Adedji Olalincoln Adekeye v. State

437 S.W.3d 62, 2014 WL 2616598, 2014 Tex. App. LEXIS 6390
Court of Appeals of Texas·Decided June 12, 2014·No. 14-12-01097-CR, 14-12-01098-CR·Published·Cited by 35 cases

Opinions

MAJORITY OPINION

TRACY CHRISTOPHER, Justice.

Appellant was convicted of attempted aggravated robbery and unlawful possession of a weapon. Punishment was assessed at thirty-five years’ imprisonment on the first count, and ten years’ imprisonment on the second. In multiple issues, we are asked to consider whether the evidence is sufficient to support the conviction for attempted aggravated robbery, and whether appellant was denied the effective assistance of trial counsel. We affirm.

BACKGROUND

This case is about a thwarted robbery attempt. The crime occurred near a hair salon in a mostly vacant shopping center. The owner of the salon was sitting near the storefront, waiting for customers to arrive, when she noticed a suspicious woman walking by. The woman was wearing an unkempt wig and ripped jeans, and her movements were very slow. The woman passed by the salon twice in. one minute. Within another two or three minutes, a white, older-model SUV parked in front of the salon. The salon owner grew concerned because the vehicle had no license plates and it was parked in reverse, as if to make a quick getaway.

The salon owner could see that the driver of the SUV was the same woman with the wig who had just walked by her store. Two male occupants were also inside the vehicle. One was bald and heavyset, and the other was slender. The slender man was turning his head from side to side, scoping out the area. The salon owner observed the heavyset male putting something on top of his head, but it was not fitting. The owner then saw the same man donning a pair of gloves and raising a handgun, as if to load to it with a magazine. The owner panicked and directed a coworker to call the police, believing that she was about to be robbed.

The owner watched as the heavyset male opened a passenger door with a bag in his hand. Before the man could fully touch the pavement, a shopper with a baby stroller walked in front of the salon, prompting the man to return to the vehicle. The man waited a few moments to try again. Just as he prepared to exit the vehicle a second time, a car drove by and parked two spaces away. The woman in the white SUV decided to move the vehicle to another spot. By the time she had parked, more cars had arrived at the shopping center and sirens could be heard in the distance. The SUV promptly drove away.

A police officer encountered the SUV not far from the shopping center. With lights and sirens engaged, a short chase ensued. At one point the SUV slowed [67]*67down to a rolling stop, and the two male passengers jumped from the vehicle and ran off on foot. They discarded a black bag, a mask, gloves, and a handgun, which were all later recovered.

The police officer stayed with the SUV as it sped away, but he called for backup and gave descriptions of the two male passengers. A perimeter was established and a search team was called in, including dogs and a helicopter. Police were eventually led to a dump truck, where they found the bald, heavyset male hiding inside. He was sweaty and claimed to have been sleeping. Police apprehended the man and took him to the hair salon, where the salon owner identified him as the male passenger who had exhibited the gun. During trial, the owner made an in-court identification of appellant as the same bald, heavyset male.

Police detained the driver of the SUV after another short chase. She was also taken to the salon owner, who positively identified her as the woman with the unkempt wig and ripped jeans. Appellant’s only defense witness, his mother, established that the female driver was also appellant’s pregnant girlfriend. The slender male passenger was never caught.

SUFFICIENCY OF THE EVIDENCE

In his first and third issues, appellant challenges whether the evidence is sufficient to support his conviction for attempted aggravated robbery. Appellant asserts that there is no evidence that he had the specific intent to target the hair salon in a robbery or other criminal act. He also contends that, if he were involved in the act described, his actions only rose to the level of preparation, rather than criminal attempt.

When reviewing the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Temple v. State, 390 S.W.Sd 341, 360 (Tex.Crim.App.2013). Although we consider everything presented at trial, we do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). Our review includes both properly and improperly admitted evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). We also consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. Id.

Under the law of criminal attempt, a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Penal Code § 15.01(a). A person commits an aggravated robbery if, while in the course of committing a theft, he uses or exhibits a deadly weapon and intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. See id. §§ 29.02(a)(2), 29.03(a)(2). “In the course of committing a theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. § 29.01(1).

Intent can be inferred by a person’s conduct and surrounding circumstances. See Laster v. State, 275 S.W.3d 512, 524 (Tex.Crim.App.2009). Based on [68]*68the record as a whole, a rational jury could have determined that appellant had the requisite intent to commit an aggravated robbery of the hair salon. The evidence showed that appellant was seated in a car that was parked in a reverse position directly in front of a hair salon. The placement of the car was indicative of a person wanting to make a quick escape after criminal misconduct.

The evidence also showed that appellant lingered inside the vehicle while another male passenger monitored the area. Appellant was observed putting something on top of his head, and the jury could have inferred that the object was the mask that was recovered by police. Appellant was also seen donning a pair of gloves and raising a handgun, as though he were loading it with a new magazine. Appellant twice attempted to exit the vehicle with a bag in hand. On both occasions, appellant’s return to the vehicle coincided with the arrival of third-party shoppers.

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Adedji Olalincoln Adekeye v. State, 437 S.W.3d 62, 2014 WL 2616598, 2014 Tex. App. LEXIS 6390 (Tex. Ct. App. 2014).

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