Opinion issued May 9, 2013




                                   In The

                             Court of Appeals
                                  For The

                       First District of Texas
                        ————————————
                             NO. 01-12-00488-CR
                             NO. 01-12-00489-CR
                        ———————————
                   DAMIEN LEE GARCIA, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 405th District Court
                         Galveston County, Texas
             Trial Court Case Nos. 09-CR-2345 & 09-CR-2346



                      MEMORANDUM OPINION
      Appellant was charged by indictment with aggravated robbery 1 and unlawful

possession of a firearm. 2 Appellant pleaded not guilty to the offense of aggravated

robbery and guilty to the offense of unlawful possession of a firearm. A jury found

him guilty on both counts. Appellant pleaded true to an enhancement allegation

for each offense, and the jury found the allegations to be true. The jury assessed

punishment at 75 years’ confinement for the offense of aggravated robbery and 20

years’ confinement for the offense of unlawful possession of a firearm. In four

issues, appellant argues (1) he received ineffective assistance of counsel from one

of his pretrial attorneys; (2) the trial court abused its discretion by denying his

motion for new trial on punishment based on alleged evidence of witness coercion;

(3) the evidence is insufficient to support his conviction of aggravated robbery; and

(4) the State failed to properly disclose Brady evidence.

      We affirm in both causes.

                                   Background

      James Carr, complainant, was staying at a friend’s house while his house

was being renovated. On August 11, 2009, he left the house to take laundry to his

mother’s house. After descending the stairs to the house, he was hit on the back of

the head and fell to the ground. Carr looked up and saw a man wearing a black

1
      See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011),
      § 31.03(a), (b)(1) (Vernon Supp. 2012).
2
      See TEX. PENAL CODE ANN. § 46.04(a)(1) (Vernon 2011).
                                          2
mask around his face pointing a gun at him. The man demanded Carr’s watch and

wallet. The man took the watch and wallet and fled the scene.

      Carr got up, ran to his car, and began following the robber. The robber

reached a truck, stopped, saw a police officer in her car, and ran away between

some houses. Carr came up to the officer and explained what had happened. The

officer set up a perimeter of the area, and the police began to search for the robber.

During their search, police received a tip that appellant was hiding underneath a

house in the area. One police officer then found appellant hiding underneath a

house.

      The police officer ordered appellant to come out, and appellant complied.

He was told his Miranda rights. After that, appellant told the police they would

not find a gun where he had been hiding. To the contrary, the police found a gun

as well a cellular phone and Carr’s wallet and watch. Appellant was charged with

aggravated robbery and unlawful possession of a firearm based on a previous

felony conviction. After appellant was arrested, a police officer presented Carr

with a photographic lineup, which included a picture of appellant. Carr identified

appellant.

      Before he retained the attorney that represented him at trial, appellant had

retained two previous attorneys. Certain offers for plea agreements were made by




                                          3
the State at that time.      What offers were made and whether they were

communicated from appellant’s attorneys to him are the subject of dispute.

      During a pretrial hearing before voir dire commenced, appellant’s trial

counsel put appellant on the stand to testify about various offers for plea

agreements that had been made. Appellant testified that his first attorney told him

about a twelve-year offer, which he rejected. Appellant then testified that he later

learned that the twelve-year offer had been repeated to his second attorney. He

further testified that his second attorney never informed him of this renewed offer.

Some time later, the offer went up to sixteen years, which appellant also rejected.

      Appellant’s second attorney was present to testify. She testified that she told

appellant multiple times about the twelve-year offer.       She explained that she

learned from appellant that there had previously been an eight-year offer that

appellant wanted back. She testified that appellant repeatedly refused the twelve-

year offers because he wanted to accept the eight-year offer.

      Appellant testified again after his second attorney testified. His counsel

asked him about the eight-year offer. Appellant testified, “I’ve never heard about

that, sir, ever.” He further testified that, had he been told about the offer, he

“probably would have accepted.”

      In preparation for the trial, the State issued a subpoena for appellant’s ex-

girlfriend to appear for the punishment phase of appellant’s trial. At the time,

                                          4
appellant’s ex-girlfriend had been charged with certain offenses and was out of jail

on bail pending her trial. The State contacted her beforehand to let her know her

attendance was required. The day before trial, the State again attempted to contact

her, but had some difficulty. The lead prosecutor sent an email to the woman’s

attorney, telling him that if she did not show up, the State would seek to have her

bond forfeited.

