Levi Smith v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00416-CR
Levi SMITH,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6471-B
Honorable Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

Levi Smith was found guilty of the offense of aggravated robbery with a deadly weapon and sentenced to sixty years confinement in the Institutional Division of the Texas Department of Criminal Justice. Smith raises two issues on appeal. First, he contends he was deprived effective assistance of counsel because defense counsel failed to properly object to prejudicial evidence, failed to procure the presence of crucial witnesses, and failed to request lesser included offenses to be included in the charge to the jury. Second, Smith contends that the evidence is factually insufficient to sustain his conviction. We disagree and affirm the judgment of the trial court.

Factual Background

The Martinez family lived on the grounds of Spacesavers Mini Storage, the self storage facility which they operated. On August 26, 2001, Levi Smith and his companion, Aaron Garcia, broke into the Martinez family's business office and the family's apartment, which was attached directly to the office. During the robbery, Smith and his companion stole a televison set and a "boombox" radio and demanded that Ginger Martinez provide them with a key to the safe. Throughout the robbery, one of the robbers, later determined to be Smith, held and fired a gun at several members of the family which included the parents and two children. Upon arrival of the police, the robbers fled; Garcia was captured easily and the police were forced to pursue Smith. Smith was detained a few blocks away, and despite his wearing a nylon mask during the robbery, the family identified him based on his figure, clothing, voice, and the family's keys, a picture and a camera that the police officers found in Smith's pockets.

Ineffective Assistance of Counsel

In his first issue, Smith contends that he was deprived of effective assistance of counsel in violation of the 6th and 14th Amendments of the United States Constitution and Article 1, Section 10 of the Texas Constitution because of several omissions by his trial counsel. We follow the standard of review for evaluating claims of ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 687 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, a defendant must show that counsel's performance was so deficient it fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must affirmatively prove he was prejudiced by counsel's conduct. Id. Prejudice is demonstrated when the defendant shows a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Whether a defendant has received ineffective assistance of counsel is judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence, which must be firmly supported by the record. Thompson, 9 S.W.3d at 813. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

On appeal Smith complains defense counsel failed to properly object to prejudicial evidence, failed to procure the presence of crucial witnesses for trial, and failed to request lesser included offenses to be included in the charge to the jury. The record, however, is silent as to the extent of trial counsel's investigation into the factual and legal basis of the State's case. Further, Smith asks this court to speculate about defense counsel's trial strategy, something we cannot do; therefore, we hold that Smith did not meet his burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Lebo v. State, 100 S.W.3d 417, 422 (Tex. App.--San Antonio 2002, pet. ref'd). As the court in Bone v. State stated, an appellate court may not reverse a conviction on ineffective assistance of counsel grounds if the record contains no specific explanation for the counsels' decisions. 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Therefore, because the counsel in question was not given the opportunity to explain his trial strategy, we must reject Smith's ineffective assistance claim.

Sufficiency of the Evidence

Smith next challenges the factual sufficiency of the evidence used to support his conviction. Specifically, Smith contends there is insufficient evidence to prove that he was one of the robbers. In conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the prosecution; rather, we consider all of the evidence. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (1)

. Additionally, an appellate court may not reverse a jury's decision simply because it disagrees with the result. As the court in Cain v. State stated, "the appellate court must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice." 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

A person commits a robbery when, in the course of committing theft and with the intent to obtain control over property, he "intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. 29.02(a)(2) (Vernon 2003). A person commits aggravated robbery if he commits robbery as defined above and uses or exhibits a deadly weapon. Id. 29.03(a)(2) (Vernon 2003).

Based on evidence found at the facility and in Smith's pockets and from testimony by the Martinez family and police officers who captured Smith, we believe that a rational jury could have found that it was Smith who participated in the robbery and used the gun. The evidence presented against Smith consisted primarily of testimony from the Martinez family and several police officers who witnessed Smith's flight and capture.

Jamie Martinez

Jamie Martinez, the daughter who lived in the apartment, testified that she was in her room at the time of the robbery. Upon hearing her dog bark, she looked out of her room and saw the two robbers in her living room, and noticed that one was noticeably thinner than the other. She testified that the larger man was holding the television and the smaller man was holding the gun. Jamie crawled into the living room and grabbed her dog at which point, Smith, the smaller of the two robbers, said, "get back in your room, bitch." Jamie crawled back into her room and called 911 and stayed on the phone with the operator throughout the remainder of the robbery. After the robbery, Jamie identified both of the robbers. She identified the larger one, Garcia, at the storage facility and was taken to see Smith a couple blocks away where he was captured. As the police took items out of Smith's pockets, Jamie identified them. She recognized her dad's indian bone and bead key chain, her own key chain with a plastic red star, and the family camera. Jamie testified that these items had been hanging on "the wooden key thing" that had been ripped off their wall by the robbers. When identifying Smith at the time he was captured, Jamie testified that she recognized him because of his build, the features on his face which had not been greatly disguised by his pantyhose mask, and by his voice.

