Opinion
NO. 01-19-00154-CR
07-30-2020
LEVORNE BELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1570335
MEMORANDUM OPINION
A jury convicted appellant, Levorne Bell, of the third-degree felony offense of theft. Appellant elected to have the trial court assess punishment and, after pleading true to the allegations in two enhancement paragraphs, he was sentenced by the trial court to the minimum 25 years' confinement. In two issues, appellant argues that the evidence was insufficient to support his conviction and that he was deprived of the effective assistance of trial counsel.
TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (providing that theft is third-degree felony if property stolen is valued between $30,000 and $150,000).
We affirm.
Background
During the night of November 9, 2017, James Simmons, the complainant, received a call from his alarm company notifying him that an alarm had sounded at his business's warehouse in Harris County. Simmons went to his warehouse and found a hole cut into the sheet metal in the back of the warehouse and approximately $65,000 worth of equipment missing, including weed eaters and saws. Simmons testified that his warehouse's security cameras showed a dark blue Dodge pickup truck at his warehouse and two people, whose faces he could not see, with flashlights inside his warehouse stealing his equipment. A police officer who responded to Simmons's warehouse found tin snips, tire marks, and broken glass with a Mopar symbol, which is a Dodge brand, outside the warehouse.
After reviewing his own video footage, Simmons went to a nearby Valero gas station that had security cameras pointed in the direction of his warehouse. Simmons reviewed the Valero footage, which he testified showed a dark-colored Dodge pickup truck enter the parking lot and two white males exiting the truck and entering the store while two other people stayed in the truck. According to Simmons, the truck in the Valero footage looked similar to the truck in the warehouse footage. Simmons initially testified that he saw appellant on the Valero video, but he then clarified that appellant was not one of the two men who entered the Valero store. Simmons's testimony is not clear whether he could see the two people who stayed in the truck clearly enough to be able to identify them, but he did not identify appellant at trial as one of them.
The record does not show that the Dodge truck was at Simmons's warehouse and at the Valero gas station around the same time, although neither party disputes the timing.
Neither of these videos was introduced at trial by either party, although the State did introduce a still shot of the Dodge pickup truck in the parking lot of Simmons's warehouse.
The day after the theft, Simmons searched the internet for his stolen equipment and found some of it offered for sale by Damian Washington. Simmons found a picture of Washington on Facebook and recognized him as one of the two men he observed going into the store on the Valero video. Simmons contacted Washington expressing an interest in buying one of the weed eaters. Washington agreed to meet Simmons, and Simmons sent his cousin to meet Washington to buy the weed eater. After the sale, Simmons confirmed that the serial number matched one of his stolen weed eaters, and he reported it to the police.
Texas Department of Public Safety Officers M. Gore and S. Larson investigated Simmons's report. Gore contacted Washington and arranged to meet him at a Whataburger restaurant in Houston. Washington arrived in a gray Dodge pickup truck with two other people: appellant, who was driving, and a third person, Joe Barnes Jr. Some of Simmons's stolen equipment was also in the truck. Appellant stayed inside the truck while Washington negotiated with Gore to sell the equipment, for which Gore paid $1,500 in marked bills.
After the equipment was unloaded into Gore's vehicle, Barnes offered to sell Gore a concrete saw that was stored elsewhere, and Gore agreed to buy it. With appellant still driving, appellant, Washington, and Barnes left the Whataburger and drove to a nearby apartment complex to pick up the saw. Agent Larson and an undercover surveillance unit followed them. At the apartments, Larson observed appellant and the others take equipment from the truck into an apartment and return to the truck with the concrete saw, which they loaded into the truck. Appellant and the others drove back to meet Gore, who was waiting at the Whataburger. Gore paid for the saw, and appellant, Washington, and Barnes left in the truck. Appellant never got out of the truck at the Whataburger, spoke to Gore, or helped transfer any of the stolen equipment into Gore's vehicle.
The undercover officers who had been tailing appellant contacted a marked patrol car to stop the truck. When the Dodge truck arrived back at the apartment complex, Harris County Sheriff's Office Deputy D. Almendarez pulled behind them and turned on his patrol lights, but the truck sped up through the parking lot before all three men, including appellant, bailed out of the moving truck and fled on foot. All three, including appellant, were apprehended and arrested. Appellant gave a false name and date of birth, he had $1,800 in cash and $400 of DPS's marked cash on him, and he gave no explanation for his possession of the recently stolen property. The truck appellant was driving was stolen and had paper tags on it belonging to another vehicle.
