VICTOR RAMON SIRLS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed October 30, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00883-CR
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VICTOR RAMON SIRLS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 203rd District Court
Dallas County, Texas
Trial Court Cause No. F88-94853-PM
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Burnett
        Victor Ramon Sirls was convicted of aggravated robbery. Punishment was assessed at ten years' confinement. In two points of error appellant contends that: 1) he was denied effective assistance of counsel, and 2) there was insufficient evidence to support his conviction. We overrule both points and affirm the judgment of the trial court.
        Appellant lived with his sister in Dallas during the summer of 1987. Appellant met a man named Jes Chance during that summer. Appellant visited Chance's apartment in Dallas several times. Appellant returned to his home in Tyler at the end of the summer to attend high school. Appellant did not see or talk to Chance again until May 10, 1988, when appellant went to visit Chance at his apartment. Chance testified that at that time they watched two adult videotapes, one of a homosexual nature and the other of a heterosexual nature, on Chance's videocassette recorder. After watching the videotapes, they had sex. Chance said that he told appellant to come back to his apartment the next morning and he would pay appellant twenty dollars for the sex.
        Chance testified that appellant came back to Chance's apartment the next day, around 8:00 a.m. Chance said that he paid appellant the twenty dollars, and appellant left. Chance testified that he then left his apartment to run some errands. He returned around 10:15 a.m. Chance testified that a few minutes later appellant, carrying a blue nylon bag, came back to Chance's apartment. Chance testified that appellant entered the apartment and told Chance to close his eyes because appellant had a surprise for him. Chance closed his eyes and heard appellant unzipping the bag. Appellant then struck Chance with a tire tool, knocking him to the ground. Chance said that he was unconscious for a few seconds, and then appellant struck him a few more times. Chance testified that he looked up at one point and saw appellant squatting near the videocassette recorder. Chance then said appellant chased him around the apartment, continuing to strike him. Chance finally escaped through the front door.
        As Chance left his apartment, Dan Beaty, the leasing agent and a resident of the apartment complex, approached the apartment. Beaty testified that, as he reached the front door of the apartment, he observed appellant crouching over the videocassette recorder, as if he was trying to pick it up. Beaty said that he then yelled at appellant, who quickly ran out the patio door.
        Appellant's testimony at trial and his voluntary statement given to police differ somewhat from Chance's testimony as to the events surrounding appellant's conviction. Appellant said that he stopped by Chance's apartment on May 10, 1988, because appellant had a few job interviews in the area. He said that he took a gym bag containing a brush and other hair care products into Chance's apartment so that he could brush his hair. Appellant testified that they sat down and watched "regular" movies on Chance's videocassette recorder. Appellant said that he stayed at Chance's apartment for about forty-five minutes and that during that time, they did not have sex.
        Appellant testified that he left his bag at Chance's apartment and that he returned the next morning to pick it up. Appellant said that as he was leaving the apartment, Chance told him that he wanted to have sex with appellant. Appellant testified that Chance then grabbed appellant's rear. Appellant said that he immediately punched Chance with his fist once, and then he grabbed a tire tool that was lying on the floor in Chance's apartment and struck Chance four or five times with it. Appellant testified that he then left the apartment through the patio door.
EFFECTIVE ASSISTANCE OF COUNSEL
        In his first point of error, appellant contends that he was denied effective assistance of counsel. Our review of this issue is controlled by the standard articulated in Strickland v. Washington, 477 U.S. 668 (1984), and adopted by this State in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Appellant must first demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must then show that, but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
        Appellant contends that the following acts and omissions show the ineffectiveness of his trial counsel's performance: 1) trial counsel failed to file any pretrial motions, including an application for probation or deferred adjudication, 2) trial counsel failed to object to the introduction of State exhibits, 3) trial counsel failed to object to opinion testimony by two police officers, 4) there was no evidence that trial counsel conducted an independent investigation of the facts of the case, 5) trial counsel failed to cross-examine any witnesses concerning the voluntariness of appellant's confession given to police, and 6) trial counsel failed to present a reasonable defense for appellant, self-defense.
1.    Failure to File any Pretrial Motions, including an Application for Probation or          Deferred Adjudication.
        While appellant claims that his trial counsel was ineffective because he did not file any pretrial motions, appellant fails to point out what motions his trial counsel should have filed or how appellant's defense would have benefitted from the motions. See Hunnicutt v. State, 531 S.W.2d 618, 624 (Tex. Crim. App. 1976). There is no guarantee that the mere filing of pretrial motions would have aided appellant's defense. See DeLeon v. State, 657 S.W.2d 160, 164 (Tex. App.--San Antonio 1983, no pet.).
        The only pretrial motion appellant specifically names that trial counsel should have filed is a motion to list State witnesses. There is no evidence to indicate that appellant's trial counsel was unaware of the names of State witnesses. Also, the record reflects that the trial court denied appellant's application for probation. Finally, it appears that trial counsel directed appellant to change his plea from guilty to nolo contendere because of the possibility of deferred adjudication.
2.    Failure to Object to State's Exhibits
        Appellant claims that his trial counsel should have objected to the introduction of 1) photographs of the scene of the crime, 2) photographs of Jes Chance's injuries, and 3) the weapon used in the crime.
        A photograph of an item generally is admissible if the verbal description of that item is admissible. Green v. State, 682 S.W.2d 271, 292 (Tex. Crim. App. 1984). Only if the photographs are of minimal probative value while also being highly inflammatory would the court abuse its discretion in admitting the photographs into evidence. Id. In the case before us, oral testimony was admitted as to the scene of the crime as well as to the injuries sustained by Chance. Also, considering the fact that the trial was before the court and not a jury, any concern over the possible inflammatory nature of the photographs would appear to be minimal.