David Martinez

David, the son who lived in the apartment, testified that he was in the shower when the robbers initially entered his house. While in the shower, David heard the dog barking and voices. David then entered the hallway to find an individual with a panty hose mask and a weapon. David looked further and saw Jamie crawling back into her room with her dog and heard the man tell her to get back into her room. David went back into the bathroom until he heard the robbers leave. After the robbers left, David grabbed a pistol from the china cabinet and gave it to his father, who had just woken up. He followed his father outside and saw a larger man using bolt cutters trying to cut through the fence. However, before David or his father could reach the man at the fence, the man ran off. David also witnessed his father exchange gun fire with someone between the aisles in the storage facility. David went with his sister to identify Smith and recognized Smith and the items pulled from Smith's pockets.

Ginger Martinez

Ginger Martinez is the mother of Jamie and David. She lives in the apartment and manages the storage facility with her husband. On the night of the robbery, she was outside walking one of her dogs and noticed two men near the building that contains her apartment. The robbers approached her and she recalled that the thinner man yelled at her with a gun in his hand and a pantyhose mask on his face. Even though it was night, Ginger could make out the man's face because he walked under the two security lights and because the pantyhose was thin. The man with the gun asked for a key to her safe but she replied that she did not have a safe. He told her, "If you don't give me the keys, if you don't give me the money out of your safe, then I know where your kids are and I'm a crazy mother fucker and I'll kill you." When he realized that she did not have a safe, he pulled the trigger, which startled her dog who pulled Ginger away. The robber did not follow and she entered her apartment, locked the door, and woke her husband. Ginger also identified both men once the police had captured them. She testified that it was the smaller man, Smith, who had the gun and identified the items found in his pocket. Ginger also testified that she had seen the same men the day before watching the storage facility from a nearby parking lot.

Leonard Martinez

Leonard Martinez, the father and co-manager of the storage facility, was initially sleeping in his room when the robbers broke into his house. He was awakened by his wife, grabbed his pistol, and went outside after the robbers. Initially he tried to chase the one who was cutting through his fence with bolt cutters. In pursuit of one robber, two shots were fired towards him from between a row of storage units. Looking towards the fence, he saw two individuals trying to jump it and Leonard hollered at them, firing two shots in their direction until the police came. Leonard was able to identify the larger of the two robbers because he was able to get a good look at that robber when he had tried to cut the fence, but Leonard was never able to catch a good glimpse of the shooter because it was dark outside.

Officer David Munoz

Officer Munoz was on patrol the night of the robbery. Notified of the crime, he pursued the robbers in the location they were said to have run. Munoz saw an individual running from another officer through a nearby neighborhood. The suspect came from a backyard, knocked on a front door as if he was in a rush and went into the house, despite the fact that Officer Munoz was yelling at him from the curb to stop. Munoz went into the house after the man and arrested him. The man was later identified as Smith. Munoz also testified that a handgun, some ammunition rounds, a shirt, and a stocking mask were found on the side of the property through which Smith had run.

Officer Leroy Carreon

Officer Carreon was patrolling in the area and drove to help Officer Munoz with the arrest. After the arrest, he conducted a "pat down" on Smith and found several live rounds of ammunition, a camera, and rings of keys in Smith's pocket. While Smith was not armed at that time, Carreon later found a gun nearby on the ground near the side of the house Smith had entered.

After analyzing the evidence and applying the applicable standards of review, we hold the record contains factually sufficient evidence upon which the jury could find that Smith committed the aggravated robbery at the storage facility.

Conclusion

We will not speculate on the strategy of defense counsel and therefore have no basis on which to hold that Smith was denied effective assistance of counsel. Additionally, viewing the evidence in a neutral light and deferring to the jury as the sole judge of witness credibility, we hold that a rational trier of fact could have found that Smith participated in the aggravated robbery at the home and workplace of the Martinez family. We therefore overrule Smith's appellate issues and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. We note that, in an unpublished opinion, the court of criminal appeals recently clarified the sufficiency of evidence standard. In Zuniga v. State, the court stated that there was only one question to be asked: "Considering all of the evidence in a neutral light, was the jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met, so the guilty verdict should not stand." No. 539-02, 2004 WL 840786, *7 (Tex. Crim. App. Apr. 21, 2004).