Appellant's theft charge in this case did not arise from his use of the stolen Dodge truck.
Gore obtained a search warrant for the apartment where appellant and the others were seen storing the stolen equipment. Officers searched the apartment and recovered approximately $45,000 of Simmons's stolen equipment.
Appellant was indicted for the theft of Simmons's equipment. At trial, when Simmons testified about what he had observed on the Valero video, appellant's counsel asked to approach the bench and stated that he had "never heard anything about any video at a Valero gas station." The State responded that Simmons was testifying about the video from his personal knowledge and that the State had produced still shots of the video to the defense. The State did not attempt to offer the Valero video into evidence, and appellant did not object to it or to Simmons's testimony about it.
Simmons did not identify appellant as a person he saw on the Valero video, but he did identify Washington, who offered Simmons's stolen equipment for sale on the internet the day after the theft. Simmons also testified that his cousin met with Washington to buy the stolen weed eater.
Agent Gore testified that he contacted Washington as part of a sting operation to recover Simmons's stolen equipment. He arranged to meet Washington at the Whataburger to buy some of the stolen equipment. Gore negotiated the purchase of the stolen equipment with Washington. Gore testified that he observed appellant driving the Dodge truck to and from the Whataburger both times, including when the men returned with the concrete saw. Gore also testified that he recovered all of DPS's marked cash from each of the three suspects, including the $400 found on appellant.
Agent Larson testified that he surveilled the transactions with Gore from an undercover vehicle in the Whataburger parking lot. After the first transaction with Gore, Larson followed appellant to the apartment complex, where he saw appellant, Washington, and Barnes unload equipment from the truck and take it into the apartment. He also saw one of them bring a large object, which he believed was a concrete saw, out of the apartment and put it into the truck. Larson stayed in the apartment parking lot when appellant drove back to the Whataburger to meet Gore, and he was still in the apartment parking lot when appellant and the others returned and were pulled over by the marked patrol car. Larson identified appellant as a person who fled from the Dodge pickup truck.
Officer Almendarez testified that he was in a marked patrol car and attempted to stop the Dodge truck in the apartment parking lot, but the truck "accelerated through the complex" and "three individuals jumped out of the truck and took off running on foot." Almendarez identified appellant as the driver of the Dodge truck. Appellant gave Almendarez false identification information, but Almendarez was able to determine appellant's actual name in the field.
DPS officer J. Davis was part of an undercover team observing Gore to ensure his safety. Davis, who was undercover in the Whataburger parking lot, testified that he saw appellant driving the Dodge truck that met Gore at the Whataburger, that he followed appellant and the Dodge truck to the apartment complex after it left the Whataburger the second time, and that he saw appellant and the others flee from the Dodge truck when the patrol car attempted to stop it.
Appellant called no witnesses, and neither party objected to the jury charge. The jury convicted appellant of the charged offense of theft. At appellant's election, the trial court assessed punishment. During the punishment phase, appellant pleaded true to the allegations in two enhancement paragraphs and the trial court assessed punishment at 25 years' confinement, the minimum allowable by law for a habitual felony offender. See TEX. PENAL CODE ANN. § 12.42(d).
After the trial court entered the judgment of conviction, the court appointed new counsel for appellant. Counsel filed a motion for new trial. Appellant argued that his trial counsel was ineffective for failing to (1) conduct a proper investigation prior to trial, (2) discuss the case with appellant, (3) allow appellant to exercise his right to testify, and (4) hire an investigator, issue any subpoenas, or file any requests for discovery. Appellant also argued that his counsel failed to offer the Valero video, which was potentially exculpatory to the extent it showed that appellant was not involved in the theft of Simmons's equipment. Appellant attached his affidavit, stating that he did not meet with or speak to his trial counsel prior to trial except when in court. Appellant stated that he was not aware he was proceeding to trial on the theft case, but thought he was proceeding on a charge of unauthorized use of the Dodge truck. Appellant denied that he was advised that his two prior felony convictions meant that the minimum sentence was 25 years in prison. Appellant also denied that his counsel conducted any investigation prior to trial or contacted any witnesses on his behalf.
The trial court held a hearing on appellant's motion. Appellant admitted an affidavit from his sister, Phaedra Addison, discussing appellant's childhood and stating that she would have testified had she been asked.
