### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00407- CR

Jerr yl Robin son, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2013 -34 9, H ONO RAB LE GARY L STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J err y l Robinson was convicted of theft. See Tex. Penal Code § 31.03(a) -(b) (setting
out elements of offe nse). Specifica lly , Robinson was acc used of being a party to stealing a box from a CVS Pharmacy that contained 36 car tons of ciga

rettes. The indi ctment alleg ed that the va lue of the stolen proper

ty was betwee n $1,500 and $20,000, see id. § 31.03(e) (4)( A) (explain i n g t hat offe nse i s state-jail fe l o n y if value of proper ty is betwee n $1,500 and $20,000), and contained s ix enhanc ement para g raphs alleg ing that Robinson had previousl y been convicted of six felonies. After the jury found him g uilty , Robinson pleade d true to the enhanc ement alleg ations, see id. § 12.425(b) (ele vating permissible punishment rang e for state-jail felony to that of second- deg ree felony if it is shown that defe ndant was previously convicted of two felo nies and that second previous felony conviction occur

red afte r first one beca

me final), and the jury imposed a sentenc e of f ifteen y ear s’

1imprisonment, see id. § 12.33 (setting out punishment rang es for second- deg ree felony ). On appea l, Robinson contends that the evidenc e is leg ally insufficient to support his conviction, that the district
court err ed by deny

ing his request for

a spee dy trial, and that he was denied eff ective assistance of counsel. We will addre ss Robinson’s sufficie ncy arg ument first and then addre ss the rema inder of his arg uments in the ord er b ri ef ed. After overr

uling all of Robinson’s issues on appea l, we will aff irm the district court’s judg ment of convic tion.

DISCUSSIO N Legal Su ff

iciency I n his third issue on appea l, Robinson contends that the evi d e n c e is le g a ll y in s u f f ic ient
to support his conviction. I n challeng ing the sufficie ncy of his conviction, Robinson contends that “no direc t evidenc e was provided to substantiate the State’s alleg ations as to the quantity of car tons within the stolen box or” to link the theft of the car tons to him. Reg arding the contents of the box , Robinson contends that “none of the video or picture evide n ce submitt ed in trial indicated the

n u mb e r o f c a r to n s a c tu a ll y ta

k e n , ” th a t n o te s ti mo ny w a s e li c it e d r e g a r d in g th e e xa c t n

u mb e r o f c a r to n s in the box that was stol en, that the box was never recove red, and that the only evidenc e reg arding the value of the proper

ty or the contents of the box was a ledg er cre ated by a CVS employ ee. Moreove r, Robinson asser ts that during the t ri al , testimony was introduced establishing that the box had been partially opened and pl ace d behind t he counter. Acc ording ly , Robinson ins i s t s t h at there was no way that the jury could have deter mined what was inside the box befor e it wa s taken. Under the Penal Code, an individual c ommits the offe nse of theft if he “unla wfully appropr iates proper

ty with intent to deprive the owner of p roper ty .” Tex. Penal Code § 31.03(a)

. 2Moreove r, the Code explains that appropr iation is unlawful if “it is with o ut the owner ’s eff ective consent.” Id. § 31.03(b)( 1). The indictment alleg ed that the proper ty at issue was 36 car

tons of cig are ttes and that the value of the proper ty was betwee n $1,500 and $20,000. Id. § 31.03(e) (4)( A). Furthermore , the jury char g e contained an instruction reg arding the law of part i es . Under the law of parties, “[a] person is criminally responsible as a party to an offe nse if the offe nse is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both,” and “ [e] ach party to an offense may be charg ed with the commi ssion of t he offense.” Id. § 7.01(a) , (b). “A person i s criminally responsible for

an off ense c ommitt ed by

the conduc t of another if

. . . acting with the intent to promote or assist the commission of the offe nse, he solicits,

encour ag es, direc ts, aids, or attempts to aid the other person to commit the offe nse.” Id. § 7.02(a) (2). I ntent to a ssist or promote may be inferr ed from the a cts, words, a nd conduct of the defe ndant and from the circ umstances in which the offe nse occ urre d. Roberts v. Stat e , 319 S.W .3d 37, 49 (Tex. App.—San Antonio 2010, pet. re f’d)

.

