DEMOND RASHON STUARD, Appellant v. STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed April 12, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01695-CR
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DEMOND RASHON STUARD, Appellant
V.
STATE OF TEXAS, Appellee
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On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-57735-VW
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OPINION
Before Justices Moseley, Richter and Francis
Opinion By Justice Richter
         A jury convicted appellant, Demond Rashon Stuard, of aggravated robbery. Appellant pleaded true to one enhancement paragraph and the jury sentenced him to imprisonment for fifty years. Appellant raises two issues on appeal, arguing the evidence is factually insufficient to support his conviction and ineffective assistance of counsel during the guilt-innocence phase of trial. We affirm the trial court's judgment.
 
 
BACKGROUND
 
        On May 16, 2008, complainant, Mary Boyd, was sitting in her truck in a parking lot at NorthPark Center (NorthPark), waiting to pick up her daughter. A man appeared at the driver's side window, banged on the window and tried to open the truck door. The man appeared upset or mad and indicated he wanted Boyd to open the door. Boyd put her truck in reverse and started to back out of her parking space. The man yelled “no” and showed Boyd a gun. When Boyd pushed on the accelerator, the man shot her through the window. The bullet entered Boyd's eye socket, passed through her sinuses and nose, deflected off her cheekbone and exited by her ear. Boyd maintained consciousness and drove to the Nordstrom's valet stand while honking her horn. Valet personnel called 911 and located Boyd's daughter. An ambulance took Boyd to the hospital where she had surgery to rebuild her eye.
        Approximately two months after the shooting, Geneva Scott and her boyfriend, Antoine Wallace, went to the police to turn in appellant and Antoine Wallace's cousin, Anton Wallace (Wallace), and collect the $40,000 award offered. On the night of the shooting, Wallace called Geneva and Antoine and told them to turn on the television news. When they turned it on, there was a report about the shooting at NorthPark. Later that night, appellant and Wallace arrived at Geneva's apartment and Geneva heard appellant tell Antoine that he and Wallace had gone to NorthPark to rob someone. Appellant described making sure there were no cameras, following a woman in a truck and pointing a gun at her. When the woman appeared to be reaching for something in her truck, appellant shot her. The woman looked at appellant twice but appellant said she would not be able to identify him because he did not think she would live.
        Appellant and Wallace were arrested. Detective Kenneth Penrod interviewed appellant after his arrest. Appellant denied committing the offense but ultimately admitted being in a truck at NorthPark at the time of the offense. Appellant implicated Wallace in the crime.
        Boyd saw television coverage of appellant and Wallace after they were arrested and taken into custody for the shooting. She contacted the police and identified appellant as the man who shot her. Boyd also identified appellant in court as the man who shot her. Boyd viewed the other suspect (Anton Wallace) in court and testified she was sure it was appellant, and not Wallace, who shot her.
        After the close of evidence, the trial court instructed the jury that it could convict appellant of aggravated robbery as the shooter or as a party to the offense. The jury returned a general verdict finding appellant guilty of aggravated robbery with a deadly weapon and assessed punishment at fifty years confinement.
         FACTUAL SUFFICIENCY OF THE EVIDENCE
 
        In his first issue, appellant contends the evidence is factually insufficient to support his conviction for aggravated robbery because the State did not prove he shot Boyd or was otherwise criminally responsible for shooting Boyd.
 
