Jeremiah Addon Curry v. State

Opinion issued June 24, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NOS. 01-08-00934-CR &

01-08-00935-CR

———————————

Jeremiah Addon Curry , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Case No. 1122699 & 1165117

MEMORANDUM OPINION

A

jury convicted appellant, Jeremiah Addon Curry, of two charges [1] of aggravated robbery. [2] The jury assessed punishment at 25 years’

imprisonment and a fine of $5,000 for one offense and 40 years’ imprisonment

and a fine of $10,000 for the other offense, both sentences to run

concurrently. In three issues, appellant

argues: (1) that the evidence was legally insufficient to establish his guilt;

(2) that the evidence was factually insufficient to establish his guilt; and

(3) that he was denied effective assistance of counsel.

We

affirm.

BACKGROUND

On

the night of June 25, 2007, the complainants, Lakisha Roberts and Antoinette

Breed, who had lived together for four years, were in their apartment in

Baytown, Texas with Roberts’ ten-year-old son Kailen Arceneau, Roberts’ two-

year-old god-daughter Daniesha, and Lakeisha Brown, Roberts’ niece. [3] The complainants and Kailen

were in one bedroom watching a movie, Daniesha was in the other bedroom asleep,

and Brown was in the living room watching television. Between midnight and 1:00 a.m., there was a

“loud knock” at their door. After

hesitating, Roberts went to the door. The

door did not have a peephole, but a person on the other side of the door identified

himself as “Mike.” Roberts opened the

door and almost immediately thereafter was struck with the handle of a gun. Five people—three men and two women—burst

into the apartment and ordered everyone to be quiet and to get on the

floor. The intruders wore black bandanas

over their faces, but Roberts and Kailen recognized one of them as their next

door neighbor, Isaiah Thomas. Appellant

entered the bedroom where Breed and Kailen remained, pointed a gun at Breed,

and ordered them into the living room.

The intruders used duct tape to

restrain, to silence, and to blindfold the complainants. After the complainants were restrained and

silenced, the intruders beat them. Kailen,

who remained on a couch during the entire event, was unrestrained and not

blindfolded.

After

the complainants were restrained and silenced, appellant and his accomplices

began to search the apartment. As they

did so, Roberts and Breed heard Thomas address appellant by his first name,

Jeremiah, and they heard appellant reply.

Roberts then heard appellant speak with Kailen. Later, during the robbery, Roberts heard

appellant report that Roberts’ god-daughter, two-year-old Daniesha, was still asleep. Breed heard appellant ask where the

complainants had hidden their guns and money.

After remaining in the apartment for twenty or thirty minutes, appellant

and his accomplices prepared to leave.

Before they left, Breed and Roberts heard appellant state that they

should take a waterfall picture from the wall.

In addition to the waterfall picture, appellant and his accomplices took

a flat-screen television, keys, a DVD player, a VCR, a PlayStation 2 game

console, cellular phones, jewelry, and children’s clothing. As he left the apartment, appellant threatened

the complainants, stating, “You better not call the police because if you call

the police we will be back for you.”

After appellant and his accomplices

had left the apartment, Roberts and Breed freed themselves, closed the

apartment door, and found an old cell phone. Breed dialed 911 from the bedroom. Although the cell phone continually

disconnected from emergency services, the police were dispatched to the

complainants’ apartment.

When the police officers arrived at

the complainants’ apartment, Breed identified two of the intruders , Derrick Tillis and Isaiah Thomas, by name. [4] After speaking with the officers, Roberts

discovered that her new car had been scratched severely and its four tires

punctured. Between 30 minutes and an

hour after the officers arrived at the complainants’ apartment, the police

officers transported the two complainants, Kailen, Daniesha, and Brown to the

police station for formal statements. There,

Roberts and Breed related the details of the robbery and then identified appellant

as one of the robbers.

The police officers interviewed the

complainants separately for approximately an hour. During the interview, Breed told S. Latta,

the interviewing detective, that appellant had been among those who had robbed

her and that appellant had “put a gun in [her] face.” The detective showed Breed a photo spread, from

which she identified Tillis as one of the men who had robbed her. Both complainants later identified appellant

in a photo lineup. The State obtained

two indictments against appellant, one for the armed robbery of Lakisha Roberts

and one for the armed robbery of Antoinette Breed. The indictments both alleged that appellant

used or exhibited a handgun during the commission of the theft. The cases were tried together.

At trial, the State called eleven

witnesses, and the defense called appellant, who testified briefly outside the

presence of the jury as

to whether he had committed a prior offense.