        Appellant also contends that his counsel should have objected to the introduction of the weapon used in the crime, the tire tool. It is well-settled that the weapon with which a crime was alleged to have been committed is admissible into evidence. Mullenix v. State, 499 S.W.2d 330, 331 (Tex. Crim. App. 1973). In our case, a police officer testified that she found the tire tool in Chance's apartment. Also, appellant admitted that he struck Chance with the tire tool. In determining the admissibility of the weapon used in the crime, the trial court weighs the probative value of the item against the possible prejudicial effect that its admission could have upon the accused. Lanham v. State, 474 S.W.2d 197, 199 (Tex. Crim. App. 1971). The admission of the tire tool has some probative value and little, if any, prejudicial effect on appellant. Thus, an objection by appellant's trial counsel to the introduction of the photographs or the tire tool would not have been successful.
3.    Failure to Object to Opinion Testimony of Two Police Officers
        Appellant contends that his trial counsel should have objected to testimony of Dallas Police Officers Chaney and Clark in which they expressed opinions that the tire tool was capable of causing death or serious bodily injury. An opinion is admissible into evidence if its subject is one on which an expert opinion would be helpful to the trier of fact. A witness may be qualified as an expert by knowledge, skill, experience, training, or education. Tex. R. Crim. Evid. 702. Officer Chaney testified that he had worked in the Crimes Against Persons Division for a year and had investigated assault and robbery cases involving tire tools on other occasions. Officer Clark testified that she had investigated murder and assault cases involving tire tools. We conclude that the testimony of the officers was admissible. Thus, an objection by appellant's trial counsel would not have been successful.
4.    Failure to Investigate Facts
        Appellant contends that there is no evidence that his trial counsel independently investigated the facts of the case. After a review of the testimony at trial, we disagree with appellant. Appellant's trial counsel demonstrated by his cross-examinations of State's witnesses that he had obtained knowledge through independent investigation. Appellant knew Chance had worked at an adult bookstore and that he had been convicted of selling obscene materials. Also, appellant's trial counsel presented a witness who had known appellant for almost a year and exhibited familiarity with the facts he wished to elicit from the witness.
        Appellant also claims that there may have been other witnesses in the vicinity at the time of the crime. In our examination of the record, we have found nothing to indicate that there were any other witnesses whose testimony could have aided the appellant.
5.    Failure to Cross-examine Voluntariness of Appellant's Confession
        Appellant contends that his trial counsel should have cross-examined Officer Chaney more vigorously concerning his testimony about appellant's voluntary statement. Appellant's written statement was very similar to his testimony at trial as to the events surrounding his conviction. By not cross-examining the police officer as to the voluntariness of the written statement, appellant's trial counsel appears to have made a tactical decision. Appellant's trial counsel apparently did not want to discredit the written statement in any way because he assumed that appellant's testimony at trial would be similar to the contents of his written statement. In neither his written statement nor his testimony does appellant reveal that he had any intent to take the videocassette recorder. Thus, appellant's trial counsel might have believed that appellant's credibility would be enhanced if he told the same story twice. A full inquiry into the strategy or tactics of counsel should be made only, if from all appearances at trial, there is no plausible basis in strategy or tactics for counsel's actions. Ex parte Ewing, 570 S.W.2d 941, 945 (Tex. Crim. App. 1978).
6.    Failure to Present Defense of Self-Defense
        Appellant contends that his trial counsel should have presented the defense of self-defense. In considering the evidence offered, it would appear that the defense of lack of intent to commit theft was the most reasonable. Also, appellant testified as to action that he considered provocation for his attack on Chance. With the trial before the court, the trial court judge was in a position to determine if appellant's assault was justified or not.
        Appellant has not shown that his trial counsel's representation was below an objective standard of reasonableness or that the results of the trial would have been different if his trial counsel had not made any of the alleged errors. Thus, we find that appellant was not denied effective assistance of counsel. Accordingly, we overrule appellant's first point of error.
SUFFICIENCY OF EVIDENCE
        In his second point of error, appellant contends that the evidence is insufficient to sustain his conviction for aggravated robbery because: 1) there is no evidence that appellant was committing theft or entered Chance's apartment with the intent to commit theft, 2) there is no evidence that appellant knowingly and intentionally placed Chance in fear of imminent bodily injury, and 3) appellant did not use or exhibit a deadly weapon. In testing the sufficiency of the evidence, this Court must review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Girard v. State, 631 S.W.2d 162, 163 Tex. Crim. App. 1982).
1.    Intent To Commit Theft
        It is undisputed that appellant did not take the videocassette recorder from Chance's apartment. However, the offense of robbery only requires an intent to obtain control of the property. Tex. Penal Code Ann. § 29.02(a) (Vernon 1989); Johnson v. State, 541 S.W.2d 185, 187 (Tex. Crim. App. 1976).
        Chance testified that when appellant visited Chance at his apartment on May 10, 1988, appellant commented on the videocassette recorder that Chance had recently acquired. Chance also testified that, after appellant struck him with the tire tool the next day, Chance saw appellant squatting by the videocassette recorder.
        Dan Beaty, the leasing agent for the apartment complex, testified that he saw appellant crouched down over the videocassette recorder and "going for [it] like he was going to pick it up."
        Chance also testified that the videocassette recorder was not in its usual place after appellant left his apartment. Chance further testified that the videocassette recorder was plugged in before appellant entered his apartment and not plugged in after appellant left. Beaty also testified that the videocassette recorder was unplugged when he entered the apartment.
        In viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant had the intent to commit theft of the videocassette recorder.
2.    Knowingly and Intentionally Placing Chance in Fear of Imminent Bodily Injury
 