Appellant called his trial counsel, Craig Bundick, who testified that he was appointed to represent appellant during the aftermath of Hurricane Harvey and that he met with appellant several times at the Harris County Jail where appellant was incarcerated prior to trial. Bundick testified that he and appellant "talked extensively about the larger charge, the theft charge," which "was the case [Bundick] anticipated going to trial," as opposed to the charge for unauthorized use of a motor vehicle for driving the stolen Dodge pickup truck. Bundick testified that he advised appellant on the range of punishment "many times."
Bundick conceded that he did not hire an investigator, but he explained that he did not see a reason for one before trial based on his conversations with appellant, during which appellant denied driving to the Whataburger the second time. Based on appellant's version of events, Bundick believed that appellant's culpability for the theft was limited to driving the vehicle that delivered the stolen equipment and "[t]he number of times that [appellant] drove that vehicle to make deliveries would be important as to his culpability." Because appellant told Bundick that he had only driven the vehicle one time—not twice—Bundick focused on making that argument to the jury. "A lot of [Bundick's] effort was preparing to face the charges that [appellant] had driven the second time when he was caught in the [Dodge pickup truck], or running from the truck. . . . And it turned out . . . not to be true" because several officers testified that they had observed appellant driving the Dodge truck to the Whataburger to meet Gore both times.
Bundick admitted that he had seen the Valero video a few days before trial when the State produced it, which differed from his argument at the bench during trial that he had "never heard anything about any video at a Valero gas station." Bundick testified that when he heard Simmons testify about the video at trial, it "scared the hell out of [him]" and he "instinctively jumped up and objected to that evidence coming in because [he] hadn't been given notice" at least ten days prior to trial. Bundick agreed that his strategy at that time was to keep out evidence of a truck from the night of the theft that was similar to the one appellant was driving to sell stolen equipment to Gore. But Bundick acknowledged that "[appellant] was not on that video," that the Valero video "absolutely" could be exculpatory material, and that, "in hindsight, . . . [i]t was a mistake to keep it out." Bundick also conceded that he did not subpoena video from the Whataburger or from any bodycam or dashcam, although he did not say whether he was aware any such video existed. Bundick also explained that he had not subpoenaed any witnesses because he had asked appellant if any family or friends could testify on his behalf, and "[appellant] indicated no." Bundick testified that he had not seen any evidence that would require further investigation, and hiring an investigator without such evidence could have hurt rather than help appellant's defense.
The trial court did not rule on appellant's motion for new trial, and it was overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c) (providing that motion for new trial is overruled by operation of law if not ruled on by written order within 75 days after imposing sentence). This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant contends that the evidence is insufficient to establish that he participated in the theft as a principal or party. Appellant argues that the theft was complete when the equipment was removed from Simmons's warehouse, that there is no evidence appellant was present at the warehouse, that the evidence only proves that he participated after the theft was complete, and that driving the truck with stolen equipment to the Whataburger for Washington to sell the equipment is insufficient to prove appellant intended to promote or assist in the theft.
The State responds that appellant's unexplained possession of the stolen equipment in the truck he was driving to sell the equipment only days after the theft was sufficient to establish his culpability for the theft. In addition, the State argues that it presented other evidence of appellant's guilt, including his attempt to flee from police, providing a false name and date of birth upon arrest, and being in possession of $400 worth of DPS's marked cash and an additional $1,800 in cash.
A. Standard of Review
Under our legal sufficiency review, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. Holcomb v. State, 445 S.W.3d 767, 781 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979), In re Winship, 397 U.S. 358, 361 (1970), Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009), and Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) when the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) when the evidence conclusively establishes a reasonable doubt. Id. (citing Jackson, 443 U.S. at 314, 318 n.11, 320, Laster, 275 S.W.3d at 518, and Williams, 235 S.W.3d at 750).
Appellate courts determine "whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Id. (quoting Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. at 781-82 (citing Hooper, 214 S.W.3d at 13). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13. Juries are permitted to draw multiple reasonable inferences "as long as each inference is supported by the evidence presented at trial." Id. at 15. Juries are not permitted "to come to conclusions based on mere speculation or factually unsupported inferences or presumptions." Id. An inference "is a conclusion reached by considering other facts and deducing a logical consequence from them," while speculation "is mere theorizing or guessing about the possible meaning of facts and evidence presented." Id. at 16.
Appellate courts presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Holcomb, 445 S.W.3d at 782 (citing Jackson, 443 U.S. at 326). We also defer to the factfinder's evaluation of the credibility and weight of the evidence. Id. (citing Williams, 235 S.W.3d at 750).
