                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00170-CR

DAVID LEN SIMS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                            From the 13th District Court
                              Navarro County, Texas
                            Trial Court No. D36869-CR


                           MEMORANDUM OPINION


       The jury convicted David Sims of the offense of aggravated robbery, and the trial

court assessed punishment at 82 years confinement. TEX. PENAL CODE ANN. § 29.03 (West

2011). Sims complains that the evidence is insufficient to support his conviction and that

he received ineffective assistance of counsel. Because we find no reversible error, we

affirm the trial court’s judgment.

                              SUFFICIENCY OF THE EVIDENCE

       In the first issue on appeal, Sims complains that the evidence is insufficient to
support his conviction. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:

                When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found 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); Villa v. State,
        514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
        appellate court to defer "to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
        319. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
        S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
        resolved any conflicting inferences from the evidence in favor of the verdict,
        and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
        Crim. App. 2012). This is because the jurors are the exclusive judges of the
        facts, the credibility of the witnesses, and the weight to be given to the
        testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
        Direct evidence and circumstantial evidence are equally probative, and
        circumstantial evidence alone may be sufficient to uphold a conviction so
        long as the cumulative force of all the incriminating circumstances is
        sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
        (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

               We measure whether the evidence presented at trial was sufficient
        to support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is one that "accurately sets out the law, is authorized by
        the indictment, does not unnecessarily increase the State's burden of proof
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        or unnecessarily restrict the State's theories of liability, and adequately
        describes the particular offense for which the defendant was tried." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

        Kalyn Comer testified that on May 18, 2016, she was working at the Tiger Tote

convenience store in Corsicana, Texas when a man entered the store and pointed a gun

at her. The man demanded Comer give him all of the money from the cash register.

Comer testified that the man was wearing white gloves, a dark baseball cap, dark

clothing, and dark shoes. After Comer gave him the money, the man instructed Comer

to get into the store’s cooler. From the cooler, Comer saw the man take lottery tickets.

After instructing Comer to lay down in the cooler, the man left the store with the cash

and the lottery tickets.

        Police officers arrived at the convenience store and obtained video of the robbery.

Officers also obtained video from a convenience store across the street that showed the

suspect leaving the scene in what appeared to be a white Cadillac vehicle. The manager

of the convenience store reported the stolen lottery tickets to the Lottery Commission.

        Officer Jarrett Girard, with the Corsicana Police Department, responded to the

robbery at the Tiger Tote. Officer Girard testified that the day after the robbery he

conducted a traffic stop of a white Cadillac. Sims was driving the white Cadillac, and he

was the registered owner of the vehicle. At the time of the stop, Sims was wearing a dark
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baseball cap and dark colored shoes. Officer Girard issued Sims a warning for the traffic

offense, and he was released.

        On May 20, 2016, officers received information that someone attempted to claim a

prize on one of the lottery tickets stolen from the Tiger Tote. Officers obtained video from

the store and identified Sims as the person attempting to claim the lottery tickets. The

State further presented evidence that someone tried to claim the stolen lottery tickets at

nine locations in Corsicana, and Sims was identified as the person attempting to claim

the tickets at some of those locations. A warrant was issued to arrest Sims and after his

arrest he was interviewed by officers. Sims denied committing the robbery and told the

officers that he found the lottery tickets. Officers obtained a search warrant for Sims’s

vehicle and residence. Four of the stolen lottery tickets were recovered from Sims’s

vehicle as well as four failed claim tickets. During the search of Sims’s residence, officer

found white gloves in the garage.

        Sims specifically argues that the evidence is insufficient to support his conviction

because the only evidence to support his conviction is the possession of the lottery tickets

and he provided a reasonable explanation for his possession of the lottery tickets. The

evidence shows that the suspect in the robbery at the Tiger Tote was driving a white

Cadillac, and Sims was stopped by police driving a white Cadillac that matched the

description. Sims was also wearing clothing that matched that worn by the suspect. Sims

was identified attempting to claim the stolen lottery tickets, and the stolen tickets were


Sims v. State                                                                         Page 4
located in his vehicle. Sims gave conflicting explanations to the police on how he

obtained the tickets, but denied committing the robbery. Jurors are the exclusive judges

of the facts, the credibility of the witnesses, and the weight to be given to the testimony.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We find that the evidence is

sufficient to support Sims’s conviction for aggravated robbery. We overrule the first

issue.

