Barnes, Martin Shelby v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2005
• Docket: 14-04-00478-CR
• Status: Published

Opinion

Affirmed; Opinion of July 21, 2005 Withdrawn and Corrected Memorandum Opinion filed August 25, 2005

Affirmed; Opinion of July 21, 2005 Withdrawn and Corrected Memorandum Opinion filed August 25, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00478-CR

MARTIN SHELBY BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________________

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 945,822

_________________________________________________________________

C O R R E C T E D   M E M O R A N D U M   O P I N I O N

We withdraw our previous opinion, and substitute this opinion to correct a clerical error.  Appellant was found guilty of robbery and sentenced to life imprisonment, to be served in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant challenges the trial judge=s decision not to strike certain veniremembers for cause, and the legal and factual sufficiency of the evidence to support appellant=s conviction.  Appellant also urges this court to find that he received ineffective assistance of counsel and that the trial judge erred by failing to hold a hearing on appellant=s motion for new trial.  We affirm.

Factual and Procedural Background

Factual Background

In the early afternoon of April 15, 2003, the complainant, Clifton Calbert, was sweeping one of the car wash bays at his carwash.  As he was sweeping, Mr. Calbert saw a man approaching him.  This man was wearing a hooded sweatshirt, jeans, some sort of cap or mask, and tennis shoes.  Mr. Calbert later identified this man as the appellant.  Initially, Mr. Calbert was unconcerned, as people frequently crossed through his car wash to reach a nearby bus stop.  But when appellant was about five to seven feet away from Mr. Calbert, he began to yell, AGive me your money.  Give me your money before I kill you!@  At that point, Mr. Calbert became alarmed and started to back away from appellant.  Appellant continued to walk toward Mr. Calbert and continued to threaten him by saying, AGive me the money before I kill you.  Don=t make me kill you.@  As he was making these threats and advancing toward Mr. Calbert, appellant showed him what appeared to be the butt of a gun.

            Fortunately for Mr. Calbert, there was a police car about one-quarter of a block away. When appellant saw the police car, he ran away.  Mr. Calbert reported what had just happened and the police began searching for appellant.  After a brief search, the police found appellant in the neighborhood near the car wash.  When police brought appellant back to the car wash, Mr. Calbert verified that he was the man who had just threatened him.  Police also located a B.B. gun and various articles of clothing in some bushes near the area where they caught appellant.

The State charged appellant with robbery.  Appellant pleaded >not guilty= and proceeded to trial before a jury. 

Voir Dire

During voir dire, appellant=s trial counsel asked the veniremembers to describe their feelings about the presumption of innocence using a scale of one to five.  On this scale, a rating of Azero@ meant the presumption of innocence was intact, and a rating of Afive@ meant the veniremember already thought appellant was guilty.  Appellant=s counsel challenged seven veniremembers for cause based upon their answers, but the trial judge denied these challenges.  The trial judge also denied appellant=s counsel=s request for seven additional peremptory strikes.

Trial and Appellant=s Motions for New Trial

At trial, the jury ultimately convicted appellant and, after finding the enhancement paragraphs to be true, assessed punishment at life imprisonment.  Appellant filed two motions for new trialCthe first was pro se and the second was filed by appellant=s counsel.  Each stated that appellant=s trial counsel provided appellant with arguably ineffective assistance.  The second motion for new trial, filed by appellant=s counsel, also alleged the trial judge erred by not granting the challenges for cause to veniremembers who did not accord appellant the presumption of innocence.  The trial judge did not hold a hearing on the motions for new trial, and they were overruled by operation of law. 

Issues on Appeal

On appeal, appellant raises five issues.  In his first issue, appellant contends the trial judge erred by denying his challenges for cause to the veniremembers who allegedly did not presume appellant=s innocence.  In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.  In his fourth and fifth issues, appellant argues that he received ineffective assistance from his trial counsel, and that the trial court erred by failing to hold a hearing on his motion for new trial.  We address appellant=s issues in the order he has presented them.

