Affirmed as Reformed and Memorandum Opinion filed August 7, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00358-CR

                    TOMMY EARL HUTCHINS, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 232nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1337442

                  MEMORANDUM OPINION

      Appellant, Tommy Earl Hutchins, appeals his conviction for aggravated
robbery. In four issues, appellant contends (1) the trial court erred by refusing to
conduct a hearing on appellant’s motion for new trial, (2) the trial court erred by
denying the motion for new trial, (3) the evidence is legally insufficient to support
the conviction, and (4) the trial court erred by admitting 911 records.

      We conclude appellant’s issues lack merit.             However, there is a
typographical error in the judgment because it states “N/A” for appellant’s pleas,
and the jury’s findings, on two enhancement paragraphs.                   We exercise our
authority to sua sponte reform the judgment to reflect that appellant pleaded “Not
True” to the two enhancement paragraphs and the jury found that both paragraphs
were “True.” 1 We affirm the judgment as reformed.

                                         I. BACKGROUND

         According to the State’s evidence, on Valentine’s Day 2012, the
complainant, Lynda Stallworth, and her friends, Bonnie Dagostino and Victoria
Reed, were selling flowers on the side of a frontage road in Houston. While it was
getting late, but still light out, a Chevrolet Silverado pickup truck, described by
witnesses with varying descriptions of a blue/green/gray color, stopped nearby.
The driver, later identified as appellant, exited the vehicle wearing jeans, a plaid
shirt, a baseball cap, and a yellow/orange reflective vest typically worn by roadside
construction workers.          Appellant approached Dagostino and Reed, who were
seated at a table. Appellant pointed a handgun, which was wrapped in a towel, at
them and demanded money. When the women replied that they did not have any
money, appellant approached in an aggressive manner as though he intended to
search them. Stallworth, who was standing nearby, intervened and stated that she
had some money. While appellant pointed the gun at Stallworth, she gave him $40
from her pocket. When appellant became angry and insisted Stallworth had more
money, she stated there was money in her car. Appellant walked Stallworth to her
car at gunpoint while she begged him not to kill her. Stallworth gave appellant
approximately $700 from the glove compartment. Then, appellant walked to his
truck and left the scene.



         1
             See Tex. R. App. P 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992).

                                                2
      Dagostino’s son, Clutarus Johnson, was seated in his vehicle at a nearby
traffic light. Johnson thought something unusual was occurring because he saw
appellant approach the women and then escort Stallworth to her car.              When
Johnson reached the scene, the women told him they had been robbed. While
Stallworth called 911, Johnson followed the robber’s pickup truck and recorded the
license plate number before losing sight of the truck. Based on that license plate
number, the police determined the truck was registered to appellant.

      Subsequently, in a police photo array, Stallworth positively identified
appellant as the robber, and Dagostino gave what the police called a “tentative”
identification. In a live line-up, Reed positively identified appellant as the robber.

      Appellant was arrested at his home, where the police observed a blue
Chevrolet Silverado pickup truck with the license plate number recorded by
Johnson and registered to appellant. Inside the truck, the police observed an
orange construction vest.

      At trial, all three women identified appellant as the robber. A jury convicted
appellant of aggravated robbery. The jury found two enhancement paragraphs
were “true” and assessed punishment of sixty years’ confinement. After the trial
court rendered judgment, appellant filed a motion for new trial, which the trial
court denied by written order without holding a hearing.

                            II. SUFFICIENCY OF THE EVIDENCE

      We will first address appellant’s third issue, challenging the sufficiency of
the evidence to support his conviction. When reviewing the sufficiency of the
evidence, we view all evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether any rational fact finder could have found the elements of the offense


                                           3
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011). In a sufficiency review, we consider all evidence the jury was permitted to
consider, whether it was properly or improperly admitted at trial. Moff v. State,
131 S.W.3d 485, 488 (Tex. Crim. App. 2004). We do not sit as the thirteenth juror
and may not substitute our judgment for that of the fact finder by re-evaluating
weight and credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). We defer to the jury’s responsibility to fairly resolve conflicts
in testimony, weigh the evidence, and draw all reasonable inferences from basic
facts to ultimate facts. Id. Our duty as reviewing court is to ensure the evidence
presented actually supports a conclusion that the defendant committed the crime.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      A person commits aggravated robbery if (1) in the course of committing
theft, (2) with intent to obtain or maintain control of property, (3) he knowingly or
intentionally, (4) threatens or places another in fear of imminent bodily injury or
death, and (5) uses or exhibits a deadly weapon. See Tex. Penal Code Ann. §§
29.02(a)(2), 29.03(a)(2) (West 2011). Appellant challenges only the sufficiency of
the evidence to support the finding that he was the robber.