B. Governing Law
A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03(a). "Appropriation of property is unlawful if: (1) it is without the owner's effective consent; [or] (2) the property is stolen and the actor appropriates the property knowing it was stolen by another . . . ." Id. § 31.03(b)(1), (2).
A person is criminally responsible as a party to the offense "if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2); Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012).
To determine whether a person is a party to an offense, we may look to events "before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper, 214 S.W.3d at 13 (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Although it is relevant, post-offense conduct, standing alone, does not demonstrate an agreement to participate as a party to an offense. See Gross, 380 S.W.3d at 188. A reviewing court may rely on circumstantial evidence to prove party status. Id. at 186. "Each fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the facts is sufficient to support the conviction under the law of parties." Id. "To establish guilt under the law of parties, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose." Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
To establish a defendant's liability as a party, the State must prove that, "in addition to the illegal conduct by the primary actor, the accused harbored the specific intent to promote or assist the commission of the offense." Rivera v. State, 507 S.W.3d 844, 856 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (quoting Barnes v. State, 62 S.W.3d 288, 296 (Tex. App.—Austin 2001, pet. ref'd)). The defendant must know that he was assisting in the commission of the offense. Id. "This 'agreement, if any, must be before or contemporaneous with the criminal event.'" Id. (quoting Barnes, 62 S.W.3d at 296). "The evidence must show that at the time of the commission of the offense, the parties were acting together, each doing some part of the execution of the common design." Id..
Mere presence of a person at the scene of a crime or even flight from the scene, alone, is not sufficient to support a conviction as a party to the offense. Gross, 380 S.W.3d at 186. However, recent possession of stolen property can be sufficient proof of theft of such property if the State establishes that such possession was personal, recent, unexplained, and involved a distinct and conscious assertion of the property by the defendant. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984); Sonnier v. State, 849 S.W.2d 828, 831 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd) (citing Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983)).
C. Analysis
The State did not present any direct evidence that appellant was one of the two people inside Simmons's warehouse during the theft. The only evidence of the theft was Simmons's testimony that he observed on his warehouse surveillance video a dark blue, four-door Dodge pickup truck and two unidentified people at his warehouse during the theft. Simmons could not identify either person on the video, and thus there is no direct record evidence that appellant unlawfully appropriated Simmons's equipment. See TEX. PENAL CODE ANN. § 31.03(a).
However, other evidence showed that a Dodge truck similar to the one used in the theft at Simmons's equipment was at the nearby Valero station and was driven by appellant to sell stolen equipment to Gore at the Whataburger within days of the theft. Washington was identified as one of four people in the Dodge truck at the Valero station, as the person who offered the equipment for sale online and to Gore, and as the person who sold the stolen equipment to Simmons's cousin and to Gore. Undercover officers observed appellant, along with Washington, unloading stolen equipment from the truck and storing it in an apartment where a majority of Simmons's stolen equipment was later found. See Sutherlin, 682 S.W.2d at 549 (stating that personal, recent, unexplained possession of stolen property involving a distinct and conscious assertion of the property can show theft of property); Crain v. State, 529 S.W.2d 774, 775 (Tex. Crim. App. 1975) (holding that possession of stolen property thirty days after theft is recent possession).
When officers pulled over the truck, appellant fled on foot and was apprehended with $400 in DPS-marked bills, which were directly traceable to the transaction with Gore, and $1,800 in cash. See Devoe v. State, 354 S.W.3d 457, 470 (Tex. Crim. App. 2011) ("[F]light is admissible as a circumstance from which an inference of guilt may be drawn."). Appellant gave false identification information and gave no explanation why he was driving a truck containing stolen equipment. The evidence thus showed that appellant's possession of the stolen equipment was "personal, recent, unexplained, and involved a distinct and conscious assertion of the property" by appellant. See Sutherlin, 682 S.W.2d at 549; Sonnier, 849 S.W.2d at 831. From this evidence, the jury reasonably could have inferred that appellant was one of the four people in the Dodge truck at Simmons's warehouse and the Valero station, just like he was when he was arrested fleeing from it with proceeds directly from the sale of the stolen equipment. See Gross, 380 S.W.3d at 186 (providing that each fact need not point directly to defendant's guilt as long as cumulative effect of facts is sufficient to support conviction under law of parties); Hooper, 214 S.W.3d at 13 (same). Thus, the jury could have inferred an understanding and common design between appellant, Washington, and the others to steal equipment from Simmons's warehouse. See Barnes, 62 S.W.3d at 297.
