                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00055-CR


LADARIUS MARKEITH REED                                          APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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     Appellant Ladarius Markeith Reed appeals his convictions for aggravated

robbery. We affirm.

                             Background Facts

     On June 20, 2012, Nathan Tumanuvao and his girlfriend, Christina Lee,

agreed to meet Tumanuvao’s friend Danny Farmer in a McDonald’s parking lot in



     1
      See Tex. R. App. P. 47.4.
Arlington to purchase a gun. Tumanuvao drove Lee’s car to the parking lot and

waited for Farmer. Around 11:00 p.m., Farmer and Appellant, whom neither

Tumanuvao nor Lee had met before, arrived at the parking lot and got into Lee’s

car.   Farmer sat in the back seat behind Lee, and Appellant sat behind

Tumanuvao. Tumanuvao greeted Farmer and then asked, “Can I see [the gun]?”

Appellant then pointed the gun at Tumanuvao’s head and said, “Run it, I want

everything, give me everything you have.” 2 Tumanuvao asked Farmer, “[W]hat’s

wrong with your friend?” Appellant said, “[E]verybody shut up, everybody—I’m

going to kill everybody in this car.”

       Tumanuvao exited the car. He tried holding the rear driver side door shut

so that Appellant could not get out of the car. Appellant kicked the door open,

knocking Tumanuvao to the ground.        Appellant got out of the car and shot

Tumanuvao in the stomach. Appellant and Farmer then ran off.

       Lee went to call 911 and found that her phone was not in the car. She

found someone in the drive-through lane at the McDonald’s who called 911 for

her. The police arrived, and Tumanuvao was taken to the hospital. Tumanuvao

underwent emergency surgery, but doctors were not able to remove the bullet.

Lee went with police detectives to the police station to give her statement and to

view some lineups. She identified Farmer from one lineup.




       2
       Tumanuvao testified that “run it” means “give me what you got.”


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      The next morning, Lee got on Facebook to see if she could identify any of

Farmer’s friends as the shooter. She saw Appellant’s picture under the name

“Markey Reed.” She called a police detective, gave him the name, and agreed to

return to the police station to view another lineup. She identified Appellant from

that photo lineup.

      Appellant was charged with two counts of aggravated robbery.         A jury

found him guilty on both counts.       During the punishment phase, Appellant

pleaded not true to the enhancement allegations that he had previously been

convicted of a felony. The jury found the enhancement allegations true for both

counts and assessed a punishment of twenty-six years’ confinement for Count 1

and fifteen years’ confinement for Count 2. The trial court sentenced Appellant

accordingly, with both sentences to run concurrently. Appellant then filed this

appeal.

                                   Discussion

I. Enhancement paragraph

      In his first issue, Appellant argues that the evidence is insufficient to

support the findings of true to the enhancement paragraph because the State

failed to prove that he had a previous felony conviction.

      Because the purpose of the enhancement paragraphs is to provide notice,

“‘it is not necessary to allege prior convictions for the purpose of enhancement

with the same particularity which must be used in charging on the primary

offense.’” Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App.—Fort Worth


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2012, pet. ref’d) (quoting Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—

Houston [14th Dist.] 1998, pet. ref’d)). The sufficiency of the evidence should be

measured by the elements of the offense as defined by the hypothetically correct

jury charge for the case, not the charge actually given.      Byrd v. State, 336

S.W.3d 242, 246 (Tex. Crim. App. 2011). This principle applies equally to the

affirmative findings necessary to sustain the imposition of an enhanced

punishment; the sufficiency of the evidence of the enhancements should be

measured by the hypothetically correct jury charge for the enhancement. Young

v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000); see Derichsweiler, 359

S.W.3d at 349.

      Generally, the State must prove enhancement allegations as alleged in the

indictment. Ex parte Augusta, 639 S.W.2d 481, 485 (Tex. Crim. App. 1982),

overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim.

App. 1999).      But a hypothetically correct jury charge need not incorporate

allegations that give rise to immaterial variances between the indictment and the

evidence. See Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001);

Derichsweiler, 359 S.W.3d at 349–50. A variance between the wording of an

indictment and the evidence presented at trial is fatal only if it is material and

prejudices the defendant’s substantial rights. Gollihar, 46 S.W.3d at 257. When

reviewing such a variance, we must determine whether the indictment, as written,

informed the defendant of the charge against him sufficiently to allow him to

prepare an adequate defense at trial. Id.


