                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-11-00464-CR
                            ____________________

                 CHARSTON LOUIS MEACHUM, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________             ______________

                    On Appeal from the 435th District Court
                         Montgomery County, Texas
                       Trial Cause No. 11-04-03884 CR
________________________________________________________             _____________

                          MEMORANDUM OPINION

      A jury convicted Charston Louis Meachum of six counts of aggravated

robbery and sentenced Meachum to life in prison on each count. In three appellate

issues, Meachum challenges the denial of his motion for directed verdict and

contends that he received ineffective assistance at trial. We affirm the trial court’s

judgment.




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                               Factual Background

      The aggravated robberies occurred at a pharmacy and a bank branch located

inside a Kroger grocery store. LeAnndria Crawford, a bank teller, testified that

someone jumped over the counter, ordered her to open the safe, and put a gun in

her face. Dirk Strouse, the branch supervisor, testified that another gunman

approached him. The man told Strouse not to “do [anything] stupid” and to turn

around or he would shoot Strouse.

      Another gunman approached the pharmacy window and pointed a gun at

Kayla Aleman, a pharmacy employee. The man told Aleman to get off the

telephone and get on the floor. Customers Maraia Paogoa and Mark Alexander and

pharmacy technician Kathy Martin testified that the man also pointed a gun at them

and told them to get down on the floor. In the bank, the gunman again told

Crawford to open the safe and shoved the gun onto her lip.

      Officer Ralph Craig testified that the sheriff’s department aired an attempt to

locate a BMW, occupied by African-American men, that had been involved in a

bank robbery. Detective Ricky Cathey testified that he saw an African-American

male run from a blue van parked on the shoulder of the road and jump into a BMW

that was parked in the center of the road. The BMW then sped away. Officers later

discovered the van had been reported stolen and the BMW belonged to Meachum.

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Detective Ben Mitchell testified that Kroger’s surveillance system captured images

of the van in the Kroger parking lot.

      Cathey followed the BMW, traveling in excess of one-hundred miles per

hour. William Smith testified that the BMW sped past him, swerved, struck the

curb, and spun around, and that several African-American men ran from the scene.

Detective Jason Waller testified that he searched the surrounding woods and saw

an African-American male crouching down in a wooded area in an apparent

attempt to hide. Waller testified that the man was sweating and appeared tired and

afraid. After two or three commands from Waller, the man finally complied with

Waller’s orders to exit the wooded area. Waller identified the man as Meachum.

      Officers investigating the accident scene located firearms, clothing, gloves,

and a duffle bag. Detective Ben Mitchell testified that one of the suspects inside

Kroger wore red pants and carried a firearm. Mitchell believed this suspect to be

Meachum because the clothing that he obtained after Meachum’s capture matched

the clothing that the suspect wore. Jennifer Moreno, a forensic scientist, testified

that the DNA profile from the red pants is consistent with Meachum’s DNA profile

and that Meachum was the major contributor to DNA found on gloves and a jacket.

      Crawford testified that, during the robbery, she believed the gunman planned

to shoot her. Aleman and Paogoa also feared being shot and, thus, followed the

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gunman’s instructions. Strouse, Martin, and Alexander each testified to feeling

threatened. The witnesses could not identify the gunmen, but testified that the men

wore masks.

                            Motion for Directed Verdict

      In issues one and two, Meachum challenges the trial court’s denial of his

motion for directed verdict. “We treat a point of error complaining about a trial

court’s failure to grant a motion for directed verdict as a challenge to the legal

sufficiency of the evidence.” Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

App. 1996). Under a legal sufficiency standard, we assess all the evidence in the

light most favorable to the prosecution to determine whether any rational trier of

fact could find the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to

the jury’s responsibility to fairly resolve conflicting testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13.

      At trial, the defense moved for a directed verdict on grounds that no

reasonable juror could find, beyond a reasonable doubt, that the State proved its

case. The trial court overruled the motion. On appeal, Meachum contends that the

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State failed to prove that anything of value was taken from the complaining

witnesses or that Meachum was the person who committed the offenses. Meachum

further contends that the evidence failed to demonstrate that he acted as a

participant in the offenses.

