ANTOINE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed October 20, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00707-CR
No. 05-88-00909-CR
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ANTOINE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F88-77644-JI and F88-93145-I
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OPINION PER CURIAM
Before Justices Stewart, Lagarde and Burnett
        Antoine Johnson appeals his convictions for aggravated robbery and attempted murder. Punishment in each cause was assessed at confinement for life in each cause, with the sentences to run consecutively.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellant has filed a pro se brief in which he raises seven points of error. We overrule his points and affirm the judgment of the trial court.
        In his first point of error, appellant claims that the evidence is insufficient to support his convictions. In his third and fourth points of error, appellant claims that there is a fatal variance between the indictments in the two causes and the evidence. Because his arguments are related, we will discuss them together. Alberta Mackey, the complainant, testified that she used to date appellant's father. As she was sitting in her car one morning, appellant approached her and asked her to give him a ride to his father's house; she agreed to do so. When they arrived, appellant began beating the complainant. He knocked her feet off the brake, put the car in reverse, and backed the car out of the driveway. They drove down the street with the complainant in the driver's seat but with appellant working the accelerator. As they drove, he began stabbing her in the neck and the face with a knife. He stabbed her a total of twelve times. The complainant managed to run the car into a tree; appellant jumped from the car, ran around to the driver's side, took the complainant's purse containing money, stabbed her several more times, then left. She said that appellant placed her in fear of imminent bodily injury or death. Shortly after the incident, she received a letter from appellant apologizing for what he had done to her.
        James Cheathem testified that he was at home when he heard a loud noise outside his house. He went outside and saw a car had hit a tree directly in front of his house. He heard a lady shouting for help, then saw a male at the driver's side of the car stabbing the lady. He went back in the house for a shotgun, then came back outside and chased the man; however, he was unable to catch him. He did not have an opportunity to see the face of the person stabbing the lady. He said that the complainant was the lady he had seen that morning.
        Appellant testified on his own behalf. He admitted hitting the complainant, but denied stabbing her. He said that he hit her because she was cursing at him. He also said that he was drunk on that morning.
        In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, 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); Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. 1978).
        In the present causes, the evidence clearly supported the verdicts of guilty of the offenses of aggravated robbery and attempted murder. The complainant testified that appellant stabbed her at least twelve times. Although she never saw a knife, she showed the court her scars resulting from the stabbings. The complainant was stabbed by appellant at least twelve times; this evidence supports the conclusion that appellant intended to murder the complainant. Compare Gentsch v. State, 468 S.W.2d 66, 69 (Tex. Crim. App. 1971) (evidence of large number of stab wounds supports finding that accused intended to kill complainant). Appellant took the complainant's purse, which contained money. In addition, he placed the complainant in fear of bodily injury or death. As a result, we conclude that the evidence was sufficient to satisfy a rational trier of fact that the elements of the offenses had been established.
        Appellant claims that the evidence is insufficient because only the handle, but not the blade, of the knife allegedly used was found. He argues that the evidence thus shows that he used a "steak knife handle" rather than a knife to inflict the wounds; as a result, he argues, there is a variance between the evidence and the indictment. We disagree. The testimony of the State's witnesses established that the implement used for the assault was a knife. The fact that the knife blade was never found, but a steak knife handle was found, is of no importance in this case. The fact that the complainant testified she was stabbed, along with her display of scars resulting from stab wounds, is sufficient to support the allegation that appellant used a knife. See, e.g., Roberts v. State, 743 S.W.2d 708, 710 (Tex. App.--Houston [14th District] 1987, pet. ref'd) (testimony of witnesses concerning events surrounding attempted murder sufficient to show use of gun, although no witness saw gun, and no gun recovered). Accordingly, we conclude that there was no variance between the indictments and the evidence in these cases. Appellant's first, third, and fourth points of error are overruled.
        In appellant's second point of error, he claims that his prosecution for both aggravated robbery and attempted murder arising from the same incident violates the double jeopardy clause of both the United States Constitution and the Texas Constitution. We disagree. Double jeopardy bars prosecution for two offenses arising from the same transaction only if the same proof is required to establish each offense. Blockburger v. United States, 284 U.S. 299, 303 (1932); Ex parte McWilliams, 634 S.W.2d 815, 824 (Tex. Crim. App.), cert. denied, 459 U.S. 1036 (1982). In the present causes, proof of the aggravated robbery necessarily requires a showing that the accused took the property alleged in the indictment; the attempted murder, on the other hand, requires proof of intent to kill, but does not require proof of a taking of property. Since the State was required to prove different elements in each case, we conclude that prosecution for both offenses is not barred by double jeopardy. See Ex parte McWilliams, 634 S.W.2d at 824. Appellant's second point of error is overruled.