Viewing the evidence in the light most favorable to the verdict, as we must when reviewing the sufficiency of the evidence, we conclude a reasonable jury could have determined beyond a reasonable doubt that appellant, with the intent to promote or assist the commission of the theft from Simmons's warehouse, was either a principal or a party to the theft. See TEX. PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2); Gross, 380 S.W.3d at 186. We hold that the State presented sufficient evidence that appellant was criminally responsible for the theft of Simmons's equipment.
We overrule appellant's first issue.
Effectiveness of Counsel
In his second issue, appellant argues that his counsel was ineffective because he did not conduct any pretrial investigation and he did not offer exculpatory video evidence at trial.
A. Standard of Review and Governing Law
To establish that trial counsel rendered ineffective assistance, an appellant must demonstrate, by a preponderance of the evidence, that (1) his trial counsel's performance was deficient and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). The appellant's failure to make either of the required showings of deficient performance and sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").
The appellant must first show that his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the appellant to demonstrate prejudice—"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and, therefore, the appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Id. at 689; Williams, 301 S.W.3d at 687. Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002) ("If a reviewing court can speculate about the existence of further mitigating evidence, then it just as logically might speculate about the existence of further aggravating evidence."). To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound strategy. Id. at 835 ("Ineffective assistance of counsel claims are not built on retrospective speculation; they must 'be firmly founded in the record.'"); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813 (stating that record must affirmatively demonstrate alleged ineffectiveness). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Mallett, 65 S.W.3d at 63. Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews the record and concludes that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.
When, as here, an appellant raises an ineffective assistance claim in a motion for new trial, we analyze the issue on appeal as a challenge to the trial court's denial of the motion and review that decision for an abuse of discretion. Taylor v. State, 461 S.W.3d 223, 227-28 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (citations omitted); see Burch v. State, 541 S.W.3d 816, 820-21 (Tex. Crim. App. 2017) (applying abuse of discretion standard to ineffective assistance of counsel claim raised and denied in motion for new trial); Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (same). We will reverse only if the decision to deny the motion for new trial was arbitrary or unreasonable, viewing the evidence in the light most favorable to the trial court's ruling. Burch, 541 S.W.3d at 820; Holden, 201 S.W.3d at 763. A decision is arbitrary or unreasonable if no reasonable view of the record could support the trial court's ruling. Holden, 201 S.W.3d at 763; see Burch, 541 S.W.3d at 820 ("The trial court's ruling is within the 'zone of reasonable disagreement' when there are two reasonable views of the evidence.") (citation omitted).
B. Failure to Conduct Pre-trial Investigation
Appellant contends that his trial counsel was ineffective for failing to conduct any pretrial investigation, including requesting discovery, hiring an investigator, obtaining surveillance videos from the Valero gas station near Simmons's warehouse or the Whataburger, obtaining dashcam or bodycam videos, subpoenaing fact witnesses, and interviewing other alleged parties to the offense. The State responds that appellant has not met his burden to show that his counsel's failure to conduct a pretrial investigation constitutes deficient performance or that appellant was prejudiced by any such deficient performance.
An attorney representing a criminal defendant "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Ex parte Bowman, 533 S.W.3d 337, 350 (Tex. Crim. App. 2017) (quoting Strickland, 466 U.S. at 691). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. (quoting Wiggins v. Smith, 539 U.S. 510, 521-22 (2003)). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" See id. (quoting Strickland, 466 U.S. at 690). "Strategic choices made after a less than complete investigation, however, are reasonable only to the extent that 'reasonable professional judgments support the limitations on investigation.'" Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993) (quoting Strickland, 466 U.S. at 691). "[F]ailure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony." Perez, 310 S.W.3d at 894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)).
