Willie Calvin Reynolds v. State

• Court: Court of Appeals of Texas
• Decided: July 11, 2002
• Docket: 11-01-00337-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Willie Calvin Reynolds

Appellant

Vs.                   No. 11-01-00337-CR B Appeal from Dallas County

State of Texas

Appellee

The trial court convicted Willie Calvin Reynolds of the offense of aggravated robbery and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of six years.  We affirm.

Appellant attacks the factual sufficiency of the evidence in his first appellate issue.  When reviewing the factual sufficiency of the evidence, we review all the evidence in a neutral light.  See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996); Reaves v. State, 970 S.W.2d 111, 116 (Tex.App. - Dallas 1998, no pet’n).  We reverse only if:  (1) the evidence in support of the verdict, standing alone, is factually too weak to support it or (2) the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App.2000). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App.1997).  

The complainant and appellant both testified at trial.  The complainant testified that he played pool at a topless bar until the bar closed.   He then walked over to a convenience store which was located adjacent to the topless bar.  The complainant first encountered appellant in the parking lot of the convenience store.  Appellant asked the complainant for a ride.  The complainant refused the request until appellant offered to pay the complainant $3 for gas money.  The complainant was driving a car that his father had rented from a rental company.  After the complainant transported appellant to his destination, appellant went inside a house to get the $3 which he had offered to the complainant for giving him the ride.  The complainant remained inside the rental car at this point.

The complainant testified that appellant returned from the house carrying a black trunk.  Appellant asked the complainant to take the trunk to another location which would be on his way.  The complainant refused to transport the trunk, and appellant became angry.  The complainant testified that appellant pulled a butcher knife out of the trunk.  The complainant ran when he saw the knife.  Appellant chased the complainant with the knife until the complainant fell in some gravel.  Appellant attempted to stab the complainant while he was on the ground, but the complainant was able to fend off the attack.  The complainant removed $5 from his pocket and offered it to appellant in order to stop the attack.   When appellant stopped the attack to retrieve the $5, the complainant got up and ran back toward the car.  The complainant testified that appellant chased him again until he reached the car, at which point appellant entered the car and drove away from the scene. 

The complainant found a police officer sometime later that night, and he told the officer what had happened.  The next morning, the complainant returned to the area were he alleged the car was stolen.  He located the rental car, and appellant was standing nearby.  The police apprehended appellant upon their arrival. 

Appellant=s account of what transpired on the night in question varied greatly from the complainant=s testimony.  Appellant testified that he first encountered the complainant long before the complainant went to the topless bar.  While attending a party at a private residence, appellant observed the complainant attempting to buy crack cocaine.  Appellant was concerned about the complainant=s welfare given the neighborhood in which he was located.  Although appellant did not know the complainant, he decided to help the complainant out by obtaining a rock of cocaine from another guest at the party and taking it to the complainant.  The complainant invited appellant to get inside the rental car.  Appellant sold a portion of the cocaine to the complainant for $10.

Appellant testified that the complainant told him that he would like to find some girls.  Appellant and the complainant traveled to a Awhore house@ and then to a motel in search of girls.  When they did not find any girls to their liking at either of these locations, they went to the topless bar.  The complainant told appellant that he knew some of the dancers at the topless bar.  Appellant and the complainant stayed at the topless bar for a while until the complainant was ready to leave.  Both appellant and the complainant left the bar together in the rental car.  Appellant testified that he and the complainant subsequently agreed that the complainant would let appellant use the car for an unspecified period of time in exchange for the remaining portion of cocaine in appellant=s possession.  On the way back to the location where appellant first encountered the complainant, appellant picked up a man who was carrying a black trunk.  The man showed the contents of the trunk, which included several kitchen knives, to appellant and the complainant. 

