Henderson, John v. State ( 2006 )

Affirmed and Memorandum Opinion filed July 27, 2006

Affirmed and Memorandum Opinion filed July 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00337-CR

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JOHN HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 233,782

M E M O R A N D U M   O P I N I O N

            A jury convicted appellant John Henderson on one count of misdemeanor theft, and the trial court sentenced him sentenced to 181 days incarceration in the Galveston City Jail.  In three issues, appellant argues (1) the evidence is factually insufficient to support his conviction; (2) the State is barred from prosecuting him because he allegedly did not receive a probable cause hearing within twenty-four hours of his arrest, and (3) his trial counsel’s failure to move for dismissal on the lack of a timely probable cause hearing and on the alleged denial of a speedy trial constitutes ineffective assistance of counsel.  We affirm.

I.  Factual and Procedural Background

            Appellant and Saul Aucancela lived in separate apartments across the street from a store owned and operated by Aucancela.  Among the items Aucancela sold at the store were telephone calling cards.  Aucancela stored the money he received from the sale of the calling cards in a small bag next to the cash register.

            On April 17, 2004, appellant entered the store, browsed through a magazine, asked Aucancela the price of various items, and purchased a package of cookies.  Immediately after appellant left, Aucancela noticed the bag containing the money from the calling cards was missing.  Two customers in the store told Aucancela that appellant had taken the bag.  Aucancela ran across the street, and followed appellant to the apartment house.  Aucancela knocked on appellant’s door and, speaking primarily in Spanish,[1] demanded his money back.  Appellant, who does not speak Spanish, exited the apartment house with Aucancela.  Once outside, Aucancela tried to grab appellant.  Appellant, who was on parole for robbery, fled the scene on foot.

            Appellant hid beneath a house raised on cinder blocks.  Officers from the Galveston Police Department (GPD) responded to the scene, and witnesses who saw appellant running told the officers where appellant was last seen.  GPD Sergeant Gilbert Gomez testified “there were 20 people in the neighborhood pointing and chasing this guy.”  After seeing movement underneath the house where appellant was hiding, Gomez drew his weapon and ordered appellant to come out with his hands in plain view.  Appellant crawled from under the house and was taken into custody.  Detective Jason Chide arrived at the scene when appellant was being handcuffed.  Chide saw what appeared to be money under the house, and supervised the recovery of approximately $195.00 in cash from the site.

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            On May 13, 2004, appellant was charged by information with misdemeanor theft.  On February 9, 2005, appellant filed a pauper’s oath and the trial court appointed counsel to represent him.  The case was tried on February 22, 2005.  After a jury found appellant guilty of the charged offense, the trial court sentenced him to 181 days incarceration, with credit for 317 days already served.  This appeal ensued. 

II.  Analysis

A.        Factual Sufficiency of the Evidence

            In his first issue appellant contends the evidence is factually insufficient to support his conviction.  In evaluating a factual sufficiency challenge, we ask only one question: Considering all the evidence in a neutral light, was the fact finder rationally justified in finding guilt beyond a reasonable doubt?  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  There are two ways the evidence may be factually insufficient: (1) the evidence supporting the verdict, when taken alone, is too weak to sustain a finding of guilt beyond a reasonable doubt; or (2) after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt.  Id. at 484–85.  In our evaluation of the evidence, we must be deferential to the jury’s findings and resist intruding on its role as the sole judge of the witnesses’ credibility and of the weight to be given to witness testimony.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).  We do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App.  1998).  Therefore, “unless the available record clearly reveals a different result is appropriate, [we] must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor . . . .” Johnson, 23 S.W.3d at 8.

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            A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner.  See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2005). Appropriation of property is unlawful if “it is without the owner’s effective consent.”  Id. at  § 31.03(b)(1).  At trial, the uncontroverted evidence included Aucancela’s testimony that the bag was next to the cash register before appellant entered the store; that the bag contained $270.00; that he saw “like a shadow that grabbed” when appellant was near the counter where the bag was located; and that immediately after appellant left the store, the bag was gone.  Aucancela also testified that appellant behaved in a manner Aucancela found suspicious: he browsed through a magazine that was printed in Spanish,[2] drew Aucancela away from the counter by asking the prices of items he did not purchase, appeared so nervous while paying for his purchase that his hands were shaking, and hurried away as he left the store.  Aucancela further stated that he followed appellant home and demanded his money back, and when Aucancela tried to grab appellant, appellant ran from the scene.  Finally, the State introduced evidence that approximately $195.00 in cash was recovered from the area under the house where appellant hid after he ran from Aucancela.

