Trenard Jermaine Smith v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00081-CR
____________________
TRENARD JERMAINE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 16-10-12268-CR
MEMORANDUM OPINION
A grand jury indicted Trenard Jermaine Smith for the offense of engaging in
organized criminal activity. See Tex. Penal Code Ann. § 71.02 (West Supp. 2017).
After pleading not guilty, Smith was convicted by a jury, and the jury assessed
punishment at two years’ confinement in state jail and a fine of $10,000. Smith raises
three issues on appeal, challenging the admission of a statement by a co-defendant
and of a surveillance video, and alleging ineffective assistance of counsel. We affirm
the judgment of conviction as reformed.
1
Evidence at Trial
Testimony of K.V.1
K.V. testified that, on October 6, 2016, she went to Walgreens after having
gone through the commercial drive-through window at the bank. She recalled being
inside the Walgreens store for “maybe 5 to 7 minutes[.]” When she got back to her
car, she heard a crackling sound when she slammed the car door, and she observed
her back window was shattered and glass was in the seat of the car. She went back
into Walgreens to see if the store had surveillance video so she could see what
happened, and the store manager said he could not show her the video until the police
had arrived. Upon returning to her car, she discovered her purse and a bank bag were
missing. After the police arrived, she gave them a statement. K.V. testified that she
did not know the defendant and she did not give him consent to enter her vehicle.
Testimony of S.F.
S.F. testified that, on October 6, 2016, she went to a Walgreens in New Caney
to pick up a prescription for her son. At the Walgreens, she noticed a vehicle “parked
at an angle that looked odd.” When she passed it, she noticed another car was being
1
We use initials herein to identify the victim and civilian witnesses. See Tex.
Const. art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness
and with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
2
broken into: there was broken glass, and she saw a person reach into the broken car
window and then pull something out of the vehicle through the broken window. Then
S.F. saw the person return to the other vehicle that was parked at an odd angle. S.F.
explained that she decided to get the license number of the vehicle that was parked
at an odd angle (hereinafter the “suspects’ vehicle”) and she took a photo of the
suspects’ vehicle with her cell phone. The photo of the vehicle was entered into
evidence as State’s Exhibit 10. S.F. testified that she believed at some point the
suspects had noticed her. S.F. followed the suspects’ vehicle and as she followed the
suspects’ vehicle picked up speed. S.F. observed the suspects driving erratically and
cutting in and out of traffic. She believed they were trying to get away from her, and
she called 911. S.F. reported to 911 that she had witnessed a robbery and a vehicle
being broken into, and that she was following the suspects as they were trying to get
away. Ultimately, S.F. observed the suspects enter Highway 59, traveling at a high
rate of speed.
S.F. testified that she followed the vehicle for approximately five or six miles.
While on the phone with 911 and following the suspects, S.F. told 911 that they were
near a police station, and when she passed a parked police vehicle, she flashed her
lights and pointed in front of her. S.F. explained that the police car stayed on the
feeder road, and after the suspects’ vehicle exited, the suspects hit something when
3
they tried to make a U-turn. After the suspects crashed, S.F. observed a passenger
getting out and running into a wooded area, and she saw another person next to the
wrecked vehicle. S.F. testified that she took a photo of the wrecked vehicle, which
was admitted as State’s Exhibit 13. S.F. also testified that she had viewed the content
of State’s Exhibit 11, a surveillance video from Walgreens, and she agreed it
accurately reflects the scene as she saw it on the day of the incident. The portion of
State’s Exhibit 11 that S.F. had personally viewed was admitted into evidence.
Testimony of Trooper Jordan Wilson
Jordan Wilson, a trooper with the Texas Department of Public Safety, testified
that on October 6, 2016, he received a call regarding a vehicle involved in a possible
burglary that had crashed after traveling northbound on Highway 59 at a high rate
of speed. Wilson identified State’s Exhibit 14 as a photo of the crashed vehicle that
was involved in the chase. Based on his experience and training, Wilson concluded
that the vehicle had been traveling at a high rate of speed when it crashed. The
trooper testified that the wrecked vehicle was a rental that had “aftermarket tint
thrown on.” Wilson also identified the photo in State’s Exhibit 15 as depicting a
stolen purse he removed from the wrecked vehicle. He identified the purse from his
conversation with an officer at the Walgreens who had spoken with the victim.
4
Wilson testified that, in his experience, automobile burglaries such as this one are
sometimes committed by persons who are linked to Houston.