      Appellant’s ex-girlfriend was present and testified at the punishment phase

of appellant’s trial.     During her testimony, she stated that she knew that her

testimony was unrelated to her pending charges and that no deals had been made in

exchange for her testimony. She testified that she still would have been there even

if there were no charges pending.

      After the trial, appellant filed a motion for new trial arguing the State

improperly coerced his ex-girlfriend to testify. Appellant asked his ex-girlfriend to

testify at his motion for rehearing. She refused. Appellant’s only evidence at the

motion for rehearing was the affidavit of the attorney for appellant’s ex-girlfriend

at the time of appellant’s trial. The attorney explained in the affidavit what the

prosecutors had said to him, but did not identify any verbal, emotional, or physical

response by his client.




                                          5
                           Sufficiency of the Evidence

      In his third issue, appellant argues the evidence is insufficient to support his

conviction of aggravated robbery.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).              This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See Ervin, 331 S.W.3d at 54. Pursuant to this

standard, evidence is insufficient to support a conviction if, considering all the

record evidence in the light most favorable to the verdict, no rational fact finder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).      We can hold evidence to be insufficient under the

Jackson standard in two circumstances: (1) the record contains no evidence, or

merely a “modicum” of evidence, probative of an element of the offense, or (2) the


                                          6
evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at

314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d

at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778.         Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      Appellant does not state whether he is challenging the sufficiency of the

evidence for one or both offenses. We note that appellant pleaded guilty before the


                                         7
jury to the offense of unlawful possession of a firearm. As charged, appellant’s

unlawful possession of a firearm was a felony. See TEX. PENAL CODE ANN.

§ 46.04(a), (e) (Vernon 2011). “In felony cases a plea of guilty before the jury

admits the existence of all necessary elements to establish guilt. . . . In such cases

there is no question of the sufficiency of the evidence on appeal.” Ex parte

Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). Accordingly, to the

degree appellant meant to challenge the sufficiency of the evidence to the offense

of unlawful possession of a firearm, we hold that his plea of guilt establishes the

sufficiency of the evidence.

      For the offense of aggravated robbery, appellant acknowledges that the

evidence establishes that he was apprehended close to the crime scene with the

stolen items and a gun in the location where he was hiding. He also acknowledges

that the complainant identified him as the person who took his belongings at

gunpoint. This is sufficient to support a conviction of aggravated robbery. A

person commits aggravated robbery when the person commits robbery and uses or

exhibits a deadly weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon

2011). A person commits robbery if, in the course of committing theft, and with

intent to obtain or maintain control of property, the person intentionally or

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

Id. § 29.02(a) (Vernon 2011). Theft is the unlawful appropriation of property with

                                          8
the intent to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp.

2012). A firearm is considered a deadly weapon. See id. § 1.07(a)(17)(A) (Vernon

Supp. 2012).

      Appellant acknowledges that, “taken out of context,” this evidence is

sufficient to support a sufficiency of the evidence challenge. Appellant argues that

the evidence necessary to put the evidence in context is his testimony from the

punishment phase of the trial. We disagree. In a challenge of the sufficiency of

the evidence from a felony case tried before a jury, we consider only the evidence

before the jury at the time it rendered its verdict of guilt. Barfield v. State, 63

S.W.3d 446, 450 (Tex. Crim. App. 2001) (citing Munoz v. State, 853 S.W.2d 558,

560 (Tex. Crim. App. 1993)). Aggravated robbery is a felony. TEX. PENAL CODE

ANN. § 29.03(b). Appellant requested and obtained a jury trial. Accordingly, his

testimony during the punishment phase cannot be used to challenge the sufficiency

of the jury’s determinations in the guilt-innocence phase of the trial. See Barfield,

63 S.W.3d at 450.

      We overrule appellant’s third issue.

                        Ineffective Assistance of Counsel

      In his first issue, appellant argues he received ineffective assistance of

counsel.




                                         9
A.    Standard of Review

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,

2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.

2005). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. at 814. We presume that a counsel’s conduct falls within the

wide range of reasonable professional assistance, and we will find a counsel’s

performance deficient only if the conduct is so outrageous that no competent

attorney would have engaged in it. Andrews, 159 S.W.3d at 101.