Roberts

testified that late in the evening she was watching television with Breed,

Kailen, and Lakeisha, when they heard a knock on the door from someone who

identified himself as “Mike.” She opened

the door and something hit her across her right eye. Someone told her, “Shut the f___ up and get

down on the ground.” She recognized

Thomas as the person who struck her, whereupon he struck her again. Although his face was covered by a black

bandana, she could still see his eyes and hair.

When Roberts got down on the floor, Thomas duct-taped her hands behind

her back and duct-taped her eyes. As she

lay on the floor, she recognized the voices of Tillis and appellant and hearing

Isaiah ask appellant, “Hey, Jeremiah, do you want to take the computer?” Appellant said that it would be too

complicated to unhook everything, and it was not taken. Roberts was afraid for her life.

Roberts

testified that appellant and Thomas were brothers and both had been living in

the apartment next door to the complainants with Laura Fernandez, Thomas’s girlfriend,

until Fernandez was evicted a few days before the robbery. [5] Thomas, Tillis, and appellant were still

living there at the time of the robbery.

She knew appellant through Thomas, and prior to the robbery she had

spoken to appellant five or six times. She also testified that, in the days

before the robbery, she had purchased a new Ford Escape. Her previous car had been destroyed in an

accident shortly before the robbery, and her insurance company paid her

$3,000. She had told Thomas and

appellant before the robbery that she had a new car and that she had received

money from her insurance company.

Breed

testified that she heard the commotion and came into the living room and that appellant

shoved a gun into her face and told her to “get on the living room floor.” She recognized appellant, whom she knew

through Thomas, “[b]ecause of his even fade [hair style] and thick

eyelashes.” Her blindfold did not cover

one of her eyes, and she observed the entire robbery. She saw Isaiah and appellant walk into her

bedroom. She also heard Thomas address appellant

by his first name, Jeremiah; she heard appellant respond to Thomas’s use of his

name, and she heard appellant ask where the money and guns were hidden. When appellant returned to the living room, he

hit her in the head twice with the butt of his pistol.

Kailen testified that he was not

blindfolded and that he recognized Thomas because Thomas lived in the apartment

next door.

Brown likewise testified to the

details of the crime. She testified that

she saw Roberts get hit on the head and fall to the floor. She heard the name “Isaiah” called out. She was then duct-taped. She could not identify any individuals. She testified that all of the male intruders carried

guns, but that the women did not. She

was “stomped on the head” by one of the females.

Officer W. Pentecoste, a police

officer who responded to the complainants’ emergency call, testified that, in

his brief conversation with the complainants, he asked them about the gender,

race, and general physical descriptions of the robbers and radioed this

information to officers on patrol.

Officer M. Burdick of the Houston

Police Department testified that, on February 13, 2008, he attempted to stop

appellant because the motorcycle that appellant was riding was without a front

light, but appellant did not stop. Eventually,

appellant stopped the motorcycle, dropped it on its side, and fled on foot. Appellant

was located hiding in a closet in a house nearby. Officer Burdick eventually arrested appellant

for an outstanding warrant for armed robbery and also charged him with evading

arrest.

The jury convicted appellant on both

charges of armed robbery. At the

punishment phase, a witness testified for the State that appellant had

committed an extraneous aggravated robbery on May 2, 2004, by stealing the

witness’s dirt bike while Isaiah Thomas wielded a gun. The jury assessed punishment at 40 years’

imprisonment for the robbery of Breed and 25 years’ imprisonment for the

robbery of Roberts. Appellant did not

file a motion for a new trial. This appeal followed.

ANALYSIS

I.

Legal and Factual Sufficiency of the Evidence

In his first and second issues,

appellant contends that the evidence was legally and factually insufficient to

sustain the verdict against him.

Specifically, appellant challenges the legal and factual sufficiency of

the State’s evidence to prove his identity as the robber because, he contends,

the complainants had only limited interaction with him before the robbery,

there was nothing distinctive about his voice, and, while his brother used his

first name, Jeremiah, during the robbery, there was no last name used. In addition, he contends that the evidence was

factually insufficient because there was no other evidence such as “DNA,

weapon, fingerprint, telephone call, or co-conspirator confession” to tie him to

the crime.

A. Standard of Review

In a legal-sufficiency review, we

consider the entire trial record to determine whether, viewing the evidence in

the light most favorable to the verdict, a rational jury could have found the

accused guilty of all essential elements of the offense beyond a reasonable doubt.

See

Jackson v. Virginia , 443 U.S. 307 , 318 – 19, 99 S. Ct. 2781 , 2788 – 89 (1979); Evans v. State , 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); Vodochodsky v.