      Appellant first contends there were inconsistencies in the testimony of the
witnesses regarding the color of the robber’s pickup truck and his clothing.

      We disagree the testimony was necessarily inconsistent relative to the color
of the truck.   At trial, the three women, respectively, described the color as
“gray/grayish green,” “greenish blue,” and “gray.” Additionally, Johnson testified
that when he arrived at the scene, he was told the robber left in a “blue Silverado”
and as he approached the truck, he noticed it was a “bluish greenish” Silverado.
The jury could have reasonably concluded that different witnesses viewed the same
truck with these varying, but not definitely contrasting, perceptions of the color.

                                          4
      Moreover, the testimony was not inconsistent regarding the clothing worn by
the robber. All three women and Johnson testified the robber wore the type of
yellow/orange reflective vest worn by roadside construction workers. Two of the
women and Johnson testified the robber wore a cap, with one specifying it was a
“baseball” cap. One woman added that the robber wore jeans, and another added
that he wore a plaid short. The fact that one witness omitted mentioning a cap and
two witnesses added specific comments about other articles of clothing to their
descriptions does not make any of the testimony inconsistent.

      Nonetheless, to the extent the testimony may be characterized as
inconsistent, we defer to the jury’s role to weigh any inconsistencies and decide
what testimony to believe from each witness. See Isassi, 330 S.W.3d at 638. The
jury could have relied on the fact that two witnesses relayed (at the scene or at
trial) the truck was a Silverado of some shade of blue and a police officer described
the truck registered to appellant and later found at appellant’s home as a “blue . . .
Silverado.” Further, the jury could have assigned weight to the fact that the police
found a construction vest in appellant’s truck matching that described by all of the
witnesses. Finally, the jury was free to consider any inconsistencies regarding the
color of the robber’s truck and his clothing as insignificant considering (1) the
police determined based on the license plate number that the truck was registered
to appellant and subsequently found at appellant’s home, (2) one of the women
positively identified appellant in a photo array, (3) another identified appellant in a
live line-up, and (4) all three women identified appellant at trial.

      Appellant further mentions that Dagostino made only a tentative
identification of appellant in the photo array.       However, the jury could have
reasonably concluded appellant was the robber based on all of the positive
identification evidence listed above.

                                           5
      Appellant also argues the identifications were “tainted” because the
responding officer spoke with the witnesses collectively at the scene. We defer to
the jury’s role to decide whether the collective interview affected the credibility of
any witness. See id.

      In summary, we conclude the jury could have found beyond a reasonable
doubt that appellant committed aggravated robbery. Accordingly, the evidence is
sufficient to support appellant’s conviction. We overrule his third issue.

         III. REFUSAL TO HOLD HEARING ON MOTION FOR NEW TRIAL

      In his first issue, appellant contends the trial court erred by refusing to hold a
hearing on the motion for new trial.

      We review a trial court’s refusal to hold a hearing on a motion for new trial
under an abuse-of-discretion standard. Smith v. State, 286 S.W.3d 333, 339 (Tex.
Crim. App. 2009). A trial court abuses its discretion if the motion for new trial (1)
raises matters that are not determinable from the record, and (2) establishes the
existence of reasonable grounds showing that the defendant could be entitled to
relief. Id. at 339–40. However, the motion “must be supported by affidavit
specifically showing the truth of the grounds of attack” because “[o]therwise,
general entitlement to a hearing could lead to “‘fishing expeditions.’” King v.
State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).

