Robin Eugene Oliver Jr. v. State of Texas--Appeal from 3rd District Court of Anderson County

Opinion filed January 17, 2008

In The

Eleventh Court of Appeals

__________

 No. 11-06-00102-CR

________

ROBIN EUGENE OLIVER JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 3rd District Court

Anderson County, Texas

Trial Court Cause No. 27196

O P I N I O N

Robin Eugene Oliver Jr. appeals his convictions by a jury of the offenses of aggravated assault and unlawful possession of a firearm by a felon. The trial court, finding enhancement paragraphs to be true, assessed his punishment at seventy-five years in the Texas Department of Criminal Justice, Institutional Division, for the offense of aggravated assault and at twenty years in the Texas Department of Criminal Justice, Institutional Division, for the offense of unlawful possession of a firearm by a felon. He contends in three issues that the evidence was legally and factually insufficient to support his convictions, that the trial court abused its discretion in permitting hearsay testimony through the State=s witnesses during the punishment phase of trial, and that he was denied effective assistance of counsel because there was a patently fatal conflict of interest due to his counsel=s representation of other defendants in the same case. We affirm.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

To prove the unlawful possession of contraband, the State must prove that the accused exercised control, management, or care over the contraband and knew that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of and control over it unless there are additional facts and circumstances that affirmatively link the accused to the contraband. Id. at 406.

Daniel T. Mogan testified that he is a sergeant with the Palestine Police Department. He said that on January 26, 2004, he was dispatched to a residence because of shots fired there. He indicated that he observed five shell casings on the front porch. He stated he knew appellant was at the residence because he spoke to him. He said that, when he asked a woman at the residence about the shell casings, she looked for a gun but failed to find it. He related that he saw two more shell casings when she moved a chair.

Sergeant Mogan testified that, while examining the exterior of the residence, he found a spent shotgun casing on the right side of the house in the driveway. He indicated there were no bullet holes in either the residence or the residence adjacent to it. He said that an individual named Sharon Sanders pulled up to the residence in a vehicle that had several bullet holes in the driver=s door. He related that he learned that the vehicle had been parked in front of the house at the time of the shooting. He acknowledged that neither the complainant nor his companions were at the scene. Steven McDaniel testified that he was a corporal with the Palestine Police Department. He said he also responded to a dispatch to go to the residence. He indicated that he was shown shell casings along the porch and a shotgun shell casing on the north side of the house. He stated that he also observed two shell casings just inside the front door. He identified other .380 caliber shell casings in the area of the porch and a shotgun shell casing and wadding, which were located in the middle of the front yard. He related that he saw appellant and his mother inside the house. He asserted that it looked like some bullets had gone into a hill on the opposite side of the road in the embankment. He said there were a couple of bullets found on the ground across the street. Corporal McDaniel testified that, when he asked appellant=s mother who had fired a gun that evening, she claimed that she did. He indicated that he performed a gun residue test on her. He said that appellant told him that he had not fired a gun. Corporal McDaniel said he also performed a gun residue test on appellant.

Corporal McDaniel testified that officers conducted a search of the residence after obtaining a search warrant. He indicated that, in searching a bedroom he identified as bedroom one, the officers found men=s clothing, as well as a few photographs belonging to appellant and correspondence addressed to him. He stated that in bedroom two they found ID cards of a Gerry or Gary Smith as well as correspondence addressed to him. He insisted that he believed that bedroom one was appellant=s bedroom.

Corporal McDaniel said that in searching bedroom one he found .9 millimeter bullets, .357 bullets, a box of .380 bullets with five remaining, a box of Winchester .40 caliber ammunition, a small bag containing ammunition for a .357 handgun, and a loaded Marlin .22 rifle.

Brian Wharton testified that he is the assistant chief of police for the City of Palestine. He indicated that on the occasion in question he directed that the residence be secured until a search warrant could be procured. He said that after doing so he went to the hospital where he observed the complainant. He related that the complainant was bandaged in the face and eyes, had small puncture wounds in his face, and had some swelling on a portion of his face. He stated that no gunshot residue test was performed on the complainant. Assistant Chief Wharton confirmed the finding of the ammunition and the .22 rifle in bedroom one, which he believed to be appellant=s bedroom. Assistant Chief Wharton testified that he obtained two .380 bullets from a berm across the street from the residence.

Demond Owens testified that she was the girlfriend of John Venable and the aunt of the complainant. She also indicated that she was appellant=s cousin. She related that on the day in question, after Venable made a phone call to appellant, she and Venable went to appellant=s house at about 8:00 or 9:00 p.m. She said appellant had a room in the back of the house. She said that she and Venable stayed at the residence waiting for appellant because he was not there.