State , 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jurors are the exclusive judges of the

facts, the credibility of the witnesses, and the weight given to the testimony.

Margraves

v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of

the facts and to reject another, or to reject any part of a witness’s

testimony. Id . In conducting our review

of the legal sufficiency of the evidence, we do not reevaluate the weight and

credibility of the evidence, but ensure only that the jury reached a rational

decision. Muniz v. State , 851 S.W.2d

238, 246 (Tex. Crim. App. 1993).

When conducting a factual-sufficiency

review, we view all of the evidence in a neutral light. Cain v.

State , 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the

evidence is so weak that the verdict is clearly wrong and manifestly unjust or

(2) the verdict is against the great weight and preponderance of the evidence. Johnson

v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson , we cannot conclude that a conviction is “clearly wrong” or

“manifestly unjust” simply because, on the evidence before us, we would have

voted to acquit had we been on the jury. Watson

v. State , 204 S .W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson , we cannot declare that a conflict in the evidence

justifies a new trial simply because we disagree with the jury’s resolution of

that conflict. Id . Before determining that evidence is factually insufficient to

support a verdict under the second prong of Johnson ,

we must be able to say, with some objective basis in the record, that the great

weight and preponderance of the evidence contradicts the jury’s verdict. Id . The jury is in the best position to evaluate

the credibility of witnesses, and we are required in our factual-sufficiency

review to afford “due deference” to the jury’s determinations. Marshall

v. State , 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review,

we must also discuss the evidence that, according to the appellant, most

undermines the jury’s verdict. See Sims v. State , 99 S.W.3d 600, 603

(Tex. Crim. App. 2003).

B. Analysis

Appellant was charged with the aggravated

robberies of Roberts and Breed. The elements of aggravated robbery that must be

proved are that a person committed a robbery and that he caused serious bodily

injury, used or exhibited a deadly weapon, or placed another person in fear of

imminent bodily injury or death. Tex. Penal Code Ann . § 29.03 (Vernon 2003).

The

identity of the person committing the offense is an element of the crime that

must be proved. See Greene v. State , 124 S.W.3d 789, 792 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d) (holding that identity is element of offense and that

it may be proven by direct or circumstantial evidence). Courts have found voice identification

alone to be legally and factually sufficient to establish the identity of the

perpetrator of a crime. McInturf v. State , 544 S.W.2d 417 , 418 – 19 (Tex. Crim. App. 1976) (holding that voice

identification constituted direct evidence of identity when complainant had one

30 minute encounter with appellant); Davis

v. State , 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no pet.) (holding

that complainant’s voice identification of appellant was legally and factually

sufficient to support conviction when complainant had one 15 minute encounter

with appellant). [6] Sight identification, likewise, may be both

legally and factually sufficient to establish identity. Johnson

v. State , 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d) (holding eye-witness identification was factually-sufficient to support

conviction when complainant saw appellant only on night that he robbed her, but

she testified that she recognized him by his eyes); Walker v. State , 180 S.W.3d 829 , 832 – 33 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding

identification by only one eye-witness was legally and factually sufficient to

support conviction when the appellant robbed complainant at gunpoint and

robbery lasted less than one minute).

The complainants testified that

they recognized appellant’s voice during the robbery, that during the 20 to 30

minutes the intruders were in the apartment appellant spoke several times, that

in the weeks preceding the robbery they had spoken with appellant numerous

times, and that they had last spoken with him “a couple of days” before the

robbery. Breed and Roberts also testified

that they heard Thomas, whom they knew to be appellant’s brother, address

appellant by his first name, Jeremiah, and that they heard appellant reply to

his brother.

In addition to the voice

identification, Breed testified that she recognized appellant by his haircut

and eyelashes. Breed recognized

appellant when he came to get her out of the bedroom at gunpoint and moved her

to the living room, where he restrained and blindfolded her. Because her blindfold covered only one eye,

Breed watched as appellant robbed her apartment and then walked over and struck

her on the head with a gun. Breed and

Roberts later identified appellant in a photo lineup that the police presented

to them, as well as in court.

We conclude that, viewing the

evidence in the light most favorable to the verdict, a rational jury could have

found that appellant committed the crimes of aggravated robbery with which he

was charged. See Evans , 202 S.W.3d at 161 .

We further conclude that, viewed neutrally, the evidence is not so weak

as to render the verdict clearly wrong and manifestly unjust and the judgment

is not against the great weight and preponderance of the evidence. See

Johnson , 23 S.W.3d at 11 . We hold

that Breed’s and Roberts’ identification of appellant as one of the robbers is

both legally and factually sufficient to support his conviction for armed

robbery.