Analysis

I.          The trial court properly denied appellant=s challenges for cause.

Initially, appellant argues the trial judge improperly denied his challenges for cause because certain veniremembers allegedly were not willing to presume his innocence.  During voir dire, appellant=s counsel described a scale ranging from zero to five, with Azero@ representing a total belief in the presumption of innocence and Afive@ representing a belief that appellant was guilty.  The veniremembers that appellant challenged for cause were those who did not answer Azero.@^[1]  The trial judge denied appellant=s challenges for cause and also denied appellant=s request for additional peremptory challenges.  See Newbury v. State, 135 S.W.3d 22, 30B31 (Tex. Crim. App.), cert. denied, 125 S. Ct. 496 (2004) (describing process for preservation of error and harm analysis in context of denial of a challenge for cause).

The Presumption of Innocence

A person charged with a crime is presumed innocent and cannot be convicted unless the prosecution proves each element of the offense beyond a reasonable doubt.  See Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999) (citing In re Winship, 397 U.S. 358 (1970)).  A veniremember who cannot presume the defendant=s innocence is challengeable for cause based upon a bias against the law.  See id. (citing Banda v. State, 890 S.W.2d 42, 55 (Tex. Crim. App. 1994) (en banc); see also Tex. Code Crim. Proc. art. 35.16(c)(2) (stating a defendant may make a challenge for cause when a prospective juror has a bias against the law).  For challenges based upon an alleged bias against the law, the relevant inquiry is whether the veniremember=s beliefs would Aprevent or substantially impair him from following the law as set out in the trial court=s instructions and as required by the juror=s oath.@  Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003) (en banc) (citing Lagrone v. State, 942 S.W.2d 602, 616 (Tex. Crim. App. 1997) (en banc)).

The Standard of Review

We must review the trial court=s decision on appellant=s challenges for cause with A>considerable deference= because the trial court is in the best position to evaluate the veniremember=s demeanor and responses.@  Newbury, 135 S.W.3d at 32 (citing Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998) (en banc); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc)); see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (en banc) (AGreat deference is given to the trial court=s decision because the trial judge [is] present to observe the demeanor of the prospective juror and to listen to his tone of voice.@) (citing Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002)).  Our review encompasses the veniremember=s voir dire as a whole.  Swearingen, 101 S.W.3d at 99.  We are especially deferential when there is not a clearly objectionable declaration in the record or when the veniremember vacillates or is equivocal.  Id. (citing Garcia v. State, 887 S.W.2d 846, 854 (Tex. Crim. App. 1994) (en banc); Rachal v. State, 917 S.W.2d 799, 814 (Tex. Crim. App. 1996) (en banc); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995) (en banc)).

The Veniremembers= Statements

On this record, it is arguable that the challenged veniremembers did not believe in an absolute presumption of innocence for a criminal defendant such as appellant.  However, the record does not reveal that any particular veniremember=s beliefs would Aprevent or substantially impair him from following the law as set out in the trial court=s instructions and as required by the juror=s oath.@  See Swearingen, 101 S.W.3d at 99 (citing Lagrone, 942 S.W.2d at 616).  In fact, the record reflects that each of the challenged veniremembers would follow the law regarding appellant=s presumption of innocence.  At the beginning of voir dire, the trial judge explained that appellant Ais presumed to be innocent@ and that this Apresumption of innocence stays with a defendant throughout the trial.@  The trial judge also explained that the presumption of innocence is only overcome when the State has convinced the jury that he is guilty beyond a reasonable doubt, and that an indictment is not evidence of guilt.  After further explanation of the presumption of innocence and the State=s burden of proof at trial, the trial judge asked the veniremembers, row by row, whether Aanybody . could not at this time presume [appellant] innocent?@  The record does not reflect that any prospective jurors indicated an inability to follow the law.  See id. (stating a juror is only challengeable for cause if their personal beliefs would prevent or substantially impair him from following the law).

Nor did appellant=s counsel question these prospective jurors further about whether their personal beliefs would prevent them from following the law regarding the presumption of innocence.  See Threadgill, 146 S.W.3d at 667 (ABecause neither party questioned [the veniremember] further about his statement, explained to him what the law requires, or asked whether he could follow the law despite his personal views, he was not challengeable for cause on this basis and the trial court did not abuse its discretion in denying appellant=s challenge.@); see also Watson v. State, Nos. 14-99-00640-CR, 14-99-00641-CR, 2000 WL 1591081, *3 (Tex. App.CHouston [14th Dist.] Oct. 26, 2000, pet. ref=d) (not designated for publication) (holding trial judge reasonably could have concluded veniremember would faithfully apply the presumption of innocence when appellant=s counsel had opportunity to exact a clear statement of prejudice or predisposition and failed to do so).  We conclude appellant has failed to prove his challenges for cause were erroneously denied and overrule his initial point of error.