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      Appellant argues that the State only proved that he had been adjudicated

delinquent by engaging in conduct that would have constituted a felony and not a

felony conviction as the indictment alleged.     However, an adjudication by a

juvenile court that a child engaged in delinquent conduct constituting a felony for

which he was committed to the Texas Youth Commission is considered a “final

felony conviction” for purposes of enhancement.          Tex. Penal Code Ann.

§ 12.42(f) (West Supp. 2013); see Fortier v. State, 105 S.W.3d 697, 701 (Tex.

App.—Amarillo 2003, pet. ref’d). At trial, the State introduced certified copies of

the trial court’s orders adjudicating Appellant delinquent for the offense of

aggravated robbery-deadly weapon, which is a felony, and committing him to the

Texas Youth Commission. See id. § 29.03(a)(2) (West 2011). Weighing the

evidence against the hypothetically correct jury charge and in the light most

favorable to the prosecution, we hold that a rational trier of fact could have

concluded beyond a reasonable doubt that Appellant had previously been

convicted of a felony. See id. § 12.42(f); Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim.

App. 2013). The evidence is therefore sufficient to support the jury’s findings of

true to the enhancement paragraph. We overrule Appellant’s first issue.

II. Lesser-included offense

      In his second issue, Appellant argues that the trial court erred by not

submitting a jury instruction on the lesser-included offense of aggravated assault.

We use a two-step analysis to determine whether an appellant was entitled to a


                                        5
lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993).

      First, the lesser offense must come within article 37.09 of the code of

criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v.

State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). An offense is a lesser-included

offense of another offense, under article 37.09(1), if the indictment for the

greater-inclusive offense either: (1) alleges all of the elements of the lesser-

included offense, or (2) alleges elements plus facts (including descriptive

averments, such as non-statutory manner and means, that are alleged for

purposes of providing notice) from which all of the elements of the lesser-

included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.

Crim. App. 2009) (op. on reh’g). In this case, the indictment alleged all of the

elements of aggravated assault. 3


      3
       The elements of aggravated robbery as alleged in the indictment in Count
1 were that Appellant, at the stated time and place: (1) while in the course of
committing theft of property and with intent to obtain or maintain control of said
property, (2) intentionally or knowingly caused bodily injury, and (3) used or
exhibited a deadly weapon in the form of a firearm. See Tex. Penal Code Ann.
§§ 29.02(a)(1), 29.03(a)(2) (West 2011). The statutory elements of aggravated
assault as applicable to Count 1 are that Appellant (1) intentionally or knowingly
caused bodily injury and (2) used or exhibited a deadly weapon during the
commission of the assault.        See id. §§ 22.01(a)(1) (West Supp. 2013),
22.02(a)(2) (West 2011). The elements of aggravated robbery as alleged in
Count 2 were that Appellant (1) while in the course of committing theft of property
and with intent to obtain or maintain control of said property, (2) intentionally or
knowingly threatened or placed another in fear of imminent bodily injury or death,
and (3) used or exhibited a deadly weapon in the form of a firearm. See id.

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      Second, some evidence must exist in the record that would permit a jury to

rationally find that if the appellant is guilty, he is guilty only of the lesser offense.

Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005); Rousseau, 855 S.W.2d at 672–73. The evidence must be evaluated in

the context of the entire record. Moore, 969 S.W.2d at 8. There must be some

evidence from which a rational jury could acquit the appellant of the greater

offense while convicting him of the lesser-included offense. Id. The court may

not consider whether the evidence is credible, controverted, or in conflict with

other evidence. Id. Anything more than a scintilla of evidence may be sufficient

to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

      Appellant argues that some evidence exists in the record that would permit

the jury to find that he was guilty of only aggravated assault because the

evidence is subject to an alternative interpretation that Appellant shot

Tumanuvao “for reasons that had nothing whatsoever to do with theft (the money

was, after all, left untouched).” The only evidence presented at trial, however,

was that Appellant shot Tumanuvao during the course of a robbery. There was

no evidence that he shot Tumanuvao for any other reason.

      Tumanuvao testified that he asked to see the gun, and Appellant pointed

the gun at Tumanuvao’s head and said, “Give me your shit,” and, “Run it, give


§§ 29.02(a)(2), 29.03(a)(2). The statutory elements of aggravated assault as
applicable to Count 2 are that Appellant (1) intentionally or knowingly threatened
another with imminent bodily injury and (2) used or exhibited a deadly weapon.
See id. §§ 22.01(a)(2), 22.02(a)(2).

