                          NUMBER 13-07-00492-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


RAY VILLARREAL MERCADO, JR.,                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                  On appeal from the 275th District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

           Before Justices Yañez, Rodriguez, and Benavides
              Memorandum Opinion by Justice Rodriguez

      A jury found appellant, Ray Villarreal Mercado, Jr., guilty of robbery. See TEX .

PENAL CODE ANN . § 29.02(a) (Vernon 2003). After the jury found the enhancement

allegation "true," appellant was sentenced to seven years' confinement and assessed a
$2,000 fine. By two issues, appellant contends the evidence is insufficient to sustain his

conviction and that trial counsel rendered ineffective assistance. We affirm.

                                     I. BACKGROUND

       On January 6, 2007, David Moreno was working as the head of loss-prevention at

a Wal-Mart in McAllen, Texas. Moreno observed appellant select some DVDs from the

new release section and place them in a shopping cart. Moreno followed appellant

because he appeared suspicious. When appellant reached aisle five, he opened the

DVDs with a razor blade, put the discs in his back pocket, and placed the empty cases

back in the shopping cart. Moreno approached appellant and asked him to return the

discs. Appellant denied that he had them and walked away.

       Appellant then suddenly began running and fled the store.           Moreno chased

appellant with Julio Mellado, an assistant manager, joining the chase. The two men caught

appellant approximately twenty feet outside the store's entrance; however, appellant broke

free and ran to a car with a man sitting in the driver's seat of the car and the engine

running. When appellant reached the car, Moreno grabbed appellant in a "bear hug," and

they both "crashed" into the back of the car, slid against the passenger side, and broke the

side mirror. Moreno testified that appellant was struggling and "trying to reach back into

his pocket." As Moreno and Mellado attempted to take appellant's hands out of the pocket,

all three men fell to the ground.

       After Moreno and Mellado lifted appellant off the ground, the driver opened the

passenger side window. Appellant put his head in the window, removed the DVDs from

his pocket, and tossed them into the car. According to Moreno, the driver of the car began

throwing the DVDs under the seat. Moreno stated that with half of appellant's body inside

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the car's window, the driver put the car in gear. Moreno told the driver not to move the car,

and the driver complied. As Moreno and Mellado attempted to pull appellant from the car,

appellant was "kicking and kicking, trying to get free." Appellant kicked Moreno and

Mellado. Moreno testified that he felt physical pain when appellant kicked his leg. Mellado

testified that he believed appellant was kicking them intentionally, so that they would let

him go.

       Moreno and Mellado pulled appellant out of the car and restrained him until the

police arrived. Officer Joe R. Razo, Jr., testified that appellant was uncooperative and that

he refused to walk to the police car. Officers had to forcibly place appellant in the police

car. Once in the car, appellant continued to struggle and hit the window with his head.

Appellant also kicked the window until it broke. Officers removed appellant from the police

car and placed him in a "redman suit," which is a cushioned, protective helmet with a

plastic shield that prevents a prisoner from spitting or hitting his head. The officers

transported appellant to the jail.

       Appellant was charged with robbery and pleaded "not guilty." The jury found

appellant guilty and found the enhancement allegation "true." Appellant was sentenced

to seven years' imprisonment and assessed a $2,000 fine. This appeal ensued.

                             II. SUFFICIENCY OF THE EVIDENCE

       By his first issue, appellant contends that the evidence is insufficient to support the

verdict.

                      A. Standard of Review and Applicable Law

       In conducting a legal sufficiency review, we view the evidence in the light most

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

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essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979));

Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). We do not reevaluate

the weight and credibility of the evidence, and we do not substitute our own judgment for

the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc);

Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd).

Instead, we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d

at 151.

       When an appellant contends the evidence is factually insufficient, we review the

evidence in a neutral light to determine whether the evidence is so weak that the jury's

verdict seems clearly wrong and manifestly unjust or the jury's verdict is against the great

weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15

(Tex. Crim. App. 2006). This Court will not reverse the jury's verdict unless, we can say

with some objective basis in the record, the great weight and preponderance of the

evidence contradicts the verdict. Id. at 417. "Although authorized to disagree with the

jury's determination even if probative evidence exists which supports the verdict, a

reviewing court must give due deference to the fact finder's determinations concerning the

weight and credibility of the evidence and will reverse the fact finder's determination only

to arrest the occurrence of a manifest injustice." Swearingen v. State, 101 S.W.3d 89, 97

(Tex. Crim. App. 2003).

       Both legal and factual sufficiency are measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet.



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ref'd). Under section 29.02 of the penal code, a person commits robbery if, "in the course

of committing theft as defined in Chapter 31 and with intent to obtain and maintain control

of the property, he intentionally, knowingly, or recklessly causes bodily injury to another."

