Affirmed and Opinion Filed February 20, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01600-CR
                                      No. 05-12-01602-CR

                       FREDERICK DEWAYNE HUGHES, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 380th Judicial District Court
                                   Collin County, Texas
                 Trial Court Cause Nos 380-82593-2011 and 380-82564-2011

                                          OPINION
                           Before Justices FitzGerald, Lang, and Lewis
                                  Opinion by Justice FitzGerald
       A jury convicted appellant of aggravated robbery and possession of cocaine with intent to

deliver. The jury assessed punishment on the aggravated robbery charge at seven years’

imprisonment, and the trial court sentenced appellant to ten years’ imprisonment, suspended, on

the possession charge. In two issues on appeal, appellant argues and the evidence is insufficient

to support his conviction for aggravated robbery and he was denied the effective assistance of

counsel. Finding no reversible error, we affirm the trial court’s judgments.

Sufficiency of the Evidence

       Appellant contends the evidence is insufficient to support his conviction for aggravated

robbery. In particular, appellant asserts there is insufficient evidence to corroborate the

accomplice witness testimony.
          In response to a Craigslist advertisement placed by Rodney Darden, Mujeeb Rahaman

made an arrangement with Darden to purchase 30,000 cell phone memory cards for $22,000.

Darden and his colleague Darius Levi planned for Darden to meet Rahaman in a Fry’s parking

lot where Levi planned to steal the money and pretend to rob them. When Rahaman got nervous,

the plan was postponed.

          Rahaman and Darden decided to try again the next day. This time, Darden arranged for

appellant, Levi, and Derrick Allen to join him. When Rahaman arrived at the parking lot, he

parked his car parallel to Darden’s. Darden told Rahaman he should come over to Darden’s car

because Darden was unable to get out of the car. Rahaman went around to the passenger side of

Darden’s car, opened the passenger door, and leaned in to make the deal. Darden was fidgeting

with a backpack, and talking on the phone. Sensing something was happening, Rahaman pulled

away from Darden’s car, causing the door to fling wide. A black Pontiac Grand Am, later

identified as belonging to appellant, suddenly approached and struck the door of Darden’s car.

Both the door of Darden’s car and the left-front fender of appellant’s car were damaged as a

result.

          Rahaman ran back to his car and was attempting to start it when Allen, wearing a

bandana over his face, opened Rahaman’s driver’s-side door. While Allen was grabbing at

Rahaman and trying to get his keys, Levi, also wearing a bandana, opened the passenger-side

door and leaned into the car, kneeling on the seat next to Rahaman. Allen and Levi shouted at

Rahaman, demanding he give them the money. When Rahaman refused, Allen pulled out a gun

and pushed it into Rahaman’s ribs. At this point, Levi began hitting Rahaman with brass

knuckles on the bony area behind his right ear. Rahaman then handed over a plastic grocery bag

containing $22,500.00 in cash. Rahaman heard voices shouting “is that it, is that it,” and another

voice answering, “[Y]eah, that’s it, that[’s] it, lets go.”

                                                  –2–
             Levi and Allen left Rahaman in his car and threw his keys roughly ten to fifteen feet in

front of his car, before returning to appellant’s car. Throughout the entire attack Darden

remained in his car in the Fry’s parking lot. As soon as Levi and Allen were back in appellant’s

car, Darden left the lot, with appellant following behind. The group returned to Darden’s

apartment and split up the money.

             Using the Craiglist advertisement Darden had placed, the police conducted an

investigation. They learned that Darden drove a white Crown Victoria and discovered the motel

where he was staying. Darden was subsequently arrested. Rahaman reviewed a Fry’s security

video and identified Darden’s car and the other car involved in the incident. Rahaman also

identified Darden in a line-up. During his interview with the police, Darden identified the other

people involved in the robbery by their street names, including appellant, who was identified by

his street name “Fred Dog.” A contact number for Fred Dog was stored in Darden’s cell phone.

Fred Dog’s number was run through a database, and it was identified as belonging to appellant.

            The day after Darden was arrested, he was in the back of a police car in an attempt to

assist the police with verification of the residences of the other suspects, when he received a text

from appellant asking if there was anything he needed. Darden was instructed to text back, “two

eight balls.”1 Arrangements were then made to meet appellant at a local restaurant. Darden was

returned to jail.2

            The police were aware that appellant drove a black Pontiac Grand Am, and once

appellant’s car was identified, he was stopped for a traffic violation nine days after the robbery.

Cocaine was recovered from appellant’s companion, Cumby Jones. Appellant was arrested for a

traffic violation and for driving without a license. During his post-arrest interview, appellant

    1
        Testimony reflects that an eight ball is 3.5 grams of cocaine.
    2
        Darden did not testify at trial and his police interview is not part of the record.



                                                                          –3–
admitted he was attempting to deliver cocaine to Darden. As a result, appellant was charged with

possession with intent to deliver.3

          Appellant’s post-arrest interview was recorded and a portion of the interview was played

for the jury. During the interview, appellant admitted that he knew Darden, but denied any

knowledge of or involvement in the robbery. Appellant also provided two different explanations

for the damage to his vehicle. He initially insisted that someone else must have caused the

damage. Later, he claimed the damage occurred in his garage.

