                          NUMBER 13-12-00208-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JOHNNY GUERRA,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 347th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
       Appellant Johnny Guerra challenges his conviction by a jury for theft, a second

degree felony as a result of multiple enhancements.         See TEX. PENAL CODE ANN.

§ 31.03(a), (b)(1) (West Supp. 2011); see also id. § 12.425(b) (West Supp. 2011). By

two issues, Guerra argues that the evidence was insufficient to support his conviction as a
party to the offense and that he received ineffective assistance of counsel. We affirm.

                                        I. Background

       Guerra, along with a co-defendant, was indicted as follows in connection with the

theft of pornographic magazines from a convenience store in Corpus Christi, Texas:

       [T]hat [Guerra] . . . on or about May 11, 2011, in Nueces County, Texas, did
       then and there unlawfully appropriate, by acquiring or otherwise exercising
       control over, property, to wit: MAGAZINES, of the value of less than
       $1,500.00, from ROBERT PIEPER, the owner thereof, without the effective
       consent of the owner, and with intent to deprive the owner of the property.

The indictment also alleged two enhancement counts, which elevated the class A

misdemeanor theft charge to a second-degree felony. Guerra pleaded not guilty, and

his case was tried to a jury. The jury found Guerra guilty of the charged offense and

sentenced him to sixteen years in prison. This appeal followed.

                               II. Sufficiency of the Evidence

       By his first issue, Guerra argues that the evidence was legally and factually 1

insufficient to prove he had the requisite knowledge of his co-defendant's plans to steal

the magazines and was therefore insufficient to convict him as a party to the theft. We

disagree.

A. Standard of Review and Applicable Law

              To determine whether evidence is sufficient to support a conviction,
       a reviewing court views all the evidence in the light most favorable to the
       verdict to decide whether any rational trier of fact could have found the
       essential elements of the offense beyond a reasonable doubt. See
       Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d
       893, 895 (Tex. Crim. App. 2010). This requires the reviewing court to defer

       1
         The court of criminal appeals has abolished factual-sufficiency review. See Howard v. State,
333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011). Thus, we will only address Guerra's legal-sufficiency
challenge.
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       to the jury's credibility and weight determinations because the jury is the
       "sole judge" of witnesses' credibility and the weight to be given testimony.
       Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. A reviewing court
       determines whether the necessary inferences are reasonable based upon
       the combined and cumulative force of all the evidence when viewed in the
       light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778
       (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
       Crim. App. 2007)). When the record supports conflicting inferences, a
       reviewing court must presume that the fact finder resolved the conflicts in
       favor of the prosecution and defer to that determination. See Jackson, 443
       U.S. at 326.

Garcia v. State, 367 S.W.3d 683, 686–87 (Tex. Crim. App. 2012).

       Legal sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009). "Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried." Id. Guerra committed the offense of theft as authorized

by the indictment in this case if he appropriated the magazines "without the owner's

effective consent" and "with intent to deprive the owner of property." See TEX. PENAL

CODE ANN. § 31.03(a), (b)(1). "A person is criminally responsible as a party to an offense

if the offense is committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both." Id. § 7.01(a) (West 2011). As applicable to this

case, a "person is criminally responsible for an offense committed by the conduct of

another if . . . acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense." Id. § 7.02(a)(1) (West 2011).


                                              3
       It is not necessary that the evidence directly prove the defendant's guilt;

"[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of the

actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper,

214 S.W.3d at 13; see Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

A defendant's intent, in particular, may be inferred from his words, acts, and conduct.

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). In other words, intent and

knowledge are fact questions and are almost always proven through evidence of the

circumstances surrounding the crime. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim.

App. 1984). "Circumstantial evidence alone may be used to prove that a person is a

party to an offense." Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006)

(citations omitted); Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.—Corpus Christi

2000, pet. ref'd).

B. The Evidence

       At trial, Robert Pieper, the clerk at the convenience store where the theft occurred,

testified about the events surrounding the incident. On the day before the May 11, 2011

theft, Guerra and his co-defendant, Richard Barrientes, came into the store. Pieper

testified that Barrientes ordered a cigar, which Pieper had to retrieve from behind the

register counter. While the two men were in the store, Pieper also had to deal with a

customer in the store's drive-through. Guerra was standing by the magazine rack during

this time.    Pieper testified that, while he was dealing with Barrientes and the

drive-through customer, he lost sight of Guerra and the magazine rack area temporarily.