Testimony of Sergeant Terry Barnhill
Sergeant Terry Barnhill, a DPS Sergeant assigned to the New Caney Highway
Patrol office, testified that on October 6, 2016, he heard a call regarding a crash
involving “suspected robbers[,]” and he went to the scene of the crash. Barnhill
testified that the vehicle had crashed into a pillar under an overpass, and in his
opinion, the vehicle had been traveling fast. Barnhill explained that the vehicle was
a rental with window tinting that had been put on “really fast to cover up the
windshield.” According to Barnhill, the air bags were deployed and one of the
license plates was inside the vehicle.
Barnhill explained that other law enforcement officers on the scene had
apprehended two people that were in the vehicle, and he assisted in collecting
evidence, photographing the scene, and inventorying the vehicle. Barnhill identified
State’s Exhibits 16 through 27 as photographs he took as he was conducting an
inventory of the vehicle, and he agreed they were accurate depictions. Barnhill
identified the object depicted in State’s Exhibit 24 as a springloaded window punch,
which he explained is used to break car windows or windshields and is commonly
used in vehicle burglaries because it is a quick way to get into a vehicle without
5
setting off the alarm. According to Barnhill, the initial report described suspects
targeting people at banks, and inside the vehicle was a bag with a bank logo, which
he identified in the photo in State’s Exhibit 23. Barnhill testified that he has seen an
increase in burglary cases in the past few years involving perpetrators coming into
Montgomery County from Houston.
Testimony of Deputy Colton Bird
Deputy Colton Bird, a patrol deputy with the sheriff’s office, testified that on
October 6, 2016, he was dispatched to the scene of a burglary of a motor vehicle at
a Walgreens on Road 1485 in New Caney, where a woman’s vehicle had been
broken into and her purse had been stolen. Bird identified State’s Exhibits 9 through
35 as photographs taken at the scene, and he agreed they were accurate depictions
of the victim’s vehicle showing the rear passenger window broken and debris of
broken glass on the ground, the front side passenger window with two marks that
reflected other failed attempts to break the window, the rear passenger side with
broken glass on the seat inside the victim’s vehicle, the victim’s purse and items in
the victim’s purse that had been recovered, including her identification and a bank
bag. Bird agreed that he transported Smith from the hospital to jail after the offense.
Bird further explained:
I was initially dispatched to Walgreens where I met with [K.V.].
I went inside and I spoke with the manager of Walgreens and asked if
6
I could view the security footage from the store. They had a camera on
the corner of the store that pointed in the direction where her vehicle
was parked. And I observed that footage with the manager in the back
room.
Bird testified that he obtained a copy of the surveillance video from the Walgreens
store manager on the day of the offense after observing the recording of the offense
from the recording equipment, and he agreed that, based on his knowledge of the
Walgreens parking lot and what he observed, the video recording accurately
reflected the Walgreens parking lot. About twenty minutes of the video was
published to the jury. Bird agreed that the video depicted a parked vehicle that did
not move and from which no one entered or exited for a period of about fifteen
minutes, that Chase Bank was visible across the street, and the parked vehicle was
“pointed looking at the bank[.]” Bird identified the victim’s vehicle in the video as
it was leaving the Chase Bank parking lot.
Testimony of Deputy Ryan Jones
Deputy Ryan Jones with the Montgomery County Sheriff’s Office Gang
Intelligence Unit (GIU) testified that he assists as an investigator on gang offenses.
Jones explained that the goal of the GIU is to “disrupt and dismantle all gangs in
Montgomery County[,]” which includes documentation of gang membership in a
statewide database known as “TxGang.” Jones explained that various factors
indicate to him that someone is a gang member: a judicial finding, self-identification,
7
a reliable or corroborated informant, dress, hand signs, tattoos, internet recruitment,
or use of gang colors. According to Jones, only three indicators are stand-alone
criteria: a judicial finding, self-identification, or a corroborated informant. Jones
explained that the gang known as “Bloods” is associated with the color red, tends to
prefer certain tattoos and symbols, and commonly uses certain hand signs. Jones
testified that Bloods’ tattoos often depict a five-point star, red ink, paw prints, bricks,
flames, or the letter B, and that sometimes Bloods’ members alter the logo of local
sports teams to conform to the gang.