                                        10
      The Court of Criminal Appeals recently stated that “[i]n making an

assessment of effective assistance of counsel, an appellate court must review the

totality of the representation and the circumstances of each case without the benefit

of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The

court further stated that demonstrating ineffective assistance of counsel on direct

appeal is “a difficult hurdle to overcome.” Id. The court instructed, “[T]he record

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.

B.    Analysis

      Before he retained the attorney that represented him at trial, appellant had

retained two previous attorneys. Certain offers for plea agreements were made by

the State at that time.       What offers were made and whether they were

communicated from appellant’s attorneys to him are the subject of dispute.

Appellant argues that two offers were made that were not communicated to him.

He argues that, because these offers were not made, he received ineffective

assistance of counsel and, accordingly, he should be given a new trial.

      A defendant is entitled to effective assistance of counsel in the plea

bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987).

We apply the Strickland standard in reviewing a claim of ineffective assistance of


                                          11
counsel in the plea bargaining process. Id. Failure of counsel to inform a criminal

defendant of plea offers made by the State constitutes deficient performance. Id. at

74.   In such a situation, the inquiry becomes whether there is a reasonable

probability that, but for the deficient performance, the result of the proceeding

would have been different. See Thompson, 9 S.W.3d at 812.

      Appellant alleges that two offers for plea agreements were made that were

not communicated to him. 3 One was a twelve-year offer. Appellant testified that

his first attorney told him about a twelve-year offer, which he rejected. Appellant

then testified that he later learned that the twelve-year offer had been repeated to

his second attorney. He further testified that his second attorney never informed

him of this renewed offer. Some time later, the offer went up to sixteen years,

which appellant also rejected.

      Appellant’s second attorney was present to testify. She testified that she told

appellant multiple times about the twelve-year offer.       She explained that she

learned from appellant that there had previously been an eight-year offer that

appellant wanted back. She testified that appellant repeatedly refused the twelve-

year offers because he wanted to accept the eight-year offer.



3
      The testimony regarding plea offers was not presented in a motion for new trial
      with a claim of ineffective assistance of counsel. Instead, the testimony was
      presented during a pretrial hearing before voir dire commenced. No relief was
      sought.
                                         12
      Appellant testified again after his second attorney testified. His counsel

asked him about the eight-year offer. Appellant testified, “I’ve never heard about

that, sir, ever.” He further testified that, had he been told about the offer, he

“probably would have accepted.”

      On appeal, appellant argues he received ineffective assistance of counsel

from the first two attorneys due to their failure to communicate the eight-year offer

and a renewed twelve-year offer.

      For the eight-year offer, two parties testified about it: appellant and his

second attorney. Appellant’s second attorney testified that she learned about the

eight-year offer from appellant. Appellant testified that, up until the time he was

testifying, he had never heard about an eight-year offer. If we rely on appellant’s

testimony, there is no evidence of an eight-year offer. If we rely on appellant’s

second attorney’s testimony, there was an eight-year offer, and it had been

communicated to appellant at some point in time. Either way, there is no evidence

that there was an eight-year offer that was not communicated to appellant.

      For the renewed twelve-year offer, the evidence establishes that appellant

rejected an earlier twelve-year offer. While appellant testified that he probably

would have accepted the eight year offer, there is no indication in the record that

he would have accepted the twelve-year offer after rejecting it the first time. That

is, there is no evidentiary basis for us to conclude that circumstances changed

                                         13
enough after the first offer that appellant would have accepted it the second time.

Accordingly, assuming without deciding that the record supports a determination

that appellant’s second attorney’s conduct was ineffective, there is no proof of a

reasonable probability that, but for the deficient performance, the result of the

proceeding would have been different. See Thompson, 9 S.W.3d at 812.

      We overrule appellant’s first issue.

                               Motion for New Trial

      In his second issue, appellant argues the trial court abused its discretion by

denying his motion for new trial on punishment based on alleged evidence of

witness coercion.