                                           7
me your stuff.” Tumanuvao’s girlfriend Lee also testified that Appellant said,

“Run it, I want everything, give me everything you have.”        Lee testified that

Appellant also told Farmer, “[G]ive me what you have too. I’m not playing,” and

that Farmer gave Appellant the money from his pockets. Katina Booker testified

that she drove Farmer and Appellant to the parking lot that night. She waited in

the car while they met with Tumanuvao, and when Farmer and Appellant

returned, they told her that they had just robbed someone.

      To warrant an instruction on the lesser-included offense, “there must be

some evidence directly germane to the lesser-included offense for the factfinder

to consider.” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert.

denied, 523 U.S. 1079 (1998). There is no evidence in this case that if Appellant

was guilty at all, he was guilty only of the lesser-included offense. See Royster v.

State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981) (holding that defendant was

not entitled to charge on lesser-included offense of aggravated assault when only

evidence was that the victim saw defendant run off with a woman’s purse, the

victim gave chase, and the defendant slashed at him with a knife). Thus, the trial

court did not err by refusing the requested instruction on aggravated assault. We

overrule Appellant’s second issue.

III. Variance

      In his third issue, Appellant argues that the evidence is insufficient to

support a conviction under Count 1 because the indictment named the




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complainant as Qumanuvao, but all the evidence concerned a complainant

named Tumanuvao.

       “A ‘variance’ occurs when there is a discrepancy between the allegations

in the charging instrument and the proof at trial.” Gollihar, 46 S.W.3d at 246.

Texas courts routinely treat the issue of variance as one concerning the

sufficiency of the evidence. Id. at 247. The variance must be material to render

the evidence insufficient. Id. at 257. A material variance is one that is likely to

prejudice the defendant's substantial rights by either failing to give the defendant

notice of the charges or by allowing a second prosecution for the same offense.

See Byrd, 336 S.W.3d at 248. Only a material variance between the indictment

and the proof presented at trial renders the evidence insufficient and requires

reversal.   Mueshler v. State, 178 S.W.3d 151, 154 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (citing Gollihar, 46 S.W.3d at 257).      Conversely, an

immaterial variance is disregarded in a sufficiency-of-the-evidence review.

Gollihar, 46 S.W.3d at 258.

      The difference between “Qumanuvao” and “Tumanuvao” is of the kind that

the Court of Criminal Appeals has held to be idem sonans, meaning “the same

sound.” See Flanagan v. State, 620 S.W.2d 591, 597–98 (Tex. Crim. App. 1981)

(op. on rehearing) (holding “Cecil Chatman” and “Cecil Chapman” to be idem

sonans and the variance between them to be immaterial). Appellant contends

that the difference between the two names is so large that he was misled to his

prejudice regarding the identity of the victim. Yet the difference was not so great


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that he objected when the indictment was read in open court alleging that

“Tumanuvao” was the victim 4 or when the jury submitted a question to the trial

court noting that on the second page of the jury charge “Nathan’s name is

misspelled . . . from Tumanuvao to Qumanuvao” and requesting that it be

“corrected in document for proper documentation.” See Martin v. State, 541

S.W.2d 605, 608 (Tex. Crim. App. 1976) (“Questions involving the rule of idem

sonans must be raised in the first instance at trial. If the issue is raised for the

first time on appeal, it will be treated as having been waived and will present

nothing for review.”). We overrule Appellant’s third issue.

IV. Ineffective assistance of counsel

      In his fourth issue, Appellant argues that his trial counsel rendered

ineffective assistance by failing to inform Appellant that there was a deadline by

which he must accept the plea bargain offered by the prosecutor.

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

      4
       The indictment contains an interlineation changing “Qumanuvao” to
“Tumanuvao” with the initials of one of the prosecutors and the date January 17,
2013, which was thirteen days prior to trial. The record is silent, however, as to
whether the amendment was made with the leave of the trial court or after notice
to the defendant. See Tex. Code Crim. Proc. Ann. arts. 28.10(a), 28.11 (West
2006).


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2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In

other words, for a claim of ineffective assistance of counsel to succeed, the

record must demonstrate both deficient performance by counsel and prejudice

suffered by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.