We overrule appellant’s first and

second issues.

INEFFECTIVE ASSISTANCE

In his third issue, appellant

argues that he was denied the effective assistance of counsel during both the

guilt-and-innocence and the punishment phases of his trial. Appellant contends that he received

ineffective assistance due to his counsel’s courtroom behavior, the way that counsel

examined witnesses, and his decision to call appellant’s sister. He contends that appellant’s counsel

“antagonized both the Judge and Jury” with “needless and incorrect objections,”

“engaged in a dialogue that needlessly aggravated the court before the jury,”

and “opened the door to a state’s witness[’s] opportunity to recite extraneous

offenses” by asking Officer Burdick, who arrested appellant, “a thoughtlessly

open-ended question.” Appellant further

claims his counsel was ineffective at the punishment stage by making “frivolous

objections” to incriminating audio tapes played by the State, by calling

appellant’s sister to the stand, since she had been on the motorcycle when

appellant turned it over and fled and was pinned under it, and by making

improper sidebar statements in closing arguments.

A. Standard of Review

To prevail on a claim of

ineffective assistance of counsel, an appellant must show that his trial

counsel’s performance was deficient and that a reasonable probability exists

that, but for the deficiency, the result of the proceeding would have been

different. Strickland v. Washington , 466 U.S. 668, 687, 694 , 104 S. Ct. 2052,

2064, 2068 (1984). The first prong of

the Strickland test requires that the

defendant show that counsel’s performance fell below an objective standard of

reasonableness. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). This

does not require a showing that counsel’s representation was without

error. See Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Nor do isolated errors render counsel’s

performance ineffective. Id. “When

handed the task of determining the validity of a defendant’s claim of

ineffective assistance of counsel, any judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of

hindsight.” Thompson , 9 S.W.3d at 813 . The

second prong of Strickland requires

that the defendant show a reasonable probability that, but for his counsel’s

unprofessional errors, the result of the proceeding would have been different. See

Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Thompson , 9 S.W.3d at 812 . Because

the reviewing court must indulge a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance, the defendant must

overcome the presumption that, under the circumstances, the challenged action

“might be considered sound trial strategy.” Strickland ,

466 U.S. at 689 , 104 S. Ct. at 2065 . An

appellate court must begin its review with a strong presumption that trial

counsel’s actions fell within the wide range of reasonable representation and

that the actions constituted sound trial strategy. McFarland

v. State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). A specific trial strategy may be deemed

inadequate representation only if counsel’s actions are without any plausible

basis. Ex parte Burns , 601 S.W.2d 370, 372 (Tex. Crim. App. 1980).

Any allegation of ineffectiveness

must be firmly founded in the record, which must affirmatively demonstrate the

alleged ineffectiveness. Thompson , 9 S.W.3d at 813 (citing McFarland , 928 S.W.2d at 500 ). We will not speculate to find trial counsel

ineffective when the record is silent on counsel’s reasoning or strategy. See Jackson v. State , 877 S.W.2d 768,

771 (Tex. Crim. App. 1994); Gamble v.

State , 916 S.W.2d 92, 93 (Tex. App. — Houston [1st Dist.] 1996, no pet.). In rare cases, however, the record can be

sufficient to prove that counsel’s performance was deficient, despite the

absence of affirmative evidence of counsel’s reasoning or strategy. See

Robinson v. State , 16 S.W.3d 808 , 813 n.7 (Tex. Crim. App. 2000). Such cases are limited to occasions when no

reasonable attorney could have made such a decision. Weaver

v. State , 265 S.W.3d 523, 538 (Tex. App. — Houston [1st Dist.] 2008, pet. ref’d).

B. Analysis

Appellant complains about incidents

in the record that reflect unfavorably on his counsel. However, he fails to

acknowledge that his counsel vigorously defended him throughout the trial, and

he omits to state how the result of his trial would have been different but for

his counsel’s conduct.

Appellant’s counsel conducted a

proper voir dire in which he stated his intention to zealously represent his

client, he told the venire of his client’s right to not testify, and he questioned

the panel members on their ability to presume appellant’s innocence. During trial he cross-examined all of the

State’s witnesses, made numerous objections that the trial court granted,

attacked the complainants’ testimony, and, during his closing, attacked the

credibility of the State’s witnesses. At

the punishment stage, he kept out expert testimony on appellant’s gang affiliation

and presented witnesses on appellant’s behalf who, testified that appellant had

small children and a family that cared about him.