A.    Standard of Review

      We review a trial court’s denial of a motion for new trial for an abuse of

discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Anderson

v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We

view the evidence in the light most favorable to the trial court’s ruling and uphold

the ruling if it is within the zone of reasonable disagreement. Webb, 232 S.W.3d at

112. A trial court abuses its discretion in denying a motion for new trial only when

no reasonable view of the record could support the trial court’s ruling. Id. We do

not substitute our judgment for that of the trial court. Id. At a hearing on a motion

for new trial, the trial court is the sole judge of the credibility of the witnesses and


                                          14
the weight to be given their testimony. Melton v. State, 987 S.W.2d 72, 75 (Tex.

App.—Dallas 1998, no pet.).

B.    Analysis

      The State issued a subpoena for appellant’s ex-girlfriend to appear for the

punishment phase of appellant’s trial. At the time, appellant’s ex-girlfriend had

been charged with certain offenses and was out of jail on bail pending her trial.

The State contacted her beforehand to let her know her attendance was required.

The day before trial, the State again attempted to contact her, but had some

difficulty. The lead prosecutor sent an email to the woman’s attorney, telling him

that if she did not show up, the State would seek to have her bond forfeited.

Appellant alleged in his motion for new trial that the State also directly contacted

her and told her the same thing.

      Appellant’s ex-girlfriend was present and testified at the punishment phase

of appellant’s trial.   During her testimony, she stated that she knew that her

testimony was unrelated to her pending charges and that no deals had been made in

exchange for her testimony. She testified that she still would have been there even

if there were no charges pending.

      Appellant asked his ex-girlfriend to testify at his motion for rehearing. She

refused. Appellant’s only evidence at the motion for rehearing was the affidavit of

the attorney for appellant’s ex-girlfriend at the time of appellant’s trial. The


                                        15
attorney explained in the affidavit what the prosecutors had said to him, but did not

identify any verbal, emotional, or physical response by his client.

      Appellant argues that the State’s tactics in securing his ex-girlfriend to

testify constitute official oppression.   Section 39.03 of the Texas Penal Code

provides, “A public servant acting under color of his office or employment

commits an offense if he intentionally subjects another to mistreatment or to arrest,

[or] detention . . . that he knows is unlawful.”          TEX. PENAL CODE ANN.

§ 39.03(a)(1) (Vernon 2011). Appellant argues that the threat of bond forfeiture if

his ex-girlfriend did not comply with the subpoena constituted duress.

      Even assuming that this is a viable claim of official oppression, appellant has

failed to establish how he has been harmed. The threat of bond forfeiture was

made to ensure appellant’s ex-girlfriend appeared to testify.         There were no

conditions placed on the content of her testimony. Even if the threat of bond

forfeiture had not been made, appellant’s ex-girlfriend was still legally obligated to

attend and testify due to the subpoena. Additionally, during her testimony, the ex-

girlfriend acknowledged that no deals had been made in exchange for her

testimony and testified that she still would have been there even if there were no

charges pending.    We hold that, even if the threats of bond forfeiture could

constitute official oppression, appellant has failed to establish that he was harmed.

      We overrule appellant’s second issue.

                                          16
                                  Brady Evidence

      In his fourth issue, appellant argues the State failed to properly disclose

Brady4 evidence. We hold this issue has not been preserved for appeal.

      As part of its investigation, the State obtained a plastic baggie containing

cocaine. Appellant argues that testing for DNA should have been done on the

plastic baggie to support his defensive theory that he and the complainant were

involved in the narcotics trade together. Appellant does not identify any place in

the record, and we find no place in the record, where he objected to this alleged

Brady violation. Because no complaint of a Brady violation was presented to and

ruled on by the trial court, we hold this issue has not been preserved for appeal.

See TEX. R. APP. P. 33.1(a); Keeter v. State, 175 S.W.3d 756, 759–61 (Tex. Crim.

App. 2005) (holding that defendant did not preserve Brady claim for appellate

review when it was not raised in his motion for new trial or during motion for new

trial hearing); Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.—Houston [1st

Dist.] 2003), aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005)

(holding that failure to request continuance waives complaint that State withheld

exculpatory evidence in violation of Brady).

      We overrule appellant’s fourth issue.

4
      See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) (holding
      “the suppression by the prosecution of evidence favorable to an accused upon
      request violates due process where the evidence is material either to guilt or to
      punishment”).
                                         17
                                   Conclusion

      We affirm the judgments of the trial court in both causes.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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