Under the leg al-suff

iciency standard, appellate courts view the evidenc e in the light
most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

orming this revie w, an appellate court must bear in mind that it is the fac tfinder’ s duty to weig h the evidenc e, to resolve conflicts in the testimony , and to make rea sonable infere nces “fr om basic fac ts to ultimate fac ts.” Id. ; see also Tex. Code Crim. Proc. art. 36.13 (explaining that “jury is the exclusive judge of the fac ts”). Moreove r, appellate courts must “dete rmine whether the

n e c e s s a r y in f e r e n c e s a r e r e a s o n a b le b a s e d u

p o n th e c o mb in e d a

n d c u mu la ti v e f o r c e o f a ll th e e v id e n c e

3when viewed in the light most favorab l e t o t h e verdic t.” Hooper v. State , 214 S.W .3d 9, 16-17

(Tex. Crim. App. 2007). Fur thermore , appellate courts presume that conflicting infere nces wer e resolved in f

avor of the conviction and defe r to tha t r esolution. Clayton v

. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). I n addition, courts must be ar in mind that “dire ct and circ umstantial evidenc e are trea ted equally ” and that “[c]ircumstantial e vidence is a s probative as direc t evidenc e in establishing the g uilt of an actor ” and “ca n be sufficie nt” on its own “to establish g uilt.” Kiff e v. State , 361 S.W .3d 104, 108 (Tex. App.—Houston [1s t Dist.] 2011, pet. re f’d)

.

To be deeme d crimi n al l y re s ponsible as a party , there must be evidenc e of “an

u n d e r s ta n d in g a n d c o mm o n d e s ig

n to c o mm it th e o f

f e n s e . ” G r o s s v . S

ta te , 3 8 0 S. W. 3 d 1 8 1 , 1 8 6 ( T e x. Crim. App. 2012). When revie wing the sufficie ncy of that evidenc e, appellate courts may consider “‘e vents occ urring befor e, during and af ter the c ommissi on of the offe nse and may rely on actions of the defe ndant which show an understanding and common desig n to do the prohibit ed act.’ ” Guev ara v. State , 152 S.W .3d 45, 49 (Tex. Crim. App. 2004) (quoting Cordova v. State , 698 S.W .2d 107, 111 (Tex. Crim. App. 1985)). “Ea ch fac t need not point direc tly and independe ntly to the g uilt of the appellant, as long as the cumulative eff ect of all the incriminating fac ts are sufficie nt to support the conviction.” Id. I n addition, “[m] otive is a signif icant cir cumstance indicating g uilt,” and intent may “be inferr ed from circu m s t an tial evidenc e such as acts, words, and the conduct of the” de fenda

nt. Id. at 50. E v id e n c e li n

k in g Ro b in s on to the stolen proper ty was prese nted thr o u g h th e te s ti mo ny of Delore s Rodrigue z, who was working at the CVS on the night of the offe nse, throug h rec ording s from the surve illance c amer as in the store, a nd throug h the statements that Robinson made during

4his interview with the police. First, Rodrigue z was called to the stand to testify reg arding what she

observe d on the ni g ht in question. I n her testim o n y , R o d ri gu ez explained that a new shipment of inventory had been delivere d and that t h e box es containing cig are tte car tons had been moved up behind the reg isters. Moreove r, she explained tha t w hen she was g oing over the inventory and the in v o ic e s , Ro b in s o n a

n d F r a n k Pa r r a mo r e e n te r e d th e s to r e t o g e t h e r . I n a d d it io n , s h e a g r e e d th a

t p h o to s 1 from the store’s security sy stem showed Robi nson and P arr amor e en t er the s tore togethe r. Those photos wer e admitted as exhibi ts and clea rly show the fac es of two men enter ing the store toge ther. When descr ibing Robinson’s interac tions with Parra more, Rodrigue z explained that

w h e n th e y w a lk e d in to g e th e r , th e y w e r e ta lk in g to o n e a n o th e r . I n h e r te s ti mo ny , Ro d

r ig u e z d e s c r ib e d how R obinson asked h er t o h elp him in the phot olab of the s tore and that Parra more stay ed at the front of the store. Next, Rodrigue z testified that while she was helping Robinson, Parra more went behind the counte r and g rabbe d a box of cig are ttes. L ater in he r testimony , Rodrigue z re lated that she believed that Robinson was working toge ther with Parra more and that Robinson was attempting
to distract her while Parra more stole the box

