Opinion
No. 05-09-00805-CR
Opinion issued April 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81907-06.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Ezekiel Jefferson of engaging in organized criminal activity and assessed punishment, enhanced by a prior conviction, at fifteen years in prison. In two issues, appellant asserts the evidence is legally and factually insufficient to support his conviction and trial counsel provided ineffective assistance. We affirm. On April 28, 2006, Tony Vaughn was the manager of a CVS store on Preston Road in Frisco. That afternoon, the electronic sensor sounded as a man, later identified as appellant, walked out of the store with a white bag containing merchandise. Vaughn ran after appellant and asked him to stop. Appellant kept running and jumped into the back seat of a red car that sped away. Vaughn immediately called police to report the theft and gave them a description of the car and its license plate number. Patrol Sgt. David Crump heard the dispatch and, within minutes, located the suspect car behind a Walgreen's pharmacy only a quarter of a mile away and stopped the vehicle as it was leaving the area. Appellant and two other men, Roland Johnson and Thomas Smith, occupied the vehicle. Smith was the driver; Johnson was in the front passenger seat; and appellant was in the back seat. When Crump ordered the men to put their hands where he could see them, appellant suddenly exited the car and began running. Crump had notified dispatch when a citizen drove up and reported a man had run past his office and was hiding underneath a parked SUV. Officer Ken Endicott went to the area and found appellant underneath the vehicle. Appellant took off running again, and, after a brief chase and scuffle, Endicott detained him. Vaughn went to the scene and identified appellant as the man who left his store with unpaid merchandise. Two large white bags full of merchandise were found in the back seat of the car. Officers noticed several other empty white bags in the front seat area and believed they were to be used in future thefts. Vaughn identified about $790 worth of CVS merchandise in one of the full bags, but he could not identify items in the second bag. In addition to other items, both bags contained several Sonicare or Oral B electronic toothbrushes. Because of the proximity to the Walgreen's pharmacy, officers suspected the second bag contained stolen goods from that store and contacted the assistant store manager, Jeffrey Manning. At that time, Manning did not realize a theft had occurred at his store. After identifying the merchandise, Manning watched the store's surveillance tape. The tape, played for the jury, showed two men separately enter the store two minutes apart. After about six minutes, one of the men, identified as Johnson, distracted a cashier, while the second man, appellant, left the store raising a white bag high enough that it would not trigger the security sensor. A store clerk followed appellant outside and, when he returned, mimicked appellant's actions in leaving the store with the bag held over the sensor. While Johnson acknowledged it was "possible" the man paid for the items at another register, he reasoned there would have been "no need to raise the bag over the security alarm if they . . . weren't trying the hide something or steal something." He valued the stolen goods at $797.45. Thomas Smith, who previously pleaded guilty to the same charge in this case, testified for appellant. He told the jury he was hanging out in Dallas with appellant and Johnson when they asked for a ride to Denton. Smith agreed but said he allowed Johnson to drive his car while he slept in the back seat. When he awakened, they were parked outside the CVS in Frisco. Smith said he moved to the driver's seat while appellant and Johnson were in the store. When Johnson and appellant returned, appellant had a white sack and was acting nervous and frantic. Smith said Johnson and appellant were arguing because Johnson wanted to go to Walgreen's to get cigarettes and appellant wanted to "go home." Smith said he was suspicious that something had happened at the CVS but went ahead and drove to Walgreen's. Once there, he said he got out of the car to find a place outside to urinate. When he returned to the car, Johnson and appellant were waiting for him in the car. Smith said Frisco police pulled him over as he was leaving the parking lot. Smith denied that he, appellant, and Johnson ever discussed committing a theft that day. However, he admitted pleading guilty to the same charge at issue here but explained he did so because he had some "dirty laundry" (apparently a reference to other charges) and did not want to have a jury trial. On cross-examination, he admitted that when questioned by the judge at the plea hearing, he said he was pleading guilty freely and voluntarily, because he committed the offense exactly as charged in the indictment, and because he was guilty and "for no other reason." After hearing the evidence, the jury found appellant guilty of engaging in organized criminal activity by committing theft of more than $1500. Under the indictment in this case, the State was required to prove that appellant committed the thefts of the CVS and Walgreen's stores with the intent to establish, maintain, and participate in a combination or in the profits of a combination consisting of appellant, Johnson, and Smith. In his first issue, appellant asserts the evidence is legally and factually insufficient to support his conviction because the State failed to prove he (1) committed theft in a "combination" and (2) committed both thefts. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A person commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, he commits or conspires to commit theft. Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2009); see Nguyen v. State, 1 S.W.3d 694, 695 (Tex. Crim. App. 1999). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Tex. Penal Code Ann. § 31.03(a), (b)(1) (Vernon Supp. 2009). A "combination" is defined as "three or more persons who collaborate in carrying on criminal activities." Tex. Penal Code Ann. § 71.01(a) (Vernon 2003); Nguyen, 1 S.W.3d at 695. Appellant first argues the State failed to prove an agreement between three people to steal from the pharmacies because no testimony establishes Smith collaborated with appellant and Johnson to commit any crimes. Relying entirely on Smith's testimony, he asserts the evidence showed only that Smith was "in the wrong place at the wrong time." The jury, however, was not required to believe Smith's testimony, particularly in light of the other evidence presented. That evidence showed Smith waited in the car while appellant and Johnson went inside the CVS store. When appellant ran out of the store with a large bag of merchandise, the store manager was in pursuit and asked him to stop. Appellant jumped into the waiting car, and Smith sped away to a nearby Walgreen's, where