Demond testified that, after appellant arrived, Venable and some others went to the back bedroom. She indicated that, when they came back, Venable had a gash in his forehead and said to appellant, AYou didn=t have to do this to me.@ She related that, when she asked appellant what was going on, he replied, ADon=t worry about it, cuz. Don=t worry about it. It=s all taken care of now. It=s paid for.@ She stated that appellant=s mother told her that Venable owed appellant money for some stuff he got. Demond said she guessed they were talking about dope.

Demond testified that she and Venable then went to the apartment of her niece, Dana Owens. She said that the complainant was there. She indicated that, when the complainant asked Venable what had happened to his face, he told the complainant that appellant had hit him with a pistol. She stated that the complainant hollered, AWell, let me - - we are fixing to go see what is going on. I want to know exactly why he hit him.@ She related that at that time the complainant and Venable went to appellant=s house. She said that later, after the complainant and Venable returned, Venable decided to go back again because the first time they could not get appellant to come out. She indicated that she, someone named Rhonda, Wavon Owens, and the complainant also went over to appellant=s house. She said none of the four had a gun.

Demond testified that, when they arrived at appellant=s house, she got out and knocked on the door. She said that appellant=s mother, after answering the door, said she wanted to talk to the complainant. When Demond called the complainant in the yard, Aeverybody run out of the house on us.@ She stated that appellnat came out of the house first and then Aa little short dude.@ She said that appellant, who had a gun in his back pocket, hollered, AOh, you=ve been looking for me? Here I go talking noise.@ She stated that the complainant saw Marvin Gross with a shotgun. She related that, as they were backing out of the yard, the shooting started. She said she heard a shotgun first. She acknowledged that she was not sure whether appellant pulled his gun.

Venable testified that he had been together with Demond for twelve years and that they had three children. He recounted that he had gone to appellant=s house on January 26, 2004. He indicated that he and appellant went to bedroom one, where appellant proceeded to hit him with what appeared to be an automatic pistol.

Venable testified that, after going to someone=s house and washing off his blood, he and the complainant went back to appellant=s house to explain to him that Aall of this wasn=t necessary@ and that if they had a problem they could handle it. He said he went to the door and talked to appellant=s mother. He stated that she called out for appellant, but he did not answer. He indicated that he did not have a gun and that, to his knowledge, the complainant did not have one either. He acknowledged that he was not present when the shooting occurred.

Wavon testified that he was the complainant=s cousin. He talked about going to look for Venable with Rhonda, Demond, and the complainant. He indicated that they drove by appellant=s house and that, when they did not see Venable=s car, they stopped and Demond and the complainant got out. He recalled seeing Demond in the yard talking to appellant, appellant=s mother, and Patrick Davis. He said the complainant came up by Demond. He recalled hearing a gunshot while they were standing there talking.

Wavon testified that, when he got out of the SUV they had come in, Demond came back and got in the vehicle and that Rhonda drove off. He said he was left with the complainant, who was yelling, AI=m hit. I=m hit.@ He stated that he never saw anyone who had come in the SUV with a weapon. He indicated that appellant had a handgun. He related that he saw appellant firing his gun after the first shot. He insisted that he saw no one else shooting. He said that he did not see anyone with a shotgun and did not see any Awhite guys@ there. He indicated that he went with the complainant to the hospital.

Juan Antonio Rojas testified that he is a trace evidence examiner for the Texas Department of Public Safety Crime Lab in Austin, Texas. He indicated that no primer gunshot residue was detected on the hands of either appellant or his mother. He said that residue could be absent due to someone removing the residue or firing a weapon or using ammunition that does not deposit residue.

Wade Thomas testified that he is a firearms and toolmark examiner with the State of Texas Crime Lab in Tyler. He said that he determined that a shotgun that was submitted by the Palestine Police Department was functional and that a submitted shotshell was fired in it. With respect to whether submitted cartridge cases came from a submitted .380 pistol, tests were either negative or inconclusive. He concluded that all of the shell casings could have come from the same gun or from three different guns.

The complainant testified that he and Venable went to appellant=s house and then left after appellant=s mother said he was not there. He said that, after they went to Dana=s house, Venable left. He indicated that he went on a ride with Demond and others because he and Wavon were going to be dropped off. He stated he found out about halfway there that they were going to appellant=s house. He indicated that, after they arrived at appellant=s house, Demond got out and knocked on the door while he stayed in the SUV. He related that she began talking to appellant=s mother, who called him out of the SUV. He said that, as he was walking to the porch, appellant came out and they began arguing. He stated that appellant had a gun in the front of his pants. He said that Gross and Jeremiah Russell were also there outside with guns. He mentioned that Gross had a shotgun.

