PHILLIP EARL ROBINSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirm, and Opinion Filed May 28, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-96-00402-CR
............................
PHILLIP EARL ROBINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 203rd District Court
Dallas County, Texas
Trial Court Cause No. F95-01843-LP
..............................................................
O P I N I O N
Before Justices Lagarde, Kinkeade, and Chapman
Opinion By Justice Lagarde
        A jury found appellant Phillip Earl Robinson guilty of murder and assessed punishment at fifty years' confinement and a $10,000 fine. On appeal, in five points of error, appellant asserts that: (1) the evidence is legally and factually insufficient; (2) the trial court erred in admitting into evidence "flight testimony;" (3) the trial court erred in failing to suppress evidence that was seized from appellant's residence because such items were not specifically named in the search warrant; and (4) he was denied effective assistance of counsel. For the reasons set forth below, we overrule each point and affirm the trial court's judgment.
Factual Background
        On June 12, 1994, Dallas police officers were dispatched to an area near Fair Park where, lying in high grass, they found a deceased body wrapped in a blood-stained comforter. The decedent was bound with extension cord, duct tape, and rope, his hands and feet were shackled, and his mouth was gagged with a washcloth. He had a Nike athletic shoe on his right foot and no shoe on his left foot. Police did not find any identification on the body.         Eventually, the body was transported to the Southwestern Institute of Forensic Sciences (SWIFS) for fingerprinting and autopsy. A physical evidence detective analyzed the fingerprints and identified the decedent as Charles Ray Harper. The medical examiner determined that Harper died from gunshot wounds to the trunk and a blunt force head injury. The medical examiner recovered two .44 caliber bullets. In examining the wash cloth that was stuffed into Harper's mouth, the medical examiner noted a piece of gray wire with an electric resistor on it. The examiner reserved fiber samples from the comforter and Harper's clothing for future analysis.
        A detective contacted Harper's brother and learned that Harper's red Mazda pickup truck was at a motel the night before his body was found. The detective went to the motel
and learned that Harper had been with Felicia Johnson. The detective located Johnson and arrested her for a probation violation. While transporting Johnson to the police station, Johnson told the detective that Harper was shot at a house on Fletcher Street, which is approximately one mile from where Harper's body was found. The detective, with Johnson in the car, drove to Fletcher Street and viewed the outside of the house. Johnson told the detective that an older model Cadillac in front of the house belonged to a man named Phillip, whose last name she did not know. The detective ran a registration check on the vehicle and learned that it belonged to appellant. Sometime later, the detective showed Johnson several photographs and asked if she could identify "Phillip." Johnson successfully identified appellant.
        According to Johnson, the day Harper was killed, she and Harper shared a motel room in South Dallas. After spending some time at the motel consuming cocaine, Harper drove Johnson in his Mazda pickup truck to the house on Fletcher Street where Harper was going to work on the cable box. FN:1 Appellant and Arthur Hall were present at the house when Harper and Johnson arrived. Johnson had previously met Hall but had never met appellant. After Harper worked on the cable box, he asked appellant for payment. Appellant became belligerent and yelled "aren't you the mother fucker that broke into my house?" Appellant struck Harper in the head with a pistol causing Harper to fall to the ground. When Harper got up, appellant struck him again. Hall jumped on Harper and they began wrestling. Appellant and Hall dragged Harper to a back room. Johnson remained in the front room. A few moments later, Johnson heard a gunshot. Appellant and Hall returned to the room that Johnson was in, tied her up, and placed her in a closet. While in the closet, Johnson heard Harper's voice calling for her. She then heard a dragging sound, a door open, and appellant say "go around and get the truck." She heard the Mazda pickup truck pull up to the back, and she heard a "boom" as though something was thrown in the back of the truck. A few minutes later, appellant and Hall released Johnson from the closet and took her outside and placed her in the passenger side of the truck. Harper was in the bed of the truck wrapped up in a bloody blanket. Hall got into the driver's seat and appellant got into the bed. Hall drove to a field. While Johnson remained in the truck, appellant and Hall dragged Harper out of the bed, and appellant shot Harper. Appellant and Hall returned to the truck and started to drive off, but they heard Harper making noises, so they returned and Johnson heard more gunshots. Appellant, Hall, and Johnson returned to the house on Fletcher Street and cleaned up the blood that was all over the house. While still at the house, Hall sexually assaulted Johnson. Eventually, appellant drove Johnson back to the motel in his Cadillac.
