Rogers v. State

• Decision Date: 16 August 1990
• Docket Number: No. 01-88-00985-CR,01-88-00985-CR
• Citation: 795 S.W.2d 300
• Parties: Warren Tunnell ROGERS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 300

795 S.W.2d 300

Warren Tunnell ROGERS, Appellant, v. The STATE of Texas, Appellee.

No. 01-88-00985-CR.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 16, 1990.

John F. Carrigan, Houston, for appellant.

Before SAM BASS, HUGHES and O'CONNOR, JJ.

O'CONNOR, Justice.

This is an appeal from an aggravated robbery conviction. A jury found appellant, Warren Rogers, guilty, found the enhancement paragraphs true, and assessed punishment of 99 years. We affirm.

On January 13, 1988, appellant and co-defendant, Otis Talbert, entered an Eckerd's drug store in Houston. They asked the cashier about photo finishing, and left. Thirty minutes later, they returned and picked out two items in the store. They approached the check-out stand, as if they were purchasing the items. When the cashier, Sheryl Walpool, opened the cash register, appellant pointed a gun at her. The two of them started pulling money out of the register. The cashier tried to slam the register drawer on their hands, and screamed for help. The manager, Algie Clark, started running to the front of the store when he heard Ms. Walpool scream. By the time the manager had reached the front of the store, appellant was still holding the gun and backing out the door. When appellant said, "don't bring your ass up here," Clark stopped. After Rogers and Talbert ran out the door, Clark ran after them to try to get a description of their car.

Officer Davis, of the Houston Police Department, saw Rogers and Talbert run from the Eckerd's store with a large brown bag. The store manager ran around the corner, and told him that the store had been robbed. Davis saw Rogers and Talbert leave in a yellow Plymouth, so he and his partner tried to follow them. Officer Jackson, who was on patrol, also tried to locate the vehicle. The officers found the vehicle abandoned.

After questioning people about the car, the officers were directed to a house in the neighborhood. The owner gave them consent to search the house. Inside, the officers found appellant hiding in a bedroom closet with the money. Talbert was in the bathroom. Both the cashier and store manager identified appellant as the person who held the gun during the robbery.

I. Sufficiency of the evidence

In his first point of error, appellant alleges the evidence is insufficient to show that he possessed a firearm during the robbery. In reviewing the sufficiency of the evidence, we view it in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex.Crim.App.1984); Barron v. State, 773 S.W.2d 44, 46 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd). We must then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985); Barron, 773 S.W.2d at 46.

Appellant claims the evidence did not prove that the gun was not a toy, and relies on the following testimony elicited from the cashier:

Defense Counsel: That particular item that you saw that you have indicated that Mr. Rogers had as far as you know, it could have been just a piece of tubing?

Witness: No. That was a gun.

Defense Counsel: It could have been a toy gun, though, couldn't it?

Witness: It's possible. They do make them that look real.

The cashier also testified, however, that she saw "enough of it to know it was a gun," and said she "was sure it was a gun." She said that it was a silver handgun, and that she saw his finger on the trigger. The State showed the cashier a picture of a pistol, and asked her if the gun she saw was the same or similar to the one in the picture. She said that it was. The store manager also saw the gun, and said the gun in the picture was the same or similar to the one he saw the day of the robbery.

After reviewing all of the evidence, we find that a reasonable trier of fact could have found that appellant was carrying a gun at the time of the robbery. We overrule the first point.

II. Ineffective assistance of counsel

In his second and third points, appellant claims he was denied effective assistance of counsel, listing five reasons. We will deal with them under separate headings.

To obtain a reversal because of ineffective counsel, appellant must show that: (1) counsel's performance was so deficient that counsel was not functioning as counsel guaranteed by the sixth amendment; and (2) there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068-69, 80 L.Ed.2d 674 (1984); Douglas v. State, 739 S.W.2d 660, 662 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd).

We must determine whether, in light of all the circumstances, counsel's acts or omissions were outside the wide range of reasonable professional judgment. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986); Duncan v. State, 717 S.W.2d 345, 348 (Tex.Crim.App.1986). The constitutional right to counsel does not mean errorless counsel, or counsel whose competency is judged by hindsight. Hernandez, 726 S.W.2d at 58; Duncan, 717 S.W.2d at 348. Appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Duncan, 717 S.W.2d at 348.