Jones testified that he was called to the scene in this offense and that he also
went to the hospital because the suspects had fled, wrecked their vehicle, and
required medical attention. Jones explained that he spoke with Shawn Raney,
Smith’s co-defendant, at the hospital and ultimately documented Raney as a member
of the Bloods based on Raney’s self-admission and his tattoos. Jones also later
identified Raney in some Facebook photos in which he was wearing the color red
and displaying a Bloods’ hand sign. Jones also explained that he found a Facebook
photo of Raney and Smith together displaying a Bloods’ hand sign. According to
Jones, photos of Smith found on Facebook show him wearing red clothing and shoes
and displaying Bloods’ hand signs. State’s Exhibits 39 through 45 were entered into
evidence, which Jones explained were photographs of Smith taken at the
8
Montgomery County jail and depict Smith’s tattoos. Jones testified that he relied in
part upon Smith’s tattoos in documenting Smith as a member of the Bloods, and he
explained that three tattoos he observed on Smith in the hospital were “clear
indicators” of gang membership. According to Jones, the tattoos included various
features associated with the Bloods, including flames, a paw print, the letter B, red
ink, a symbol for the Houston Rockets shaped into the letter B, certain phrases
associated with the Bloods, and an image of Benjamin Franklin commonly used by
Bloods. Outside the presence of the jury, Smith showed his tattoos to the trial court
judge, and she was satisfied that the photos represented the tattoos adequately. At
trial, Jones identified an additional tattoo on Smith of a red paw print. Based on his
experience and training, Jones concluded that Smith belongs to a criminal street gang
known as the Bloods, and Jones had no doubt in his mind that Smith met the State
criteria for being entered into the TxGang system as a member of a gang.
Jones testified that law enforcement has observed that certain offenses
committed by gangs are offenses that require “man power[,]” surveillance, or
“scoping out a place[,]” such as burglaries of motor vehicles, robberies, and bank
jugging. Jones explained that “bank jugging” is a criminal scenario in which
. . . multiple people will watch someone at a bank and when that
person withdraws some money from a bank, they’ll follow the person
to another location to where they stop and get out of their car.
Sometimes it’s Wal-Mart or another [] store.
9
Once they see the person leave their vehicle, at that point they’ll
approach, they’ll smash the window of the vehicle or unlock the car if
someone happens to leave it unlock[ed] and they’ll take -- they’ll
withdraw amounts.
Based on his experience and training, Jones agreed that gang members from known
gang areas in Harris County come into Montgomery County to commit crimes,
including “jugging.”
The jury found Smith guilty of engaging in organized criminal activity as
charged in the indictment and assessed punishment at two years’ confinement in
state jail and a $10,000 fine. Smith timely appealed.
Standard of Review
We review a trial court’s admission of evidence for abuse of discretion. See
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court
abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Id. We will not disturb a trial court’s evidentiary ruling if it is correct
on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336,
344 (Tex. Crim. App. 2009). Where the alleged error is not constitutional, we will
reverse the trial court’s judgment only if the error affected the appellant’s substantial
rights. See Tex. R. App. P. 44.2(b). “A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.”
See Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). Substantial rights
10
are not affected by the erroneous admission of evidence if, after examining the
record as a whole, the appellate court has fair assurance that the error either did not
influence the jury or had only a slight effect. See Motilla v. State, 78 S.W.3d 352,
355 (Tex. Crim. App. 2002).
Admission of Co-Defendant’s Statement
In his first issue, Smith argues that the trial court erred by admitting Shawn
Raney’s out-of-court statement that Raney was a gang member. According to
Appellant, the statement was an out-of-court testimonial statement, the admission of
which violated Appellant’s rights under the Confrontation Clause.
The Sixth Amendment’s Confrontation Clause bars the admission of
testimonial statements of a witness who does not appear at trial unless that witness
is unavailable and the defendant had a prior opportunity for cross-examination.
Crawford v. Washington, 541 U.S. 36, 42, 59 (2004); Russeau v. State, 171 S.W.3d
871, 880 (Tex. Crim. App. 2005). The threshold inquiry for a Confrontation Clause
violation is whether the admitted statements are testimonial in nature. Vinson v.
State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008); see also Woodall v. State, 336
S.W.3d 634, 642 (Tex. Crim. App. 2011) (concluding, in reviewing Confrontation
Clause challenge, appellate courts must “first determine whether the Confrontation
Clause is implicated[,]” that is, whether out-of-court statement made by witness
11
absent from trial and testimonial in nature). The Sixth Amendment does not bar the
use of nontestimonial hearsay. Sanchez v. State, 354 S.W.3d 476, 485 (Tex. Crim.
App. 2011); Infante v. State, 404 S.W.3d 656, 664 (Tex. App.—Houston [1st Dist.]