        Dallas police officers located and impounded the Mazda pickup truck which had been abandoned near where Harper's body was found. A physical evidence detective examined the truck and observed grass seed caught in the bumper, indicating that the truck had been driven through high grass. In the bed of the truck, the detective found a left-foot Nike athletic shoe that matched the shoe found on Harper's right foot. The detective did not observe any fingerprints germane to the investigation.
        The investigating detective secured a search warrant for the house on Fletcher Street. The detective and other officers executed the search warrant early in the afternoon. The Cadillac was in front of the house. The officers knocked on the door and identified themselves as police officers. When there was no response, they forcibly entered the house and began searching and gathering evidence. When appellant was eventually found hiding in the attic, he was placed under arrest. The physical evidence detective collected evidence including carpet samples, blood splatter samples, a resistor package from a waterbed heating element FN:2 , and a .44 Magnum handgun and ammunition. The officer also seized a large amount of marijuana, $2000 in cash, two .9mm handguns, and .9mm ammunition.
        The physical evidence detective took some of the evidence he collected to SWIFS for analysis. A SWIFS trace evidence analyst compared the carpet samples to the fibers the medical examiner collected from the comforter and Harper's clothing, and concluded that there were "no differences" between the samples. A SWIFS fire and tool mark examiner compared the bullets the medical examiner recovered to the weapon and ammunition found at the house on Fletcher Street. He could not determine whether the weapon fired the fatal bullets because the bullets had insufficient markings. However, the examiner did testify that the live ammunition found at the house on Fletcher Street was consistent with the make and manufacture of the bullets recovered by the medical examiner. The blood samples, including the blood on the resistor package was taken to the Dallas Institute of Forensic Science where a serologist analyzed it and concluded that the blood samples matched Harper's.
Sufficiency of the Evidence
        In appellant's first point of error, he challenges the legal sufficiency of the evidence. When there is a claim of legally insufficient evidence to support a verdict, the reviewing court should determine whether, after reviewing the evidence in the light most favorable to the prosecution, 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 (1979). The reviewing court does not resolve any conflict of fact, weigh the evidence, or evaluate the credibility of witnesses. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The trier of fact is the exclusive judge of the credibility of the witnesses and the weight of the testimony and may accept or reject all or part of the evidence of either side. Hester v. State, 909 S.W.2d 174, 177 (Tex. App.--Dallas 1995, no pet.).
        A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 1994). In this case, appellant does not dispute that Harper was murdered or that the murder occurred at least in part in the house on Fletcher Street. Instead, appellant argues that the evidence was insufficient to establish his identity as the murderer because: (1) Johnson's testimony was shown to be unreliable and not credible; and (2) the State failed to prove he had any motive for murder.
        Johnson testified that appellant shot Harper. An eyewitness's testimony is ordinarily sufficient to allow a rational jury to conclude beyond a reasonable doubt that a defendant committed murder. See, e.g., Sharpe v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Taylor v. State, 859 S.W.2d 466, 467 (Tex. App.--Dallas 1993, no pet.). Appellant suggests that Johnson's testimony was not credible because she has a criminal record and she did not report the incident to the police. The detective testified that she arrested Johnson for probation violations. Johnson testified about her drug use and legal problems. Johnson explained that she did not report the murder to the police because she feared being arrested for probation violations. Accordingly, the jury was fully informed and nevertheless found Johnson credible. An appellate court will not reassess credibility in a legal sufficiency review because the jury is the sole judge of a witness's credibility and of the weight to be given to the testimony. See, e.g., Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
        Nor do we agree with appellant's contention that the State failed to prove appellant had a motive for the murder. Johnson testified that appellant was accusing Harper of breaking into his house.         Thus, reviewing the record in the light most favorable to the jury's verdict, we conclude the State presented legally sufficient evidence from which a rational jury could conclude beyond a reasonable doubt that appellant murdered Harper. We overrule appellant's first point of error.
        In appellant's second point of error, he challenges the factual sufficiency of the evidence. In reviewing a claim of factual insufficiency, we review all the evidence without viewing it in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App. 1996). We set aside the verdict, however, only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We remain deferential to avoid substituting our judgment for the factfinder's. Id. at 133-36. We will not reweigh the evidence and set aside the verdict merely because we believe a different result is more reasonable. Id. at 135. Thus, we review the factfinder's weighing of the evidence and can disagree with the factfinder's conclusion, but we exercise our jurisdiction only to prevent a manifestly unjust result. Id. at 132-33.