. Rodrigue z rec alled that afte r she saw what happene d, she chase d afte r Parra

more and caug ht up to him, that Parra more turned and acte d like he wanted to fig ht, and that she returne d to the store when she felt threa tened. I n addition, she explained that afte r Parra more g rabbe d the box , Robinson stated that he did not know that his friend was g oing to steal the box and that Robinson left afte r she said that she was g oing to call the poli ce . Du ring her testimony , Rodrigue z stated that afte r she returne d to the store, she called the police and noticed that

The second individual was later identified as Parra more throug h the testimony of Detec tive 1 Edwar d Wahrmund. 5Robinson had left his phone and wallet at the photolab. The cellphone and wallet wer e admitted as

exhibi ts, and the wa llet contains Robinson’s driver’s lice nse and othe r identify ing inf ormation. Se c o n d , d u r in g Ro d r ig u ez’s testimony , surveilla n c e f o o ta g e f r o m th e n ig

h t in q u e s ti o n

was play ed for the jury

. The footag e chronic les Robinson walking into the store with another man, shows Rodrigue z leave the reg ister are a and head to another portion of the store, depicts the man that Robinson enter ed the store with go b eh i n d t h e reg isters and take a box afte r Rodrigue z left, and shows the man lea

ve the store with the box followed by Rodrigue z and Robinson. Finally , afte r Rodrigue z finished her testimony , the State calle d De t ec tive Edwar d Wahrmund t o t est ify reg arding his investiga tion of the crime and reg arding an interview that he conducte d of Robinson af ter Robinson turne d himself in. A copy of that interview

was play ed for the jury

. I n the interview , Robinson admits that he and Par ramore intended to ste al products from CVS on th at night, but he insisted that he only planned on stealing razor blades. During the 2 interview, Robinson also admitted to having p re v i o u s l y stolen razors from stores on multipl e

occa sions and then re sold them to other stores.

Given our standard of rev i ew an d i n light of the evidenc e summarized above, including Robinson’s admission that he intended to steal proper ty on the night in question and had stolen proper

ty from other stores in order to later sell it, as well as the rea sonable infere nces that the jury was fre e to make based on that evidenc e, we must conclude that the cumulativ e ef fect of the incriminating fac ts are sufficie nt to link Robinson to the stolen proper ty and to support Robinson’s

Whil e being questioned by Offic er Wahrmund, Robinson stated that he g ot so “fr eake d out” 2 afte r Parr amore stole the box that he lef t his phone and wa llet. 6conviction for the theft of that proper ty under the law of parties. See G uevara , 152 S.W .3d at 49;

see also Felters v. State , 147 S.W .3d 488, 490-91 (Tex. App.—For t Worth 2004, p et. ref

’d) (conc luding that evidenc e demonstrated more than “mer e prese nce” and was sufficie nt to establish g uilt as party to theft wher e evidenc e showed that defe ndant enter ed store with another person, that two individuals knew one a nother, a nd that they

acte d toge ther). As mentioned above, R obinson also contends that the evidenc e is insufficient to establish the conten t s o f t h e s t olen box or establish that the value of the proper ty was more than $1,500 and less than $20,000 a s alleg ed in the indictment. See Tex. Pena l Code § 31.03(e) (4)( A). Evidence reg arding the contents of the box as well as thei r value was prese nted throug h the testimony of Rodrig uez as well as throug h the admission of an e x hibit prepare d by Rodrigue z. I n her testimony , Rodrigue z explained that when Robinson enter ed the store, she had
not put any cig are ttes on the store shelves and that she was just about to take the cig are ttes out of the box and “ring them in and count them off.” Next, Rodrigue z explained that althoug h the top of the box was open, she had not taken out any of its contents prior to the incident. I n addition, she rela ted that befor e inventory

arr ives at her

store, the c artons ar e counte d at the C VS war ehouse and listed

on an inventory sheet. Moreove r, she stated t h at s h e h ad b een doing this ty pe of inventory for approximately a y ear and a half and that during that time, the inventory list from the war ehouse had only been wrong “once or twice.” Fur thermore , she specific ally testified that the box that Parramore took was full of c iga

rette c artons. Moreove r, when descr ibing the contents of the box , Rodrigue z explained that shortly afte r the offe nse, she chec ked the inventory to see what was missing and that 36 car tons of cig are ttes