Here, appellant's trial counsel, Bundick, testified at the hearing on appellant's motion for new trial. See Rylander, 101 S.W.3d at 111 (stating that, generally, trial counsel should be given opportunity to explain actions before court concludes counsel was ineffective). Bundick testified that he met with appellant in jail and "talked extensively" with him about his theft charge, and that he based his strategy primarily on appellant's version of the events. In their discussions, appellant told Bundick that he only drove the Dodge truck to meet Gore at the Whataburger the first time, but he denied driving it the second time, after which he was arrested. Bundick also testified that appellant had not given him information that "could potentially lead to good stuff" for appellant at trial, including witnesses who could "testify about [appellant's] character, about what a good person he was." Based on appellant's version of events, which Bundick stated was contradicted by more than one trial witnesses' testimony, and appellant's lack of information, Bundick testified that he decided to focus on arguing appellant's lack of culpability for the offense rather than conducting investigations. See Ex parte Bowman, 533 S.W.3d at 350 (providing trial counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"); Bone, 77 S.W.3d at 833 (expressing high deference to trial counsel's strategy decisions).
Bundick admitted that he did not contact any witnesses, including appellant's alleged cohorts, but he was not asked and he did not explain why he decided not to contact witnesses for the guilt/innocence phase of trial. See Rylander, 101 S.W.3d at 110-11 ("In this case, like the majority of cases, 'the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.'") (citation omitted). However, Bundick did explain that he did not contact witnesses for the punishment phase of trial because appellant answered "no" when Bundick asked him if "he had any family or anyone who[m] [Bundick] could call to testify about his character, about what a good person he was." Appellant does not argue on appeal that any witnesses were available to testify or that appellant would have benefitted from their testimony. See Perez, 310 S.W.3d at 894. The trial court admitted an affidavit from appellant's sister at the motion for new trial hearing, and she stated in it that she would have testified at trial. However, the remainder of her affidavit discusses appellant's childhood and is irrelevant to whether appellant unlawfully appropriated Simmons's property with the intent to deprive Simmons of it. See TEX. PENAL CODE ANN. § 31.03(a) (stating elements of offense of theft). Appellant does not argue that his sister's testimony would have benefitted him during the punishment phase of his trial, and given that the trial court assessed the minimum sentence allowed by law, there is no indication that his sister's testimony would have provided additional benefit.
Bundick also admitted he did not request any discovery or request video footage from the Whataburger, the Valero, or from any dashcams or bodycams. Bundick was not asked and he did not testify about why he did not make these requests, except he stated that he did not know the Valero video existed until a few days before trial. See Rylander, 101 S.W.3d at 110-11. Because the State had not timely produced the video, Bundick approached the bench to complain when Simmons testified about it. The video was not introduced at trial although Simmons testified about what he observed on it. Except for the Valero video, which we discuss in more detail below, appellant does not state what discovery his counsel should have requested or how such discovery or videos from Whataburger or police dashcams and bodycams, would have benefitted his defense. Nor does the record on appeal affirmatively show that failing to request this evidence fell below an objective standard of reasonableness, or that it prejudiced his defense. See, e.g., Strickland, 466 U.S. at 687, 694.
Finally, Bundick testified that he did not hire an investigator because appellant had not given him any information that "could potentially lead to good stuff to come out for [appellant] at trial" and that he "didn't think there were any avenues that would be beneficial to us to bring in more evidence. It could have been just the opposite." Otherwise, Bundick "absolutely would have had an investigator go track that stuff down" and Bundick agreed that "absolutely" it was a strategic decision to minimize appellant's involvement in the theft scheme. See id. at 689 (providing that courts indulge strong presumption that counsel's conduct was reasonable); Bone, 77 S.W.3d at 833, 835 (stating that review is highly deferential to counsel and declining to speculate about counsel's trial strategy).
Considering the totality of the circumstances, we cannot conclude on this record that appellant's trial counsel's performance was deficient. See Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813. The record shows that Bundick met with appellant and "talked extensively" with him about his theft charge, and that appellant had told Bundick he did not drive the Dodge truck the second time to the Whataburger, after which police stopped the vehicle. When asked, appellant did not provide his attorney with any information or witnesses that would necessitate further investigation of the facts or law of the case. We conclude that, on this record, appellant has not met his burden to show that his trial counsel's decision not to investigate in this case fell below an objective standard of reasonableness based on prevailing professional norms. See Robertson, 187 S.W.3d at 483; Thompson, 9 S.W.3d at 812.
Moreover, appellant fails to argue how he was prejudiced by his counsel's allegedly deficient performance. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d 892-93; Cannon, 252 S.W.3d at 348-49. Appellant generally argues that his trial counsel "marched [appellant] into the colosseum with no weapons," "failed to use" "available" "weapons," and "his [trial counsel's] sole weapon—cross-examination— [was rendered] useless." However, other than his references to the Valero video, which we address separately below, appellant does not state how unspecified additional discovery and witnesses, video from the Whataburger, or video from dashcams and bodycams—if any of this evidence even existed—would have benefitted his defense such that he was prejudiced by his counsel's failure to secure it for trial. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 892-93. Thus, appellant has not met his burden to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694.