Guerra then asked if he could use the restroom; Pieper pointed Guerra in the direction of


                                              4
the store's restroom. Barrientes and Guerra then left the store. Pieper testified that at

the end of his shift, when he went to clean the store's restroom, he discovered three or

four cardboard dividers in the bathroom. The dividers were used on the magazine rack

to conceal the covers of the pornographic magazines. Pieper testified that it would be

easier to take and conceal a stack of magazines if the dividers were first removed.

      Pieper testified that Barrientes and Guerra returned to the store the following day,

May 11. Guerra, again, stood by the magazine rack and then went into the restroom.

Pieper became suspicious and went to the back of the store, where he found Barrientes

with what appeared to be books under his shirt. Pieper asked Barrientes what was

under his shirt, but Barrientes kept walking. Pieper then placed his hand on Barrientes's

shoulder and asked again about the objects under his shirt, at which point Barrientes

"spun around real quick" and "took off out the door." Pieper instructed another employee

to call the police, and Pieper followed Barrientes outside.     As Pieper was standing

outside, Guerra exited the store, got on his bicycle, and left the scene. Pieper testified

that Guerra rode away in the same direction as Barrientes had fled. When Pieper went

back into the store, he discovered several more of the cardboard dividers in the restroom.

      Next, Corpus Christi Police Officer Bernardino Rodriguez testified that he was the

officer who responded to the theft call. Officer Rodriguez testified that he was given a

description of two individuals by dispatch and was informed that one was traveling on a

bicycle. Before he made contact with the store clerk, Officer Rodriguez patrolled the

area surrounding the store. Officer Rodriguez spotted a man on a bicycle in the parking

lot of a saloon near the convenience store. The man was carrying a black plastic bag.


                                            5
Officer Rodriguez temporarily lost sight of the man as he turned his patrol car around to

drive into the parking lot. When Officer Rodriguez pulled into the parking lot, he saw the

man walking back into the lot from the back side of the building. He no longer had the

plastic bag in his hand. As the man was walking up to Officer Rodriguez, the man stated

that the "other guy" stole the magazines. Officer Rodriguez identified the man who

walked up to him as Guerra.

          Officer Rodriguez testified that another officer then arrived on the scene. 2 The

other officer checked the back of the building from where Officer Rodriguez had seen

Guerra walk. The other officer recovered a black plastic bag from behind the building

that contained several plastic-wrapped pornographic magazines.                          Officer Rodriguez

testified the magazines matched the description of the stolen property reported by the

store clerk. The officers recovered a total of twelve magazines, which they eventually

returned to the convenience store.

          Kimberly Tayleur testified next. She testified that she was a bartender in the

saloon in whose parking lot the officers apprehended Guerra. Tayleur testified that on

May 11, 2011, Guerra came in through the back door of the saloon and offered to sell her

pornographic magazines and a bicycle, both of which Tayleur declined. Guerra also

offered the magazines and bicycle to several of the saloon's customers, all of whom

declined, as well. Tayleur then testified that Guerra had been in the saloon the day

before offering to sell cigarettes and pornography.

          The defense then offered the testimony of Barrientes. Barrientes testified that

          2
              This officer, Hector Carona, later testified and corroborated Officer Rodriguez's account of the
events.
                                                        6
Guerra only went to the convenience store to buy beer and that Guerra had no knowledge

of Barrientes's intent to steal the magazines. Barrientes testified that he formed his

intent to steal the magazines after the two entered the store. Finally, Barrientes testified

that Guerra had already exited the store before Barrientes attempted to steal the

magazines.

C. Analysis

        Guerra argues that the evidence was insufficient to prove he had any knowledge of

Barrientes's plan to steal the magazines. The evidence was sufficient to convict Guerra

as a party to Barrientes's theft.3

        The evidence was sufficient if it showed that Guerra, acting with intent to assist

Barrientes in committing the theft, solicited, encouraged, directed, aided, or attempted to

aid Barrientes to commit the theft. See TEX. PENAL CODE ANn. § 7.02(a)(1). Here, there

was evidence at trial that Guerra went to the convenience store with Barrientes on both

the day of the theft and the day prior. On both days, Guerra was observed standing near

the magazine rack and then going into the bathroom. On both days, Pieper, the store

clerk, discovered cardboard dividers in the restroom that were used to cover the

pornographic magazines; Pieper testified that the magazines would be easier to take and

conceal with the dividers removed from the shelves. Pieper also testified that after he

chased Barrientes out of the store, Guerra followed closely behind and fled on his bicycle

in the same direction that Barrientes ran.

        The events occurring after Guerra left the convenience store were also telling.