      In his motion for new trial, appellant contended he received ineffective
assistance of counsel because trial counsel failed to interview appellant’s wife or
call her as a witness when she would have provided an alibi. To prevail on an
ineffective assistance claim, a defendant must show by a preponderance of the
evidence that (1) counsel’s representation fell below the objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s


                                           6
deficiency, the result of the proceeding would have been different. See Strickland
v. Washington, 466 U.S. 668, 687, 694 (1984). To be entitled to a hearing on a
motion for new trial alleging ineffective assistance, a defendant must allege
sufficient facts from which a trial court could reasonably conclude that (1) counsel
failed to act as a reasonably competent attorney and (2) but for counsel’s failure,
there is a reasonable likelihood the outcome of his trial would have been different.
Smith, 286 S.W.3d at 340–41.

       Appellant’s motion raises an issue not determinable from the record—that
trial counsel was ineffective because he failed to interview and present a potential
alibi witness. However, appellant failed to satisfy the second element necessary to
obtain a hearing because he did not allege, with supporting affidavits, sufficient
facts, from which the trial court could reasonably conclude counsel failed to act as
a reasonably competent attorney.

       The only evidence provided in support of the motion for new trial was the
affidavit of appellant’s wife who averred, in pertinent part:

       On February 14, 2011[,] I came home and my husband [appellant]
       decided we would go out to eat. While I was getting ready[,] he said
       he had a run to make. He was gone for about an hour and came home
       with a valentine gift which was a package with different items in it. It
       was about dusk when he got home.

According to appellant, the trial witnesses testified the robbery occurred at dusk,
but the affidavit established appellant arrived home just before dusk. 2



       2
          The wife’s affidavit describes events of “February 14, 2011,” but the incident at issue
occurred February 14, 2012. Possibly, the date in the affidavit was a typographical error.
However, we need not decide whether including a different date than the incident alone
precluded appellant from entitlement to a hearing because the trial court did not otherwise abuse
its discretion by refusing to hold a hearing.

                                               7
      A criminal defense attorney has a duty to make an independent investigation
of the facts of a case, which includes seeking out and interviewing potential
witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
However, appellant presented no evidence that trial counsel failed to interview
appellant’s wife.    In the affidavit, the wife mentioned nothing about whether
counsel spoke to her. Without more to support the motion for new trial, the trial
court would have acted within its discretion by not foreclosing the possibility that
(1) counsel interviewed the wife and she did not provide the information contained
in her affidavit (assuming without deciding it constituted an alibi), or (2) counsel
otherwise had a valid reason that the wife would not be an effective witness. See
Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989,
pet. ref’d) (recognizing it is trial counsel’s prerogative, as a matter of trial strategy
to decide which witnesses to call).

      Therefore, appellant did not present evidence from which the trial court
could reasonably conclude counsel failed to act as a reasonably competent attorney
because he did not interview the wife and present her as a trial witness. See Smith,
286 S.W.3d at 340–41; see also Johnson v. State, 691 S.W.2d 619, 626–27 (Tex.
Crim. App. 1984) (rejecting claim of ineffective assistance for allegedly failing to
interview witnesses because there was no evidence counsel did not interview
witnesses); Cf. Perez v. State, 403 S.W.3d 246, 248–49, 251–52 (Tex. App.—
Houston [14th Dist.] 2008), aff’d 310 S.W.3d 890, 897 (Tex. Crim. App. 2010)
(holding first prong of Strickland was satisfied where evidence showed trial
counsel made only one unsuccessful attempt, on the day of trial, to contact
potential alibi witness suggested by appellant, never visited the witness’s home,
never moved for a continuance to interview the witness, never subpoenaed the



                                           8
witness, failed to search for other possible witnesses, did not interview witnesses,
and spent minimal time preparing for trial).

      Accordingly, the trial court did not abuse its discretion by refusing to hold a
hearing on appellant’s motion for new trial. We overrule appellant’s first issue.

                      IV. DENIAL OF MOTION FOR NEW TRIAL

      In his second issue, appellant argues the trial court erred by denying his
motion for new trial. We review a trial court’s denial of a motion for new trial
under an abuse-of-discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex.
Crim. App. 2014). A trial judge abuses its discretion in denying a motion for new
trial when no reasonable view of the record could support its ruling. Id. We
conclude the trial court did not abuse its discretion by denying the motion for new
trial for the same reason we uphold its refusal to hold a hearing on the motion—
appellant did not present evidence that trial counsel performed deficiently by
failing to interview appellant’s wife. Thus, we overrule appellant’s second issue.