          Appellant’s car was seized at the time of arrest, and the damage to his car was compared

to the damage to Darden’s car. Specifically, the comparison was made to determine if appellant’s

car was the cause of damage to the door of Darden’s vehicle. At trial, State’s exhibits 11 and 12

showed the damage to both cars. Kevin Sasso, a police officer with specialized training in

accident investigation, testified about the investigation he performed to determine whether it had

been appellant’s vehicle that made contact with Darden’s vehicle. Spasso concluded there was a

ninety-nine per cent certainty that it was appellant’s car that collided with Darden’s during the

robbery. Spasso explained that he took measurements from the ground up to various identifying

points within the damaged area of the two cars. The measurements were identical, and Spasso

testified that they would not have matched if a different car had struck Darden’s. In addition,

Darden’s vehicle was missing white paint on the door edge that was transferred to the Grand

Am.

          Levi was also arrested, pleaded guilty to aggravated robbery, and agreed to testify as part

of his plea bargain. He identified appellant as a participant in the robbery and provided the same

account of events as Rahaman. Levi described appellant’s car as a black Pontiac and explained


     3
       Because appellant does not challenge the sufficiency of the evidence to support his conviction for possession, we do not detail the
testimony and evidence pertinent to this charge.



                                                                  –4–
how the car crashed into the door of Darden’s vehicle. Levi testified that after he grabbed the

money from Rahaman, he and the other accomplices, including appellant, got into appellant’s car

and drove away.

        Rahaman testified that he had purchased memory cards from Darden in the past. For the

transaction in question, Darden contacted Rahaman and told him he had some more memory

cards to sell. The two agreed on a price of $22,500 for about 30,000 memory cards. Rahaman

identified Darden, but he could not identify anyone else involved in the robbery.

        The jury convicted appellant of aggravated robbery and possession of cocaine with intent

to distribute.

        A conviction may not be founded solely on accomplice testimony. See TEX. CODE CRIM.

PROC. ANN. art. 38.14 (West 2005). An accomplice is a person who participates before, during,

or after the commission of an offense, with the requisite culpable mental state. Smith v. State,

332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A challenge to the sufficiency of the evidence to

corroborate the testimony of an accomplice is a challenge to the sufficiency of the evidence to

support the jury’s verdict on guilt or innocence. Munoz v. State, 853 S.W.2d 558, 560 (Tex.

Crim. App.1993). In reviewing the sufficiency of the corroborating evidence, we exclude the

accomplice testimony from our consideration and determine whether there is any independent

evidence that tends to connect the defendant with the commission of the offense. Malone v.

State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). We view the corroborating evidence in the

light most favorable to the jury’s verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App.

2008). If there are two views of the evidence, one tending to connect the accused to the offense

and the other not, we defer to the jury’s view. Smith, 332 S.W.3d at 442. “[I]t is not appropriate

for appellate courts to independently construe the non-accomplice evidence.” Id.




                                               –5–
           It is not necessary that corroborating evidence directly connect a defendant to an offense

or be sufficient by itself to establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim.

App. 1999). The corroborating evidence may be direct or circumstantial. Smith, 332 S.W.3d at

442. The evidence must simply link the accused in some way to the commission of the offense

and show that rational jurors could conclude that the evidence sufficiently tended to connect the

accused to the offense. Simmons v. State, 282 S.W .3d 504, 508 (Tex. Crim. App. 2009).

          Appellant was charged with aggravated robbery. The elements of aggravated robbery are:

(1) a person; (2) in the course of committing theft; (3) with intent to obtain or maintain control of

property; (4) intentionally or knowingly; (5) threatens another with, or places another in fear of;

(6) imminent bodily injury or death; and (7) uses or exhibits; (8) a deadly weapon. TEX. PENAL

CODE ANN. §§ 29.02–.03 (West 2011). “In the course of committing theft” means “conduct that

occurs in an attempt to commit, during the commission or in immediate flight after the attempt or

commission of theft.” TEX. PENAL CODE ANN. § 29.01(1) (West 2011). In conducting an analysis

under article 38.14, appellant’s level of participation as a principal or a party is irrelevant. See

Quevedo v. State, No. 05-11-00086-CR, 2012 WL 3055470, at *2 (Tex. App.—Dallas, July 27,

2012, pet. ref’d) (not designated for publication).4

           Eliminating the accomplice testimony from consideration, the remaining evidence is

sufficient to tend to connect appellant to the aggravated robbery. See Malone, 253 S.W.3d at 257.

Nine days after the robbery, appellant was stopped while driving his damaged car. The evidence

at trial established there was a ninety-nine percent certainty that appellant’s vehicle was one of

the two vehicles involved in the crime. The damage to the vehicle was also consistent with the

victim’s testimony and the security video.


   4
       In the aggravated robbery case, the jury was instructed on the law of the parties. See TEX. PENAL CODE ANN. § 7.02 (West 2005).




