Robinson v. State

22 S.W.3d 631, 2000 Tex. App. LEXIS 4189, 2000 WL 798197
CourtCourt of Appeals of Texas
DecidedJune 21, 2000
DocketNo. 10-98-194-CR
StatusPublished
Cited by11 cases

This text of 22 S.W.3d 631 (Robinson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. State, 22 S.W.3d 631, 2000 Tex. App. LEXIS 4189, 2000 WL 798197 (Tex. Ct. App. 2000).

Opinion

OPINION

FRANK G. McDONALD, Chief Justice (Retired).

Appellant Robinson appeals his conviction for felony possession of cocaine with intent to deliver, for which he was sentenced to 75 years in the Institutional Division of the Texas Department of Criminal Justice.

On November 27, 1997, Officer Strom-boe was patrolling in San Antonio when he saw a car, speeding toward him, run a stop sign. Officer Stromboe turned his vehicle around and tried to catch up with the speeding car. He followed the car several blocks when he saw the car come to a stop in a driveway. The officer stopped and approached the vehicle with his gun drawn. Stromboe testified that he could [634]*634smell marihuana when he came near the car. He also saw what he believed was crack cocaine between the passenger’s feet, and noticed the driver’s hand inside the center console. Stromboe told Appellant to show his hands. The console of the car had a compartment below the gearshift and inside were two guns and eleven individually -wrapped packages of crack cocaine. Appellant had $851 in cash on his person. A mask was found in the car. Tests of the first two bags resulted in 4.2 grams of cocaine. Tests stop when over four grams are reached. The chemist estimated the eleven bags weighed from 20 to 24 grams.

Appellant testified that the vehicle he was driving was not his; that he saw Officer Stromboe when he stopped at a stop sign; that the officer recognized him from a prior contact and began following him; that he followed all the rules and did nothing wrong; and that his hands were always on the steering wheel. He denied he put the cocaine in the hidden compartment; denied knowledge of the hidden compartment; denied the guns were his; denied he had ever owned a gun like the one found in the car; and denied he had ever owned any hollow-point bullets.

On rebuttal Officer Phillips testified that on October 19, 1997, he arrested Appellant for the unlawful carrying of a gun (like the one found in the car Appellant was driving) and that he had recovered hollow-point bullets from Appellant on that date.

Officer Stromboe then testified that two weeks before Appellant’s arrest, he had made several arrests at a house where Appellant was staying.

The jury found Appellant guilty of possessing cocaine with intent to deliver. At the punishment phase the State put on evidence that Appellant had been arrested for carrying a gun, for criminal trespass, and for possession of marihuana. Deputy Harris testified that Appellant was an associate of Blood gang members and a member of the Sky Line Posse gang; that the primary function of the Sky Line Posse gang was to traffic narcotics; and that the primary purpose of street gangs in general is for narcotics trafficking, drive-by shootings and robberies.

Next, the State called Deputy Ramirez who testified that on April 25, 1997, he arrived at an Exxon Station on Foster Road at 3:00 a.m. and found a black male slumped over in a Lincoln automobile. The man had blood stains on his chest and appeared to be deceased. Dr. DiMaio testified that the man was Mark Robinson who had died of a gunshot wound in the chest.

Detective Damiani testified he was the investigator of the murder of Mark Robinson; that he was put in touch with Alfred Johnson who was in the Bexar County jail; that Johnson was an eyewitness to the murder of Mark Robinson. Damiani found corroboration in Johnson’s story from Robert Alzapiedi who was another eyewitness to the murder. Both Johnson and Alzapiedi identified Appellant as the murderer from a photo spread.

The State then called Alfred Johnson who testified he was with Appellant and Appellant’s brother, Leroy, on the night of April 25, 1997; that they were riding around in a “geeker” (a car a “crackhead” loaned to his drug dealer in exchange for crack cocaine); that they began bumping a car driven by a black male; that the man then drove into an Exxon station; that Appellant then got out of his car, took out a gun and pointed it into the man’s car; and Johnson then heard gunshots; and that Appellant bragged about the shooting after it happened.

The defense called Diane Lynch to the stand. She testified that Appellant lived with her for seven or eights months beginning in January 1997. She also testified that Appellant was shot in the foot in January 1997; that he had some large pins in his foot and that even after the pins were removed Appellant could not walk without crutches; that Appellant and Johnson did not get along; that Appellant [635]*635still had pins in his foot in April 1997; and that Appellant’s brother, Leroy, was sent to a juvenile-detention facility in March 1997.

Appellant was recalled and testified he was shot in January 1997; had surgery to his right leg; had pins in his foot and could not walk without crutches until June 1997; and also that his brother had been placed in a juvenile-detention facility in March 1997.

On cross-examination Appellant admitted he sold drugs; admitted carrying the weapon that Officer Phillips saw him within October 1997; confessed to his gang affiliation, but denied that he killed Mark Robinson.

The State called Robert Alzapiedi in rebuttal who testified that on the night of April 25, 1997, he was walking' past the Exxon station on Foster Road and saw a blue four-door car pull into the station; that next a red sports car drove in; then four or five guys got out and he saw one of them pull out a gun, point it at the window of the blue car, and then heard gun shots. Alzapiedi identified Appellant as the shooter.

The jury assessed Appellant’s punishment at 75 years in prison.

By new counsel Appellant appeals on one point of error: “Appellant was denied effective assistance of counsel at his trial.”

Specifically, Appellant asserts five allegations of trial counsel’s ineffective assistance.

This court, in an opinion delivered August 25, 1999, overruled Appellant’s point holding such barred by failure to comply with Rule 33.1(a) of the Texas Rules of Appellate Procedure. The Court of Criminal Appeals in an opinion delivered April 12, 2000 held that Rule 33.1(a) is inapplicable to ineffective assistance of counsel claims, vacated our judgment and remanded the cause to this court for consideration of Appellant’s claims on the merits.

The Court of Criminal Appeals has set out the applicable case law in Thompson v. State, 9 S.W.3d 808, 812-13 as follows:

APPLICABLE CASE LAW
Texas courts adhere, as we must, to the United States Supreme Court’s two-pronged Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test to determine whether counsel’s representation was inadequate so as to violate a defendant’s Sixth Amendment right to counsel. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The defendant must first show that counsel’s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Ex Parte Menchaca,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Joseph Neal Jones v. State
Court of Appeals of Texas, 2016
Jackson v. United States
56 A.3d 1206 (District of Columbia Court of Appeals, 2012)
Michael Lee Richard v. State
Court of Appeals of Texas, 2012
Boyd Lee Rice v. State
Court of Appeals of Texas, 2008
Robert S. Salinas v. State
Court of Appeals of Texas, 2007
Terry Lee McCormick v. State
Court of Appeals of Texas, 2007
Glenda Florene Walker v. State
Court of Appeals of Texas, 2006
Jenkins, Domineque Roshon v. State
Court of Appeals of Texas, 2004
Laderrick Dewayne Washington v. State
Court of Appeals of Texas, 2001
Clinton Aaron Muse, Jr. v. State
Court of Appeals of Texas, 1991

Cite This Page — Counsel Stack

Bluebook (online)
22 S.W.3d 631, 2000 Tex. App. LEXIS 4189, 2000 WL 798197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-texapp-2000.