Sifuentes v. State

• Decision Date: 22 March 2016
• Docket Number: NO. 14–15–00432–CR,14–15–00432–CR
• Citation: 494 S.W.3d 806
• Parties: Amos Sifuentes, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

494 S.W.3d 806

Amos Sifuentes, Appellant

v.The State of Texas, Appellee

NO. 14–15–00432–CR

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

Opinion filed March 22, 2016

Joseph W. Varela, Houston, TX, for Appellant.

Heather Hudson, Houston, TX, for State.

Panel consists of Justices Jamison, Donovan and Brown.

OPINION

Martha Hill Jamison

, Justice

Appellant Amos Sifuentes appeals his conviction for the offense of robbery. See Tex. Penal Code § 29.02(a)(2)

. Appellant challenges his conviction on grounds that (1) there was insufficient evidence to support the conviction; (2) he received ineffective assistance of counsel; (3) the trial court erred in admitting evidence of extraneous offenses; and (4) the trial court erred in including the lesser included offense of robbery in the charge to the jury. We affirm.

I. PROCEDURAL HISTORY

Appellant was indicted for aggravated robbery with a deadly weapon. The jury found him guilty of the lesser-included offense of robbery and assessed punishment at sixteen years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. FACTUAL BACKGROUND

Complainant testified that, on February 21, 2014, he contacted appellant regarding an advertisement for a cell phone. Appellant and complainant agreed to meet in a grocery store parking lot to conduct the sale. Upon arriving at the parking lot, complainant exited his vehicle and approached appellant's vehicle. Appellant remained in his vehicle, with the transmission in drive. Appellant handed complainant the phone to inspect. Complainant then pulled out the money to buy the phone. Appellant asked complainant to give the phone back so he could erase its data. After receiving the phone again, appellant looked behind complainant and exclaimed “what the hell?” Complainant turned to look in the same direction, and when he turned back, appellant was pointing a gun at him. Appellant “snatched” the money and accelerated his vehicle, striking complainant's arm. Appellant testified he had the phone in one hand, but the other hand was empty, that he never “snatched” the money from complainant or struck complainant's arm with his vehicle. Appellant admitted that he drove off with the money and the cell phone. A few days later, complainant reported the incident to the police and identified appellant from a photo lineup. According to his statement admitted into evidence, appellant told police that he had stolen the money from complainant but did not harm or intend to harm complainant during the incident. Complainant also identified appellant in the courtroom as the robber.

III. LEGAL SUFFICIENCY OF THE EVIDENCE

In his second issue, appellant challenges the legal sufficiency of the evidence to support his conviction of robbery.¹ SeeTex. Penal Code § 29.02(a)(2)

. Appellant argues the State did not prove appellant intentionally or knowingly threatened or placed complainant in fear of imminent bodily injury or death. See id. Appellant argues his alleged use of a firearm was the only evidence of threat of harm. Since the jury did not convict appellant of aggravated robbery, which required a finding that appellant used or displayed a firearm, the jury necessarily rejected that evidence. There was no evidence of complainant's fear of bodily injury or death that did not refer to the firearm.

When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011)

(citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 638. This standard applies equally to both circumstantial and direct evidence. Id. Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).

The State was required to prove that appellant, while in the course of committing theft and with intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death. Tex. Penal Code § 29.02(a)(2)

. The State presented evidence at trial that complainant was in fear of being injured by appellant through complainant's testimony as follows:

Q. And going back to when the gun was pointed at you, were you afraid you might get shot?

A. Oh, of course.

Q. And, were you afraid you could be hurt?

A. Of course.

Q. And, was that the only reason you gave [appellant] your money?

A. Yes ma'am.

Q. What were you—what were you feeling when that was happening?

A. Just fear. Who wants to get shot you know.

Whether or not the jury believed that appellant actually used or displayed a firearm, the State was required to prove that complainant was threatened or put in fear. See Cranford v. State, 377 S.W.2d 957, 959–59 (1964)

