      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00229-CR
                                      NO. 03-11-00230-CR



                              Rhonnie Odell Simmons, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
                    NOS. D-1-DC-10-206239 & D-1-DC-10-206238
               HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Rhonnie Odell Simmons of the aggravated robbery of two men

in one incident, and the trial court assessed sentence of two concurrent 15-year terms in prison. On

appeal, Simmons raises three points of error: (1) the evidence was insufficient to prove that he used

the knife as a deadly weapon, (2) the evidence was insufficient to prove that he was trying to

appropriate property without the owner’s consent, and (3) his trial attorney rendered ineffective

assistance of counsel by successfully objecting to a limiting instruction regarding the effect of his

prior convictions. We will affirm the judgments of conviction.


                                         BACKGROUND

               This case arises from an encounter between Simmons and two men on a sidewalk

in Austin on a Sunday afternoon. The two men were housemates who walked to a convenience
store, made purchases, and were returning home when Simmons approached them and asked for

money. One of the victims described Simmons as woozy and jumpy. Simmons asked for money to

buy pizza and “weed” for him and his girlfriend. They offered to give him a dollar, but Simmons

said that was not enough. He offered the men his girlfriend for seven dollars, but they declined.

When they tried to move on, Simmons stepped in their way. Eventually, Simmons pulled out a knife

with a blade at least three inches long. According to the victims, Simmons told an incoherent story,

swung the knife toward one of the men’s throat, said “I could cut you here, I could cut you,” and then

swung the knife about an inch from the man’s torso and said “I could cut you here.” The victim

testified that Simmons turned the knife toward the other man and said, “I could fucking kill you” to

both of them three or four times. The men testified that they were afraid Simmons was going to stab

them. The men told him they didn’t have money with them and would have to go to an automated

teller machine. Simmons agreed that would be a good idea, so all three men went to the nearby

convenience store. Simmons put the knife away when entering.

               At the store, however, the men declined to give Simmons any money and tried to alert

the clerk to the danger. They again offered Simmons a dollar, which he again rejected. Simmons

began talking to other people in the store. He then told the men they were nice guys and that he

would let them go. Still fearing being stabbed the men stayed in the store. Another customer noticed

that Simmons stayed close to the men even when they tried to move away from him. The clerk told

Simmons to leave, which he did. After hearing the men’s story, the customer called the police.

               When police arrested Simmons, they found a knife. Simmons also told the officers

a rambling story involving his girlfriend. He would interject that he told the robbery victims that



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“if I wanted to rob you, I could.” A police officer testified that Simmons’s knife could be a deadly

weapon when used to make slashing motions toward someone.

               Simmons testified that he was high when he sought money. He testified that his

rambling story explained why he needed money. It involved a woman who was waiting for him at

a motel who had become angry with him and threatened him with a knife. Simmons testified that,

when he swung the knife at the men, he was merely re-enacting what the woman had said and done

to him, not threatening the men. They simply misunderstood him.

               The jury, however, convicted Simmons of aggravated robbery.


                                           DISCUSSION

               Simmons raises three points of error: (1) the evidence was insufficient to prove that

the knife was a deadly weapon, (2) the evidence was insufficient to prove that he was trying to

appropriate property without the owner’s consent, and (3) his trial attorney rendered ineffective

assistance by objecting to an instruction regarding the effect of prior convictions, which prevented

the jury from hearing a limiting instruction on the proper use of the convictions.


Deadly Weapon

               The jury found that Simmons committed the robbery using a deadly weapon. To

make a deadly weapon finding, the jury must find that the knife was a weapon that “in the manner

of its use or intended use was capable of causing death or serious bodily injury.” Tex. Penal Code

Ann. § 1.07(a)(17) (West Supp. 2012). When an appellant challenges the sufficiency of the evidence

to sustain a criminal conviction, we must decide whether a rational trier of fact could have found the



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essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324

(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We review all the evidence

is in the light most favorable to the verdict and must assume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports

the verdict. Clayton, 235 S.W.3d at 778.

