Juan Antonio Torres v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00540-CR
Juan Antonio TORRES,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1444
Honorable Mary Rom n, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 23, 2003

AFFIRMED

Juan Antonio Torres appeals his conviction for the offense of aggravated robbery. Following a jury trial, Torres was assessed punishment of forty years imprisonment. On appeal, Torres claims that the evidence is factually insufficient to support his conviction and that he was denied effective assistance of counsel. We overrule both issues and affirm the trial court's judgment.

Factual Background

On October 14, 2001, a Diamond Shamrock cashier, Paulyna Dana, was robbed at gunpoint. Just before the robbery, the gunman was looking at the magazines on the magazine display rack. Once the other customers in the store left, the gunman approached the register, handed Dana a magazine, and then pulled a gun from his sleeve. Dana did not look at the man because she did not want him to shoot her. She was, thus, unable to make an identification from a photo array or in the courtroom. The gunman demanded money from the cash register; Dana complied. Once the gunman left the store, Dana pressed the panic button to summon the police. Dana called out to the other cashier, Melissa Gutierrez, who had been stocking beer in the back of the store. When the police arrived, Dana gave the police the videotape that had recorded the robbery and the magazine that had been left on the store counter by the gunman.

After viewing the videotape of the robbery, Ruben Gonzales, a San Antonio Police Officer, identified the perpetrator as Juan Antonio Torres. Gonzales testified that he had known Torres for about two years. He also testified about Torres's brother, Adam, and the differences in the appearances of the two brothers. According to Officer Gonzales, Adam has a large, predominant scar on the right side of his face and two large scars on his neck. Adam is also more muscular, and, according to Gonzales, a trendier and more fashionable dresser than his brother. Officer Gonzales testified that the perpetrator was definitely Torres and not his brother. Gonzales recognized Torres from his physical appearance and from his voice. And, Gonzales identified some man-made trails leading from the Diamond Shamrock to Torres's house, which is located only about two to three blocks from the store.

An evidence technician for the San Antonio Police Department gathered fingerprint evidence at the crime scene. She took fingerprints from the magazine that the robber had been holding and from the interior of the front doors of the Diamond Shamrock. She found twelve prints on the magazine. The State's fingerprint expert, Cruz Mora, was only able to match one print on the magazine to Torres's fingerprint. Most of the other prints obtained were illegible.

Torres was arrested on November 23, 2003 at his home. The officers who served the warrant discovered Torres hiding in the attic.

Factual Sufficiency

In his first issue, Torres argues that the identification evidence is factually insufficient to support his conviction. In conducting a factual sufficiency review of the evidence, we look at all of the evidence on both sides and in a neutral light, without the prism of the "light most favorable to the verdict." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Unless the available record clearly reveals that a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor of the witnesses' testimony. Id. at 8. Evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9-10. If the complaining party did not have the burden of proof at trial, then the first or manifestly unjust standard applies. Zuliani, 97 S.W.3d at 593; Johnson, 23 S.W.3d at 10. If the complaining party on appeal had the burden of proof at trial, then the second or against the great weight and preponderance standard applies. Zuliani, 97 S.W.3d at 593; Johnson, 23 S.W.3d at 10.

The court of criminal appeals has, however, slightly modified this approach when a defendant challenges the factual sufficiency of a guilt finding. Zuliani, 97 S.W.3d at 593. If the defendant challenges the factual sufficiency of the elements of the offense on appeal, even though the State has the burden of proof, we must review the evidence using both standards. Zuliani, 97 S.W.3d at 593; Johnson, 23 S.W.3d at 11. In other words, we ask whether "a neutral review of all the evidence ... demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.

Torres does not dispute that an aggravated robbery occurred. His complaint is limited to the contention that the evidence is factually insufficient to prove that he was the perpetrator. Specifically, Torres emphasizes that the only two persons who were present in the store at the time of the robbery were unable to identify him as the perpetrator. Further, Torres argues that Officer Gonzales's identification is insufficient and unreliable because the quality of the videotape is poor and because the videotape does not clearly show the differences between Torres and his brother, Adam. Torres also claims that the testimony of Mora, the State's fingerprint expert, is inconclusive because the magazine from which Torres's fingerprint was lifted had been on the rack for up to two weeks before the robbery and had been handled by numerous people. Further, Torres urges that the State should have attempted to identify the other fingerprints that were lifted and, by failing to do so, the State must have been predisposed to place the blame on Torres.

After a neutral review of all the evidence, we cannot conclude that the evidence demonstrates that the proof of Torres's identification was so obviously weak as to undermine confidence in the jury's determination, nor that the proof of Torres's guilt was greatly outweighed by contrary proof. Regardless of the fact that neither of the two store clerks was able to identify Torres, the robbery was recorded on videotape. Dana could not identify Torres because she purposefully did not look at his face, and Gutierrez did not witness the robbery. But, the videotape was in evidence, and the jury was able to view it. Further, after reviewing the videotape, Officer Gonzales, who knows Torres, was able to identify Torres as the perpetrator. Officer Gonzales even went so far as to point out distinguishing characteristics between Torres and his brother, Adam, to show that Officer Gonzales, in fact, believed the person on the videotape to be Torres. And, regardless of whether other fingerprints were found on the magazine and at the scene of the crime, Torres's fingerprint was found on the magazine that the robber was holding at the time of the robbery. Moreover, when the officer went to Torres's residence to serve the arrest warrant, Torres hid in the attic of his home. We find that the evidence is factually sufficient to show that Torres was the man who committed the aggravated robbery.

Ineffective Assistance of Counsel

Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, both inquiries are subsumed into one. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57. The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id.

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

Torres lists five complaints concerning the effectiveness of his trial counsel:

(1) his failure to adequately and properly investigate the case;

(2) his failure to follow up and present to the court certain pre-trial motions;

(3) his failure to have a sufficient grasp of the case, as shown through his cross-examination of witnesses;

(4) his failure to listen to Torres's wishes, leading to a conflict between counsel and Torres; and

(5) his failure to present evidence to refute the State's identification evidence.

The record fails to rebut the strong presumption that counsel acted reasonably. See Thompson, 9 S.W.3d at 813. The record is silent as to why Torres's trial counsel performed as he did. Id. at 814. To be entitled to reversal, Torres must prove that there is, in fact, no plausible professional reason for his counsel's conduct. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). A review of this record could lead us to conclude that there were legitimate and professionally sound reasons for trial counsel's actions or we could speculate that there were not. Id. Trial counsel should have the opportunity to explain his actions before we can conclude he is unprofessional and incompetent. Id. In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997); see also Thompson, 9 S.W.3d at 813 ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim..."). We overrule this issue.

Conclusion

For the above-stated reasons, we overrule Torres's issues and affirm the judgment of the trial court.

Karen Angelini, Justice

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