II.        The evidence is legally sufficient to support appellant=s conviction.

In his second issue, appellant challenges the legal sufficiency of the evidence to support his conviction.  Specifically, appellant argues the State failed to prove that his actions constituted a threat that was sufficient to place the complainant, Mr. Calbert, in fear of imminent bodily injury and death.

We employ a familiar standard of review to evaluate the legal sufficiency of the evidence to support appellant=s robbery conviction.  We must view the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found all of the elements of the offense beyond a reasonable doubt.  Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003) (stating appropriate appellate inquiry for assessing legal sufficiency) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).  As an appellate court, we do not re-evaluate the weight and credibility of the evidence.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (stating jury, as fact-finder, is the sole judge of the witnesses= credibility and the strength of the evidence).

Appellant was charged with robbery.  The indictment alleged that appellant Aintentionally and knowingly threaten[ed] and place[d] the Complainant in fear of imminent bodily injury and death, by demanding property while pretending to have a weapon@ while in the course of committing theft.  The evidence adduced at trial reveals that appellant approached Mr. Calbert in the bay of the car wash.  Appellant continued to advance toward Mr. Calbert as Mr. Calbert backed away.  Initially, appellant told Mr. Calbert, AGive me your money.@  When Mr. Calbert did not comply, appellant twice said, AGive me the money before I kill you.@  Mr. Calbert continued to back away from the appellant and told appellant he was not the owner of the car wash.  At that point, appellant showed Mr. Calbert what appeared to be a gun.  Although this turned out to be a BB gun, Officer Polk testified at appellant=s trial that it could be mistaken for a real gun.  Appellant=s actionsCdemanding money and repeatedly threatening to kill Mr. Calbert while showing him what appeared to be a gunCwould reasonably place Mr. Calbert in fear of serious bodily injury or death.  We conclude the evidence is legally sufficient to allow a reasonable fact-finder to conclude, beyond a reasonable doubt, that appellant, while committing theft, intentionally and knowingly threatened Mr. Calbert and placed him in fear of imminent bodily injury or death.  See Jackson, 443 U.S. at 319; Sanders, 119 S.W.3d at 820.  We overrule appellant=s second point of error.

III.       The evidence is factually sufficient to support appellant=s conviction.

In appellant=s third point of error, he contends the evidence is factually insufficient to support his conviction for robbery.  Again, appellant claims the threats made were insufficient to place Mr. Calbert in fear of imminent bodily injury and death.  See Green v. State, 567 S.W.2d 211, 213 (Tex. Crim. App. 1978) (stating the complainant=s fear must be Aof such nature as in reason and common experience is likely to induce a person to part with his property against his will); see also Yarborough v. State, No. 14-00-00929-CR, 2001 WL 1386441, *4 (Tex. App.CHouston [14th Dist.] Nov. 8, 2001, pet. ref=d) (not designated for publication) (stating the inquiry on appeal is Awhether the words and conduct of the accused were sufficient to place a reasonable person in the victim=s situation in fear of imminent bodily injury or death@) (citing Welch v. State, 880 S.W.2d 225, 227 (Tex. App.CAustin 1994, no pet.)).  Threats that are sufficient to place one in fear of bodily injury or death can take the form of words or conduct.  See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984) (en banc) (AA threat may be communicated by action or conduct as well as words.@); see also Yarborough, 2001 WL 1386441, at *4; Donoho v. State, 39 S.W.3d 324, 329 (Tex. App.CFort Worth 2001, pet. ref=d).

When reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light, without the prism of the-light-most-favorable-to-the-verdict. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).  The evidence may be factually insufficient in two ways.  Id.  First, the evidence that supports the verdict may be too weak to support a finding of guilt beyond a reasonable doubt.  Id.  Second, the evidence that is contrary to the verdict may be so strong that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484B85.  In our review, we are not to re-evaluate the weight and credibility of the evidence.  See Fuentes, 991 S.W.2d at 271.  Instead, an appellate court reviews the factual sufficiency of the evidence to ensure the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga, 144 S.W.3d at 484.