the three men repeated their roles. When the police stopped the car as it was leaving the Walgreen's parking lot, Smith again was the driver. The police found the two bags of stolen merchandise and several other empty white bags in the car. The jury could have believed the empty bags evidenced the group's intent to commit more thefts and could have disregarded Smith's testimony that he did not see the bags, given that they were found in the front seat of the car only inches from the driver's seat. Although Smith testified he had no agreement with appellant and Johnson to steal from the pharmacies and was unaware any thefts had been committed, he also admitted he had pleaded guilty to the same crime and received a two-year prison sentence. And while he attempted to convince jurors he did so only to avoid a more severe punishment, he also admitted he told the trial judge, during that hearing, he was pleading guilty only because he was guilty. Considering the evidence under the appropriate standards, we conclude it is legally and factually sufficient to prove Smith collaborated with appellant and Johnson to commit the thefts. Alternatively, appellant contends the evidence is legally and factually insufficient to prove he committed the theft at Walgreen's. Here, appellant argues no witnesses testified first-hand that they saw him take anything from the store and the only evidence supporting the theft is the surveillance video. He argues that Manning, the assistant store manager, suspected nothing until contacted by Frisco police and could not testify whether "the man exiting the store with the bag" could have purchased the items at one of the other registers. The evidence was that police found two large bags of merchandise in the suspects' car within minutes of a reported theft at CVS. Among other things, both bags contained expensive electronic toothbrushes, some belonging to the Walgreen's. Given that appellant had just stolen electronic toothbrushes from CVS, the jury could have found it was unlikely appellant went to Walgreen's only minutes later and purchased more of the same items. Moreover, the surveillance videotape provides persuasive support for the jury's finding that appellant stole the items. The videotape showed appellant and Johnson separately entering the store, two minutes apart, and just shortly after the CVS theft. After about six minutes, Johnson is shown walking behind the counter with a female clerk to point at something along the wall. While the clerk's back is to the store, appellant walked out lifting a white bag high enough that it would not trigger the shoulder-high security sensor. After appellant walked out, another clerk quickly followed him and then returned to the store, gesturing to the female clerk and pointing in the direction from which appellant had come and where he went when he left the store. Over the next few minutes, the clerk repeatedly mimicked appellant's actions in holding the bag over the security sensor. The clerk did not testify at trial, but the jury could have reasonably concluded from his conduct on the videotape that he was reporting the theft to the other clerk. Further, as Manning said, appellant would not have needed to avoid the security sensor if he had in fact paid for the merchandise. Having reviewed the evidence under the appropriate standards, we conclude it is legally and factually sufficient to prove appellant committed the theft at the Walgreen's store. We overrule the first issue. In his second issue, appellant asserts defense counsel rendered ineffective assistance by failing to meet with him before trial to prepare a defense. He argues this lack of preparation is evidenced by counsel's (1) oral request for a continuance, (2) failure to make an opening statement, (3) argument that appellant was guilty of theft, and (4) failure to present evidence or to make an opening statement or closing argument at punishment. Ineffective assistance of counsel claims are evaluated under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A Strickland claim must be "firmly founded in the record" and the "record must affirmatively demonstrate" the meritorious nature of the claim. Id. For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance claims. Id. This is true with regard to the question of deficient performance — in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight — where counsel's reasons for failing to do something do not appear in the record. Id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. On the day of trial, defense counsel orally moved for a continuance, saying he and appellant had not "been able to communicate and prepare for trial." Counsel explained that he twice attempted to meet with appellant the week before at the jail, but appellant refused to see him. After the trial court denied the motion, appellant testified briefly. Appellant said he did not believe counsel was prepared for trial and had neglected him. Two pro se motions, filed by appellant two months earlier, were admitted as evidence. In these motions, appellant asserted the same complaint and also accused counsel of using "intimidation tactics" to try to force him to plea bargain. Appellant also testified that he understood the State had offered a plea bargain for a two-year sentence, the minimum punishment for the charge, but did not want to accept it. Appellant acknowledged he signed a confession accepting all blame in the case, but said he did not admit to engaging in organized criminal activity. During the one-day trial, defense counsel cross-examined the State's witnesses; presented a defense witness (Smith) who denied being a part of the "combination," which was an element of the State's case; and argued to jurors at the guilt-innocence phase that the most "accurate" charge was a state jail felony, that jurors had seen the videotape, and that appellant was "probably guilty" of that charge. Appellant did not file a motion for new trial to afford the trial court the opportunity to hold a hearing and inquire into the reasons for trial counsel's acts or omissions. The record before us does not reflect the totality of communications between counsel and appellant during the eleven months counsel was on the case nor does it reflect what those communications were. Moreover, counsel has not been given the opportunity to explain his trial strategy, which could be construed as reasonable given the evidence in this case. See Strickland, 466 U.S. at 691 (noting that inquiry into counsel's conversations with defendant may be critical to proper assessment of counsel's litigation decisions because counsel's actions are usually based on informed strategic choices made by defendant and on information supplied by defendant). Because the record in this direct appeal is not sufficient to show counsel's representation was so deficient as to meet the first part of the Strickland standard, we overrule appellant's second issue. We affirm the trial court's judgment.