Stewart v. State, 01-81-0668-CR

• Decision Date: 14 April 1983
• Docket Number: No. 01-81-0668-CR,01-81-0668-CR
• Citation: 652 S.W.2d 496
• Parties: Marcus Wayne STEWART, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 496

652 S.W.2d 496

Marcus Wayne STEWART, Appellant, v. The STATE of Texas, Appellee.

No. 01-81-0668-CR.

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

April 14, 1983.

Jack K. Allen, Houston, for appellant.

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

Before JACK SMITH, DUGGAN and LEVY, JJ.

OPINION

LEVY, Justice.

Appellant was convicted by a jury of the offense of aggravated robbery after a plea of not guilty. The punishment was assessed by the trial court at eight years confinement in the Texas Department of Corrections. Appellant raises four grounds of error, the third of which complains that the evidence was insufficient to support the guilty verdict.

The testimony showed that on January 30, 1981, around 12:30 p.m., Domingo Espinoza, an employee of the United States Postal Service, was robbed at gun point while delivering mail. Espinoza saw Freddie Stewart, the brother of appellant, run down Janisch Street toward Victoria Street, and later identified him at a lineup as his assailant. However, Espinoza did not see the appellant on January 30.

Henry Williams testified for the State that he knew both the appellant and Freddie Stewart. Williams stated that he saw Freddie Stewart running down Victoria Street at about 12:30 on January 30, 1981. Freddie Stewart appeared to be holding something on his hip as he ran. Williams saw a blue and black Oldsmobile 98 automobile drive up to the corner where he observed Freddie Stewart get into the car. As the car then drove past his house, Williams observed that the appellant was driving the automobile.

Appellant's cousin, Cleveland Lavalass, testified for the defense that he had picked up appellant at ten minutes to twelve o'clock on January 30, 1981, and that they had driven to Lavalass's house, arriving at approximately 12:25 to 12:30. Lavalass then testified that at 12:30, he went to his neighbor's house to use their phone to call his wife. Lavalass's wife also testified that her husband had called her at 12:30, on January 30, 1981, and that he had told her that he had picked up appellant.

Charles Russell testified for the defense that he was standing with Henry Williams on January 30, 1981, and that appellant was not driving the car that passed them. Russell also testified that Williams told him immediately that they should report appellant in order to receive some reward money.

Given this conflicting testimony, the jury was entitled to believe Williams and not believe Russell. As the trier of facts, a jury is authorized to accept or reject any or all of the testimony of witnesses for either the State or the accused. Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975). The jury was entitled to conclude it unlikely that Williams immediately conjured up the idea of collecting a reward, as Russell testified, since at that time neither man knew either that a crime had been committed or that a reward would be offered for information about the crime.

The foregoing evidence showed the appellant's participation in the robbery as the get-away car driver, which is sufficient to sustain the conviction of the appellant under the law of parties as defined in Tex.Penal Code Ann. § 7.01 (Vernon 1974) and § 7.02 (Vernon 1974); Gerzin v. State, 447 S.W.2d 925, 926 (Tex.Cr.App.1969); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979), vacated, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981, affm'd on remand) 623 S.W.2d 650 (Tex.Cr.App.1981).

Viewing the evidence in the light most favorable to the jury's verdict, we find the evidence sufficient to sustain the appellant's conviction.

Appellant's third ground of error is overruled.

In his first ground of error, appellant contends that he did not receive reasonably effective assistance of counsel and thus was denied his right to a fair trial. Appellant lists seven reasons to support his theory of ineffective assistance of counsel. We will discuss them seriatim.

Appellant first contends that his court-appointed counsel failed to call Freddie Lee Stewart as a witness. The actual trigger-man in the robbery was Freddie Stewart, the appellant's brother. Appellant contends that Freddie Stewart had previously entered a guilty plea in his State trial and had been convicted by a jury in his Federal trial, so that Freddie Stewart would not have had a privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The record does not indicate, however, that either or both of Freddie Stewart's convictions were final. One of them could have been on appeal, in which case the privilege against self-incrimination would be available. Nor does the record reveal what Freddie Stewart would have testified.