At that point, the complainant walked off.  Appellant and the man with the trunk continued riding in the rental car.  Appellant agreed to assist the man with the trunk in selling its contents.  Appellant took the trunk to a man that he knew might be interested in its contents.  Appellant was apprehended by the police at the home of the potential purchaser.  The man with the trunk was sitting in the front seat of the car upon the arrival of the police.   The record reflects that the contents of the trunk were stolen.   In summary, appellant testified that he never threatened or attempted to stab the complainant with the knife and that he operated the rental car with the complainant=s permission.

Appellant attacks the factual sufficiency of the evidence by emphasizing perceived inconsistencies in the complainant=s testimony.   Our review of the appellate record reveals that the fact finder was presented with the testimony of the two participants in the events in issue.   The determination of appellant=s guilt rested largely on the fact finder=s determination of each  participant=s credibility.  As noted by the Court of Criminal Appeals in Johnson, the evaluation of the credibility and demeanor of witnesses is a job best suited for the fact finder.  Johnson v. State, supra at 8.  We do not find that the evidence in support of the verdict is factually too weak to support the verdict or that the verdict is so contrary to the overwhelming weight of the opposing evidence as to be clearly wrong and unjust.  Appellant=s first issue is overruled.

Appellant argues in his second issue that he was denied effective assistance of counsel under the protections of the United States^[1] and Texas Constitutions.^[2]  He argues that trial counsel should have objected to the State=s evidence of one of his prior convictions for driving while intoxicated (DWI), which was offered at the sentencing hearing.  The State offered evidence of appellant=s prior convictions for burglary of a building, misdemeanor theft by check, and  two DWIs.  The State=s evidence for one of the DWIs consisted of only the docket sheet and the charging instrument filed in the prior cause. 

In reviewing a claim of ineffective assistance of counsel, we must apply an objective standard of reasonableness.   A defendant making a claim of ineffective assistance of counsel must show that (1) counsel was deficient and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986).   We analyze appellant’s state and federal claims together because the Texas constitutional and statutory provisions do not provide any greater protection than the federal provisions.  See Butler v. State, 872 S.W.2d 227 (Tex.Cr.App.1994), cert. den'd, 513 U.S. 1157 (1995).

A claim of ineffective assistance of counsel must be determined on the particular facts and circumstances of each individual case.  See Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App. - San Antonio 1991, pet’n ref'd).  Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance deficient.  McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den'd, 508 U.S. 963 (1993).  Whether the Strickland test has been met is to be judged by the totality of the representation.  McFarland v. State, supra.   There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.  See Strickland v. Washington, supra at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App.1991).  Stated another way:

[C]ompetence is presumed and appellant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy.

Stafford v. State, supra at 506. 

Appellant has the burden of proving ineffective counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985).  Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded.  See Jimenez v. State, supra at 338. However, while a defendant must overcome the presumption that the complained of errors are supported by trial strategy, counsel's conduct will not be supported by the presumption of competence where counsel's actions cannot be attributed to any reasonable trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Cr.App.1994).

The appellate record does not demonstrate that appellant’s trial counsel was ineffective.  Appellant’s claim of ineffective assistance focuses on an isolated incident that occurred in the punishment phase of the trial.  The record does not reveal trial counsel’s strategy or lack thereof in admitting appellant’s prior convictions.  More importantly, the record does not reveal that the outcome of the proceedings would have been different but for trial counsel’s alleged deficiency.  Appellant was charged with a first degree felony carrying a punishment range of imprisonment for 5 to 99 years or life.  See TEX. PENAL CODE ANN. '' 29.03(b) & 12.32(a) (Vernon 1994).  He only received a sentence of 6 years.  When one compares the severity of the offense of aggravated robbery to that of driving while intoxicated, the record does not support the conclusion that appellant’s sentence would have been less had the evidence in question not been admitted.  Moreover, evidence of another DWI conviction was properly admitted into evidence.   Appellant’s second issue is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

July 11, 2002                                                                           JUSTICE

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]U.S. CONST. amend. VI.

     ^[2]TEX. CONST. art. I, ' 10.