                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-028-CR


KIRK MARTIN BAGBY                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                   STATE

                                    ------------

            FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                 I. Introduction

      Appellant Kirk Martin Bagby appeals his conviction for robbery. In two

issues, he claims that the evidence is legally and factually insufficient to

support the jury’s guilty verdict and that trial counsel was ineffective. We

affirm.



      1
          … See Tex. R. App. P. 47.4.
                                   II. Facts

      James Hamilton, his son Kyle, and Clyde Young traveled from Durant,

Oklahoma, to Wichita Falls, Texas, to install vinyl siding. On May 29, 2007,

after completing the day’s work and eating dinner, James parked his truck in

the parking lot in front of the Econo Lodge Motel and the men retired for the

night to their room on the second floor.

      Around three o’clock in the morning, Clyde woke up to go to the

bathroom. He looked out the window to check the weather and saw the two

passenger-side doors to James’s truck open and appellant removing James’s

tools from inside the truck. Clyde yelled to James that someone was stealing

tools from the truck. James bolted from the bed and out the door, screaming

at appellant as he descended the stairs. Appellant looked up at James, scooped

up some tools, and ran to his car, locking himself in just before James caught

up and tried to punch out the window with his fist.      Appellant started the

motor, put the car in reverse, and backed over James’s left leg and foot,

knocking him to the pavement. Appellant then put the car in drive and turned

the wheels toward James. Clyde had followed James to the parking lot and

yelled for him to move out of the way. Appellant started driving the car toward

James, but as James sprung to his feet, appellant put the car in reverse and

drove away. Clyde noted the license plate number.

                                      2
      James returned to the room and called 9-1-1.         Police arrived within

minutes, subsequently matched appellant to his license plate number, and

prepared a photo line-up from which James and Clyde were able to identify

appellant.

      Appellant was tried before a jury for robbery by intentionally or knowingly

threatening or placing James in fear of imminent bodily injury or death—by

attempting to run him over with an automobile. The jury returned a verdict of

guilty, and the trial court sentenced appellant to seven years’ confinement.

                      III. Legal and Factual Sufficiency

      Appellant’s first issue on appeal challenges the legal and factual

sufficiency of the evidence to support the verdict.

                           A. Standards of Review

      In reviewing legal sufficiency, we consider all the evidence in the light

most favorable to the verdict and determine whether a rational juror, based on

the evidence and reasonable inferences supported by the evidence, could have

found the essential elements of the crime beyond a reasonable doubt.2




      2
      … Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                       3
      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party. 3

We then ask whether the evidence supporting the conviction, although legally

sufficient, is nevertheless so weak that the factfinder’s determination is clearly

wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. 4

      To reverse under the second ground, we must determine, with some

objective basis in the record, that the great weight and preponderance of all the

evidence, though legally sufficient, contradicts the verdict. 5 Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was




      3
      … Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008) cert.
denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.
Crim. App. 2006).
      4
     … Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
      5
          … Watson, 204 S.W.3d at 417.

                                        4
delivered.” 6     Thus, we must give due deference to the factfinder’s

determinations, “particularly those determinations concerning the weight and

credibility of the evidence.” 7

                            B. Elements of Robbery

      A person commits robbery when, in the course of committing theft, and

with intent to maintain control of the property, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death.8

                                     C. Discussion

      Appellant claims that the evidence is legally and factually insufficient to

support his robbery conviction because it does not show that he intentionally

or knowingly threatened or placed James in fear of imminent bodily injury or

death by attempting to run him over with an automobile.

      James testified that while he was on the pavement after appellant had

knocked him down by backing the car over him, he saw appellant aim the

wheels at him, put the car in drive, and head back toward him. Appellant

looked him “square in the eye when he had put it back in drive and was heading

right back toward me.”            Clyde testified that “it looked like [appellant]


      6
          … Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
      7
          … Id. at 9.
      8
          … Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003).

                                           5
straightened up his wheels like he was gonna come back at James” and that

“it looked like he was gonna try to come back on him, but James jumped up so

quick he turned the other way and he took off.” James further testified that

as appellant was trying to run over him he “absolutely” feared imminent bodily

injury or death. Both James and Clyde testified that appellant stopped and

reversed direction only after James had regained his footing and moved out of

the way. Clyde testified that appellant’s driving made him believe appellant

was trying to run over James.