        3
          The jury charge allowed the jury to convict Guerra as either the principal offender or as a party
participant to Barrientes's theft.
                                                    7
The officers who responded to the theft call saw Guerra riding his bicycle in the parking lot

of the saloon next to the convenience store, carrying a black plastic bag.            Guerra

temporarily disappeared behind the saloon, and when the officers searched the area

behind the saloon where Guerra had been, they discovered a black plastic bag containing

several pornographic magazines.        Finally, the bartender of the saloon testified that

Guerra had been in the saloon on both the day of and the day prior to the theft attempting

to sell pornographic magazines.

       Based on the foregoing evidence, it was rational for the jury to infer that Guerra

aided Barrientes in the commission of the theft. First, the suspicious events described

by the store clerk—Guerra loitering near the magazine rack and restroom and the later

discovery of the cardboard dividers in the restroom—are circumstances from which the

jury could infer that Guerra was working with Barrientes to steal the magazines. See

Patrick, 906 S.W.2d at 487. Next, Guerra's flight from the scene and later attempt to

conceal the magazines by dropping them behind the saloon are circumstances indicative

of guilt. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (recognizing

that "a fact finder may draw an inference of guilt from the circumstance of flight"); see also

Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating that "attempts to

conceal incriminating evidence" are a circumstance of guilt). Finally, Guerra's attempt to

sell pornographic magazines to the bartender and patrons of the saloon immediately after

the theft connects Guerra to the stolen property and is yet another circumstance from

which the jury could infer guilt. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim.

App. 2006) ("[A] defendant's unexplained possession of property recently stolen in a


                                              8
burglary permits an inference" of guilt.). Although there was conflicting testimony from

Barrientes regarding Guerra's participation, it was within the province of the jury in this

case to resolve that conflict, and we will not disturb the jury's resolution on appeal. See

Jackson, 443 U.S. at 326; Garcia, 367 S.W.3d at 687 (citations omitted).

       In sum, there was ample circumstantial evidence that Guerra intentionally aided

Barrientes in stealing the magazines. See Hooper, 214 S.W.3d at 13; Powell, 194

S.W.3d at 506; see also Kuciemba, 310 S.W.3d at 462. Therefore, the evidence was

sufficient to convict Guerra as a party to the theft. See Garcia, 367 S.W.3d at 686–87.

We overrule his first issue.

                         III. Ineffective Assistance of Counsel

       By his second issue, Guerra argues that his counsel was ineffective for failing to

seek rulings on any of Guerra's pre-trial motions, including various discovery motions and

requests for disclosure, a request for a pre-trial hearing, a motion in limine, and motions to

suppress Guerra's statement and certain physical evidence.

       To establish ineffective assistance of counsel, Guerra must show that: (1) his

attorney's representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for his attorney's errors, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 684

(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Our review of counsel's representation is highly deferential, and we will find ineffective

assistance only if Guerra rebuts the strong presumption that his counsel's conduct fell

within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at


                                              9
689; Jaynes, 216 S.W.3d at 851. Guerra must prove ineffective assistance of counsel by

a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

To prove that counsel's performance fell below the reasonableness standard, "the record

must contain evidence of counsel's reasoning, or lack thereof." Moreno v. State, 1

S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet. ref'd).

      Usually, the trial record will not be sufficient to establish an ineffective assistance

of counsel claim. Thompson, 9 S.W.3d at 813–14; Kemp v. State, 892 S.W.2d 112, 115

(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because, normally, a

record is silent with regard to counsel's decision-making processes, and therefore,

appellant often cannot rebut the presumption that counsel's performance was the result of

sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In the case of

such a silent record, "the challenged conduct must be 'so outrageous that no competent

attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim.

App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

      Here, the record is undeveloped as to counsel's motivations in not pursuing the

pre-trial motions identified by Guerra on appeal. Without anything in the record to

demonstrate otherwise, we cannot conclude that counsel had anything other than

plausible reasons for not pursuing rulings on the motions. See Roberson v. State, 852

S.W.2d 508, 510–11 (Tex. Crim. App. 1993) (analyzing counsel's failure to pursue

various pre-trial motions and concluding that a silent record as to counsel's strategies


                                            10
precluded a finding of deficient performance). Neither can we conclude from the record

before us that trial counsel's actions were so outrageous that no competent attorney

would have engaged in them. See Roberts, 220 S.W.3d at 533.

       For the foregoing reasons, we cannot conclude that Guerra has overcome the

strong presumption that his trial counsel provided professional, objectively reasonable

assistance. See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because

Guerra did not establish that his trial counsel's performance fell below an objectively

reasonable standard, he has not met the first prong of Strickland. See Jaynes, 216

S.W.3d at 855. His second issue is overruled.

                                    IV. Conclusion

       We affirm the judgment of the trial court.



                                                            NELDA V. RODRIGUEZ
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
28th day of March, 2013.




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