                           INEFFECTIVE ASSISTANCE OF COUNSEL

         In the second issue, Sims complains that he received ineffective assistance of

counsel. To prevail on a claim of ineffective assistance of counsel, appellant must satisfy

the two-prong test by a preponderance of the evidence showing that: (1) his attorney's

performance was deficient; and (2) his attorney's deficient performance deprived him of

a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Unless appellant can prove both prongs, an appellate court must not find

counsel's representation to be ineffective. Id. at 687, 104 S. Ct. 2052. In order to satisfy

the first prong, appellant must prove, by a preponderance of the evidence, that trial

counsel's performance fell below an objective standard of reasonableness under the

prevailing professional norms. To prove prejudice, appellant must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.

         Sims complains of four instances where his trial counsel was deficient: 1) failing


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to review and object to the introduction of States Exhibit 16-A; 2) failing to object to the

prosecutor’s comments and evidence introduced; 3) failing to object to portions of State’s

Exhibits 17-A and 17-B; and 4) failing to object to the jury charge or request an instruction

on the requirement that extraneous offenses be proven beyond a reasonable doubt.

        State’s Exhibit 16-A contains video clips from security cameras. Sims contends

that these videos were not properly authenticated. The manager of Tiger Tote testified

that 16-A contains video from the robbery. Sims’s trial counsel took the manager on voir

dire to question her about the video. After reviewing the video, the manager stated that

it had not been altered and was a fair depiction of what she viewed after the offense. Trial

counsel did not object to the admission of the exhibit.

        Trial counsel questioned the manager of the Tiger Tote about how busy the store

was around the time of the robbery and if it was typical for some stores to be more busy

than others. The manager responded that there had been recent robberies in Corsicana

and that as a result she had two employees in the store rather than one even during slow

periods. The State later elicited testimony from the manager on the string of robberies in

Corsicana.

        State’s Exhibits 17-A and 17-B contained clips of Sims’s interview with police

officers after his arrest. When the State offered the exhibits into evidence, trial counsel

noted that there was information in the exhibits that needed to be redacted. The State

agreed and stated that they did not intend to play the videos for the jury.


Sims v. State                                                                          Page 6
        Sims contends that during the trial the State was able to introduce evidence of

extraneous offenses. Sims argues that his trial counsel was ineffective in failing to request

an instruction to the jury that they cannot consider any extraneous offenses unless they

believe beyond a reasonable doubt that Sims committed the act.

        In order for an appellate court to find that counsel was ineffective, counsel's

deficiency must be affirmatively demonstrated in the trial record; the court must not

engage in retrospective speculation. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). "It is not sufficient that appellant show, with the benefit of hindsight, that his

counsel's actions or omissions during trial were merely of questionable competence."

Lopez v. State, 343 S.W.3d at 143. When such direct evidence is not available, we will

assume that counsel had a strategy if any reasonably sound strategic motivation can be

imagined. Id. In 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. Id.

        In the absence of evidence of counsel's reasons for the challenged conduct, an

appellate court commonly will assume a strategic motivation if any can possibly be

imagined. See Ex parte Saenz, 491 S.W.3d 819, 828 (Tex. Crim. App. 2016). To successfully

assert that trial counsel’s failure to object amounted to ineffective assistance, the

defendant must show that the trial judge would have committed error in overruling such

an objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).


Sims v. State                                                                          Page 7
        There is no explanation in the record for trial counsel’s failure to object to the

admission of evidence or to request a jury instruction. Therefore, the presumption of

sound trial strategy cannot be overcome. Id. We overrule the second issue.

                                            CONCLUSION

        We affirm the trial court’s judgment.




                                                TOM GRAY
                                                Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Senior Justice Scoggins1
Affirmed
Opinion delivered and filed February 13, 2019
Do not publish
[CRPM]




1The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

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