               We conclude that, although Simmons did not stab the victims, there was sufficient

evidence to support the jury’s finding that the knife was a deadly weapon. The victims’ agreement

that Simmons was telling a rambling story about his girlfriend when he made the slashing motions

with the knife did not foreclose the jury from finding that the knife was a deadly weapon. The jury

saw the knife and heard testimony that its blade was at least three inches long. The jury heard

testimony about Simmons’s verbal threats and slashing motions with the knife at both victims, at

least once coming within an inch of one of the victims. One of the victims described these action

as “fake slashing,” but said he called it “fake” because he was never actually cut. The other victim

explained as follows:


       I mean I felt like he was using the knife to demonstrate what he could do to my friend
       by when he says I can cut you here, I could cut you here, and then turning to me and
       saying with the knife to my chest I could fucking kill you. That doesn’t seem like a
       story you are telling when I am rejecting giving money.


A police officer testified that the knife, so used, could be a deadly weapon. The statute allows a

deadly-weapon finding to be based on the weapon’s intended use. Although Simmons denied

intending the men harm and never directly said “Give me money or I will stab you with this knife,”

the jury could reasonably have found that Simmons was illustrating how he intended to slash the men

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if they did not give him the money he desired. Simmons was also described as woozy and jumpy.

The jury could have concluded that the knife was capable of causing death or serious bodily injury

in the manner in which it was used or was intended to be used. Sufficient evidence supports the

deadly-weapon finding.


Effective consent

                Simmons argues that the evidence is insufficient to support the finding of the

element of robbery that he was trying to appropriate money without the owners’ effective consent.

See Tex. Penal Code Ann. §§ 29.02 (West 2011) & 31.03(b)(1) (West Supp. 2012). Simmons

contends that he was a panhandler who sought only to get money through consent. However, even

if he did not demand money while gesturing with the knife, the sequence of events could imply a

connection between the request for money, the threats, and the slashing motions. The jury could

infer the necessary intent from his actions and the witnesses’ perception of them. Viewed in the light

most favorable to the verdict, the evidence of the threats to cut and kill indicate an intent to override

the victims’ lack of consent to give him money.1


Ineffective assistance of counsel

                Simmons contends that his counsel was ineffective for objecting to the trial court’s

attempt to instruct the jury to consider Simmons’s criminal history for purposes of impeachment

only. The appellant must show that: (1) counsel’s performance was deficient in that it fell below


        1
          Robbery can occur even if no money changes hands because the statute includes threats
made in the course of an attempt to commit theft. Tex. Penal Code Ann. § 29.01(1) (West 2011);
see also id. §§ 29.02-.03.

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an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced

the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding. See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57

(Tex. Crim. App. 1986). To establish deficient performance under the first prong, a defendant

must show that no reasonable trial strategy could justify counsel’s conduct. See Strickland, 466 U.S.

at 689; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). In determining whether an

attorney’s performance was deficient, we apply a strong presumption that the attorney’s conduct

was within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 694-95.

We review the effectiveness of counsel in light of the totality of the representation and the

circumstances of each case. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

A defendant establishes prejudice under the second prong of Strickland if he shows a reasonable

probability—a probability sufficient to undermine confidence in the trial’s outcome—that, but

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

at 812. The appellant must prove ineffective assistance of counsel by a preponderance of the

evidence. Id. at 813.

                Simmons contends on appeal that his trial counsel was ineffective because he

refused to allow the trial court to instruct the jury to consider his criminal record only as it affected

his credibility. He admitted on cross examination to eight prior felonies for delivery of a controlled

substance, credit card abuse, possession of a controlled substance (four counts), and unauthorized

use of a motor vehicle (four counts). Trial counsel did not request a limiting instruction at the

time or when the jury charge was being prepared. See Tex. R. Evid. 105(a), 609. After closing



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arguments, the trial court announced its intention to give a limiting instruction, but acceded

to Simmons’s counsel’s objection to the proposed additional instruction. On appeal, Simmons

contends that his trial counsel’s actions were not part of a reasonable trial strategy, did not protect

his client’s rights, and constituted deficient performance. Simmons contends that counsel’s deficient

performance tilted the jury toward conviction in this case in which his intent was hotly contested and

credibility was key. He contends that, had the jury been limited to considering his criminal record

for purposes of impeachment, it probably would not have convicted him. Instead, he argues, that the

jury was free to convict him as a bad guy and did so.

