Sargeon v. State

Decision Date15 July 2021
Docket Number14-19-00719-CR
PartiesSHAWN DEROYCE SARGEON, Appellant v. THE STATE OF TEXAS, Appellee
CourtTexas Court of Appeals

Do Not Publish - Tex.R.App.P. 47.2(b).

Panel consists of Justices Spain, Hassan, and Poissant.

MEMORANDUM OPINION

Meagan Hassan Justice

In a single issue, Appellant Shawn Deroyce Sargeon argues he received ineffective assistance of counsel in the underlying proceeding. For the reasons below, we affirm.

Background

Three masked men robbed a Valero gas station on the night of May 10, 2018. Appellant was arrested in connection with the incident and charged with aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2). Appellant proceeded to a jury trial in September 2019.

Evidence at Trial

In its case-in-chief, the State presented testimony from fifteen witnesses. Two witnesses were present in the Valero gas station when the robbery occurred: the cashier, Otis Boggess and a customer, Korey Bednarz. According to Boggess and Bednarz, three masked men entered the Valero with guns. Boggess described the suspects as "young guys" that "were black"; he also recalled that two of the men were wearing "security jackets." According to Boggess, he gave the men the money from two cash registers one of the stacks of money given to the suspects contained a tracking device. Boggess testified that the suspects also took Newport and Swisher Sweet cigarettes as well as Bednarz's purse and cell phone.

Admitted into evidence during trial were surveillance video recordings taken at the Valero the night of the robbery. The video recordings show a blue SUV pulling into the Valero's parking lot and three masked men wearing all-black clothing entering the store. Next, the masked men are seen taking money from the cash registers and going through the cigarette and cigar rack. Finally, the video shows the masked men leaving the store and the blue SUV leaving the Valero's parking lot.

Testifying at trial, Houston Police Officer Richards said he was on patrol the night of May 10, 2018, when he received a call reporting "[a] robbery in progress at a gas station." After the initial call, Officer Richards said he was updated that "there was a tracking device that had been taken" along with the items stolen from the gas station.

According to Officer Richards, he began to follow the tracking device's reported location. When he arrived at the "same location that the tracking device was," Officer Richards activated his emergency lights and sirens. Officer Richards testified that "there was one car that immediately reacted to [his] emergency equipment" - a red sedan. Officer Richards said the red sedan "blew through a stop sign" and Officer Richards proceeded to follow it.

Officer Richards followed the red sedan through several neighborhoods and onto Interstate 10. According to Officer Richards, he saw the red sedan crash into the interstate's center barrier and come to a stop. Officer Richards testified that he saw three black males exit the vehicle and run "into a wooded area." Officer Richards remained with the red sedan until it was towed off the freeway for further investigation.

Officer Ortiz assisted with the search for the three males who were seen exiting the red sedan. Watching his body camera footage from the evening in question, Officer Ortiz said he and other police offers maintained a perimeter around the wooded area where the three men had fled. According to Officer Ortiz, he another officer, and a police dog began searching for the men in a "bamboo thicket". While searching through the bamboo, Officer Ortiz apprehended Appellant. According to Officer Ortiz, Appellant was wearing red shorts and a light-colored tank top. While searching Appellant's pockets, Officer Ortiz found a pack of Swisher Sweet cigarettes and Appellant's wallet.

Officer Sierra assisted in maintaining a perimeter of the wooded area where Appellant was apprehended. Officer Sierra testified that a second black male, Kalluppe Allen, also was found in the wooded area. Officer Sierra said the officers did not locate the third person who was seen exiting the red sedan after it crashed on the interstate.

According to Officer Sierra, he was speaking with Appellant when Appellant "requested medical attention because he had just been involved in a vehicular crash." Officer Sierra also testified that Appellant told him "to go ahead and charge him with evading. That he'll just do his time."