        Again we note that Johnson identified appellant as an assailant. Johnson testified in detail about the events leading up to the murder and the murder itself. Much of her testimony was corroborated by physical evidence found at the scene, in and on the red Mazda pickup truck, and at the house on Fletcher Street. The sole defense witness was appellant's cousin who testified that the house on Fletcher Street belonged to his and appellant's deceased grandmother and was open to all her grandchildren. Thus, in reviewing all the evidence equally, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule appellant's second point of error.
Evidence of Flight
        After appellant failed to appear at a trial setting, his bond was forfeited and a "bond forfeiture murder warrant" was issued. Dallas County Sheriff's deputies sought to arrest appellant pursuant to the warrant. The deputies went to the house on Fletcher Street and saw a truck driving away and decided to follow it in case appellant was in the truck. After the deputies pulled behind the truck, the truck began changing lanes and speeding. The deputies activated their red and blue lights, but the truck did not stop. During the chase, the truck eventually slowed down and a sheriff's deputy saw someone jump from the passenger side of the truck. The man fit the description of appellant. The sheriff's deputy got out of the car and began chasing appellant on foot. Eventually, with assistance from other law enforcement officials, appellant was subdued and arrested. At the time of his arrest, appellant had $873 in cash on his person and fake identification.
        Appellant objected to the above evidence on the grounds that the facts and circumstances concerning his flight were not admissible because appellant was, in all likelihood, fleeing because he was in possession of a large quantity of marijuana rather than fleeing from the murder charge. Also, the defense urged that the fake identification was not relevant.
        Rule 404(b) of the Texas Rules of Criminal Evidence, in effect at the time of trial, prohibits the use of other crimes, wrongs, or acts to prove the character of a person in order to prove the defendant's guilt by establishing that he was acting in conformity with his character. See former Tex. R. Crim. Evid. 404(b). It does not prohibit evidence of other crimes, wrongs, or acts which are admitted for other purposes. See former Tex. R. Crim. Evid. 404(b). Several proper purposes suggested by rule 404(b) are proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See former Tex. R. Crim. Evid. 404(b). We find no support in the record that appellant was fleeing because he was in possession of marijuana as opposed to fleeing because of the bond forfeiture murder warrant. Appellant did not testify, and the record does not reflect that appellant was in possession of illegal drugs when he was subdued and arrested. We conclude that evidence of appellant's bail-jumping while in possession of a fake identification card was relevant and probative because it related directly to appellant's attempt to escape prosecution for murder. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) ("we have held that criminal acts that are likely to reduce the likelihood of prosecution, conviction, or incarceration for the offense on trial, are admissible under rule 404(b) as showing 'consciousness of guilt.' These include . . . bail-jumping and the presentation of fake identification to the police . . . ."). Accordingly, we overrule appellant's third point of error.
Motion To Suppress
        In his fourth point of error, appellant asserts that the trial court erred in failing to suppress certain items that were seized from the Fletcher Street residence because the items were not specifically named in the search warrant. Prior to trial, appellant filed a motion to suppress evidence urging that the trial court conduct a hearing and that the evidence seized from the residence be suppressed. The affidavit supporting the issuance of the search warrant contained both article 18.02(9) and (10) grounds. See Tex. Code Crim. Proc. Ann. art. 18.02(9)(10) (Vernon 1994). The evidentiary search warrant in this case ordered the seizure of the following evidence from the residence: "physical evidence such as hair, blood, and a handgun, further described as a revolver, silver in color and capable of firing a .44 magnum or .45 long colt ammunition." A suppression hearing was conducted and the evidentiary search warrant was admitted into evidence. At the conclusion of the hearing, the attorney for appellant moved that all items not specifically set forth in the search warrant be suppressed. The trial court denied appellant's motion to suppress on specificity grounds but reserved ruling on relevancy grounds. During trial, the State offered into evidence the items that appellant contends were seized outside the scope of the search warrant including marijuana, two .9 mm. pistols and ammunition, a live .44 round of ammunition, the package of resistors, and cash.