            In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in undermining the jury’s verdict.  Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  Appellant first argues the State’s case is circumstantial, and there is no direct evidence he took the money. However, our standard of review remains the same whether the evidence we consider is direct or circumstantial.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc).  The jury is entitled to draw reasonable inferences from circumstantial evidence.  Villani v. State, 116 S.W.3d 297, 303 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  

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            Appellant next directs us to his testimony that he: (1) did not commit the theft; (2) believed the magazine he examined was in English; (3) was on medication that caused his hands to shake; and (4) did not run from the store but simply walked fast.  Appellant also relies on his trial testimony that when he spoke with Aucancela outside the apartment house, he told Aucancela he would call the police and report Aucancela for harassment, and ran to avoid a physical confrontation.  However, the jury was entitled to infer that appellant’s flight demonstrated his consciousness of guilt for the theft.  See Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (“Evidence of flight . . . shows a consciousness of guilt of the crime for which the defendant is on trial.”). As, the jury is the exclusive judge of witness credibility, the jury was free to believe Aucancela’s testimony, disbelieve appellant, and infer that appellant took the bag containing the money.  See Johnson v. State, 23 S.W.3d at 8.

            Additionally, appellant argues that Aucancela never described how long it was since he had seen the bag or how much time elapsed before he discovered the bag was missing.  This is contradicted by the record:

            Q:        So, Mr. Aucancela, did you know how much money was in that bag?

            A:        $270.

            Q:        Okay.  Had you counted it at some time recently before all the events happened that day?

            A:        I daily—I count it, and I know daily how much is in the bag.

            Q:        Okay.  And before you observed Mr. Henderson come in the store and stand by the magazines, are you certain the bag was still there?

            A:        Yes.  100 percent.

(emphasis added). Aucancela also offered the following testimony regarding events immediately after appellant left the store:

            Q:        Okay.  Did you at that time think possibly something had been stolen?

            A:        Yes.

            Q:        Did you look around to see if anything was missing at that point?

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            A:        Right away.  I didn’t see the bag.

            Q:        Okay.  You saw that it was missing?

            A:        Yes.

            Q:        Okay.  And what did you do at that point after you saw the bag was missing?

            A:        I got out running.  I asked the people and they saw that the man grabbed a bag and he put it right here (indicating).

            Q:        Okay.  Now when you saw him run out, did you ever lose sight of him as he’s running out?

            A:        No.

(emphasis added). Aucancela identified the man as appellant.  Appellant contends the evidence merely shows he was last person in the area when the bag was discovered to be missing.  Although mere presence at the scene of an offense is not sufficient to support a conviction, it is a circumstance the jury may consider with the other evidence in determining guilt.  See Sosa v. State, 177 S.W.3d 227, 230 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

            Lastly, appellant  points to Detective Chide’s testimony, which appellant contends is inconsistent with Detective Gomez’s testimony and with the jury’s verdict. Gomez testified that money fell from appellant’s pockets or midriff as he crawled from under the house, but Chide did not testify that appellant dropped money.  Chide’s testimony does not contradict Gomez’s testimony as appellant contends because the two detectives testified to observations they made at different times.  Chide testified that he arrived at the scene when appellant was being handcuffed, after appellant had already crawled from under the house.  Chide further testified that he saw money under the house, and supervised the recovery of the money.  The jury could have inferred that the money found under the house was some of the money appellant was accused of stealing.  Discovery of stolen items along a suspect’s “path of flight” is an incriminating circumstance.  Morgan v. State, 503 S.W.2d 770, 772 (Tex. Crim. App. 1974).      

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            Under the applicable legal standard, we conclude the evidence is factually sufficient to support appellant’s conviction for theft.  Accordingly, we overrule appellant’s first issue.

B.        The Probable Cause Hearing

            Appellant argues in his second issue that his conviction must be reversed because he could not lawfully be prosecuted for the charged offense.  He contends that a “probable cause” hearing was not held within twenty-four hours of his arrest as required by Tex. Code Crim. Proc. Ann. art. 17.033(a) (Vernon 2005), and that in the absence of such a hearing, any further prosecution is prohibited.          

            Article 17.033(a) states, in pertinent part:

[A] person who is arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $5,000, not later than the 24th hour after the person’s arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.  If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.

Appellant acknowledges that article 17.033 does not expressly bar prosecution in the absence of a probable cause determination, but he argues that such a prohibition is “implicit in the language of the statute.”  Because appellant has cited no authority or argument in support of his interpretation, which is contrary to settled law, this portion of appellant’s second issue is waived.  See Tex. R. App. P. 38.1(h).  Moreover, unlawful confinement is not, per se, cause to reverse a conviction.  See Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (“[A] conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.”); Ex parte Fivel, 704 S.W.2d 125, 126 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d) (“An illegal detention does not, in itself, void a subsequent conviction.”).  This is consistent with the law governing illegal arrest, detention, search, and seizure.  See, e.g., Brennan v. State, 140 S.W.3d 779, 780–81 (Tex.