      Viewed in the light most favorable to the verdict, a rational juror could

find beyond a reasonable doubt that appellant intentionally or knowingly

threatened or placed James in fear of imminent bodily injury or death by

attempting to run over him with an automobile.9 Therefore, we hold that the

evidence is legally sufficient.

      Having held the evidence legally sufficient, we also hold that, viewed in

a neutral light, the evidence is factually sufficient.   Appellant asserts that

Clyde’s testimony that “it looked like [appellant] was gonna try to come back

on [James], but James jumped up so quick he turned the other way and he took

off” conflicts with James’s testimony and that it was more credible because



      9
     … See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Hooper, 214
S.W.3d at 13.

                                       6
Clyde was “acting rationally and maintaining distance” and “had [a] clear

opportunity to view the entire situation.”

      Assuming without deciding that Clyde’s testimony conflicts with James’s

testimony, we defer to the jury’s determination of the weight to be given

contradictory testimonial evidence because the record does not clearly reveal

that a different result is appropriate.10    Moreover, we find that the State’s

evidence was not so weak as to render the verdict unfair or manifestly unjust

nor was the evidence that appellant claims does not support the verdict so

overwhelming as to render the verdict unfair or manifestly unjust. 11

      Having found the evidence legally and factually sufficient, we overrule

appellant’s first issue.

                      IV. Ineffective Assistance of Counsel

      In his second issue, appellant claims that his trial counsel provided

ineffective assistance by not requesting that the jury charge instruct the jury on

the lesser included offense of either burglary of a vehicle or theft.




      10
           … See Johnson, 23 S.W.3d at 8.
      11
           … See Watson, 204 S.W.3d at 414–15, 417; Johnson, 23 S.W.3d at
11.

                                        7
       We apply a two-pronged test to ineffective assistance of counsel claims.12

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

preponderance of the evidence that 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.13

       In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case.14 The issue is whether counsel’s assistance was reasonable under all the

circumstances and prevailing professional norms at the time of the alleged

error. 15

       Review of counsel’s representation is highly deferential, and the reviewing

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




       12
        … Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
       13
      … Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Salinas, 163
S.W.3d at 740; Mallett, 65 S.W.3d at 62–63; Thompson, 9 S.W.3d at 812.
       14
            … Thompson, 9 S.W.3d at 813.
       15
            … See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

                                        8
range of reasonable representation. 16          A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective

assistance claim.17 “In the majority of cases, the record on direct appeal is

undeveloped and cannot adequately reflect the motives behind trial counsel’s

actions.” 18      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.” 19 It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. 20

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, that is, a trial

with a reliable result.21        In other words, appellant must show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result




      16
           … Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63.
      17
           … Thompson, 9 S.W.3d at 813–14.
      18
           … Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
      19
           … Id. (quoting Thompson, 9 S.W.3d at 813).
      20
           … Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
      21
           … Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

                                            9
of the proceeding would have been different.22 A reasonable probability is a

probability sufficient to undermine confidence in the outcome.23 The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged.24

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.” 25 Although appellant filed a

motion for new trial, it does not assert that trial counsel’s representation was

deficient, nor is there anything in the record to show that the trial court held a

hearing to inquire into the reasons for trial counsel’s acts or omissions.

Consequently, we cannot determine whether counsel’s actions were grounded

in sound trial strategy because the record is silent as to possible trial strategies,

and we will not speculate on the reasons for those strategies. 26



      22
           … Id. at 694, 104 S. Ct. at 2068.
      23
           … Id.
      24
           … Id. at 697, 104 S. Ct. at 2070.
      25
       … See Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth
2001, no pet.).
      26
        … See id. at 306; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994); cf. Lopez v. State, 838 S.W.2d 758, 759 (Tex. App.—Corpus
Christi 1992, no pet.) (holding that it is a reasonable trial strategy, and
therefore not ineffective assistance of counsel, to forego requesting a lesser
included offense instruction in favor of seeking a full acquittal on the charged
offense).

                                         10
      We hold, therefore, that appellant has failed to show that counsel

provided ineffective assistance, and we overrule his second issue. 27

                                 V. Conclusion

      Having overruled appellant’s issues, we affirm the judgment.




                                                 PER CURIAM


PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 2009




      27
           … See Mallett, 65 S.W.3d at 68.

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