                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-15-00345-CR

JAMARRIO LIZAUN BUTLER,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 15-00110-CRF-361


                         MEMORANDUM OPINION


      The jury convicted Jamarrio Lizaun Butler on four counts of the offense of

aggravated robbery and assessed his punishment at confinement for life on each count.

We affirm.
                                 Sufficiency of the Evidence

        In the first issue, Butler argues that the evidence is insufficient to support his

conviction. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d, 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in


Butler v. State                                                                             Page 2
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well

established that the factfinder is entitled to judge the credibility of witnesses and can

choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Facts

        Kim Yarbrough testified that on November 5, 2014, she was at the store with her

three year-old grandson. Yarbrough put her grandson in his car seat and walked around

to get into the vehicle. Appellant approached Yarbrough and told her to get the kid out

of the car and give him the keys. Yarbrough testified that Appellant was pointing a silver

revolver at her. Yarbrough got her grandson out of the car, and Appellant and co-

defendant, Gerald Johnson, drove away in her vehicle.

        Appellant and Johnson then went to Prosperity Bank in the stolen vehicle. The

bank teller testified at trial and stated that Appellant had a silver gun. The teller gave

Appellant money, and he and Johnson left the bank in the stolen vehicle. Appellant

wrecked the vehicle in the escape, and left a trail of money as he fled on foot. He and

Johnson were arrested, and at the scene police recovered a black Airsoft BB gun. A silver

gun was never recovered.

        Following his arrest, Appellant admitted to Detective Steven Fry that he took the

vehicle from Yarbrough and went to the bank. Appellant testified at trial and did not


Butler v. State                                                                          Page 3
deny his involvement in the robbery. Appellant testified that he did not use a firearm

during the robbery, but rather he had a “cap gun made to look like a real gun.” Appellant

stated that he threw the cap gun in the creek after he wrecked the stolen vehicle.

Applicable Law

         A person commits the offense of aggravated robbery if he commits the offense of

robbery and he uses or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03 (a) (2)

(West 2011). The Texas Penal Code defines deadly weapon as, “a firearm or anything

manifestly designed, made, or adapted for the purpose of inflicting death or serious

bodily injury; or anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07 (a) (17) (West Supp.

2015).

Analysis

         Appellant specifically argues that the evidence is insufficient to show that he

exhibited a deadly weapon during the commission of the offense. When the State alleges

in an indictment for aggravated robbery that the deadly weapon used by the defendant

was a firearm, as it did in this case, it is required to prove use of a firearm beyond a

reasonable doubt. See Gomez v. State, 685 S.W.2d 333, 336 (Tex.Crim.App.1985); Cruz v.

State, 238 S.W.3d 381, 388 (Tex.App. – Houston [1st Dist.] 2006).

         Susan Yarbrough testified that Appellant pointed a silver revolver at her when he

took her vehicle. Yarbrough testified that it was a “real” gun. Robert Reinhardt was in


Butler v. State                                                                      Page 4
Prosperity Bank at the time of the robbery and testified that Appellant had a silver gun

during the robbery. Reinhardt stated that there was no doubt in his mind that the gun

was real. Rachel Raley, a teller at the bank, testified that Appellant had a silver gun at

the time of the robbery. The lobby manager at the bank and another bank teller both

testified at trial that Appellant had a gun and that the gun looked real. The police officer

who interviewed Appellant after his arrest testified that Appellant never told them the

gun used during the robbery was a toy gun.

        The jury heard evidence that Appellant exhibited a silver revolver, a firearm,

during the commission of the offense. The jury is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d at 461. Viewing all of the evidence in the light most

favorable to the verdict, we find that the evidence is sufficient to support Appellant’s

conviction for aggravated robbery. We overrule the first issue.

                            Ineffective Assistance of Counsel

        In his second issue, Appellant argues that he received ineffective assistance of

counsel. To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by Texas two years

later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Appellant must show

that (1) counsel's representation fell below an objective standard of reasonableness, and


Butler v. State                                                                       Page 5
(2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S.Ct.

2052.

        Unless appellant can prove both prongs, an appellate court must not find counsel's

representation to be ineffective. Id. at 687, 104 S.Ct. 2052. In order to satisfy the first

prong, appellant must prove, by a preponderance of the evidence, that trial counsel's

performance fell below an objective standard of reasonableness under the prevailing

professional norms. To prove prejudice, appellant must show that there is a reasonable

probability, or a probability sufficient to undermine confidence in the outcome, that the

result of the proceeding would have been different. Id.

        An appellate court must make a strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance. Lopez v. State, 343 S.W.3d

137, 142 (Tex.Crim.App. 2011). In order for an appellate court to find that counsel was

ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record;

the court must not engage in retrospective speculation. Id. "It is not sufficient that

appellant show, with the benefit of hindsight, that his counsel's actions or omissions

during trial were merely of questionable competence." Lopez v. State, 343 S.W.2d at 142-

3. When such direct evidence is not available, we will assume that counsel had a strategy

if any reasonably sound strategic motivation can be imagined. Lopez v. State, 343 S.W.2d

at 143. In making an assessment of effective assistance of counsel, an appellate court must

review the totality of the representation and the circumstances of each case without the


Butler v. State                                                                       Page 6
benefit of hindsight. Id. While a single error will not typically result in a finding of

ineffective assistance of counsel, an egregious error may satisfy the Strickland prongs on

its own. Id.

        Appellant specifically claims that his trial counsel was ineffective in his closing

statements to the jury during the punishment phase of the trial. During his closing

argument at the punishment phase of the trial, Appellant’s trial counsel stated:

                Maybe he won’t stop. A 25-year-old man. Twenty-five years old.
        When I think back to when I was 25, that was 25 years ago. What did I
        know then? I know a lot more now. That’s a 25-year-old man who’s messed
        up most of the 25 years of his life. Twenty-five years old.
                And maybe [the State] is right, he won’t stop. He won’t stop. He
        won’t stop. Maybe he’s right. I don’t know. You don’t know. [The State]
        doesn’t know. Maybe he won’t. But I’m asking you to give him the hope
        that someday he might get out. I’m asking you to give this 25-year-old man
        the chance that if he wants to change his ways, change his behavior, to do
        what he said today for the second time - - yes, that’s what he said when he
        got out of SAFPF what [the State] read to you. That was a man who was
        telling about the changes. And he said, I’ve come a long way. He said that
        again today.
                He’s asking for another chance. He’s asking don’t throw him away.
        You give him a life sentence, he will not even be eligible for parole for 30
        years.

        Appellant argues that his trial counsel was ineffective for reiterating the series of

crimes committed by Appellant, failing to point to redeeming and positive qualities of

Appellant, and essentially making the closing argument of the State. Trial counsel’s

argument responded to the State’s argument that Appellant victimizes people and that

he is not going to change.        Appellant’s trial counsel acknowledged his criminal

background and asked the jury to consider Appellant’s young age and to give him a lesser
Butler v. State                                                                        Page 7
sentence and a chance to prove that he can change. Appellant has not shown that he

received ineffective assistance of counsel. We overrule the second issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 10, 2016
Do not publish
[CRPM]




Butler v. State                                                             Page 8