TEX . PENAL CODE ANN . § 29.02. Chapter 31 of the penal code defines the offense of theft

as the unlawful appropriation of property with the intent to deprive the owner of the

property. Id. § 31.03 (Vernon Supp. 2008). Intent to deprive may be proven by showing

actual deprivation; however, actual deprivation is not an element of intent to deprive.

Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988).

                                      B. Discussion

       Appellant argues that the evidence is legally insufficient to support a conclusion that

he kicked Moreno in the course of committing theft as defined in Chapter 31 because (1)

the DVDs were recovered by Wal-Mart, therefore he did not deprive the owner of its

property, and (2) the DVDs were in the car and within Moreno’s reach when he kicked

Moreno.

       Moreno testified that appellant took approximately twelve DVDs out of their

packages using a razor blade and shoved the DVDs in his back pocket. When Moreno

asked appellant to return the DVDs, appellant denied that he had them and ran out of the

store. Appellant left the store without paying for the DVDs. Appellant attempted to flee the

scene by jumping into a car that had the engine running. While resisting Moreno's

attempts to restrain him, and refusing to return the DVDs, appellant took the DVDs out of

his pocket and threw them inside the car.

       From this evidence, a rational jury could have reasonably inferred and found beyond

a reasonable doubt that appellant intended to deprive Wal-Mart of the DVDs. See Winkley



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v. State, 123 S.W.3d 707, 713 (Tex. App.–Austin 2003, not pet.) (concluding that the fact-

finder determines an intent to deprive from the words and acts of the defendant and the

surrounding circumstances). Furthermore, the fact that Wal-Mart recovered the DVDs

does not render the evidence legally insufficient because actual deprivation is not an

element of intent to deprive. See Rowland, 744 S.W.2d at 612; see also Winkley, 123

S.W.3d at 713.

      Moreover,

      the offense of robbery includes any violence in the course of effectuating the
      theft as well as any violence while in immediate flight from the scene of the
      theft. This new definition of robbery proscribes the use of violence not only
      in the taking of the property, but also in the immediate efforts of the thief to
      keep the stolen property . . . .

Lightner v. State, 535 S.W.2d 176, 177-78 (Tex. Crim. App. 1976). Here, a rational jury

could have found beyond a reasonable doubt that appellant acted violently in an effort to

keep the DVDs. See id. Appellant asserts that once he threw the DVDs into the car, they

were no longer in his possession and that Moreno could have easily recovered them.

However, as the trier of fact, the jury was free to believe Moreno's testimony that, after

appellant threw the DVDs in the car, the driver hid the DVDs under the car seat, and

appellant attempted to flee in the car. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.

Crim. App. 2008). Therefore, the evidence was legally sufficient to support appellant's

conviction.

      Next, appellant generally claims that the evidence is factually insufficient.

Specifically, appellant bases his argument on the following: (1) Moreno testified that

appellant was kicking randomly, (2) when appellant kicked Moreno, he had already put the

DVDs in the car, (3) it was impossible for appellant to kick Moreno in the leg with enough



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force or accuracy to cause pain, and (4) Moreno cannot be certain as to when or how the

pain to his leg was caused. See TEX . PENAL CODE ANN . § 29.02.

       We must give due deference to the fact finder's determinations concerning the

weight and credibility of the evidence, and we will reverse the fact finder's determination

only to arrest the occurrence of a manifest injustice. See Swearingen, 101 S.W.3d at 97.

Here, the jury could have believed (1) Mellado's testimony that appellant was kicking

Moreno intentionally, (2) that appellant kicked Moreno in an effort to keep the DVDs, and

(3) that Moreno felt pain because appellant kicked him.

       Therefore, after reviewing the evidence in a neutral light, we cannot conclude that

the evidence is so weak that the jury's verdict seems clearly wrong and manifestly unjust

or that the jury's verdict is against the great weight and preponderance of the evidence.

Watson, 204 S.W.3d at 414-15. The evidence is factually sufficient to support the verdict.

       We overrule appellant's first issue.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his second issue, appellant contends that his counsel was ineffective by failing

to object to the State's introduction of alleged extraneous offense evidence and by failing

to request an instruction on the lesser-included offense of assault.

                     A. Standard of Review and Applicable Law

       Ineffective assistance of counsel claims are evaluated under the two-part test

articulated by the Supreme Court in Strickland v. Washington. See Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

Strickland test requires that appellant show that counsel's performance was deficient, or



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in other words, that counsel's assistance fell below an objective standard of

reasonableness. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 689, 694.