Viewing the record evidence in the light most favorable to the trial court's ruling, as we must, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial on the ground that his counsel was ineffective for not conducting a pretrial investigation. See Burch, 541 S.W.3d at 820; Holden, 201 S.W.3d at 763.
C. Failure to Offer Potentially Exculpatory Evidence
Appellant also contends that his trial counsel was ineffective for failing to offer the Valero video, which appellant argues is exculpatory because it shows he was not present at the Valero and, therefore, not present at Simmons's warehouse to participate in the theft. The State responds that appellant's trial counsel's decision not to offer the Valero video was not objectively unreasonable because a jury could have found the video incriminating, particularly because it showed appellant's accomplice, Washington, and other unidentified individuals in a Dodge truck similar to the one appellant drove to the Whataburger to meet Gore.
Bundick testified that he reviewed the video from the gas station "a few days before trial" when the State produced it, that "[appellant] was not on that video," and that it was "absolutely" potentially helpful evidence that "in hindsight . . . was a mistake to keep [] out." At trial, when Simmons testified about what he observed on the Valero video, Bundick asked to approach the bench and said he had "never heard anything about any video at a Valero gas station," and the State responded that Simmons was testifying about it based on his personal knowledge. Neither the State nor appellant attempted to introduce the Valero video, and appellant did not object to it or to Simmons testifying about it, a decision Bundick later testified was "a mistake."
Because neither party introduced the Valero video at trial or at appellant's motion for new trial hearing, the video is not part of the record evidence and we cannot review it to determine whether it is exculpatory as appellant claims. See Mallett, 65 S.W.3d at 63 (providing that record on direct appeal is ordinarily undeveloped and cannot adequately reflect motives behind trial counsel's actions). The only evidence about the Valero video is Simmons's trial testimony and Bundick's testimony at the motion for new trial hearing about what each observed on the video. Simmons testified that he observed four people in the truck on the Valero video and, although he initially testified that he observed appellant on the video, he clarified that he saw Washington and another man exit the Dodge truck and enter the Valero store while two others stayed in the truck, but he did not identify appellant. He also did not state whether he could see either of the two men who remained in the truck clearly enough to make an identification. Bundick testified that "[appellant] was not on that video," but he also did not say whether he could clearly see all four people in the Dodge truck and that appellant was not one of them. Thus, it is not clear on this record that the Valero video—which was actually a video taken by Simmons on his cell phone of the Valero video monitor—clearly showed each of the four people and also clearly showed that none was appellant. See Rylander, 101 S.W.3d at 110-11. That is, on this record, it is just as likely that appellant was in the Dodge truck at the Valero station but could not be identified as it is that he was not in the Dodge truck at the Valero station. Thus, we agree with the State that, on this record, the Valero video is just as likely inculpatory as it is exculpatory, and we will not speculate about counsel's strategy at the time of trial. See Bone, 77 S.W.3d at 833, 835.
But even if Bundick's failure to admit the Valero video constituted a deficient performance, the record does not affirmatively demonstrate that there is a reasonable probability that the result of the proceeding would have been different but for such a deficient performance. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d 892- 93; Cannon, 252 S.W.3d at 348-49. At trial, Simmons did not identify appellant as one of the people in the Dodge truck on the Valero video, although he did identify Washington, whom appellant was driving around in a similar truck to sell stolen equipment in the days following the theft. Simmons's failure to identify appellant in the Dodge truck at the Valero station is precisely what appellant argues exculpates him on the Valero video. However, the jury was aware that Simmons did not identify appellant on the Valero video, but the jury convicted appellant, and we have concluded that the evidence supporting the verdict was legally sufficient. Viewing the evidence in the light most favorable to the denial of appellant's motion for new trial, as we must, we cannot conclude that the trial court's decision was arbitrary or unreasonable or that no reasonable view of the record could support the trial court's ruling. See Burch, 541 S.W.3d at 820; Holden, 201 S.W.3d at 763. We hold that, on this record, appellant has not demonstrated that his trial counsel was constitutionally ineffective.
We overrule appellant's second issue.
Conclusion
We affirm the judgment of conviction by the trial court. We dismiss any pending motions as moot.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Kelly, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).