      The charge authorized the jury to convict Meachum either as a principal or

as a party to the aggravated robbery offenses. A person commits aggravated

robbery if (1) “in the course of committing theft” and “with intent to obtain or

maintain control of the property,” he “intentionally or knowingly threatens or

places another in fear of imminent bodily injury or death[;]” and (2) “uses or

exhibits a deadly weapon[.]” Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (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.” Id. § 29.01(1) (West 2011). “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). “Each party to an offense may be charged with commission

of the offense.” Id. § 7.01(b). Under the theory of party liability applicable to this

case, the jury must have found beyond a reasonable doubt that: (1) acting with

intent to promote or assist the commission of the offense, (2) Meachum solicited,

                                          5
encouraged, directed, aided, or attempted to aid the other person to commit the

offense. See id. § 7.02(a)(2) (West 2011).

      The jury may consider “‘events occurring before, during and after the

commission of the offense, and [] rely on actions of the defendant which show an

understanding and common design to do the prohibited act.’” Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1996) (op. on reh’g) (quoting Cordova v. State,

698 S.W2d 107, 111 (Tex. Crim. App. 1985)). “Evidence is sufficient to convict

under the law of parties where the defendant is physically present at the

commission of the offense and encourages its commission by words or other

agreement.” Id. “[C]ircumstantial evidence may be used to prove party status.” Id.

While a suspect’s presence at the scene of an offense is not alone sufficient to

support a conviction, it is “a circumstance tending to prove guilt which, combined

with other facts, may suffice to show that the accused was a participant.” Valdez v.

State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981) (op. on reh’g).

      The jury heard evidence that placed Meachum at the scene of the offenses,

that Meachum’s BMW was used in the robbery, that Meachum’s DNA profile was

consistent with that found on clothing collected by law enforcement, that this

clothing matched that of one of the gunmen in the robbery, that firearms were

recovered from the accident scene, and that Meachum was found hiding in the

                                         6
woods near the area where the crashed BMW was found. The jury also heard

evidence from the witnesses that firearms were used during the robbery and that

the witnesses were in fear of imminent bodily injury or death. That no taking of

property occurred is irrelevant, as the law does not require a completed theft before

a person can be convicted of aggravated robbery. See Tex. Penal Code Ann. §§

29.01(1), 29.03(a); see also Ex parte Hawkins, 6 S.W.3d 554, 559-60 (Tex. Crim.

App. 1999). The jury could reasonably conclude that Meachum, while in the

course of attempting to commit theft and with intent to obtain or maintain control

of another’s property, used a firearm to place six individuals in fear of imminent

bodily injury or death. See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a), 29.03(a).

The jury could also reasonably conclude that Meachum acted with intent to

promote or assist commission of the aggravated robberies by aiding or attempting

to aid the assaults of Strouse, Martin, Paogoa, Alexander, Aleman, and Crawford.

See id. §§ 7.01(a), 7.02(a)(2); see also Ransom, 920 S.W.2d at 302; Valdez, 623

S.W.2d at 321. Viewing all the evidence in the light most favorable to the verdict,

the jury could reasonably conclude, beyond a reasonable doubt, that Meachum

committed aggravated robbery. See Jackson, 443 U.S. at 318-19; see also Hooper,

214 S.W.3d at 13. We overrule issues one and two.




                                         7
                               Ineffective Assistance

      In issue three, Meachum argues that trial counsel provided ineffective

assistance by failing to request a jury instruction on the lesser included offenses of

aggravated assault and attempted robbery. To establish ineffective assistance,

Meachum must satisfy the following test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); see Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). “Any

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). “Appellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within

the wide range of reasonable and professional assistance.” Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002). “Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s representation

was so deficient and so lacking in tactical or strategic decisionmaking as to

                                          8
overcome the presumption that counsel’s conduct was reasonable and

professional.” Id.

      The record does not indicate that Meachum filed a motion for new trial to

allege ineffective assistance. The record is silent as to trial counsel’s strategies and

tactics. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).

Moreover, Meachum cannot demonstrate that, but for counsel’s alleged errors, the

outcome of his trial would have been different. See Graves v. State, 310 S.W.3d

924, 929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is this a case in which trial

counsel’s ineffectiveness is apparent from the record. See Freeman v. State, 125

S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances, Meachum

cannot defeat the strong presumption of reasonable professional assistance. See

Thompson, 9 S.W.3d at 814. We overrule Meachum’s third issue and affirm the

trial court’s judgment.

      AFFIRMED.

                                               ________________________________
                                                       STEVE McKEITHEN
                                                           Chief Justice


Submitted on May 13, 2013
Opinion Delivered June 26, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.
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