Ples Jethro Bufford, III v. The State of Texas--Appeal from 195th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PLES JETHRO BUFFORD, III, )

) No. 08-02-00478-CR

Appellant, )

) Appeal from the

v. )

) 195th District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0151637-UN)

)

O P I N I O N

Ples Jethro Bufford, III appeals his conviction for the offense of robbery. A jury found him guilty of the charged offense, and sentenced Appellant to 14 years= imprisonment. He raises two issues: First, that the evidence is insufficient to sustain his conviction because it did not establish that Appellant caused bodily injury to the complainant by pushing her to the floor as plead in the indictment; and second, Appellant contends that he was denied effective assistance of counsel when his counsel failed to object to inadmissible evidence of a juvenile conviction. We affirm.

On April 16, 2001, Lezella Armstead and her fourteen-year-old granddaughter, V.M., returned to Mrs. Armstead=s house from a physical therapy appointment. When they pulled up to the house, V.M. got out of the car, opened the screen door, and pushed the front door open. Mrs. Armstead thought it was slightly odd that the door was unlocked since she was sure she had locked it that morning, but she assumed she just had not closed it properly. She barely entered the house and saw sitting just to her right a large pile of their belongings including a boombox, some CD=s, clothes, and a camcorder. She suspected her granddaughter had left some of her things there, but V.M.. said that she had not. Mrs. Armstead then heard a noise coming from her bedroom and, assuming it was her husband, called out his name. Instead, a person she did not recognize ran down the hall towards her.

The assailant pushed her up against the wall with his arm and began to yell at her to A[g]et in this goddamn house.@ He then pushed Mrs. Armstead to the floor, dragged her by the arm, threw her over the sofa, and demanded she give him her purse. During this time, V.M. ran out the front door and began screaming for a neighbor to help. The assailant then ran out the same door with Mrs. Armstead=s purse, which contained some cash, her driver=s license, and her cell phone. Mrs. Armstead testified that when he was pulling her on the floor, he caused her pain in her left side. She identified Appellant as the man who robbed the house in a photo lineup provided by the police, and both she and V.M. identified him in open court.

Appellant testified on his own behalf, stating that he was at home with his nephew all day and that he did not rob Mrs. Armstead=s house. Appellant also admitted to his prior criminal record including the fact that he was on probation for two burglaries at the time of the trial and that he had served one and a half years in the Texas Youth Commission for a juvenile conviction of unauthorized use of a motor vehicle.

Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence, the court must consider all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Instead, our duty is only to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. As such, any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).

In reviewing the factual sufficiency of the evidence, we must consider all the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). Instead, we review the evidence weighed by the fact finder that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove the fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). A defendant may raise a factual sufficiency challenge in one of two ways. He may allege the evidence is so weak as to be clearly wrong or manifestly unjust or, in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight of the evidence. Johnson, 23 S.W.3d at 11. We are not free to reweigh the evidence and set aside the verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility. Cain, 958 S.W.2d at 407.

Appellant asserts that there is no testimony that he caused bodily injury to Mrs. Armstead by pushing her to the floor as plead in the indictment, and that the evidence is therefore insufficient to justify the conviction. We disagree. Mrs. Armstead was specifically asked whether Appellant Apushed [her] on the floor@ in the course of this incident, and she answered affirmatively. She further stated that Appellant dragged her along the floor in addition to his other violent actions. In describing the incident generally, Mrs. Armstead testified that Appellant Astarted tussling--pulling me towards the front door and pushing me down,@ and that Awhen he was tussling and pulling me, you know, towards the front door, he caused pains.@ V.M. witnessed her grandmother struggle with Appellant and testified that he Apushed her on the ground@ and that she was Astill on the ground sliding with him@ while trying to get up. The jury could have reasonably inferred from this testimony that Appellant caused bodily injury to Mrs. Armstead during the Atussling@ and Apulling@ of the entire incident, which included his pushing her towards and dragging her along the floor. Viewed in the light most favorable to the verdict, we find that the evidence is legally sufficient to demonstrate the cause of the injury as plead in the indictment.