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App.—Houston [14th Dist.] 2004, pet. ref’d) (“An unlawful seizure (detention or arrest) is not, per se, cause to reverse a conviction.”).

C.        Ineffective Assistance of Counsel

            Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2004).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686–87, 104 S. Ct. 2052, 2063–64, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms;  and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 688–92, 104 S. Ct. 2052, 2064–67.  Moreover, appellant bears the burden of proving his claim of ineffective assistance of counsel by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

            In assessing appellant’s claims, we apply a strong presumption that trial counsel was competent.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).   We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did.  See id.  An appellant cannot meet this burden when counsel’s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for trial counsel’s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002).  When there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s

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performance was deficient.   See id. at 833.  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

            Here, appellant contends he received ineffective assistance of counsel because his trial attorney did not move for dismissal based on the State’s alleged failure to (a) hold a timely probable cause hearing, and (b) grant appellant a speedy trial.  By failing to present argument and authority supporting the first of these subissues, appellant has waived that contention. Appellant’s second contention is not “firmly founded in the record,” which contains the following “Rejection of a Plea Agreement” signed by appellant:

I have been incarcerated in the Galveston County jail since April 17, 2004.  This case was filed on 05-13-04[.]  I have not had the opportunity to speak with an attorney in regard to this case until February 9, 2005 when Lynette Briggs was appointed to represent me and this matter was set for trial.  A hearing was held on February 16, 2005 in regard to the failure of the State to magistrate my misdemeanor case.  My attorney moved the State [to] dismiss this case this case and this was denied.  At said hearing, the judge set my trial for number one for 02-22-05.  I was magistrate[d] on 02-16-05 in the misdemeanor case.

(emphasis added).  The record does not state the grounds on which appellant’s trial attorney moved to dismiss the case; thus, we cannot determine if appellant’s trial counsel moved to dismiss based on the State’s failure to hold a timely probable cause hearing, the failure to grant a speedy trial, or both grounds.  However, the State notes in its brief that “the record is silent as to why trial counsel did not file a speedy trial motion.”  Therefore, we will presume that this assertion is correct.

            A delay of ten months between appellant’s arrest and trial is arguably sufficient to justify filing a motion to dismiss.  See Shaw v. State, 117 S.W.3d 883, 888–89 (Tex. Crim. App. 2003) (under federal and state constitutions, delay approaching one year is sufficient to trigger a speedy trial inquiry, and if violation of the right is established, the proper remedy

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is dismissal with prejudice).  Although appellant’s trial attorney could have moved for dismissal, we do not presume counsel’s failure to do so was unreasonable.  To the contrary, appellant must overcome the presumption that, under the circumstances, his attorney’s decision to forego a motion for dismissal “might be considered sound trial strategy.”  See Strickland, 466 U.S. at 689; Jaile v. State, 836 S.W.2d 680, 686–87 (Tex. App.—El Paso 1992, no pet.) (affirming conviction where the record showed a sixteen-month delay between the appellant’s arrest and trial, but did not illustrate that trial counsel’s failure to move for dismissal was not sound strategy). 

            Acting through his appellate counsel, appellant filed a motion for new trial, but did not contend his trial attorney’s actions were deficient.  Thus, the record contains no evidence of the reasoning and strategy underlying trial counsel’s actions.  In the face of a silent record, this court will not speculate about why trial counsel did not file a motion to dismiss.  In the absence of any evidence to the contrary, we cannot conclude the performance of appellant’s trial counsel was deficient.   See Jaile v. State, 836 S.W.2d 680, 686–87.  Moreover, the record lacks evidence demonstrating a reasonable probability that such a motion would have been granted.[3] Accordingly, we overrule appellant’s second and third issues.

IV.  Conclusion

            For the foregoing reasons, we affirm the judgment of the trial court.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed July 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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

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^[1] Aucancela speaks limited English, and testified primarily through an interpreter.

^[2] Aucancela testified that he found this suspicious because appellant is Caucasian.  Appellant testified he does not speak Spanish.

^[3] To determine whether  a defendant’s right to a speedy trial has been violated, the trial court weighs factors including, but not limited to, the length of the delay, the reason for the delay, the defendant’s assertion of the right to a speedy trial, and any prejudice resulting from the delay.  See Barker v. Wingo, 407 U.S. 514, 530 (1972).  The record shows only that ten months elapsed between appellant’s arrest and his trial, and contains no evidence pertaining to the reason for delay, defendant’s assertion of the right to a speedy trial, or prejudice.  In the absence of this evidence, appellant has not shown a reasonable probability that the motion would have been granted.