photo array, but by a detective prior to the lineup. There is no evidence of any witness being coerced or the occurrence of any improper identification procedure. Allegations of ineffective counsel will be sustained only if they are founded in the record. Harrison v. State, (Tex. Crim. App.) 552 S.W.2d 151, 152.

(3) Appellant claims that trial counsel was ineffective because he failed to request production of the contract the State alleged he entered into under Houghton's name to activate a cellular telephone service. Appellant has not shown how the result of the trial would have been different if his trial counsel had requested production of this contract. See Strickland, supra. Trial counsel has not been shown to be ineffective in this respect.

(4) Appellant asserts trial counsel was ineffective because he failed to object to some "leading and bolstering" questions posed to the State's witnesses by the prosecutor. The record reveals that the questions were all innocuous and did not suggest to Houghton that he answer in a certain way. Trial counsel's failure to object could not have affected the result of Appellant's trial.

(5)Appellant claims his trial counsel was ineffective because, on cross-examination of Houghton, he asked, "Was this a drug deal that went bad for you?" Houghton answered, "No." There is no showing that this question could, in any way, render trial counsel ineffective or change the result of the trial.

(6) Appellant claims trial counsel was ineffective because he failed to call any character or alibi witnesses. Appellant does not show that any alibi or character witnesses were available. For counsel to be rendered ineffective for failing to cause certain witnesses, Appellant must show that the witnesses were available and that their testimony would be beneficial to Appellant. Wilkerson v. State, (Tex. Crim. App.) 726 S.W.2d 542, 554.

(7) Appellant claims trial counsel was ineffective because he did not interview any defense witnesses prior to the day of trial. This assertion is not supported by any evidence in the appellate record. Appellant makes this claim on an affidavit he had attached to his brief. This court cannot consider documents attached to an appellate brief that are not in the record. Martin v. State, (Tex. Crim. App.) 492 S.W.2d 471, 472.

(8) & (9) Appellant claims trial counsel was ineffective because he did not tell Appellant the time of robbery until the morning of the trial, and because two alibi witnesses who appeared were not used because their alibis were for the wrong day. These claims are not supported by the record, only in documents attached to Appellant's brief which cannot be considered. Martin, supra.

(10) Appellant contends that trial counsel was ineffective because he called a witness whose testimony only strengthened the State's case. There is no showing how this testimony strengthened the case of the State or weakened his own case.

(11) Appellant contends that trial counsel was ineffective because he failed to object to the State's purposeful misstatements of the evidence in its questions and closing argument. Appellant does not inform us of which statements he considers to be misstatements of the evidence. Nothing is presented for review.

(12) Appellant claims that trial counsel was ineffective because he was allegedly mistaken about the time of the robbery and failed to request a continuance. There is no evidence in the record that trial counsel ever held a mistaken belief as to when the robbery occurred.

(13) Appellant contends that trial counsel was ineffective because he did not call witnesses to testify that Appellant already had access to cellular telephone services prior to the robbery. Whether Appellant had access to cellular telephone service prior to the robbery of Houghton would not make the result of Appellant's trial different.

Point one is overruled.

Point two asserts the evidence is insufficient to establish that a robbery was committed or that Appellant committed the act.

In reviewing the sufficiency of the evidence to support a conviction, the evidence is viewed in the light most favorable to the verdict. Flournoy v. State, (Tex. Crim. App.) 668 S.W.2d 380, 383. The critical inquiry is whether, after reviewing the evidence in the light most favorable to the verdict, any rational of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 319; Moreno v. State, (Tex. Crim. App) 755 S.W.2d 866, 867.

Houghton testified he was removed from his car by a man pointing a gun at him, and that he was then made to get into the man's car and was driven around until being released after some forty minutes. During this time the man took Houghton's wallet, beeper and jewelry. Thereafter, Houghton identified Appellant in a photo array, as well as in a lineup and at trial, as the man who robbed him. Houghton testified he was "absolutely positive" that Appellant was the person who robbed him.

The jury is the sole judge of the credibility of the witnesses and may believe all, part or none of any witness's testimony. Losada v. State, (Tex. Crim. App.) 721 S.W.2d 305, 309. The evidence is sufficient to sustain Appellant's conviction.

Point two is overruled

Point three asserts that the trial court erred in admitting hearsay evidence. At trial the State called Jimmy Powell, the owner of a cellular phone store. The State asked Powell, "Just tell us what your contact was with Mr. Jefferson." Powell replied, "John Stanley (Powell's employee) came in one day and said." Appellant's counsel said, "Objection hearsay." The court overruled the objection and permitted Powell to answer. Powell then answered, "John Stanley came in and said that Appellant's uncle needed a phone activated."

The trial court did not err in admitting the statement because it was not offered to prove the truth of the matter asserted, but only to prove how Powell became acquainted with Appellant. Livingston v. State, (Tex. Crim. App.) 739 S.W.2d 311, 311. In any event, the statement was not prejudicial to Appellant because it did not even refer to him. It was a comment only regarding Appellant's uncle.

Point three is overruled and the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed

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