Gaynor v. State

• Decision Date: 15 March 1990
• Docket Number: No. C14-89-270-CR,C14-89-270-CR
• Citation: 788 S.W.2d 95
• Parties: Michael Robert GAYNOR, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 95

788 S.W.2d 95

Michael Robert GAYNOR, Appellant, v.The STATE of Texas, Appellee.

No. C14-89-270-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 15, 1990.

Rehearing Denied March 22, 1990.

Discretionary Review Refused June 27, 1990.

Randy Schaffer, Houston, for appellant.

Winston E. Cochran, Jr., Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Michael Robert Gaynor, appeals his judgment of conviction for the offense of aggravated robbery TEX.PENAL CODE ANN. § 29.03(Vernon 1989).The jury rejected appellant's not guilty plea and assessed punishment at ten years confinement in the Texas Department of Corrections.We affirm.

Appellant assigns five points of error on appeal.In his first point of error, appellant submits the judgment of guilt is against the great weight and preponderance of the evidence.In his second point of error, appellant argues that defense counsel's failure to argue significant exculpatory evidence during summation denied appellant the effective assistance of counsel and a fair trial.In his third point of error, appellant contends the trial court reversibly erred in permitting a detective to testify that investigators were going to show the photo spread containing appellant's photo to witnesses in other cases.In his fourth point of error, appellant contends the trial court committed reversible error in admitting evidence at the punishment stage that appellant had previously received a deferred adjudication probation for aggravated sexual assault of a child.In his fifth point of error, appellant submits the trial court reversibly erred in admitting a cash bail bond reflecting that appellant's father posted ten thousand dollars cash to bond appellant out of jail for the offense of aggravated sexual assault of a child.

On November 20, 1987, at 1:00 a.m., Rosendo Gonzales was working as the cashier of a Circle K store on Tully Street in Houston, Texas.A man entered the Circle K, jumped over the counter, made Gonzales open the cash register and safe and took about $70.00 to $80.00.The robber held a handgun to Gonzales' head and threatened to kill him if Gonzales called the police within thirty minutes.After the man left the store, Gonzales called the police.When the police arrived, Gonzales described the man as a white male, 5'5"', 130 pounds, with wavy, shoulder-length hair and glasses, wearing a gray-black jacket, blue jeans and tennis shoes.

Officer Steven Ash obtained this description and went to interview Janet Marksberry, the clerk on duty at the Tenneco station located about one-half mile from the Circle K. Ash gave Marksberry the description of the robber and she replied that a man fitting that description and wearing a brown jacket, purple sweatshirt and blue jeans, without glasses, had entered the Tenneco station and bought a pack of cigarettes only ten minutes before Ash had arrived.Further, Marksberry stated that the same man had been in the Tenneco store several times before.The next time appellant came into the Tenneco station, Marksberry obtained the license number of his truck and gave it to the police.

Sergeant Luigi Angeli, a thirteen year veteran with the Houston police department, traced the license number to a truck belonging to appellant's father's company.Angeli then obtained appellant's name and photo and presented a photo spread to Gonzales who, in December of 1987, made a positive identification of appellant.In March of 1988, Marksberry also identified appellant's photo as the man who had been at the station on the evening in question.At trial both Gonzales and Marksberry identified appellant as the man encountered by them on November 20, 1987.

Appellant's first point of error contends that this court should reverse the conviction because the jury's guilty verdict, and the judgment rendered thereon, were against the great weight and preponderance of the evidence.We note that appellant has structured his entire argument under this point of error in terms of a standard of review that is inapplicable.We refer appellant to the very recent Court of Criminal Appeals' case, Meraz v. State, 785 S.W.2d 146(Tex.Crim.App.1990).In Meraz, the Court of Criminal Appeals re-affirms that the standard of review denominated as "against the great weight and preponderance of the evidence" is generally restricted to affirmative defenses where the burden is upon the defendant to prove his affirmative defense by a preponderance of the evidence plus any other factual determination where the defendant bears the burden of proof.Meraz further holds that review of the facts relevant to an affirmative defense and review of sufficiency of the evidence to support a conviction are entirely separate matters and are mutually exclusive.In the instant case, appellant presented no affirmative defenses.Accordingly, the proper standard of review in the case before us is that of Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781; 61 L.Ed.2d 560(1979), that is, when confronted with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence.Moreno v. State, 755 S.W.2d 866, 867(Tex.Crim.App.1988).Further, the appellate courts ensure only the rationality of the fact finder, serving as a final due process safeguard.Moreno v. State, 755 S.W.2d at 867.The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony.Esquivel v. State, 506 S.W.2d 613, 616(Tex.Crim.App.1974).It is not our place to second guess the determination made by the trier of fact.

With this standard of review in mind, we turn to the instant case.Gonzales and Marksberry made positive pre-trial identifications of appellant as the man who had entered their respective businesses on the day in question.In addition, both Gonzales and Marksberry made positive identifications of appellant at trial.While it is true that appellant's father and sister testified appellant was at home with them at the time the robbery occurred, the jury chose not to believe their testimony.Neither was the jury convinced by appellant's testimony.A jury is entitled to accept one version of the facts and reject another or to accept ot reject any part of a witness' testimony.Penagraph v. State, 623 S.W.2d 341(Tex.Crim.App.1981).Viewing the evidence in the light most favorable to the verdict, it is clear that a rational trier of fact could have found beyond a reasonable doubt that appellant was the robber of the Circle K on the evening of November 20, 1987.Appellant's point of error is overruled.

The second point of error contends that appellant's trial counsel failed to provide effective assistance of counsel.The standard for determining whether trial counsel provided adequate assistance is a two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), summarized in Ingham v. State, 679 S.W.2d 503, 509(Tex.Crim.App.1984) as follows:

To paraphrase, the defendant must first show that counsel's performance was deficient, i.e., that his assistance was not "reasonably effective."Second, and assuming the defendant has first shown ineffective assistance, the defendant must affirmatively show prejudice.That is, the defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Although Strickland was concerned only with effective assistance pursuant to U.S. CONST. amend. VI, its test was adopted for Texas constitutional purposes in Hernandez v. State, 726 S.W.2d 53, 56-57(Tex.Crim.App.1986).

Appellant contends that his trial counsel's argument failed to point out discrepancies between the description of the suspect and the appellant.The record reveals that trial counsel certainly did address discrepancies:

"Shoulder-length wavy hair, with glasses doesn't describe my client, doesn't describe Mike Gaynor"

The record further reveals that trial counsel characterized Gonzales as being confused and emphasized that the demeanor of the individual observed by Marksberry was inconsistent with the commission of a robbery a few minutes earlier.

Appellant also finds fault with his trial counsel's argument which described Marksberry as being "A very truthful, nice lady ..."Yet appellant has apparently ignored the fact that trial counsel further argued that the reason...