                We conclude that Simmons has not carried his burden to show that trial counsel

provided ineffective assistance. There is no statement or testimony from trial counsel regarding

what strategy he intended to further by his objection.2 The State posits that trial counsel might have


       2
          We do not agree with Simmons’s assertion that trial counsel admitted he was acting
deficiently in objecting to the limiting instruction. When the trial court asked if either side objected
to the proposed instruction, the following exchange occurred:

[DEF. COUNSEL:]         I guess I will agree to it.

THE COURT:              Yes or no?

[DEF. COUNSEL:]         I mean I can be obstructionist and try to build in error. I guess I object to it.
                        I mean, you know, it is not doing my job.

THE COURT:              Not doing your job to protect the rights?          You don’t want a request
                        specifically is your—

[DEF. COUNSEL:]         Yes.

THE COURT:              I want on the record that the defendant is objecting, consider this defendant’s
                        record to be part of the strategy coming in and therefore I will honor the
                        defendant’s request and not include the charge.

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intended to allow the jury to consider that Simmons’s felonious past was non-violent, and that

the armed robbery alleged was inconsistent with his character. That would be consistent with the

defense’s attempt to show that Simmons did not intend to threaten the victims but was instead telling

a story incoherently because of intoxicants and—unfortunately for all concerned—using a real knife

as a prop. Had the trial court given the limiting instruction, it would have forbidden the jury from

considering the previous offenses for non-credibility issues. However, the lack of a statement from

trial counsel regarding trial strategy also dampens the effectiveness of the State’s theory somewhat.

               The critical weakness in Simmons’s argument on appeal is its failure to consider the

totality of trial counsel’s representation. While an error affecting a single aspect of a trial might

undermine the entire result, it is not clear that occurred here. The record shows that trial counsel

filed relevant motions—including one regarding the State’s intention to introduce Simmons’s

criminal history—and examined witnesses at trial, creating with the victims’ testimony a framework

on which he could hang Simmons’s explanation that the whole event was a misunderstanding.

Trial counsel gained a concession from one of the victims that it was “fair to say” that Simmons was

using the knife to illustrate his rambling story, which could support the misunderstanding theory.

Simmons has not demonstrated that his trial counsel’s failure to obtain or permit a limiting

instruction rendered his entire representation ineffective.

               Even if he established the first prong of Strickland, Simmons has not shown that

the absence of a limiting instruction affected the outcome. Because Simmons and the victims told



We read trial counsel’s statement to be that he would not be doing his job if he allowed the
instruction to be read. His objection was an affirmative choice made in representing his client, not
an overt and admitted ploy to undermine his client.

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versions of events that differed critically on whether Simmons threatened the men in order to obtain

money, the key to the trial was the credibility of the witnesses. Had the limiting instruction been

given, the jury still could have considered his eight prior offenses to impeach his credibility. The

absence of the limiting instruction allowed the jury to consider those offenses for any purpose, but

we do not see how that altered the outcome in a way harmful to Simmons. The prior offenses do not

show character conformity in this case because none of them involved Simmons pulling a knife on

victims. If anything, that contrast might tend to favor acquittal. Because the limiting instruction

would have permitted the jury to consider the offenses for the key issue of credibility—and no

additional factor the jury was allowed to consider is shown to have affected the outcome—we

conclude that the absence of the limiting instruction had no discernible effect on the outcome of the

trial. Simmons has not shown himself entitled to reversal of his convictions based on his counsel’s

successful objection to the limiting instruction.

               The judgments of conviction are affirmed.




                                              Jeff Rose, Justice

Before Chief Justice Jones, Justices Henson and Rose

Affirmed

Filed: August 22, 2012

Do Not Publish




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