The evidence that supports the verdict already has been set out in detail in response to appellant=s legal sufficiency challenge.  Most importantly, appellant demanded money from Mr. Calbert and repeatedly threatened to kill him while showing him the butt of a BB gun that looked like a real weapon.  Even when we view this evidence in a neutral light, we conclude that it is factually sufficient to support a finding of guilt beyond a reasonable doubt.  See id. at 484.

Appellant relies on the following contrary evidence to support his assertion that his threats were not sufficient to place Mr. Calbert in fear of serious bodily injury and death: 1) the threats were made from a distance of four to seven feet away from Mr. Calbert; 2) the threats were made during the day and in the presence of other people at the car wash and in passing cars; 3) a police car was 300B400 feet away and clearly visible; and 4) when Mr. Calbert and appellant saw the police car, Mr. Calbert was able to run to the police officer unopposed while appellant ran away.  The jury was entitled to weigh this evidence in its determination that appellant=s threats placed Mr. Calbert in fear of serious bodily injury or death.  See Fuentes, 991 S.W.2d at 271; see also Yarborough, 2001 WL 1386441 at *4B5 (concluding evidence was factually sufficient to support aggravated robbery conviction when appellant brandished a screwdriver and told the victim he would kill her).  We cannot say the contrary evidence is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met.  See Zuniga, 144 S.W.3d at 485.  We overrule appellant=s third point of error.

IV.       Appellant has not shown his trial counsel provided ineffective assistance.

In his fourth point of error, appellant urges us to find that his trial counsel failed to provide him with effective assistance during his trial.  Appellant contends that his trial counsel was ineffective because counsel did not ask a defense witness to identify Mr. Calbert as a previous purchaser of crack cocaine from appellant.^[2]  Without this identification to link Mr. Calbert to appellant, appellant argues that his counsel needlessly introduced evidence that appellant sold drugs and opened the door for the State to further explore appellant=s involvement with drugs.  Appellant also contends his trial counsel was ineffective by failing to request a limiting instruction regarding these extraneous offenses.  According to appellant, the lack of limiting instructions permitted the jury to convict him for being a criminal in general.

The Strickland Test

To show that his trial counsel was ineffective, appellant must meet a two-prong test.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Banda v. State, 890 S.W.2d 42, 59 (Tex. Crim. App. 1994) (en banc).  First, appellant must show his counsel=s performance was deficient.  Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999) (en banc) (citing Strickland, 466 U.S. at 687).  Trial counsel=s performance is deficient when it falls below an objective standard of reasonableness.  Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (en banc) (citing Strickland, 466 U.S. at 688).  Second, appellant must show that his trial counsel=s deficient performance prejudiced his defense at trial.  Id. (citing Strickland, 466 U.S. at 687). 

There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Id. (AWe engage in >a strong presumption= that counsel=s actions fell within the wide range of reasonably effective assistance.@) (citing Strickland, 466 U.S. at 689).  Accordingly, our judicial scrutiny is highly deferential and we will not use hindsight to second-guess a tactical decision made by trial counsel.  See Strickland, 466 U.S. at 689.  The burden is on appellant to overcome the presumption that his attorney=s actions might be considered Asound trial strategy.@  Tong, 25 S.W.3d at 712 (citing Strickland, 466 U.S. at 689; Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995)).  A[W]ithout some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design.@  Id. at 714 (holding appellant failed to overcome presumption when record was silent as to why appellant=s counsel did not object to possibly objectionable testimony) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)).

The Record

In this case, appellant has failed to develop a record that overcomes the presumption that his counsel engaged in a sound trial strategy.  We have no explanation in the record for counsel=s decision not to ask the defense witness to identify Mr. Calbert specifically rather than by physical description.  See id.  We do note, however, that appellant=s trial counsel pointed out during his closing argument that the witness=s physical description fit Mr. Calbert Ato a T,@ and argued that the defense witness=s testimony damaged the credibility of Mr. Calbert, who was the complainant and a key State witness.^[3]

Similarly, the record is silent as to the reason for trial counsel=s decision not to request a limiting instruction.  Without knowing the reason, we cannot say that trial counsel=s conduct was not a sound trial strategy.^[4]  See id.  Therefore, appellant cannot meet the first prong of the Strickland test and we overrule his fourth point of error.^[5]

V.        The trial court did not err by failing to hold a hearing on appellant=s motion for new trial.

In his fifth and final point of error, appellant contends the trial judge erred by failing to hold a hearing on his motions for new trial.  While represented by counsel, appellant filed a pro se motion for new trial.^[6]  Later, his trial counsel also filed a motion for new trial. The trial court did not hold a hearing and the motions for new trial were overruled by operation of law.  See Tex. R. App. P. 21.8. 

