Bobby Lookingbill v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00663-CR
Bobby Joe LOOKINGBILL,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-8633
Honorable Mary Rom n, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: July 25, 2007

 

AFFIRMED

Appellant, Bobby Joe Lookingbill ("Lookingbill"), pled guilty to the offense of aggravated robbery with a deadly weapon after being caught robbing a bank. A jury assessed punishment at ninety-nine years imprisonment and a fine of $10,000. Lookingbill's sole point of error is that he received ineffective assistance of counsel when his trial attorney failed to object to the prosecutor's characterization of Lookingbill as a "terrorist" during jury argument.

Ineffective Assistance of Counsel

As 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 (applying Strickland test). 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, the appellant must show also a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 813. Absent both showings, we cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look to the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id. When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid "deleterious effects of hindsight." Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

Further, 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. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.;Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833.

Jury Argument

A proper jury argument must fall within one of the four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.1999). An improper argument constitutes reversible error when, in light of the record as a whole, it is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceedings. Borjan v. State, 787 S.W.2d 53, 55-56 (Tex. Crim. App.1990).

Discussion

Lookingbill argues that the following jury argument was improper and should have been objected to by his trial counsel:

Another bank has closed their lobby altogether, and only admits law-abiding citizens if you have an appointment in advance. Who determines the way we live? Is it the criminal? Is it the terrorist? Every one of us have experienced what terrorism and what terrorists have done to us. And you can no longer go to an airport without being there three hours in advance and practically stripping down to get on the airplane, because that is what terrorism has done to our freedoms.

 

And make no mistake about it, what the Defendant did was terrorized [sic] people. Look at those photographs of him in that ski mask. Listen to him testify. Yeah, yeah, you know, you take power over people. You subjugate people, you make them do what you want. As a result of that terrorism, we have lost a little bit.

 

Specifically, Lookingbill maintains that the prosecutor's repeated references to "terrorist" and "terrorism" had "an incendiary and highly prejudicial effect, given our nation's military 'War on Terror.'"

However, the record reflects that a number of witnesses testified regarding their personal experiences relating to various bank robberies committed by Lookingbill. In each case, there was evidence that Lookingbill entered the bank wearing a ski mask, acted aggressively and cursed at his victims, pointed his gun in their faces, and threatened to kill them. Further, there was evidence that on more than one occasion, Lookingbill forced his victims to get down on their knees at gunpoint. Many of the witnesses also testified that they were severely traumatized by Lookingbill's actions during the robberies, and further, that they could not forget the experience and continued to feel traumatized.

Additionally, the following trial excerpt, wherein Lookingbill testified, is germane:

Q. [Prosecutor] And if you never intended to hurt anyone, why did you ask Priscilla Balmaras if she had children?

A. [Lookingbill] That's what drugs do to you, sir.

Q. Well, your purpose was to scare her to death, wasn't it?

A. Yes, sir. It was.

Q. And your purpose was to communicate to her that her children could be in danger, wasn't it?

Q. Yes, sir.

Q. Did you enjoy doing these robberies?

A. No, sir.

Q. I mean, did you get a rush?

A. No, sir.

Q. Because it seems to me like you spent a lot of time subjecting people to that terror.

A. I did.

Q. You know, gave you that sense of power over them; isn't that right?

A. Yes, sir. It does give you a sense of power.

 

While the words "terrorist" and "terrorism" may have a slightly different connotation following the events of September 11, 2001, Lookingbill's admissions, that he spent a lot of time subjecting his victims to terror and that it gave him a sense of power over them, place him and his actions squarely within the common definition of those terms. (1) See Guidry, 9 S.W.3d at 154. Thus, it appears the jury argument was a summation of and a reasonable deduction from the evidence; therefore, it was proper.Id. Further, even if we were to find these arguments improper, we cannot say, in light of Lookingbill's testimony, as well as the record as a whole, that the complained of jury argument was extreme or manifestly improper, violated a mandatory statute, or injected new facts harmful to Lookingbill into the trial proceedings. Borjan, 787 S.W.2d at 55-56.

Additionally, Lookingbill likewise fails to meet the second prong of the Strickland test which requires that Lookingbill show a reasonable probability that, but for his attorney's failure to object, Lookingbill would have received a lesser sentence. See Thompson, 9 S.W.3d at 812. In the present case, there was evidence that Lookingbill robbed five banks in six months; in each case, Lookingbill wore a ski mask, used a handgun, pointed the gun directly in his victim's face, was very aggressive, yelled and cursed at his victims, and threatened to kill them. Moreover, Lookingbill's probation officer, David Gonzales, testified regarding Lookingbill's criminal history, the number of opportunities he had been afforded, and his opinion that Lookingbill had chosen to reject those opportunities and instead, had chosen another path. Gonzales also stated that he felt Lookingbill manipulated situations and people and would tend to tell them what they wanted to hear. Further, he testified that the threat of going to prison hadn't changed Lookingbill's behavior in the past, that Lookingbill was unstable and could not hold a job, that he was not surprised to learn that Lookingbill had robbed five banks at gunpoint, and additionally, that he believed Lookingbill would re-offend.

Thus, we cannot say, with a reasonable probability, that the jury would have sentenced Lookingbill differently had the complained of jury argument not been made. Id.

Conclusion

As Lookingbill has failed to make the required showing of deficient performance and sufficient prejudice, he is unable to establish his ineffectiveness claim. Id. at 813. Accordingly, we overrule Lookingbill's issue and affirm the trial court's judgment.

 

Karen Angelini, Justice

 

Do Not Publish

 

1. "Terrorism" is defined as "the systematic use of terror esp. as a means of coercion." Webster's Ninth New Collegiate Dictionary 1218 (Merriam-Webster Inc. 1991).