Appellant also appears to be arguing that the evidence is factually insufficient to demonstrate that bodily injury was caused by her being pushed towards the floor, though he offers little argument to support this contention. Weighing the contradictory evidence under the Clewis standard, we find that the testimony described above was sufficient so that the jury could find beyond a reasonable doubt that the injury was caused in the manner alleged in the indictment, and that the verdict was not against the great weight of the evidence. It is the jury=s duty to weigh contradictory testimony and decide which is more credible, and the fact that the jury reconciles contradictions in favor of the State does not make the evidence factually insufficient. See Cain, 958 S.W.2d at 410. We therefore overrule Issue One.[1]

Effectiveness of Counsel

Appellant argues in his second issue that he was denied effective assistance of counsel when his attorney failed to object to an inadmissible line of questioning regarding a prior juvenile conviction. In determining whether counsel=s representation was so inadequate as to violate Appellant=s Sixth Amendment right to counsel, we must adhere to the Strickland test developed by the United States Supreme Court and later adopted by the Texas Court of Criminal Appeals. Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To demonstrate actual ineffectiveness, Appellant must (1) show counsel=s performance was so deficient as to fall below an objective standard of reasonableness, and (2) affirmatively prove prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant must show a reasonable probability that but for counsel=s unprofessional errors, the fact finder would have had a reasonable doubt respecting guilt. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Additionally, Appellant must overcome the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2064. We must recognize that counsel is strongly presumed to have rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment. Strickland, 486 U.S. at 689, 104 S. Ct. at 2064. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. We must be hesitant in declaring counsel ineffective, based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation and the record is silent as to reasons for counsel=s actions. See Thompson, 9 S.W.3d at 814. Generally, the record on direct appeal is simply insufficient to demonstrate deficiency in counsel=s representation. Mitchell v. State, 68 S.W.3d 640, 643 (Tex.Crim.App. 2002).

Appellant has failed to prove both that counsel=s assistance fell below reasonable standards of professional conduct and that the alleged error prejudiced the jury=s decision in any way. Admittedly, the questioning and testimony regarding Appellant=s juvenile record was clearly inadmissible. See Tex.R.Evid. 609(d). However, this alone is not sufficient to find counsel=s actions ineffective. The little evidence in the record that speaks to counsel=s reasons for allowing the inadmissible testimony indicates that it was part of a sound trial strategy. In her closing argument, Appellant=s counsel stated, A[t]hat=s why the Defendant got on the stand and admitted his criminal record. He admitted, yes, I=ve been in trouble. Yes, I=ve done things that are wrong, but I didn=t write that letter, and I didn=t rob this lady.@ These statements indicate that counsel failed to object to the questioning about Appellant=s criminal record, including his juvenile conviction, in order to demonstrate his willingness to admit past wrongs in contrast to the honest denial he was making in this case. The record offers no evidence to suggest otherwise, and as such, does not affirmatively demonstrate the ineffectiveness alleged by Appellant. See McFarland, 928 S.W.2d at 500.

The second prong of the Strickland test, whether counsel=s alleged errors prejudiced the outcome, is only to be evaluated once the first has been proven. See Thompson, 9 S.W.3d at 813. Since Appellant failed to prove that counsel=s actions were deficient, analysis of the second prong is unnecessary. Taking into account the strong presumption that counsel performed within the wide range of reasonable standards, we find the record lacks sufficient evidence to declare counsel=s assistance ineffective. We therefore overrule Issue Two.

We affirm the trial court=s judgment.

August 26, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] We note that the State made an argument based on the apparent variance between the allegation of bodily injury caused by pushing complainant to the floor and the proof at trial. We agree with the State that even if a variance could be proven, the evidence would still be sufficient because the variance is immaterial under the Gollihar standard. See Gollihar v. State, 46 S.W.3d 243, 248 (Tex.Crim.App. 2001).