A. Standard of Review
 
        In a factual sufficiency review, the appellate court considers all the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient if (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We are permitted to substitute our judgment for the factfinder's when considering credibility and weight determinations, but only to a limited degree. Roberts, 220 S.W.3d at 524. We must give almost complete deference to the factfinder's decision when that decision is based upon an evaluation of credibility. Lancon, 253 S.W.3d at 705.
B. Applicable Law
 
        A person commits the offense of aggravated robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon. See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (Vernon. 2003). Even if a defendant does not commit aggravated robbery himself, he may be found guilty as a party to the crime if he acts with the intent to promote or assist in the commission of the aggravated robbery. Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). When a trial court's charge authorizes the jury to convict on alternative theories, we uphold the verdict of guilty if the evidence is sufficient to support a finding of guilt under either of the theories. See Garza Vega v. State, 267 S.W.3d 912, 915 (Tex. Crim. App. 2008); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).
C. The Evidence
 
        The State's evidence consists of Geneva Scott's testimony that she heard appellant confess to the crime, Mary Boyd's identification of appellant as the man who shot her through her truck window, Jennifer Peterson's testimony that she saw a man running away from Mary Boyd's truck, and Detective Penrod's testimony that appellant admitted being in a truck at NorthPark at the time of the offense.
         Geneva Scott's Testimony        
        Appellant was arrested based on information given to the police by Geneva Scott. At trial, Geneva testified she had known appellant for about a year. On the night of the shooting, Wallace called Geneva and Antoine and told them to turn on the television news. When they turned it on, there was a report about the shooting at NorthPark. Geneva testified appellant and Wallace came to their apartment later that evening. She overheard appellant describe going to NorthPark to rob someone, making sure there were no cameras, following a woman in a truck, pointing a gun at her and shooting her. Geneva testified that appellant stated Boyd looked at him twice but would not live to identify him. Geneva testified that Wallace agreed with appellant's story, that Wallace was the driver of the truck and appellant was the shooter. Geneva stated she and her boyfriend, Antoine Wallace, had a hard time deciding to go to the police with information about appellant and Wallace because Wallace is her boyfriend's cousin.
         Mary Boyd's Testimony        
        At trial, Mary Boyd testified when she saw television coverage of the arrest of appellant and Wallace, she immediately recognized appellant as the man who shot her. She told the police she knew appellant, the man wearing black, was the man who shot her. Boyd testified that she was not shown a photographic lineup or a live lineup. She also identified appellant in the courtroom, testifying “I'll never forget that face.”
         Jennifer Peterson's Testimony        
        Jennifer Peterson testified that on the night of the incident as she was walking toward the back row of the NorthPark parking lot, she heard a loud noise like a car backfiring. She testified that a man ran past her, from a white truck (Boyd's truck) to a blue truck. Peterson gave the police a description of the man she saw but was unable to identify appellant two months later in a photographic police lineup. Peterson testified that she initially picked appellant's photo from the photographic police lineup as the man she saw running across the parking lot on the night of the offense, but then she changed her mind and identified a different man.
         Police Testimony        
        Detective Kenneth Penrod, homicide detective with the Dallas Police Department, interviewed appellant following his arrest. The videotape of Detective Penrod's interview of appellant was admitted into evidence without objection, and portions of the interview were shown to the jury. Detective Penrod testified that appellant repeatedly lied during the interview but finally admitted being in Wallace's truck at NorthPark at the time of the offense. Officer Scott Bazan from the Dallas Police Department Crime Scene Unit testified he was unable to find any fingerprints on the truck that matched appellant. Officer Billy Harris testified that no gun was recovered by the police.
         Demond Stuard's Testimony        
        Testifying in his own defense, appellant admitted being in Wallace's blue truck and being at NorthPark at the time of the incident. Appellant denied ever getting out of the Wallace's truck while they were at NorthPark, denied shooting Boyd, and denied going to Geneva's apartment later that evening. According to appellant's testimony, Wallace's father was driving the truck, appellant was in the passenger seat and Wallace was in the back seat. Appellant testified that while they were at NorthPark, Wallace got out of the truck. He denied knowing what Wallace did but thinks he heard two shots while Wallace was out of the truck. Appellant testified that he did not see a gun and did not know if Wallace had a gun. On cross-examination, appellant admitted that most of what he said during his videotaped police interview was a lie.
D. Analysis
 