App. 2012).    An ineffective-assistance claim must be “firmly founded in the

record” and “the record must affirmatively demonstrate” the meritorious nature of

the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999)).

      In evaluating the effectiveness of counsel under the deficient-performance

prong, we look to the totality of the representation and the particular

circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether

counsel’s assistance was reasonable under all the circumstances and prevailing

professional norms at the time of the alleged error. See Strickland, 466 U.S. at

688–89, 104 S. Ct. at 2065.       Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

      On January 23, 2013, the Thursday before trial, Appellant’s attorney called

the prosecutor and asked if the prosecutor would offer a plea bargain for a

fifteen-year sentence.     The prosecutor agreed, and Appellant’s attorney

conveyed the offer to Appellant. Appellant’s attorney testified that the prosecutor


                                        11
did not indicate that there was a deadline by which Appellant must accept the

offer and that he did not convey any deadline to Appellant. Appellant’s attorney

stated that Appellant told him, “I can’t do 15,” and asked for a ten-year

agreement. Appellant testified that he told his attorney that he “wasn’t ready” to

accept the offer because he wanted to discuss it with his family. Appellant’s

attorney asked the prosecutor for a ten-year sentence, and the prosecutor

refused.

      On the Monday prior to trial, Appellant’s attorney and the prosecutor again

discussed a plea bargain; Appellant’s counsel requested a twelve-year sentence,

and the prosecutor refused. The prosecutor told Appellant’s counsel that she

was no longer willing to offer a fifteen-year bargain. On the morning of trial,

Appellant’s counsel again attempted to negotiate a plea bargain of ten years’

confinement, which was rejected by the prosecutor. Appellant then agreed to

take the fifteen-year offer. The prosecutor told Appellant “that the offer of 15 was

last week, and it had been rejected, and that the offer today would not go below

20.” Appellant rejected the twenty-year offer.

      Appellant admits that his attorney conveyed to him all of the plea bargains

offered by the prosecutor and that his attorney told him that if a jury found him

guilty, he was likely to “get substantially more than” the minimum sentence of

fifteen years. He argues that his counsel’s performance was deficient because

he




                                        12
      did not explain to appellant that any counteroffers would extinguish
      the fifteen-year offer, because defense counsel did not make the
      counteroffers while expressly reserving the option of accepting the
      fifteen-year offer, and because defense counsel never determined a
      deadline for the fifteen-year offer, and therefore, never
      communicated to appellant the need to expressly accept or reject
      the fifteen-year offer that Thursday, or, at the very least, before the
      weekend, [because] that was the prosecutor’s deadline.

      The Court of Criminal Appeals has held,

      [T]o establish prejudice in a claim of ineffective assistance of
      counsel in which a defendant . . . rejects a plea-bargain because of
      bad legal advice, the applicant must show a reasonable probability
      that: (1) he would have accepted the earlier offer if counsel had not
      given ineffective assistance; (2) the prosecution would not have
      withdrawn the offer; and (3) the trial court would not have refused to
      accept the plea bargain.

Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).

      Here, Appellant failed to prove either deficient performance or prejudice.

Although Appellant testified that he did not tell his trial counsel that he “couldn’t

do 15” and that if he had known that the offer would be withdrawn by Monday

that he would have accepted it, he did admit that he told his attorney to “[g]o ask

for 10” and that he “wasn’t ready” to accept the fifteen-year offer on Thursday.

The trial court, as the trier of fact, was the sole judge of the witnesses’ credibility

and the inferences to be drawn from their testimony. See Melton v. State, 987

S.W.2d 72, 75 (Tex. App.—Dallas 1998, no pet.). The trial judge was free to

believe Appellant’s testimony that he “wasn’t ready” to accept an offer on

Thursday and his counsel’s testimony that he rejected the offer. Indeed, the

record establishes that counsel performed as requested by his client and sought



                                          13
a lower sentence. Appellant has not established that his counsel’s failure to

affirmatively determine a deadline for acceptance of the offer was unreasonable

or unprofessional under the circumstances of this case, and the record supports

that the prosecutor did not communicate a deadline at the time the offer was

made.   Appellant’s counsel communicated all offers completely, timely, and

accurately. We overrule Appellant’s fourth issue.

                                  Conclusion

      Having overruled Appellant’s four issues on appeal, we affirm the trial

court’s judgment.



                                                    /s/ Lee Gabriel
                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

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

DELIVERED: May 29, 2014




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