                           V. ADMISSION OF 911 RECORDS

      In his fourth issue, appellant argues the trial court erred by admitting 911
records from the City of Houston. The records are not a transcript of the 911 call,
made by Stallworth. Rather, the records contain information, in the form of
somewhat cryptic entries, apparently obtained by the 911 operator from Stallworth.
At trial, the State offered a business-records affidavit to support admission of the
records. Appellant objected that even if the records were “business records,” they
contained “hearsay within hearsay” as a recording of information provided by
witnesses to the incident. We need not decide whether the trial court erred by
admitting the records because we conclude any error was harmless.



                                         9
      The erroneous admission of hearsay is non-constitutional error. Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). We must disregard non-
constitutional errors that do not affect a criminal defendant’s “substantial rights.”
See Tex. R. App. P. 44.2(b). Under this standard, an error is reversible only when
it had a substantial and injurious effect or influence in determining the jury’s
verdict. Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). We
should not overturn the conviction if we have fair assurance from an examination
of the record as a whole that the error did not influence the jury, or had but slight
effect. Id. Additionally, erroneous admission of evidence is not reversible error if
the same or similar facts are proved by other properly admitted evidence. Brooks
v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717
S.W.2d 622, 627 (Tex. Crim. App. 1986).

      Appellant complains of eight categories of information regarding the
robbery contained in the 911 records: (1) the location; (2) the number of suspects;
(3) the number of victims; (4) the description of the incident; (5) the amount of
money taken; (6) the description of the robber; (7) the color and license plate of the
robber’s vehicle; and (8) statements made by the robber. With three possible
exceptions, the same information was admitted through the testimony of the
witnesses to the incident.

      One exception is that the 911 records show the license plate number of the
robber’s truck as “BH5127,” but testimony reflected that the number provided by
Johnson to the responding police officer was “BH0527”—which matched the truck
registered to appellant and later found at his home. During the chase, Johnson
relayed the robber’s license plate number via cell phone to the women, and
subsequently a number was provided to the responding officer. If anything, this



                                         10
inconsistency was potentially helpful to appellant by raising a question on whether
the robber’s truck was actually registered to appellant. 3

       As another exception, the 911 records reflected the robber was 6'1'' or 6'2'',
40-45 years old, and 200 pounds, which was not included in the description
provided at trial by the witnesses to the incident. However, we have fair assurance
that admission of this additional information (to the extent it accurately described
appellant) did not influence the jury, or had but a slight effect, considering the
strength of all the other evidence, discussed above, identifying appellant as the
robber.

       Finally, the 911 records contained the following entry “Stat he was going to
shoot her if she didn’t give him the money.” It is not clear whether Stallworth
reported that appellant made such a threat or Stallworth reported that she thought
appellant would shoot her. If the latter, the entry effectively mirrored Stallworth’s
testimony that appellant held a gun on her while demanding money and she was
afraid she would be killed.         Alternatively, the testimony did not include any
reference to such an affirmative threat by appellant. Regardless, admission of any
such threat via the 911 records was harmless because Stallworth’s testimony
otherwise proved that appellant threatened or placed her in fear of imminent bodily
injury or death, as required for a conviction.

       In summary, because any error in admitting the 911 records was harmless,
we overrule appellant’s fourth issue.




       3
          However, relative to sufficiency of the evidence, the jury was free to believe that
Johnson correctly recorded the number matching appellant’s truck and it was provided to the
responding officer, but the number was incorrectly relayed by Stallworth to the 911 operator or
incorrectly entered in the 911 records. See Moff, 131 S.W.3d at 488.

                                              11
                               VI. CONCLUSION

      We reform the judgment to reflect that appellant pleaded “Not True” to the
two enhancement paragraphs and the jury found that both paragraphs were “True,”
and we affirm the judgment as reformed.


                                     /s/          John Donovan
                                                  Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                       12