        Appellant argues that the evidence is factually insufficient to prove he was the shooter or was otherwise criminally responsible for the aggravated robbery of Boyd because (1) Geneva was not a credible witness and was motivated by the monetary reward; and (2) Boyd's identification of appellant was not a fair and unbiased procedure for picking a suspect out of a lineup and was impermissibly suggestive. Appellant also argues that the evidence is factually insufficient to show he was a party to the offense, knew of an intended robbery, or aided and assisted in the commission of the aggravated robbery.
        Appellant attacks Geneva's credibility, arguing she had motive to fabricate her testimony in order to receive a $40,000 reward. During Geneva's testimony, she admitted knowing about the reward offered and on cross-examination, stated that she and Antoine contacted NorthPark to ask about the reward before they contacted the police. With respect to the content of Geneva's testimony, appellant contends Geneva could have learned all the details of her testimony from newspaper and television coverage of the incident. At trial, Geneva testified that she saw the initial television news coverage of the shooting at NorthPark because Wallace called her and Antoine to tell them to turn on the television. She was not cross-examined to determine whether she saw additional newspaper or television coverage with additional details of the incident.
        Appellant argues that Boyd's identification of him based on seeing two suspects on television news being arrested for the offense is not a fair and unbiased procedure for picking a suspect out of a lineup and is impermissibly suggestive. Appellant contends Boyd could simply rule out the least likely suspect based on height and size, and accuse the remaining suspect of being the shooter. During trial, Boyd was cross-examined regarding her identification of appellant as the man who shot her. She acknowledged her identification of appellant as the shooter did not occur until after he was arrested in connection with the incident. However, she went on to testify that when she saw appellant on television, she immediately knew he was the man who shot her. She also testified that when she saw Wallace on television news, she was confused because she had never seen him before and did not understand why he was being arrested in connection with the incident. During trial, appellant did not object to Boyd's in-court identification as inadmissible or tainted by an impermissibly suggestive pre-trial identification.
        Appellant was able to fully explore on cross-examination each witnesses' credibility and whether they had a motive to lie. The jury is the trier of fact and jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony. Lancon, 253 S.W.3d at 706 (“[A]n appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge.”). The jury is free to believe testimony of the State's witnesses showing guilt, and disbelieve appellant's testimony denying the offense. See Mangraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        After considering all of the evidence in a neutral light, we conclude the evidence supporting appellant's conviction is not so weak that this finding is clearly wrong and manifestly unjust, nor is this finding contradicted by the great weight and preponderance of the evidence. We resolve appellant's first issue against him.
INEFFECTIVE ASSISTANCE OF COUNSEL
 
        In his second issue, appellant contends he received ineffective assistance of counsel in the guilt-innocence phase of the trial because his trial counsel failed to request a hearing on the reliability and admissibility of complainant's identification of appellant.
A. Standard of Review
 
        Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance of counsel, an appellant must establish both prongs of a two prong test, showing (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687- 88. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Appellant must prove by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        Review of defense counsel's representation is highly deferential, and presumes that counsel's conduct fell within a wide range of reasonable professional assistance. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. When the record is silent regarding the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 63. Trial counsel should ordinarily be afforded the opportunity to explain their actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it'.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
        Here, the record is silent regarding defense counsel's motivation for waiving the identification hearing. The record merely reflects that immediately prior to trial and following an off-the-record discussion by counsel for both parties and the trial court judge, Appellant's counsel waived an identification hearing. Appellant filed a motion for new trial but did not raise ineffective assistance and no hearing was held. Due to the lack of evidence in the record concerning trial counsel's reasons for waiving the identification hearing, we are unable to conclude that appellant's trial counsel's performance was deficient. Failure to make the required showing of deficient performance defeats a claim for ineffective assistance. Strickland, 466 U.S. at 700. We resolve appellant's second issue against him.
CONCLUSION
 
        Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
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Tex. R. App. P. 47
081695F.U05