        In his sixth point of error, appellant claims that his waiver of a jury trial was not knowingly and intelligently entered. He claims that he waived a jury trial only because his attorney told him that he would stand a better chance before the judge than before a jury. The record further reflects that appellant answered the trial judge in the affirmative when he was asked whether he was voluntarily waiving his right to a jury. The judge cautioned appellant as to the possible range of punishment he could receive; appellant still indicated he wanted to waive a jury. There is no evidence in the record to support appellant's assertions that his waiver was neither knowing nor voluntary; accordingly, we conclude that appellant is not entitled to relief on his claim. Cf. Harvey v. State, 485 S.W.2d 907, 909 (Tex. Crim. App. 1972) (prior to requirement of written waiver, recitation in judgment of waiver of jury controlling absent direct proof to contrary). Appellant's sixth point of error is overruled.
        In his seventh point of error, appellant claims that the evidence was insufficient to support the trial court's finding that the allegations in the second and third paragraphs of each indictment were true. The record reflects that appellant entered a plea of true to the paragraphs. His pleas, standing alone, are sufficient to support the allegations in the indictment. Foster v. State, 603 S.W.2d 879, 881 (Tex. Crim. App. [Panel Op.] 1980). Further, we note that the trial court did not make findings of true. The State has brought to our attention a clerical error in the judgments. Although appellant entered pleas of "true" to the enhancement allegations in the indictments, the judgments recite "N/A". The record contains the same entry for the court's findings. The court made no finding on the record as to whether the allegations in the enhancement paragraphs were true. The State has asked that we reform the judgment to show that appellant entered a plea of "true". We conclude that reforming the judgment will serve no purpose in this cause; since the court made no finding that the allegations in the enhancement paragraphs were true, we conclude that punishment was not enhanced by the convictions. We fail to see how reformation of appellant's plea to the enhancement paragraphs will have any substantive effect on the judgment. Accordingly, we decline to reform the judgment. Because we conclude that the trial court made no finding of true, appellant is not entitled to relief on his claim that the evidence is insufficient to support such a finding. Appellant's seventh point of error is overruled.
        In appellant's fifth point of error, he claims that he was denied effective assistance of counsel. Our review of appellant's claim is controlled by the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this State in Hernandez v. State, 727 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 raises several points which he claims demonstrates that counsel was ineffective. First, he claims that he wanted a jury trial, but obtained a bench trial instead. We find nothing in the record to support appellant's claim that he wanted a jury trial. The record clearly shows that appellant knowingly and intelligently waived his right to a jury trial. Claims of ineffective assistance must be firmly founded in the record. Ex parte Ewing, 570 S.W.2d 941, 943 (Tex. Crim. App. 1978). Since appellant's claim that he wanted a jury trial is not supported by the record, we cannot conclude that counsel erred in not obtaining a jury trial for appellant.
        Appellant next claims that counsel was ineffective for failing to plead "Autrefois convict" (double jeopardy) as a bar to the prosecution of both cases. As we discussed in our disposition of appellant's second point of error, his prosecution on both charges was not barred by double jeopardy. We conclude that trial counsel did not err in failing to raise double jeopardy as a bar to the prosecution of appellant on both charges.
        Finally, appellant claims that counsel erred in his cross-examination of the complainant. Appellant claims that had counsel examined the complainant further, he may have obtained testimony that she was not stabbed with a knife, but with a knife handle. As we said in our disposition of appellant's first, third, and fourth points of error, the fact that the blade of the weapon used was not found is immaterial to determining whether the evidence was sufficient to show that a knife was used. The complainant suffered at least twelve stab wounds, and testified that appellant stabbed her. Her testimony was corroborated by another witness. We find no evidence to support that the weapon used was a knife handle, as appellant claims. Accordingly, we conclude that counsel did not err in failing to cross-examine the complainant on this issue.
        We have conducted our own review of the records. Counsel did not file any pretrial motions in either case; however, the record does not disclose that appellant was prejudiced by the failure to file motions. The State presented three witnesses in support of its case. Counsel cross-examined these witnesses, and examined appellant competently. We further note that the evidence against appellant was overwhelming. The testimony of two eyewitnesses clearly established that appellant had engaged in an unprovoked attack on the complainant. In addition, appellant's only claims at trial were that he never stabbed the complainant, and that he was intoxicated at the time of the attempted murder and aggravated robbery. We cannot say, based on the record before us, either that counsel did not provide effective assistance, or that but for counsel's conduct, a different outcome likely would have resulted. Appellant's fifth point of error is overruled.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
880707.U05
 
 
File Date[10-20-89]
File Name[880707]