                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-14-00362-CR
                            ____________________

                   TAVARIS DON COLEMAN, Appellant

                                       V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 221st District Court
                      Montgomery County, Texas
                    Trial Cause No. 13-10-10974 CR
__________________________________________________________________

                         MEMORANDUM OPINION

      A jury convicted Tavaris Don Coleman of aggravated robbery, and the trial

court sentenced Coleman to forty-five years in prison. In four appellate issues,

Coleman challenges the sufficiency of the evidence, the denial of his motion for

directed verdict, the effectiveness of his trial counsel, and the exclusion of his

family members from the courtroom during voir dire. We affirm the trial court’s

judgment.



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                                     Background

      Coleman was charged with both aggravated robbery and evading arrest or

detention with a vehicle. At trial, Douglas Donnenfield testified that he was seated

in his vehicle in a parking lot of a business when a red vehicle stopped beside him

and two men emerged and ran toward Donnenfield’s vehicle. Donnenfield testified

that the first man punched him in the neck, pinned him to the seat, reached for

Donnenfield’s wallet and cell phone, and demanded money. Donnenfield testified

that the second man pointed a gun at him and he was afraid the man would shoot

him. Donnenfield told the men that he had no other money, and the men ran back

to the red vehicle. He described the men as late teens or early twenties and wearing

t-shirts and basketball shorts. Donnenfield testified that the first three letters of the

red vehicle’s license plate were “DD4” and that a third man was driving the red

vehicle. He testified that the red vehicle drove toward Woodlands Parkway. At

trial, Donnenfield did not recognize Coleman as one of the assailants. He explained

that he had not looked at his assailants’ faces.

      Sergeant Kenton Ford testified that he saw a red vehicle matching

Donnenfield’s description, including the “DD4” license plate, and pursued the

vehicle, but the vehicle accelerated and would not stop. Deputy Steven Ortiz, who

also pursued the vehicle, testified that someone inside the vehicle threw an item

                                           2
out of the window during the pursuit. Deputy Ryan Mathis testified that officers

later recovered a firearm from the area where the suspect was seen throwing an

item from the red vehicle. The firearm matched that used in the robbery.

         The red vehicle eventually wrecked, and Ortiz saw three men flee from the

vehicle. Ortiz and Mathis both identified Coleman as one of the men in the red

vehicle. Sergeant John Schmitt testified that once apprehended, the suspects were

identified as Frederick Robinson, Edward Brightmon, and Coleman. Coleman was

apprehended wearing a t-shirt and basketball shorts. Schmitt testified that

Donnenfield could not identify the suspects as the men who robbed him.

         Officers recovered four cell phones from the red vehicle and two on

Coleman’s person. Deputy Amy Blackwelder verified that she recovered some of

Donnenfield’s belongings that had been scattered in the median on Woodlands

Parkway. Investigators were unable to obtain latent fingerprints or DNA on these

items.

                             Sufficiency of the Evidence

         In issue one, Coleman contends that the evidence is insufficient to support

his conviction for aggravated robbery. 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

                                          3
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (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, weigh the evidence,

and draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13.

      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)(2) (West 2011). A firearm is a deadly weapon per se.

Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005). “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.” Tex. Penal Code Ann. § 7.01(a) (West 2011). A person is criminally

responsible for an offense committed by another when, “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)(2).

“Each party to an offense may be charged with commission of the offense.” Id. §

7.01(b). The jury may consider “events occurring before, during and after the

                                          4
commission of the offense, and may 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). “[C]ircumstantial

evidence may be used to prove party status.” Id.

      On appeal, Coleman maintains that the evidence failed to establish that he

was present during the robbery or committed the robbery. The jury heard evidence

that the two men who attacked Donnenfield were passengers in a red vehicle being

driven by a third man and that officers subsequently apprehended Coleman and

two other men fleeing from a red vehicle matching Donnenfield’s description. The

jury also heard evidence that Donnenfield’s assailants wore t-shirts and basketball

shorts, which Coleman was wearing when apprehended by police. Donnenfield’s

stolen belongings were found either in the red vehicle or scattered along the route

the vehicle took during the police pursuit. Officers also retrieved a firearm

matching the description given by Donnenfield.

      Based on the events that occurred before, during, and after the offense, the

jury could reasonably conclude that Coleman acted with intent to promote or assist

commission of the aggravated robbery by aiding or attempting to aid the offense.

See Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2); see also Ransom, 920 S.W.2d at

302; Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (“Evidence of

                                         5
flight is admissible as a circumstance from which an inference of guilt may be

drawn.”). Viewing all the evidence in the light most favorable to the verdict, the

jury could conclude, beyond a reasonable doubt, that Coleman committed the

offense of aggravated robbery. See Jackson, 443 U.S. at 318-19; Hooper, 214

S.W.3d at 13; see also Tex. Penal Code Ann. § 7.01(b). We overrule issue one.

                        Dismissal of Evading Arrest Charge

      In issue two, Coleman argues that the trial court improperly granted the

State’s motion to dismiss instead of granting Coleman’s motion for a directed

verdict on the evading arrest charge. At trial, defense counsel objected to dismissal

of the charge on grounds that Coleman sought a directed verdict on the charge. The

trial court denied Coleman’s request for a directed verdict and granted the State’s

motion to dismiss the evading arrest charge. The trial court informed the jury that

the evading arrest charge was no longer part of the case. On appeal, Coleman

contends that the dismissal violated his right to a fair trial by allowing the State to

present evidence of the evading arrest charge and to leave the jury with a false

impression.