In any event, the court-appointed attorney testified that he did talk to Freddie Stewart and that he concluded that Freddie's testimony would not have been helpful to the appellant. Trial counsel further testified that he had been told by the prosecutor that a confession from Freddie Stewart had been taken, implicating appellant, though he admitted that he did not fully believe it. Without some evidence suggesting that Freddie Stewart would have exculpated his brother, it is not for this court to second-guess trial counsel's reasoned tactical decision. Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981).

Next, appellant complains that trial counsel never even contacted one Eddie Johnson, who allegedly could have corroborated the appellant's alibi. Johnson, now deceased, allegedly gave appellant a ride to the home of appellant's brother on the day of the offense. Trial counsel admitted that he did not contact Eddie Johnson, but stated that neither the appellant nor the appellant's counsel in Federal Court ever made any mention of Eddie Johnson.

Third, appellant complains of the failure of his trial counsel to contact and call as a witness one Sudie Smith, Cleveland Lavalass's neighbor, who was allegedly given a ride by appellant to the store at approximately one o'clock p.m. on the day of the offense. However, Sudie Smith could not remember whether that happened in the morning or in the afternoon, making her virtually useless as an alibi witness. Moreover, by her own admission, she was a mental health patient, and this could have seriously undermined her credibility if she were allowed to testify at all.

Appellant next complains that his trial counsel did not call as a witness Freddie's mother-in-law, who could have testified that Freddie Stewart sometimes drove her car which the appellant was seen driving as the get-away car for this offense. The relevance of this testimony is, at best, remote and dubious.

Fifth, the appellant claims that his trial counsel consulted with the appellant only at the times when the appellant was in the court room. However, the trial counsel testified that he "talked with (the appellant) at length regarding the facts of the case," not only in the court room but in the Harris County Jail facility in Humble. His attorney also consulted with the attorney who represented the appellant in his Federal trial arising from this crime and interviewed witnesses. Appellant has not shown that his trial preparation was inadequate.

Appellant next complains that his attorney failed to raise collateral estoppel and double jeopardy claims in the trial court. The trial counsel testified that he did review the possibility of a collateral estoppel defense, but concluded that it would not succeed. As is later discussed herein, neither collateral estoppel nor double jeopardy claims would have barred the appellant's State trial in this cause. Trial counsel cannot be faulted for not pursuing a fruitless defense.

In his seventh and final complaint, appellant states that he would have prevailed on a motion for a judgment n.o.v. "... in light of the fact that ... [T]here was evidence beyond a reasonable doubt in support of petitioner's case for judgment n.o.v. or acquittal." The Code of Criminal Procedure does not provide for a judgment n.o.v. Appellant's trial counsel did move for an instructed verdict at the appropriate time, namely, at the conclusion of the State's case in chief. Because the State's evidence was sufficient, the trial court correctly decided to let the trial continue and permit the case to go to the jury at the conclusion of the evidence.

The effectiveness of counsel must be judged by the totality of the representation. Mercado, supra, at 228. Appellant's trial counsel presented several defense witnesses for the purpose of establishing an alibi defense and cross-examined all the State's witnesses. The State's case depended on the identification testimony of Henry Williams, who saw the appellant driving a car, and appellant's attorney countered by presenting testimony which challenged Williams's identification of the appellant and suggested a monetary motive for Williams's testimony. His counsel gave a brief argument.

The Constitutional right to effective assistance of counsel, whether counsel is appointed or retained, does not mean errorless counsel. Mercado, supra; Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980). No reviewing court may second-guess, through hindsight, the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588 (Tex.Cr.App.1979).

After weighing the strengths and weaknesses in the representation provided by appellant's trial counsel, it cannot be justly said that appellant was denied effective assistance of counsel. It seems trite but necessary to say that appellant is constitutionally guaranteed a fair trial, not a perfect trial.

Appellant's first ground of error is overruled.

In his second ground of...