2012, no pet.).
Whether a statement is testimonial is a constitutional legal question that we
review de novo. See Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010);
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Testimonial statements
are typically solemn declarations made for the purpose of establishing some fact.
Crawford, 541 U.S. at 51; Russeau, 171 S.W.3d at 880. This typically occurs “when
the surrounding circumstances objectively indicate that the primary purpose of the
[communication] is to establish or prove past events potentially relevant to later
criminal prosecution.” De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008); see also Davis v. Washington, 547 U.S. 813, 822 (2006) (statements are
testimonial “when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution”).
Any Confrontation Clause error is of Constitutional dimension and subject to
a harm analysis. Langham, 305 S.W.3d at 582. When the error in question is
constitutional, an appellate court must reverse a judgment of conviction or
12
punishment unless the court determines beyond a reasonable doubt that the error did
not “move[] the jury from a state of non-persuasion to one of persuasion on a
particular issue.” Id. (quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App.
2007)); see also Tex. R. App. P. 44.2(a). In applying the “harmless error” test, we
ask whether there is a “reasonable possibility” that the error might have contributed
to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op.
on reh’g). Our analysis seeks to calculate the probable impact on the jury in light of
the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim.
App. 2000). We consider such things as the nature of the error, the extent to which
it was emphasized by the State, its probable collateral implications, and the weight
a juror would probably place on the error. See Snowden v. State, 353 S.W.3d 815,
821-22 (Tex. Crim. App. 2011). We evaluate the entire record in a neutral manner
and not in the light most favorable to the prosecution. See Cantu v. State, 395 S.W.3d
202, 211 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
The State argued to the trial court and argues on appeal that the statement at
issue here is nontestimonial. The State principally relies upon Cantu v. State, 339
S.W.3d 688 (Tex. App.—Fort Worth 2011, no pet.). In Cantu, the Fort Worth Court
of Appeals considered out-of-court statements made by the defendant and an
associate wherein the declarants had self-identified to one another as gang members.
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Id. at 689-90. The Fort Worth court concluded that the statements at issue were not
testimonial because they did not accuse Cantu of anything for which he might be
prosecuted. Id. at 691. We need not determine whether the statements made by
Raney to the police regarding gang membership were testimonial, however, because,
assuming without deciding that Raney’s statement regarding gang membership was
testimonial, we find no harm resulted from its admission.
We first note that Raney’s self-admission was not the only evidence of
Raney’s or Smith’s gang membership. See Render v. State, 347 S.W.3d 905, 918-20
(Tex. App.—Eastland 2011, pet. ref’d) (admission of accomplice’s out-of-court
statement was not harmful because it was cumulative of and corroborated by other
evidence). Deputy Jones testified that Raney had tattoos consistent with gang
membership and photos from Raney’s Facebook page showed Raney wearing gang
colors and displaying gang hand signs. In addition, evidence independent of Raney’s
self-admission suggested Smith’s gang membership, including Smith’s own tattoos
and his Facebook photos in which he was wearing Bloods’ colors and displaying
Bloods’ hand signs. Jones testified that Smith was arrested for a gang-related
offense—jugging—and that Smith is from a “documented gang area[]” in Houston.
See Tex. Code Crim. Proc. Ann. art. 61.02(c)(2) (West Supp. 2017) (listing criteria
for identifying an individual as a member of a criminal street gang). In addition, S.F.
14
testified that she encountered Smith’s vehicle in the Walgreens parking lot parked at
an odd angle, that she observed the break-in of K.V.’s vehicle, and that she followed
Smith’s vehicle until it crashed several miles away. Trooper Wilson testified that the
victim’s purse was found in the wrecked vehicle.
On the record before us, we are persuaded to a level of confidence beyond a
reasonable doubt that any error in admitting Raney’s self-admission of gang
affiliation did not move the jury from a state of non-persuasion to a state of
persuasion on any material issue in the case, nor did it contribute to the jury’s
determination that Smith was guilty of engaging in organized crime. See Tex. R.
App. P. 44.2(a); Snowden, 353 S.W.3d at 825. We overrule issue one.
Authentication of Surveillance Video
In his second issue, Smith argues that the trial court erred in admitting the first
fifty minutes of the Walgreens’ surveillance video without proper authentication.
According to Smith, the video was not properly authenticated because the State did
not offer testimony of the store manager that the video equipment was in working
order at the time the recording was made. Smith argues that the testimony of Deputy
Bird was not adequate to authenticate the surveillance video because such testimony
did not authenticate the system used to record the video.