We conclude that appellant has failed to overcome the presumption that

trial counsel had a plausible reason for his actions or to establish that no

reasonable attorney could have made the complained of decisions. See

Thompson , 9 S.W.3d at 814 ; McFarland ,

928 S.W.2d at 500 . Moreover, even if

appellant had established the first prong of Strickland by showing that his attorney’s performance fell below

the minimal standard of ordinary care required, he still has not shown that,

but for his counsel’s errors, the result of the trial would have been

different, as required to satisfy the second prong of Strickland . See Strickland , 466 US at 687, 694 , 104

S. Ct. at 2064, 2068 .

Appellant directs this Court to three cases in an

effort to establish that counsel’s behavior constituted ineffective assistance

of counsel. See Miller v. State , 728

S.W.2d 133 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d); Hutchinson v. State , 663 S.W.2d 610

(Tex. App.—Houston [1st Dist.], 1983, pet. ref’d); Ex parte Guzman , 730 S.W.2d 724 (Tex. Crim. App. 1987). Each of these cases is distinguishable.

In Miller , defense counsel was abusive throughout the trial. See

728 S.W.2d at 134 . He openly antagonized

a member of the jury panel by accusing him of attempting to avoid jury duty and

repeatedly asked prospective jurors if he was making anyone mad. Id .

at 134–35. The court of appeals held

that defense counsel’s aggressive voir dire “could not have constituted trial

strategy.” Id . at 134. During the

trial, defense counsel ascribed bizarre and racist motivations to the witnesses

and referred to his client in derogatory and racist terms . See id . at 135. The

trial court held that counsel’s strategy was not reasonable but was “calculated

to damage [his client’s] cause” and that these and other errors gave rise to a

probability that, absent counsel’s errors, the result of the trial would have

been different. Id . In Guzman , the Court of Criminal Appeals likewise held defense counsel’s

representation deficient. 730 S.W.2d at

733 . The court found that defense counsel’s

inability to communicate with the appellant through an interpreter placed him

in a “poor position” to challenge the prosecution. Guzman ,

730 S.W.2d at 733–34. The court also

found defense counsel ineffective because, he berated his client throughout the

trial and referred to him in pejorative terms. Id .

at 725–27, 730–31. In Hutchinson , trial counsel presented no

evidence on his client’s behalf, and he continually opened the door for the

State to present extraneous offenses, despite the trial court’s interventions

and attempts to protect the defendant’s rights.

663 S.W.2d at 613–14. Moreover,

defense counsel made no investigation of the facts of the case, and he “showed

a gross lack of knowledge and skill in voir

dire examination.” Id . at 614.

These cases are clearly

distinguishable from the instant case, in which appellant’s counsel

investigated the case, called witnesses on appellant’s behalf, and otherwise

vigorously defended his client’s rights.

A criminal defendant is not entitled to error-free counsel, but only to

counsel whose actions fall within the wide range of reasonable

representation. See Robinson , 187 S.W.3d at 483 .

We overrule appellant’s

third issue.

CONCLUSION

We affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Do

not publish. Tex. R. App. P. 47.2( b).

[1]

Appellant

was indicted for the robbery of Lakisha Roberts in trial court cause number

1122699, appellate cause number 01-08-00934-CR, and for the robbery of

Antoinette Breed in trial court cause number 1165117, appellate cause number

01-08-00935-CR.

[2]

See Tex. Penal Code Ann . §§ 29.02–.03 (providing elements for aggravated robbery).

[3]

Kailen

lived with Brown and saw his mother Roberts only on the weekends. On the morning of June 15, 2007, Brown drove

Kailen to the complainants’ apartment, where they spent the day. Both Brown and

Kailen were present when the events that lead to this appeal occurred.

[4]

Breed

identified Tillis by his nickname, “Little D,” and Thomas by his first name,

“Isaiah.”

[5]

The

apartment was rented to Laura Fernandez, but Thomas and appellant had been living

there.

[6]

See also Scott v. State , No. 01-06-00151-CR, 2007 WL 2264458 , at *3 (Tex.

App.—Houston [1st Dist.] Aug. 9, 2007, no pet.) (not designated for

publication) (holding that voice identification and circumstantial evidence of

the appellant’s identity are factually sufficient to support conviction); see also Chacon v. State , No.

14-07-00228-CR, 2008 WL 850130 , at *4 (Tex. App.—Houston [14th Dist.] April 1,

2008, pet. ref’d) (not designated for publication) (holding that voice

identification based on foreign accent was legally and factually sufficient to

support conviction).