; see also

Welch v. State, 880 S.W.2d 225, 227 (Tex.App.–Austin 1994, no pet.) (holding evidence was sufficient for robbery conviction when it was reasonable for complainant to believe defendant possessed a weapon). The jury was free to believe complainant's testimony that he perceived appellant to have a weapon and was thereby placed in fear of imminent bodily injury or death even while the jurors believed appellant's testimony that he had no gun. See

Knight v. State, 868 S.W.2d 21, 24–25 (Tex.App.–Houston [1st Dist.] 1993, pet. ref'd) (upholding conviction of robbery when complainant testified she was in fear of being imminently harmed when appellant made no verbal threat but pushed her hand away and it appeared he had a gun in his waistband).

For a jury to find an individual was placed in fear of imminent bodily injury or death, it is not necessary that actual threats were made. See Burgess v. State, 448 S.W.3d 589, 601 (Tex.App.–Houston [14th Dist.] 2014, no pet.)

; see also

Williams v. State, 827 S.W.2d 614, 616 (Tex.App.–Houston [1st Dist.] 1992, no pet.) (holding factfinder may conclude an individual perceived fear or was “placed in fear” in circumstances when no actual threats were conveyed by the accused). The crucial inquiry in determining whether a threat has been made “is whether the assailant acted in such a manner as would, under the circumstances, portend an immediate threat of danger to a person of reasonable sensibility.” Boston v. State, 373 S.W.3d 832, 840 (Tex.App.–Austin 2012), aff'd, 410 S.W.3d 321 (Tex.Crim.App.2013) ; see also

Dobbins v. State, 228 S.W.3d 761 (Tex.App.–Houston [14th Dist.] 2007, pet. dism'd). “So long as the [perpetrator's] actions are of such nature as in reason and common experience is likely to induce a person to part with his property against his will, any actual or perceived threat of imminent bodily injury will satisfy this element of the offense.” See

Burgess, 448 S.W.3d at 601–02 ; Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989).

Furthermore, even when references to a gun are removed from complainant's testimony, the evidence is still sufficient to establish that complainant was placed in fear of imminent bodily injury or death. Complainant's testimony established appellant demanded money and grabbed the arm with which complainant was holding the money. Before complainant was able to break free of appellant's grip, appellant accelerated his vehicle, causing it to strike complainant's body. Based on this evidence, a jury reasonably could have found that appellant's actions, even without the use of a firearm, were sufficient to place complainant in fear of imminent bodily injury or death. See Welch, 880 S.W.2d at 227

(holding a rational trier of fact could conclude beyond a reasonable doubt that appellant's demand for money and his generally aggressive manner were sufficient to place a reasonable person in the complainant's circumstances in fear of imminent death or bodily injury); Boston, 410 S.W.3d at 326–27 (holding appellant's “conduct in reaching over the counter and taking money from the cash register was threatening because his actions were a ‘menacing indication of (something dangerous, evil, etc.)’ ”) (citing Olivas v. State, 203 S.W.3d 341, 345 (Tex.Crim.App.2006) ; Williams, 827 S.W.2d at 615–17 (holding evidence was sufficient to sustain a finding that the defendant's words and actions placed the complainant in fear of imminent harm when defendant did not display a weapon or make an express threat).

Accordingly, because the evidence showing complainant was placed in fear of imminent bodily injury or death is sufficient to sustain the conviction of robbery, we overrule appellant's second issue.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, appellant contends he received ineffective assistance of counsel during both the guilt-innocent phase and the punishment phase of trial. The United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI

; McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To demonstrate ineffective assistance of counsel, an appellant must first show that counsel's performance was deficient, i.e., that counsel's assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999)

; see also

Hernandez v. State, 988 S.W.2d 770, 774 (Tex.Crim.App.1999) (holding that the standard for reviewing...