15
To authenticate an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it to be.
Tex. R. Evid. 901(a). “The preliminary question for the trial court to decide is simply
whether the proponent of the evidence has supplied facts that are sufficient to support
a reasonable jury determination that the evidence he has proffered is authentic.”
Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). The evidence may be
authenticated by direct or circumstantial evidence. See Butler v. State, 459 S.W.3d
595, 602 (Tex. Crim. App. 2015) (citing Wallace v. State, 782 S.W.2d 854, 858 (Tex.
Crim. App. 1989)). “In ruling on the admission or exclusion of photographic
evidence, the trial court is accorded considerable discretion.” Huffman v. State, 746
S.W.2d 212, 222 (Tex. Crim. App. 1988). “The trial judge does not abuse his or her
discretion in admitting evidence where he or she reasonably believes that a
reasonable juror could find that the evidence has been authenticated or identified.”
Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007).
Rule 901(b) provides a nonexclusive list of methods to authenticate evidence.
See Tex. R. Evid. 901(b). One method of authentication is the testimony of a witness
with knowledge that a matter is what it is claimed to be. Id. 901(b)(1). When a
photograph or video is authenticated by a witness with knowledge, the admissibility
of the item is conditioned on the witness’s identification of the exhibit as a fair and
16
accurate depiction of the person, place, or event that the item purports to portray. Id.;
Kelley v. State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d); Davis v.
State, 687 S.W.2d 78, 81 (Tex. App.—Dallas 1985, pet. ref’d) (citing Goss v. State,
549 S.W.2d 404, 406 (Tex. Crim. App. 1978); Haas v. State, 498 S.W.2d 206, 211
(Tex. Crim. App. 1973)). Video recordings or motion pictures sought to be used in
evidence are treated like photographs. See Huffman, 746 S.W.2d at 222; Williams v.
State, 461 S.W.2d 614, 616 (Tex. Crim. App. 1970) (citing Ray E. Moses, Scientific
Proof in Criminal Cases: A Texas Lawyer’s Guide, § 10.04 (1969)).
Smith argues the video was inadmissible because it was not properly
authenticated, and he relies primarily upon Fowler v. State, 517 S.W.3d 167 (Tex.
App.—Texarkana 2017, pet. granted). In Fowler, the Texarkana Court of Appeals
held that the trial court erred in admitting a copy of a surveillance video because it
was improperly authenticated where no testimony was offered concerning whether
the recording equipment had been working properly. Id. at 170-74. We find Fowler
distinguishable from the facts in the case at bar. In Fowler, there was no witness
testimony or evidence presented that the original video recording accurately
portrayed what the State maintained it depicted. Id. at 172-73 (“[T]here was no
evidence presented that the video recording copied by [the officer] accurately
portrayed any relevant information.”). Unlike the facts in Fowler, in the case at bar,
17
two witnesses, Deputy Bird as well as S.F., testified that the surveillance video
accurately depicted the Walgreens property, and S.F. testified that it accurately
portrayed what she saw during the incident in question. Additionally, Deputy Bird
testified that he met with the Walgreens manager in an office in the store where the
manager accessed the security system and pulled up the video recording. Bird
explained that he observed the video and obtained a copy from the store manager,
and he understood that the recording system was functioning properly. Bird agreed
that, based on his knowledge of the Walgreens parking lot and what he observed, the
video recording accurately reflected the Walgreens parking lot. Bird testified that he
arrived at the Walgreens store on the day of the offense and he retrieved the video
from the manager at the store that day after he had observed the recording of the
offense from the recording equipment. Bird and S.F. both testified that the
surveillance video depicted the Walgreens property, and approximately twenty
minutes of the video was published to the jury.
Despite a lack of testimony concerning the particular equipment used to create
the surveillance video, Bird and S.F. testified from personal knowledge that the area
depicted in the recording accurately depicted the place and events in question on the
day of the offense. Furthermore, the circumstances under which the recording was
obtained supported its authenticity. See Angleton v. State, 971 S.W.2d 65, 68 (Tex.
18
Crim. App. 1998). On the record before us, we conclude that the trial court did not
err in admitting the surveillance video because the ultimate fact-finder could
rationally have believed the sponsoring witnesses’ testimony that the video was what
its proponent claimed. See Butler, 459 S.W.3d at 605. Because we find no error in
admitting the video recording, we need not conduct a harm analysis. See Tex. R.