        First, we conclude that appellant waived appellate review of the admissibility of this evidence when he stated during the trial that he had no further objection to the State introducing any evidence seized from the house on Fletcher Street and the State could introduce the evidence "without objection." The court of criminal appeals has held that nothing is preserved for appellate review, despite a pretrial ruling, when, at trial, the defendant affirmatively asserts that he has no objection to admission of the evidence. See, e.g., Dean v. State, 749 S.W.2d 80, 82-83 (Tex. Crim. App. 1988).
        In the alternative, reviewing the motion to suppress de novo, we conclude that the trial court properly denied appellant's motion to suppress. The trial court could have reasonably concluded that the package of resistors was described in the search warrant because the package was covered in blood and the search warrant specifically allowed the seizure of physical evidence such as blood. The affidavit also supported a search for and seizure of "property which constitutes implements or instruments used in the commission of a crime." Therefore, concerning the remainder of the items seized, an officer may seize evidence of a crime even though such property is not particularly described in a search warrant when the objects discovered and seized are reasonably related to the offense in question, when the officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good-faith search conducted within the perimeters of the search warrant. See Bower v. State, 769 S.W.2d 887, 906 (Tex. Crim. App. 1989) (citing Warden v. Hayden, 387 U.S. 294 (1967)) FN:3 ; Joseph v. State, 807 S.W.2d 303, 307 (Tex. Crim. App. 1991). In this case, the trial court could have reasonably concluded that the ammunition and firearms were related to the murder being investigated. See Morgan v. State, 816 S.W.2d 98, 104 (Tex. App.--Waco 1991, no pet.) (police lawfully seized gun boxes, gun clips, shell casings, and bullets not specifically described in the search warrant because there was a nexus between this evidence and the murder being investigated). In addition, given the extreme violent nature of the murder, the police could have reasonably believed that illegal drug dealing was involved and the marijuana and cash were connected to the offense. Moreover, appellant does not challenge the warrant itself. The officers had a right to be where they were and, under the plain view doctrine, could seize contraband they observed in plain view. For the reasons above, we overrule appellant's fourth point of error.
Ineffective Assistance of Counsel
        In his fifth point of error, appellant asserts that he received ineffective assistance of counsel. The Texas Court of Criminal Appeals has adopted the test for ineffective assistance of counsel first set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688(1984). See Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Under this test, a convicted defendant must show that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Id.; see also Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland, 761 S.W.2d at 314; Wilkerson, 726 S.W.2d at 548 n.3. Whether a defendant received effective assistance of counsel is to be judged by the totality of the representation, not isolated acts or omissions of trial counsel. Wilkerson, 726 S.W.2d at 548. The right to effective assistance is not the right to error-free counsel. Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986).
        We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.--Dallas 1994, no pet.). When the record contains no evidence of the reasoning behind trial counsel's action, we cannot conclude that counsel's performance was deficient. Id. at 391 (citing Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994)). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Weeks, 894 S.W.2d at 391-92. When the "cold record" clearly confirms that no reasonable trial counsel could have made such trial decisions, however, to hold counsel ineffective is not speculation. Id. at 392.
        The only alleged error to which appellant points to support his contention that his trial counsel was ineffective was trial counsel's failure to object to the introduction of the .9 mm. pistols, the $2000 in cash, and the marijuana found in the house on Fletcher Street. Appellant maintains that his trial counsel's failure to lodge an extraneous offense objection to this evidence allowed the jury to determine that he was a drug dealer and to hold that against him in finding him guilty of the murder of Harper. We conclude that trial counsel's failure to object could have been a matter of trial strategy in that trial counsel wanted to explain why appellant was hiding in the attic when the police arrived at the house on Fletcher Street. Trial counsel argued during closing that marijuana and cash "accounts for the attic. All of that marijuana..well, one little bitty leave [sic] is illegal and he had a lot of illegal marijuana in that house. Okay. Not hard to figure out." Later, defense counsel argued "So, he sells marijuana. He is not a murderer."
        In any event, the record is silent as to the reasoning behind trial counsel's action. Because a possible basis exists in strategy or tactics, we cannot conclude that counsel's performance was deficient. Weeks, 894 S.W.2d at 390-92. We overrule appellant's fifth point of error.
        Having overruled all of appellant's points of error, we affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
960402F.U05
                
        
 
FN:1 Apparently, Harper illegally installed cable and worked on cable boxes in return for cash payments.
FN:2 The detective observed that the heater control on the side of the water bed had been broken and that it was covered in blood. He found the resistors under the bed in a package covered with blood.
FN:3 Bower was overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991).