After Appellant and Allen were transferred into custody, Officer Sierra inventoried the red sedan. Officer Sierra testified that he recovered from the vehicle two firearms as well as: a Med Security jacket. I also found a dark-colored hooded coat which is kind of heavy, you know, when you carry it. I found a do-rag, black in color. I also found a cardboard box. I remember counting specifically 36 boxes of Newport cigarettes, white in color. I remember counting on or about 15 Swisher Sweets, a stack of money and then separate monetary bills.

Officer Sierra also recovered the tracking device hidden in one of the stacks of bills. Finally, Officer Sierra testified that he found Bednarz's purse.

Three witnesses from the Houston Forensic Science Center also testified at trial. The forensic science witnesses testified regarding the collection and processing of fingerprints recovered from the red sedan. According to forensic science witness Rebecca Green, she analyzed four fingerprints from the red sedan for certain identifying characteristics. Green said she proceeded to run the fingerprints through an "Automated Fingerprint Identification System" to determine "who those prints belong to." Green testified that she made a "preliminary association" between the fingerprints recovered from the red sedan and those of Appellant.

Finally, the State called two witnesses, Officer Zurita and Officer Cotton, to testify regarding two previous robberies that took place in Houston. According to Officer Zurita, three black males robbed a Papa John's pizza restaurant in central Houston on August 26, 2011. Officer Zurita testified that the suspects used a rifle and a handgun during the robbery and that two of the suspects had their noses and mouths covered with bandanas. Officer Zurita said the suspects took money from the store and got away in a gray car with a red driver's door.

Officer Cotton testified about a separate robbery that occurred in Bellaire that same night. According to Officer Cotton, three black males entered a Shell gas station and robbed the clerks at gunpoint. Officer Cotton said the suspects used a rifle and a handgun during the robbery and left the scene in a light-colored sedan with a red door.

Officer Cotton testified that a vehicle matching that description was stopped two days later. According to Officer Cotton, Appellant was one of the individuals in the car when it was stopped. While searching the vehicle, Officer Cotton recovered a rifle, a revolver, and "some cigars, cigarillos that would have - that were some of the things that were stolen in the Bellaire robbery."

The State offered into evidence a declaration of records from the Texas Department of Criminal Justice. The records show Appellant was adjudicated guilty for the 2011 aggravated robberies at the Papa John's and Shell gas station. The trial court gave the jury a limiting instruction with respect to these extraneous offenses.

Appellant was the last witness to testify at trial. According to Appellant, the night of the robbery he called Allen to ask for a ride to the store to buy baby food and diapers. Allen picked up Appellant in a red sedan and, according to Appellant, Allen asked Appellant "to drop him off and then come pick him back up at a later time." Appellant dropped off Allen and drove the red sedan to complete his errands. Appellant returned to pick up Allen, who was dropped off in a blue SUV. According to Appellant, Allen "[e]mptied some contents inside of the [red sedan's] trunk" and Allen and another man got in the car.

Appellant was driving when he saw a police officer's car behind them with its lights on. Appellant said Allen told him to "go" and explained that he had "a firearm in the trunk." Appellant attempted to "get away" from the police officer but "eventually lost control of the vehicle". Appellant testified that he "[r]an across the oncoming traffic on the other side of the freeway into a bayou" and he and Allen hid in "some woods" until they were found by police officers. Appellant did not know where the other person in the red sedan had fled. Appellant testified that he did not commit the robbery that night at the Valero.

Final Judgment

The jury found Appellant guilty of aggravated robbery with a deadly weapon and assessed punishment at 30 years' confinement. Appellant appealed.

Analysis

On appeal, Appellant argues he received ineffective assistance of counsel because his defense counsel (1) gave an opening statement that opened the door to Appellant's prior aggravated robbery convictions, and (2) "abdicated his role as a defense attorney when he told the venire panel that his role as a defense attorney was 'not to make sure [Appellant] goes home at the end of this case' but instead 'to defend the Constitution.'" We consider these issues below.

I. Standard of Review and Governing Law

To prevail on a claim for ineffective assistance of counsel, an appellant must show that (1) trial counsel's performance fell below the objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex....

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