App. P. 47.1; Morales v. State, 32 S.W.3d 862, 866 n.7 (Tex. Crim. App. 2000).
Jury Charge and Effective Assistance of Counsel
In his third issue, Smith argues that his attorney was ineffective for failing to
object to the jury charge because the charge allegedly did not properly instruct the
jury as to a lesser-included offense. According to Smith, “through what appears to
be a clerical error, the trial court instructed the jury to find Appellant guilty as
charged in the indictment (for Engaging [in Organized Criminal Activity]) if it found
that the State proved the elements of Burglary of a Vehicle beyond a reasonable
doubt.”2 Smith also argues that his attorney was ineffective for failing to request an
instruction on accomplice testimony.
2
The paragraph of the jury charge relating to Appellant’s issue on appeal
reads as follows:
Now, if you find from the evidence beyond a reasonable doubt
that on or about [] October 6, 2016, in Montgomery County, Texas, the
defendant, TRENARD JERMAINE SMITH, either acting alone or with
SHAWN ANTHONY RANEY as a party to the offense, did then and
there unlawfully, with intent to commit theft, break into or enter a
19
To the extent Smith’s third issue also asserts that the trial court erred in failing
to include instructions on a lesser-included offense or accomplice witness testimony,
Smith has failed to adequately brief this point. See Tex. R. App. P. 38.1(h), (i);
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling issue on
appeal where appellant’s briefing was inadequate for neglecting to present argument
and authority); McFarland v. State, 928 S.W.2d 482, 509 n.25 (Tex. Crim. App.
1996) (an inadequately briefed point of error presents nothing for review on appeal);
Reeves v. State, 465 S.W.2d 757, 757 (Tex. Crim. App. 1971) (failure to brief
constitutes waiver).
With respect to his other complaint, to establish that there was an ineffective
assistance of counsel, a defendant must establish that: (1) counsel’s representation
fell below an objective standard of reasonableness; and (2) there is a reasonable
probability that the result of the proceeding would have been different but for the
attorney’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984). An allegation of ineffectiveness will be sustained only if it is firmly
founded in the record and if the record affirmatively demonstrates the alleged
vehicle owned by [K.V.], a person having a greater right to possession
of the vehicle than the defendant, without the effective consent of
[K.V.], namely, without any consent of any kind, then you will find the
defendant guilty as charged in the indictment.
20
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)
(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled
on other grounds by Mosley, 983 S.W.2d 249). The bare record on direct appeal is
usually insufficient to demonstrate that “counsel’s representation was so deficient
and so lacking in tactical or strategic decision[-]making as to overcome the
presumption that counsel’s conduct was reasonable and professional.” Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (citation omitted). On a silent record,
the reviewing court may conclude counsel’s performance was deficient only if the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “Appellate
review of defense counsel’s representation is highly deferential and presumes that
counsel’s actions fell within the wide range of reasonable and professional
assistance.” Bone, 77 S.W.3d at 833.
On this record, we conclude that Smith has failed to defeat the strong
presumption that counsel’s decisions during trial fell within the wide range of
reasonable professional assistance. See Bone, 77 S.W.3d at 833; Thompson, 9
S.W.3d at 813. Nothing in the record before us demonstrates that trial counsel’s
performance was the product of an unreasoned or unreasonable trial strategy, or that
21
counsel’s performance led to an unreliable verdict or punishment. See Bone, 77
S.W.3d at 834. The record before us is insufficient to establish that, but for the
complained-of errors, the result of Smith’s trial would have been different. See id. at
833. Accordingly, Smith cannot defeat the presumption that trial counsel’s
assistance was reasonable and professional. See id.; see also Thompson, 9 S.W.3d at
814. We overrule issue three.
Reformation of Judgment
We note that the section of the judgment entitled “Statute for Offense[]”
recites “71302” whereas Smith’s information indicates he was charged under section
71.02 of the Texas Penal Code. See Tex. Penal Code Ann. § 71.02. The jury charge
also indicates he was tried for an offense under section 71.02 of the Texas Penal
Code. This Court has the authority to reform the trial court’s judgment to correct
clerical errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.
Crim. App. 1993). We therefore reform the judgment to delete the reference to
“71302” and to add a citation to “71.02” of the Texas Penal Code to that section of
the judgment stating the statutory reference for the offense.
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Having overruled Appellant’s issues, we affirm the judgment of the trial court
as reformed.
AFFIRMED AS REFORMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on February 21, 2018
Opinion Delivered March 14, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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