A. Failure to ask for severance

Rogers and Talbert were tried together. Appellant claims his counsel was ineffective because he did not ask for a separate trial. Before determining whether counsel was ineffective, we must decide whether appellant would have been entitled to a severance.

Article 36.09, TEX.CODE CRIM.PROC.ANN. (Vernon 1981), states that a severance is mandatory only if there is a previous admissible conviction against one defendant, or a joint trial would be clearly prejudicial to any defendant. Otherwise, a severance is within the sound discretion of the trial court. Bolding v. State, 493 S.W.2d 186, 187 (Tex.Crim.App.1973); Foster v. State, 652 S.W.2d 474, 477 (Tex.App.--Houston [1st Dist.] 1983), aff'd, 693 S.W.2d 412 (Tex.Crim.App.1985). In this case, the record shows that both appellant and his co-defendant had no prior convictions, so there was no absolute right to a severance. See Snow v. State, 721 S.W.2d 943, 945 (Tex.App.--Houston [1st Dist.] 1986, no pet.).

Appellant complains that Talbert's defense counsel made a final argument that was prejudicial to appellant's case. In final argument Talbert's defense counsel argued "there was no testimony that Mr. Talbert knew there was a gun or knew there was going to be any type of robbery.". To support this argument he reminded the jury the cashier testified she thought Talbert was merely purchasing something, and Rogers pulled the gun. The store manager testified he did not see Talbert in the store. Additionally, he argued Talbert was innocently taking a bath when the police officers arrived, while Rogers was hiding in a closet with the money. Talbert's counsel said:

Now, if this were a participant in some kind of conspiracy with both of these people committing the robbery, wouldn't Rogers have said, hey, Otis, the police are here. Get in the closet. You better hide. Otis wasn't noticing the police because Rogers knows he's the only one that committed this robbery and Otis Talbert did not participate in this robbery.

Appellant does not cite any authority for the proposition that the prejudicial closing argument by a co-defendant, when neither defendant offered any testimony during trial, is the equivalent to an inconsistent defense. We hold that a prejudicial closing statement by Talbert's counsel, standing alone, did not rise to the level of an inconsistent defense.

Without a showing of clear prejudice, appellant was not entitled to a severance as a matter of right. Counsel's failure to request a severance, which appellant was not entitled to as a matter of right, does not constitute ineffective assistance of counsel. Robertson v. State, 632 S.W.2d 805 at 809 (Tex.App. 14th Dist.1982).

B. Voir dire

Appellant claims that trial counsel misused a peremptory strike by failing to strike prospective juror number seven, Ruth Champion. During voir dire, Ms. Champion stated that she would be biased against Rogers if he did not take the stand to testify. Instead of striking the juror, defense counsel waited. The State struck Ms. Champion, and she did not serve as juror. Thus, appellant did not have to use one of his strikes on Ms. Champion. This was sound trial strategy. Appellant did not show how this harmed him. Instead, it appears that it helped him.

C. Co-defendant's counsel's comments

Appellant contends that co-defendant's counsel made an indirect comment on his failure to testify during final argument. He asserts his counsel was ineffective because he failed to object to the comment. Appellant points to the following statement by co-defendant's counsel during closing argument:

Now, if this were a participant in some kind of conspiracy with both of these people committing the robbery, wouldn't Rogers have said, hey, Otis, the police are here. Get in the closet. You better hide.

The courts have repeatedly said that, in final argument counsel, counsel may offer a summation of the evidence and make a reasonable deduction from the evidence. McKay v. State, 707 S.W.2d 23, 36 (Tex.Crim.App.1985); Urbano v. State, 760 S.W.2d 33, 37 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd). The statement above was clearly a reasonable deduction from the evidence. Co-defendant's counsel was referring to the defendants' conduct immediately before their arrest, not appellant's failure to testify.

Because the statement was not a comment on appellant's failure to testify, it was not objectionable on those grounds. Trial counsel was not ineffective for failing to object.

D. The State's comment

Appellant claims the State improperly commented on the fact that he and co-defendant served only half of their sentences for earlier convictions. During arguments in the...