Charles Elvis Raby v. State
Opinion
V.
A jury found Charles Elvis Raby guilty of aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). The trial court sentenced Raby to sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division. After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Raby filed a pro se brief raising eight issues.
In his first issue, Raby claims he did not receive effective assistance of counsel because trial counsel deprived him of the possibility of a probated sentence. The record reflects that before voir dire began, defense counsel informed the trial court, "we're going to go to the Judge for the punishment." The trial court questioned Raby, asking, "You're going to ask that the Court assess your punishment?" Raby replied, "Yes." The record does not reflect the reason for the decision.
The cases upon which Raby relies in support of this issue are inapplicable and distinguishable upon their facts. In Stone v. State, 751 S.W.2d 579, 582-83 (Tex. App.-- Houston [1st Dist.] 1988, pet. filed), trial counsel testified that before the guilt-innocence stage, he advised appellant to elect to have the court assess punishment if appellant was found guilty. The record in Stone reflected that appellant filed a motion for probation upon counsel's advice. After the guilty verdict and before the punishment stage, trial counsel remembered the trial court could not grant probation. Id. at 582-83. Trial counsel testified that appellant relied on his recommendation to forego sentencing by the jury, and appellant testified that he would not have elected to have punishment assessed by the court had he known he was ineligible for probation if sentenced by the court. Id. at 583. The record in the case at hand fails to show that Raby was advised incorrectly by his counsel.
In Turner v. State, 755 S.W.2d 207, 208 (Tex. App.--Houston [14th Dist] 1988, no pet.), appellant's defense evidenced his desire to obtain a probated sentence if the jury found him guilty. Appellant filed a verified Motion for Probation and an election for the jury to assess punishment; successfully challenged five members of the jury panel for cause because of their inability to consider a probated sentence; and took the stand during the punishment hearing to establish his eligibility for probation, after withdrawing his request to have the jury assess the punishment. Id. Furthermore, trial counsel concluded his defense argument by asking the court to grant either deferred adjudication or shock probation. Id. The court on appeal found that "[w]ithout a doubt, appellant's defense counsel was unaware that the trial court was statutorily prohibited from delivering a probated sentence to appellant. Without this knowledge, appellant was not adequately informed of the ramifications of the withdrawal of his request to be sentenced by the jury." Id. at 208-09. The record before this Court does not indicate that counsel was unaware of the statutory prohibition.
In the present case, Raby does not assert, nor does the record reflect, that trial counsel advised him the trial court could order community supervision. A motion for probation was filed one month before trial but the jury panel was never questioned on whether it could consider community supervision and trial counsel did not request it from the trial judge. Unlike Turner or Stone, the record does not reflect that either trial counsel or appellant held the belief that the judge could order community supervision, and therefore does not demonstrate such an erroneous belief was the basis for the decision to have the trial court assess punishment. We have no record on appeal explaining the reasons for defense counsel's recommendation (assuming, without deciding, that counsel made such a recommendation). Such a record is usually developed in a motion for new trial hearing or on writ of habeas corpus. See Redmond v. State, 30 S.W.3d 692, 698 (Tex. App.--Beaumont 2000, pet. ref'd). Absent evidence in the record of counsel's thought processes and trial strategy, the presumption of effectiveness cannot ordinarily be overcome. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Issue one is overruled.
Issue two asserts the trial court erred in refusing to submit the lesser-included offense of robbery in its charge to the jury. A two-prong test must be met before a jury charge instruction on a lesser-included offense is required. See Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Id. (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). Clearly, robbery is a lesser-included offense of an aggravated robbery alleging the use of a firearm as a deadly weapon as the aggravating element. Thus the first prong is satisfied.
As to the second prong, there is no evidence that would permit a rational jury to find Raby guilty only of the lesser offense. There is no evidence in the record that a firearm was not used during the course of the robbery and the victim's gunshot wounds establish otherwise. Because the only affirmative evidence adduced at trial germane to the issue reflected that a firearm was used, we cannot conclude a rational jury could have found to the contrary. The second prong has n
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