The complainant testified that, after seeing Gross with the shotgun, he told appellant to tell his boys to put down their guns. He said he knew they were appellant=s boys because they are all Crips and that all of them were together. He indicated that, after he started walking back to the SUV, he was shot when he turned around to curse at appellant. He denied picking up any guns from the yard after he was shot. He said that he heard two or three other guns going off but could not tell if appellant was shooting. He denied telling anyone that Aa white guy@ shot him.

The complainant acknowledged that he signed a notarized statement saying that appellant did not assault him by any means. He indicated that he signed the statement because he was broke and needed money. He insisted that he was paid to sign it. He acknowledged, however, that it was Gross, not appellant, who shot him. We hold that the evidence is legally and factually sufficient to support appellant=s convictions.

Tex. Penal Code Ann. ' 46.04(a)(1) (Vernon Supp. 2007) provides:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person=s release from confinement following conviction of the felony or the person=s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.

Appellant does not dispute that he has been convicted of a felony or that it has been less than five years since his release from confinement or supervision. Referring only to the .22 rifle found under the bed in bedroom one, he contends that the State failed to show that it was operable. Evidence showed that appellant struck Venable in the head with what appeared to be a pistol and that he possessed and fired a gun at the time that the complainant was shot. There was also evidence from which a jury could reasonably find that appellant possessed the .22 rifle found under the bed in bedroom one. See Curtis v. State, 519 S.W.2d 883, 886 (Tex. Crim. App. 1975).

Appellant does not discuss the evidence showing his possession of the handgun or handguns, arguing, without any citation to the record, that the State related that the firearm that he possessed was the .22 rifle found under the bed. We have examined the record and note that the indictment alleged that he possessed a firearm without any limitation to the .22 rifle. In his opening statement, the prosecutor, discussing the assault on the complainant, stated, AYou will hear how [appellant] had a gun, and that he is a convicted felon.@ He later referred to the rifle found under the bed. The charge to the jury authorized conviction in the event that appellant possessed a firearm without limitation to the .22 rifle. In arguing with respect to this charge, the prosecutor in closing argument said, ADid he have a firearm? Yes. He had a handgun in his hand. He had .22s in his room.@ He also argued, AHow many B who knows how many guns [appellant] had. But he had them. The testimony is he had one in his hand. He also had one in his room.@ Inasmuch as there is ample testimony that appellant possessed a handgun, the evidence is sufficient even if the .22 rifle were inoperable and even if that precluded it from being a firearm for purposes of this prosecution. We also note that, while appellant refers us to evidence that the .22 rifle had a broken stock and scope, he does not refer us to any evidence that these defects rendered the rifle inoperable.

With respect to the aggravated assault charge, appellant only makes reference to the fact that the complainant was actually shot by someone else. While acknowledging that he could be convicted as a party to the offense, appellant argues that no evidence was presented by any witness that exhibited any encouragement, aid, inducement, or affiliated involvement by him with the actual shooter. He insists that the State did not present any evidence that he knew of the unlawful intent of the shooter or acted to promote and assist the shooter. We disagree.

Our law provides that a person is criminally responsible for the conduct of another if, acting with intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. '7.02(a)(2) (Vernon 2003). Given evidence of the sudden appearance by armed members of the Crips gang, whom the complainant referred to as ARoy=s boys,@ (referring to appellant as Roy), given evidence that appellant was himself armed and used his weapon in the attack on the complainant and the other unarmed people who were with him, and given appellant=s statement, AHere I go talking noise,@ the jury could reasonably infer that he knew of the shooter=s intent and that, acting with the intent to promote or assist the commission of the offense, he encouraged, aided, or attempted to aid the shooter in the commission of the offense.

In suggesting that the evidence is insufficient, appellant relies on the cases of Wooden v. State, 101 S.W.3d 542 (Tex. App.CFort Worth 2003, pet. ref=d); Hill v. State, 883 S.W.2d 765 (Tex. App.CAmarillo 1994, pet. ref=d); and Lane v. State, 805 S.W.2d 576 (Tex. App.CDallas 1991, no pet.). We find these cases to be distinguishable.

In Wooden, the defendant was convicted of aggravated robbery, with the aggravating element of the offense being the use of a deadly weapon. Wooden, 101 S.W.3d at 545. While acting together with others in an attempted theft, one of three other men involved in the theft pointed a gun in the direction of a witness who questioned the men as to what they were doing. Id. at 544. The court held that the evidence was insufficient to support the defendant=s conviction for aggravated robbery because there was no evidence that the defendant knew about the gun being in the car or that he aided or encouraged the other passenger to threaten the witness with a gun. Id. at 548. In the case at bar, there is evidence that appellant and other members of his gang, all carrying weapons, suddenly appeared, confronting the complainant and the other unarmed people who were with him. In addition, there is also evidence that appellant discharged his gun during the fracas. We find that the court=s holding in Wooden is distinguishable from and not inconsistent with this opinion.