The State points out, and appellant candidly concedes, that neither motion was presented to the trial court as Rule 21.6 requires.  See Tex. R. App. 21.6 (AThe defendant must present the motion for new trial to the trial court . . . .@).  However, despite this procedural defect, appellant urges this court to remand his case to the trial court for a hearing in the interest of justice.  Because the Texas Court of Criminal Appeals has specifically held that Athe filing of the motion [for new trial] alone is not sufficient,@ and the motion Amust be presented,@ we decline to do so.  See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993) (en banc) (citing Tex. R. App. P. 31(c)); see also Longoria v. State, 154 S.W.3d 747, 762B63 (Tex. App.CHouston [14th Dist.] 2004, pet. filed) (AA trial court cannot abuse its discretion by denying a motion for new trial by operation of law when the motion was not timely presented.@) (citing Birdwell v. State, 996 S.W.2d 381, 384 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d)); Enard v. State, 764 S.W.2d 574, 575 (Tex. App.CHouston [14th Dist.] 1989, no pet.) (ABecause the appellant failed to present his motion for new trial, we hold that there was no abuse of discretion by the trial court in allowing the motion to be overruled by operation of law without a hearing.@).  Therefore, we overrule appellant=s fifth point of error.

Conclusion

Having addressed and overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/                    Wanda McKee Fowler

Justice

Judgment rendered and Corrected Memorandum Opinion filed August 25, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The challenged veniremembers= answers ranged from Aone@ to Afour@ on the scale.

^[2]  At his trial, one of appellant=s witnesses testified that, shortly before the alleged robbery, he had accompanied appellant to Mr. Calbert=s car wash.  This witness recounted a drug transaction between appellant and a man whose physical description was similar to Mr. Calbert=s.  The witness recalled that no money changed hands but agreed that it was not unusual to sell crack cocaine Aon credit.@  During his testimony, the witness provided a physical description, but was not specifically asked whether Mr. Calbert was the buyer.  Nonetheless, during closing argument, appellant=s trial counsel argued that the witness=s physical description matched that of Mr. Calbert.  Appellant=s counsel argued that the exchange between appellant and Mr. Calbert was not a robbery, but rather an argument or confrontation over their previous drug transaction.  Appellant=s counsel also argued that this witness=s testimony contradicted Mr. Calbert=s testimony and, therefore, damaged Mr. Calbert=s credibility.

^[3]  In light of the fact that appellant=s counsel made these connections in his closing argument, we conclude that, even if the failure to extract an in-court identification of Mr. Calbert was error, appellant cannot show that it prejudiced his defense.  See Tong, 25 S.W.3d at 712 (stating appellant must show that his trial counsel=s deficient performance prejudiced his defense) (citing Strickland, 466 U.S. at 687).

^[4]  We recognize that a silent record will not preclude reversal on direct appeal if counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@  Goodspeed v. State, - - - S.W.3d - - -, 2005 WL 766996, *2 (Tex. Crim. App. Apr. 6, 2005) (stating an appellate court should not find deficient performance when counsel=s reasons for failing to do something do not appear in the record unless Athe challenged conduct was >so outrageous that no competent attorney would have engaged in it=@) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  But appellant=s case is not one of the rare cases in which Ano reasonable trial strategy could justify the trial counsel=s conduct.@  See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (holding that, despite the record=s silence as to trial counsel=s subjective strategy, under the unusual circumstances of the case, there could be no legitimate trial strategy in failing to object to the prosecutor=s misstatement of the law, which was detrimental to appellant). 

^[5]  As we discuss more fully in response to appellant=s fifth point of error, the failure to develop an adequate record below by a hearing on appellant=s motion for new trial was not due to the trial judge=s neglect or error, but rather to appellant=s failure to follow the proper procedures with respect to his motion for new trial.

^[6]  We note the irregularity of appellant=s filing a pro se motion while represented by counsel.  See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981) (stating there is no right to hybrid representation and, therefore, the pro se briefs filed by appellant, who was represented by counsel, presented nothing for review) (citing Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977)).