Kevin L. Johnson v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00844-CR

Kevin L. JOHNSON,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-4779

Honorable Phillip A. Kazen Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

The jury found defendant guilty of aggravated robbery and sentenced him to life imprisonment. In three issues on appeal, defendant challenges the legal and factual sufficiency of the evidence and complains of ineffective assistance of counsel. After reviewing the record, we conclude the record contains sufficient evidence to support the conviction and insufficient evidence to hold defendant received ineffective assistance of counsel. Therefore, we affirm.

SUFFICIENCY OF THE EVIDENCE

In his first two issues, defendant asserts the evidence is legally and factually insufficient to support his conviction. Defendant contends the State failed to provide sufficient evidence identifying him as John Gonzalez' assailant on two grounds: first, because no person identified defendant as the assailant and second, at defendant's arrest, he did not have possession of any of Gonzalez' stolen items.

We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex. Crim. App. 2000) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). In both sufficiency reviews, the trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). We evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry, 4 S.W.3d at 740. In a prosecution based on circumstantial evidence, it is not required that every fact point directly and independently to the guilt of the accused; the cumulative force of all the incriminating circumstances might suffice to convict. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).

On November 1, 2001, an unidentified assailant attacked complainant, John Gonzalez, and stole his wallet before leaving the scene. Prior to the assault, police had begun an ongoing surveillance of the defendant. The assault, however, occurred when the police were not monitoring the defendant. Pursuant to surveillance after the assault, police followed defendant to a Super K-Mart where an undercover officer observed defendant make several purchases with a credit card. The undercover officer obtained the credit card receipt signed by the defendant using the name of John Gonzalez. Police arrested defendant in the Super K-Mart parking lot. Police recovered from defendant several credit cards belonging to Gonzalez, including the card defendant used in the Super K-Mart. After his arrest, police placed defendant in a patrol car. One week later, a police officer found Gonzalez' wallet in the rear seat. At trial, the State produced evidence of the stolen credit cards found in a daily planner in the defendant's possession at his arrest and credit card receipts signed by defendant using Gonzalez' name. In addition, to place the defendant at the scene of the assault, the State offered the testimony of Shanita Newton who had accompanied the defendant the night of Gonzalez' assault.

After reviewing the record, we conclude that while no person pointed to the defendant as the assailant during trial, the cumulative force of all the incriminating circumstances is sufficient to support a conviction. Therefore, we hold the evidence legally and factually sufficient and overrule defendant's first two issues.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, defendant asserts he received ineffective assistance of counsel because trial counsel failed to: (1) object to testimony offered by the prosecution to the effect that members of the San Antonio Police Department's Repeat Offender's Program had arrested defendant, (2) request a limiting instruction pertaining to evidence about defendant's prior conviction, (3) object to the admission of extraneous acts of misconduct at the punishment phase on the basis of inadequate notice, and (4) adopt and obtain rulings on various pre-trial motions filed by the defendant pro se. We follow the standard of review for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, a defendant must show that counsel's deficient performance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, defendant must affirmatively prove counsel's conduct prejudiced him. Id. In other words, defendant must prove by a 'reasonable probability' that the proceeding would have resulted differently but for counsel's unprofessional conduct. Id. A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Normally a silent record cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson, 877 S.W.2d at 771.

Defendant's first three grounds of ineffective assistance of counsel are not affirmatively demonstrated by the appellate record. The record does not contain any explanations for counsel's failure to object to evidence at different stages of the trial or request a limiting instruction. In

addition, the record does not demonstrate when, or if, trial counsel had notice of the State's intent to use extraneous acts. To answer these questions would require this court to speculate. We will not reverse a conviction based on ineffective assistance of counsel grounds when counsel may have based his actions or omissions upon tactical decisions. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Defendant's trial counsel may have proceeded as he did for strategic reasons and the record is silent as to counsel's reasons for proceeding as he did. Defendant's complaints ask this court to speculate about counsel's trial strategy, which we cannot do.

Defendant's fourth argument consists of trial counsel's failure to adopt, or obtain rulings on, defendant's pro se pre-trial motions. The record contains several pre-trial motions made by trial counsel that requested the same relief defendant requested while acting pro se. The record does not affirmatively demonstrate why defendant's trial counsel did not make any other pre-trial motions, adopt defendant's remaining pre-trial motions, or obtain rulings on the filed pre-trial motions. We will not speculate about counsel's reasons. Instead, we must presume that the actions were taken as part of a strategic plan for representing the defendant. Therefore, defendant has failed to rebut the presumption that trial counsel's decisions were reasonable.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH