                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00555-CR


RAMIEN JORDAN HENRY                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
                   TRIAL COURT NO. 1312412D

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      A jury convicted Appellant Ramien Jordan Henry of two counts of

aggravated robbery with a deadly weapon and one count of burglary of a

habitation, all charged in a single indictment.   The jury assessed Appellant’s

punishment at five years’ confinement on each count. The trial court sentenced

him accordingly and ordered the three sentences to be served concurrently. In

      1
      See Tex. R. App. P. 47.4.
three issues, Appellant contends that the evidence is insufficient to support the

aggravated robbery conviction of Count Three, the State withheld Brady

material, 2 and trial counsel rendered ineffective assistance.      Because the

evidence is sufficient to support Appellant’s conviction and because the record is

insufficient to support Appellant’s complaints in the remaining two issues, we

affirm the trial court’s judgment.

Brief Facts

      Ross Pardue, Riley Goff, Emily Gates, and Lauryn Fanning were in Ross’s

apartment in Grapevine, Tarrant County, Texas, watching TV and socializing

when Ross answered the front door intending to make a marijuana sale. Instead,

several men entered with handguns, ransacked the apartment looking for

marijuana and money, and left after about fifteen minutes, taking various

electronic and personal items with them. The testimony varied on the number of

assailants and guns involved. Ross maintained that five individuals had entered

the apartment, each with a gun. Emily “vividly” remembered three individuals

entering the apartment and described at least one of them holding a gun. She

also described one man standing over her with a gun, but it is not clear if she

was referring to a second gunman. She said that she was focused on the man

standing over her with a gun and not focused on counting people.



      2
       Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).



                                        2
      Ross insisted that he recognized Appellant as one of the men who came

inside the apartment and ransacked it and that Appellant was holding a firearm

and pointing it at Emily when she photographed him on her cell phone. The

assailants took that cell phone. But at trial, Emily could not identify Appellant as

one of the assailants.

      After Appellant’s arrest in Denton County, Detective Pedro Soltero of the

Grapevine Police Department interviewed him, making a video and audio

recording of the interview.     In the interview, Appellant took some but not all

responsibility for the crimes of that night.

      Ross admitted on the stand that he was actively engaged in buying and

selling marijuana, although he described it as more of a sideline venture to help

his “close friends.” He testified that he had only been involved in selling it for a

few months.

Sufficient Evidence of Aggravated Robbery of Emily with a Deadly Weapon

      In his first issue, Appellant challenges the sufficiency of the evidence to

support his conviction on Count Three, the aggravated robbery allegation naming

Emily as the complainant. In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have




                                           3
found the essential elements of the crime beyond a reasonable doubt. 3 This

standard gives full play to the responsibility of the trier of fact to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. 4

       The trier of fact is the sole judge of the weight and credibility of the

evidence. 5 Thus, when performing an evidentiary sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 6      Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence

when viewed in the light most favorable to the verdict. 7 We must presume that

the factfinder resolved any conflicting inferences in favor of the verdict and defer

to that resolution. 8




       3
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
       4
        Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
       5
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170.
       6
        Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
       7
      Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
       8
        Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.



                                           4
         Appellant’s trial counsel conceded in his opening statement that Appellant

got into a bad situation with some older boys on the night of the robbery. He

admitted that Appellant was present but stated that Appellant did not have a gun

and did not enter the apartment. But in his testimony, Ross identified Appellant

as one of the assailants. Although the evidence showed that when they called

about buying marijuana from him, Ross had given the people who turned out to

be the assailants instructions for finding his apartment, the witnesses described

the assailants as pushing their way into the apartment at gunpoint.

         A person commits robbery if he intentionally or knowingly threatens or

places another in fear of serious bodily injury or death while in the course of

committing theft. 9 The robbery is aggravated if he uses or exhibits a deadly

weapon. 10 Although Emily could not identify Appellant as one of the men who

entered and ransacked the apartment or who pointed a firearm at her head, Ross

recognized Appellant and testified that Appellant had pointed the gun at Emily.

That is sufficient evidence to support Appellant’s conviction as a principal for the

aggravated robbery of Emily. We therefore do not need to address whether the

evidence supported his conviction as a party. 11 We overrule Appellant’s first

issue.

         9
         Tex. Penal Code Ann. § 29.02(a)(2) (West 2011).
         10
             Id. § 29.03(a)(2).
         11
             See Tex. R. App. P. 47.1.



                                          5
Brady Complaint Not Supported by the Record

      In his second issue, Appellant argues that the State failed to disclose

exculpatory evidence as mandated by Brady v. Maryland. 12           To support his

argument, Appellant refers us to a record found on publicdata.com. As Appellant

concedes, this information does        not   appear in the        appellate record.

Consequently, it is not evidence properly before this court, and we may not

consider it. 13 We therefore overrule Appellant’s second issue.

Failure to Prove Ineffective Assistance of Counsel

      In his third issue, Appellant argues that trial counsel rendered ineffective

assistance. To establish ineffective assistance of counsel, Appellant must show

by a preponderance of the evidence that his counsel’s representation was

deficient and that the deficiency prejudiced the defense. 14         An ineffective-

assistance claim must be “firmly founded in the record,” and “the record must

affirmatively demonstrate” the meritorious nature of the claim. 15 Direct appeal is




      12
        Brady, 373 U.S. at 87, 83 S. Ct. at 1196.
      13
        See Leza v. State, 351 S.W.3d 344, 362 (Tex. Crim. App. 2011).
      14
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013).
      15
        Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).



                                        6
usually an inadequate vehicle for raising an ineffective-assistance-of-counsel

claim because the record is generally undeveloped. 16

       It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. 17 Trial counsel “should

ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” 18 If trial counsel is not given that opportunity, we

should not conclude that counsel’s performance was deficient unless the

challenged conduct was “so outrageous that no competent attorney would have

engaged in it.” 19

       In the case now before this court, the evidence is inadequate to allow us to

review Appellant’s claim of ineffective assistance of counsel.       We therefore

overrule Appellant’s third issue.

Conclusion

       Having overruled Appellant’s three issues, we affirm the trial court’s

judgment as to each count.

       16
       Menefield v. State, 363 S.W.3d 591, 592–93; Thompson, 9 S.W.3d at
813–14.
       17
       Menefield, 363 S.W.3d at 593; Mata v. State, 226 S.W.3d 425, 432 (Tex.
Crim. App. 2007).
       18
        Menefield, 363 S.W.3d at 593.
       19
        Nava, 415 S.W.3d at 308.



                                         7
                                       /s/ Lee Ann Dauphinot
                                       LEE ANN DAUPHINOT
                                       JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

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

DELIVERED: March 26, 2015




                               8