      The State may, with the trial court’s permission, dismiss a criminal action at

any time. Tex. Code Crim. Proc. Ann. art. 32.02 (West 2006). A criminal action

may be dismissed after jeopardy attaches, in which case the Double Jeopardy

                                          6
Clause bars the State from later prosecuting the defendant for the offense for which

he had been placed in jeopardy of conviction. Ex parte Goodman, 152 S.W.3d 67,

71 (Tex. Crim. App. 2004). In this case, the charge was dismissed after jeopardy

had attached; thus, the State could not re-prosecute Coleman for that offense. See

id. The trial court instructed the jury that it should not concern itself with the

evading arrest charge, and we assume the jury followed that instruction. See Thrift

v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). Moreover, we cannot say

that the admission of evidence regarding the evading arrest charge caused harm to

Coleman, as the jury was entitled to consider Coleman’s flight from police as

evidence of his guilt. See Foster, 779 S.W.2d at 859. The State was entitled to seek

a dismissal of the charge, and the trial court was within its discretion to grant the

motion. See Tex. Code Crim. Proc. Ann. art. 32.02. We overrule issue two.

                               Ineffective Assistance

      In issue three, Coleman complains that he received ineffective assistance of

counsel during trial. At trial, Coleman’s defense counsel stated that:

      [Coleman] was previously convicted of engaging in organized crime
      in Harris County, Texas, in a court where I was the chief prosecutor.
      He knows that I was the chief prosecutor . . . at the time. The case was
      actually assigned to a different prosecutor, but I want it on the record
      that it was discovered and disclosed to the State and my client and he
      has waived it. . . .


                                          7
On appeal, Coleman argues that defense counsel’s prior service as the Harris

County chief prosecutor during his Harris County conviction constitutes a conflict

of interest.

       When an appellant alleges ineffective assistance based on a conflict of

interest, he must show that trial counsel had an actual conflict of interest and that

said conflict actually colored trial counsel’s conduct at trial. Odelugo v. State, 443

S.W.3d 131, 136 (Tex. Crim. App. 2014). An actual conflict of interest exists when

trial counsel must make a choice between advancing his client’s interest in a fair

trial or advancing other interests to his client’s detriment. Id. The appellant must

identify specific instances in the record that indicate a choice that counsel made

between possible alternative courses of action, such as eliciting evidence that is

helpful to one interest and harmful to the other. Perez v. State, 352 S.W.3d 751,

755 (Tex. App.—San Antonio 2011, no pet.).

       Coleman complains that trial counsel (1) referenced her prior working

relationship with the Montgomery County prosecutor, and (2) while cross-

examining a witness regarding Coleman’s Harris County offense, counsel made

herself a witness by asking questions based on facts she learned while she was the

chief prosecutor in Harris County. He contends the trial court should have

conducted a hearing to insure that Coleman was aware of the conflict and waived

                                          8
his right to conflict-free counsel. However, the instances of which Coleman

complains do not indicate that Coleman’s defense counsel actually acted on any

conflict of interest by making a choice that advanced the State’s interest over

Coleman’s interest and to his detriment. See Odelugo, 443 S.W.3d at 136; see also

Perez, 352 S.W.3d at 755. Absent such evidence, Coleman has failed to satisfy his

burden of proving an actual conflict that adversely affected defense counsel’s

performance at trial. See Odelugo, 443 S.W.3d at 136. Thus, the trial court was not

required to conduct a hearing on waiver. See Perez, 352 S.W.3d at 756 (A trial

court is not required to hold a hearing unless the court knows or should reasonably

know of an actual, not a potential, conflict.).

      Coleman also complains that his trial counsel rendered ineffective assistance

by (1) failing to strike a juror who expressed the belief that a person is a party to an

offense if he was present but not a participant in the offense; (2) failing to seek a

directed verdict on aggravated robbery; and (3) failing to present mitigating

evidence during punishment. To establish ineffective assistance, Coleman 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

                                           9
      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 (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 overcome the presumption that

counsel’s conduct was reasonable and professional.” Id.

      The record does not indicate that Coleman alleged ineffective assistance in

his motion for new trial. The record is silent as to trial counsel’s tactical and

strategic decision-making. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim.

App. 2010). Moreover, Coleman 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.
                                        10
State, 125 S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances,

Coleman cannot defeat the strong presumption that counsel’s decisions during trial

fell within the wide range of reasonable professional assistance. See Thompson, 9

S.W.3d at 814. We overrule issue three.

                                     Voir Dire

      In issue four, Coleman challenges the exclusion of his family members from

a portion of voir dire. Coleman filed a motion for abatement with this Court on

grounds that an evidentiary hearing was required for the trial court to address this

issue. This Court denied the motion to abate. On appeal, Coleman re-urges his

perceived need for an evidentiary hearing.

      A defendant may file a motion for new trial no later than thirty days after the

date when the trial court imposes sentence in open court. Tex. R. App. P. 21.4(a).

Within thirty days after the date when sentence is imposed but before the trial court

overrules any preceding motion for new trial, a defendant may, without leave of

court, file an amended motion for new trial. Tex. R. App. P. 21.4(b). The trial court

sentenced Coleman on August 24, 2014. Coleman filed his original motion for new

trial on September 4. On November 12, more than thirty days after sentence was

pronounced, Coleman filed an amended motion for new trial, in which he alleged

for the first time that his family had been excluded from a portion of the voir dire

                                          11
proceedings. The record does not indicate that Coleman received leave of court to

file the untimely motion.

      “Even where the original motion for new trial is timely, an untimely

amended motion for new trial is a nullity and cannot form the basis for points of

error on appeal.” Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.—Corpus Christi

1998, pet. ref’d). Accordingly, issue four is overruled. See id. Having overruled

Coleman’s four issues, we affirm the trial court’s judgment.

      AFFIRMED.


                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on October 14, 2015
Opinion Delivered October 28, 2015
Do Not Publish

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




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