Assuming appellant has demonstrated deficient assistance, he must then show that there

is a reasonable probability that, but for counsel's errors, the result would have been

different.   Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 689, 694.              In

determining the validity of appellant's claim of ineffective assistance of counsel, "any

judicial review must be highly deferential to trial counsel and avoid the deleterious effects

of hindsight." Thompson, 9 S.W.3d at 813.

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Id. Appellant must overcome the strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance and his

actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes

v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). A reviewing court

will not second-guess legitimate tactical decisions made by trial counsel. State v. Morales,

253 S.W.3d 686, 696 (Tex. Crim. App. 2008). Counsel's effectiveness is judged by the

totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at

813; Jaynes, 216 S.W.3d at 851. Allegations of ineffectiveness must be firmly founded in

the record. Thompson, 9 S.W.3d at 814. The record must sufficiently demonstrate that

the acts or omissions of counsel were not the product of strategic decisions; if the record

is silent as to any explanation for counsel's actions, a reviewing court will find that the

defendant has failed to overcome the strong presumption of reasonable assistance "unless

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




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engaged in it." Morales, 253 S.W.3d at 696-97 (quoting Goodspeed, 187 S.W.3d at 392);

see Thompson, 9 S.W.3d at 814; Jaynes, 216 S.W.3d at 851.

                                       B. Discussion

         Appellant first argues that trial counsel should have objected during Moreno's

rebuttal testimony when Moreno apparently provided a narrative account of a prior run-in

with appellant at a different Wal-Mart store. He also asserts that trial counsel should have

objected to Moreno's statement that "on a previously unrelated occurrence, [he] had a

suspicion that [a]ppellant was shoplifting at another unrelated Wal-Mart store, but that no

theft charges were filed and [a]ppellant was given a criminal trespass citation."       The

record, however, establishes that trial counsel did object to the complained-of testimony

outside the jury's presence. Therefore, appellant's complaint as to this testimony is without

merit.

         Appellant also cites to instances in the record where he alleges that trial counsel

failed to object to the introduction of extraneous offense evidence. However, there was no

motion for a new trial and, therefore, nothing in the record explains why trial counsel did

not object to the complained-of alleged extraneous offenses. We are not required to

speculate on trial counsel's actions when confronted with a silent record. McNeil v. State,

174 S.W.3d 758, 760 (Tex. App.–Waco 2005, no pet.) ("A reviewing court can frequently

speculate on both sides of an issue, but ineffective assistance claims are not built on

retrospective speculation; rather, they must be firmly founded in the record."); McCoy v.

State, 996 S.W.2d 896, 900 (Tex. App.–Houston [14th Dist.] 1999, pet. ref'd); see also

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (providing that there was

no need to speculate as to why appellant's trial counsel decided not to challenge or strike



                                              9
a venire member). Thus, without a record of counsel's reasons for his conduct in this case,

we cannot say appellant has overcome the presumption that counsel's actions were based

on sound trial strategy. See Strickland, 466 U.S. at 689; Gamble v. State, 916 S.W.2d 92,

93 (Tex. App.–Houston [1st Dist.] 1996, no pet.) (concluding, that in light of a silent record,

trial counsel's failure, among other omissions, to object to inadmissable hearsay,

admission of extraneous offense, improper jury argument, and opinion testimony was not

ineffective assistance).

       Finally, appellant contends that trial counsel was ineffective because he did not

request an instruction in the jury charge on the lesser-included offense of assault.

However, appellant has not provided a clear and concise argument with citation to proper

authority to support this contention. TEX . R. APP. P. 38.1(i). Moreover, 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. See Jackson, 877 S.W.2d at 771; cf. Lopez v. State, 838 S.W.2d 758,

759 (Tex. App.–Corpus Christi 1992, no pet.) (holding that to forego requesting a lesser-

included-offense instruction in favor of seeking a full acquittal on the charged offense is a

reasonable trial strategy and therefore not ineffective assistance of counsel).

       Appellant has not established by a preponderance of the evidence that counsel's

performance was deficient. Thompson, 9 S.W.3d at 812, 814 ("Failure to make the

required showing of . . . deficient performance . . . defeats the ineffectiveness claim."); see

Strickland, 466 U.S. at 689, 694. Furthermore, there was sufficient evidence to convict

appellant even absent the alleged ineffectiveness, and no other reason for finding

prejudice due to deficient performance is apparent; therefore, we conclude that appellant



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has failed to meet his burden to establish that there is a reasonable probability that, but for,

counsel's alleged errors, the result would have been different. See Thompson, 9 S.W.3d

at 812; see also Strickland, 466 U.S. at 689, 694. Accordingly, we overrule appellant's

second issue.

                                       IV. CONCLUSION

       We affirm the trial court's judgment.



                                                           NELDA V. RODRIGUEZ
                                                           Justice

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

Memorandum Opinion delivered and
filed this 7th day of May, 2009.




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