                                                                    –6–
       Appellant offered conflicting explanations for the damage to his vehicle. These

conflicting stories may be combined with other evidence to provide corroboration. See Smith,

332 S.W.3d at 442; see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)

(stating guilty demeanor and inconsistent statements are “circumstances of guilt”). Although

appellant denied any involvement in the robbery, he admitted to an association with Darden and

made contact with him shortly after the robbery. The jury viewed a portion of appellant’s

videotaped interview with the police, and was in the best position to assess the credibility of

appellant’s version of events. Therefore, viewing the evidence in a light most favorable to the

verdict, we conclude the evidence is sufficient to tend to connect appellant to the offense.

Appellant’s issue is overruled.

Ineffective assistance of counsel

       Appellant also claims his trial counsel was ineffective. Specifically, appellant contends

counsel’s pre-trial preparation and representation was inadequate because counsel failed to

obtain orders on a number of pretrial motions and did not adequately prepare for trial. Appellant

complains about counsel’s trial performance because counsel did not make an opening statement,

was allegedly ineffective in his objections and cross-examination, and did not call any witnesses.

       To establish ineffective assistance of counsel, the appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the standard of

prevailing professional norms and that there is a reasonable probability that, but for counsel’s

deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 687 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In other words,

for a claim of ineffective assistance of counsel to succeed, the record must demonstrate both

deficient performance by counsel and prejudice suffered by the defendant. Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective-assistance claim must be “firmly

                                               –7–
founded in the record” and “the record must affirmatively demonstrate” the meritorious nature of

the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

       In evaluating the effectiveness of counsel under the deficient-performance prong, we look

to the totality of the representation and the particular circumstances of each case. Thompson, 9

S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89. Review of counsel’s representation is highly deferential, and the reviewing

court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable

representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State,

65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

       Direct appeal is usually an inadequate vehicle for raising an ineffective-assistance-of-

counsel claim because the record is generally undeveloped. Menefield, 363 S.W.3d at 592–93;

Thompson, 9 S.W.3d at 813–14. This statement is true with regard to the deficient-performance

prong of the inquiry when counsel’s reasons for failing to do something do not appear in the

record. Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 814. To overcome the

presumption of reasonable professional assistance, “‘any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.’” Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based upon unclear

portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not given that opportunity, then the

appellate court should not find deficient performance unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Id.

                                                –8–
       Here, the record is silent as to the reasons for trial counsel’s actions. Because appellant

did not file a motion for new trial, there is no record reflecting counsel’s rationale for the

challenged conduct. We decline appellant’s invitation to speculate about such conduct. When

record evidence is not available, we presume counsel’s conduct was reasonable. See Goodspeed

v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

       Moreover, appellant offers only general critique of counsel’s performance. There is no

detail as to how counsel allegedly failed to investigate or prepare a proper defense, nor is there

any detail concerning witnesses that might have been called to testify. Therefore, we are unable

to determine whether or how any of the alleged deficiencies may have prejudiced appellant’s

defense. See Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim. App. 2010) (requiring comparison

of State’s evidence with evidence jury did not hear due to counsel’s failure to investigate); King

v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel’s failure to call witnesses . . . is

irrelevant absent a showing that such witnesses were available and appellant would benefit from

their testimony”). Similarly, appellant has not shown the testimony that allegedly required an

objection, or had an objection been made, that the trial court would have abused its discretion in

overruling the objection. See Alexander v. State, 282 S.W.3d 710, 705, 710 (Tex. App.—

Houston [1st Dist.] pet ref’d). And there has been no showing that counsel’s cross-examination

lacked a sound trial strategy. See Ex parte McFarland, 165 S.W.3d 743, 756 (Tex. Crim. App.

2005). Under these circumstances, on this record, we are unable to conclude that counsel’s

performance was constitutionally deficient. Appellant’s issue is overruled.




                                               –9–
The trial court’s judgments are affirmed.




Do Not Publish
TEX. R. APP. P. 47
121600F.U05
                                            /Kerry P. FitzGerald/
                                            KERRY P. FITZGERALD
                                            JUSTICE




                                       –10–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

FREDERICK DEWAYNE HUGHES,                         On Appeal from the 380th Judicial District
Appellant                                         Court, Collin County, Texas
                                                  Trial Court Cause No. 380-82593-2011.
No. 05-12-01600-CR       V.                       Opinion delivered by Justice FitzGerald.
                                                  Justices Lang and Lewis participating.
THE STATE OF TEXAS, Appellee

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered February 20, 2014




                                                /Kerry P. FitzGerald/
                                                KERRY P. FITZGERALD
                                                JUSTICE




                                           –11–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

FREDERICK DEWAYNE HUGHES,                         On Appeal from the 380th Judicial District
Appellant                                         Court, Collin County, Texas
                                                  Trial Court Cause No. 380-82564-2011.
No. 05-12-01602-CR       V.                       Opinion delivered by Justice FitzGerald.
                                                  Justices Lang and Lewis participating.
THE STATE OF TEXAS, Appellee

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered February 20, 2014




                                                /Kerry P. FitzGerald/
                                                KERRY P. FITZGERALD
                                                JUSTICE




                                           –12–