In Hill, the defendant was convicted as a party to the first-degree felony offense of injury to a child. Hill, 883 S.W.2d at 766-67. There was evidence that the defendant=s husband beat their child with the intent to cause serious bodily injury after the defendant had told him that the child had been bad. Id. at 770-71. The defendant was not present at the time of the beating. Id. at 770. The court held that the defendant was criminally responsible for her husband=s offense only if the evidence showed that she knew his unlawful intent when she acted to promote or assist in his conduct. Id. at 771. The court concluded that the evidence was sufficient to support the conviction, noting that, because of her knowledge of previous abusive beatings of the children by her husband, which had resulted in serious bodily injury, the jury could reasonably infer that, when she told her husband that the child was bad, she knew he would beat the child with the intent to cause serious bodily injury. Id.

The main distinguishing factor between appellant and the defendant in Hill is that the defendant in that case was not present when the offense occurred and appellant was present and participated in the armed assault by him and the Crips gang upon the complainant and his companions, all of whom were unarmed. We hold that this evidence, as outlined above, was sufficient to show that appellant knew of the unlawful intent of his associate who shot the complainant. We do not find the court=s holding in Hill to be inconsistent with this opinion.

In Lane, the defendant was convicted of the offense of unlawful possession of a firearm by a felon. Lane, 805 S.W.2d at 577. The defendant asserted that the evidence was insufficient to show that he had previously been convicted of a felony involving an act of violence or threat of violence and that there was a fatal variance between his indictment (which alleged that he had previously been convicted of a felony involving an act of violence) and the proof (which at best showed that he had been convicted of an offense involving a threat of violence and not an act of violence). Id. The court held that the evidence was sufficient where it showed that the indictment in the prior felony alleged that the defendant threatened the complainant with imminent bodily injury and used a deadly weapon and the defendant was convicted as charged in the indictment. Id. at 578. The court concluded that bodily injury or a threat of imminent bodily injury in the context of an aggravated assault charge was synonymous with violence or placing in fear of violence. Id.

The court in Lane also held that there was no variance between alleging that the defendant had previously been convicted of a felony involving an act of violence where the indictment alleged that the defendant had used a deadly weapon and noted that, in an aggravated assault case alleging use of a deadly weapon, the use of a deadly weapon itself constitutes an act of violence regardless of whether the weapon was used to threaten or cause bodily injury. Id. at 578-79.

It is difficult to understand appellant=s citation of the opinion in Lane because the issue discussed in that case is not the same as that in this case. Appellant does not cite the case in support of his contention that the evidence is insufficient to support his conviction for the offense of possession of a firearm by a felon; instead, he cites it as support for his contention that the evidence is insufficient to support his conviction for aggravated assault. Citing Lane, he argues that, A[i]n order to support a conviction under the indictment as drafted herein, there should be a showing of the infliction of >actual violence.=@ We are sure that he is not suggesting that there was no showing of actual violence on the part of the shooter. If he is suggesting that there must be a showing of actual violence on his part, such a suggestion is inconsistent with the law of parties and with the opinion in the case of Hill, another case cited by appellant in support of his argument that the evidence is insufficient. As we have noted, Hill was convicted for the offense of injury to a child, although she was not present when her husband caused the injury to the child. We overrule issue one.

Appellant insists in issue two that the trial court erred by permitting hearsay testimony during the punishment phase of trial, outside any appropriate exception provided by law. The evidence to which he refers are State=s Exhibits Nos. 85, 86, and 87. Contrary to assertions by appellant, when Exhibits Nos. 85 and 87 were tendered, appellant stated that he had no objections. With Exhibit No. 86, appellant=s only objection was resolved, and he approved its admission into evidence. Nothing has been preserved for review. Tex. R. App. P. 33.1(a). We overrule issue two.

Appellant asserts in issue three that his verdict and sentencing were invalid as he was not provided effective assistance of counsel. He urges that his attorney=s representation of certain co-defendants created an actual conflict of interest. The possibility of a conflict of interest is insufficient to impugn a criminal conviction. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). In order to demonstrate a violation of his or her Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer=s performance. Id. Appellant=s effort to demonstrate that there was an actual conflict of interest is conclusory and vague. We hold that he has failed to establish that there was an actual conflict of interest or that, if there were, it adversely affected his lawyer=s performance. Appellant relies on Cuyler, but we find that the holding in that case is not inconsistent with this opinion. We overrule issue three.

The judgment is affirmed.

January 17, 2008 PER CURIAM

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.