        Appellant also contends that there is no evidence that appellant knowingly and intentionally placed Chance in fear of imminent bodily harm. Tex. Penal Code Ann. § 29.02 (Vernon 1989) provides that "[a] person commits [robbery] if, in the course of committing theft, . . . he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." "In the course of committing theft" means conduct that occurs in "an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id. § 29.01(1).
        Chance's testimony at trial reveals his fear:
        [State]:    Let me ask you, when [appellant] came in and struck you with that blunt instrument, did you feel threatened at that time?
 
        [Chance]:    At the first blow I knew -- I felt I was going to die.
 
        [State]:    You were in fear of your life?
 
        [Chance]:    I was in fear of my life.
        In viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant knowingly and intentionally placed Chance in fear of imminent bodily injury.
3.    Uses or Exhibits a Deadly Weapon
        Appellant contends that there is a fatal variance between the indictment and the evidence presented at trial. The indictment alleges, in part, that appellant, "by using and exhibiting a deadly weapon, . . . knowingly and intentionally threaten[ed] and place[d] [Chance] in fear of imminent bodily injury." Appellant alleges that, because Chance testified that his eyes were closed when he was struck, the tire tool was never exhibited to place Chance in fear of imminent bodily injury. Appellant's contention fails because, even if the tire tool was not exhibited, it was used to strike Chance. Chance testified that appellant's use of the tire tool placed him in fear of his life.
        Finally, appellant contends that the tire tool used to strike Chance is not a deadly weapon. "Deadly weapon" is defined in the Tex. Penal Code Ann. § 1.07(11)(B) (Vernon 1987), as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." There was testimony from two police officers that the tire tool is capable of causing death or serious bodily injury. Also, appellant admitted striking Chance with the tire tool four or five times. We overrule appellant's second point of error.
        The judgment of the trial court is affirmed.
 
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
880883.U05
 
 
File Date[10-30-89]
File Name[880883]