7wer e missing and wer e never rec overe d. I n addition, afte r perf orming this chec k, she made a ledg er

or rec eipt for the stolen items that showed that the value of the missing items was $1,913.44 befor e taxes. That ledg er w as admitted as a n exhibi t during the trial. 3 Given the standard of revie w by which we revie w challeng es to the sufficie ncy of the evidenc e and in light of the evidenc e p re s en t ed as well as the rea sonable infere nces that the jury could make from that evidenc e, we must conclude that the evidenc e was leg ally sufficie nt to support the jury ’s deter

mination that the stolen box contained 36 car tons of cig are ttes and that the value of those ca rtons was more than $1,500 and less than $20,000 a s alleg ed in the indictment. For all of these r easons, we overr ule Robinson’s third issue on appea l. Right to a Speedy Trial

I n his first issue on appea l, Robinson contends that the district court err ed by failing
to rele ase him from confine ment afte r he filed a pro se writ for a speedy trial. Moreove r, he arg ues that the district court’s failure to rule “led to a substantial, presumptively prejudicia l and unnece ssary delay , which subjected [hi m] to oppressive pretria l incar cer ation, high levels of anxiety and conce rn, and impaire d [hi s] abili ty to adequa tely

prepa re his def ense.” As an initi al matter, we note that the fac ts of this case undermine somewhat Robinson’s claim that he was subjected to “oppre ssive pretria l incar cer ation.” The offe nse at issue

occur red in N ovember 2011, and Robinson was ar rested a littl e over a wee k later. Approxim ately

When initially talking with the police, Rodrigue z stated that she thought that approximately 3 25 car tons had been stolen, but she explained in her testimony that she was ju s t p ro v i d i n g an esti mate when she first talked to the police and that she did not lear n the actua l number until she finished per forming her inve ntory of the items that had be en deliver ed that nig ht.

8three months later, in ear ly Marc h 2012, Robinson was rele ased on a persona l bond on the condition

that Robinson not commit additional offe nses afte r being rele ased. See Tex. Code Crim. Proc

. art. 17.151, § 1. I n Dec ember 2012, Robinson was arr ested in Be x ar County on a theft char g e unrela ted to the one at issue in thi s appea l. After lear ning of the additi onal offense, the district court in this

case deter mined that Robinson had violated the terms of his bond and issued a capia s for Robinson’s

arr est

. I n Fe b ruar

y 2013, Robinson sent a letter to the district court communicating that he had been convicted of an offe nse in Be x ar County and was serving a six -month sentenc e. I n May 2013, Robinson wa s taken into c ustody in Comal County afte r he finished his sentenc e in B exar County

. A p p r o xim a te ly th r e e mo n th s la te r , th e S t a t e p r e s e n te d a n in d ic tm e n t in th e c a s e . A c c o r d in g ly , a lt h o u g h many months passed betwee n when Robinson was i n i t i al l y arr ested and when an indictment

was prese nted, during most of that time Robinson had either been rele ased from confine m en t or had been incar cer ated in another county for a separ ate offe nse. See Brooks v. State , Nos. 03-98- 0 0 2 9 5

– 0 0 2 9 6

- CR , 1 9 9 9 T e x. A p p . L E X I S 1 5 2 5 , a

t * 3

- 4 ( T e x. A

p p . — A u s ti n F e b

. 2 5 , 1 9 9 9 , p e t. r e f ’ d ) (not desig nated f

or publication) ( noting when overruling issue r elated to pr o se re quest for spe edy trial that defe ndant was f

ree on bond for much of

that time). Turning to his reque sts f

or a speedy trial, Robinson filed two documents seeking to invoke his rig ht to a speedy trial. See U.S. Const. amend. VI (providing that acc used shall enjoy rig ht to spee d y trial). First, Robinson filed a pro se motion for speedy trial rig ht befor e he was rele ased on bond in Marc h 2012. Next, two months befor e the indictment was prese nted, Robinson filed a pro se application for writ of habe as cor pus urg ing tha t his right to a spe edy trial was be ing denied. Both filings relied on article 32.01 of the Code of Criminal Procedur e, which provides that

9if an indictment is “ not pr esente d ag ainst [t he] de fenda nt on or befor e the last day of the next term of the court

. . . or on or befor e the 180th day afte r the d at e o f co m m i t ment or admission to bail, whicheve r is later,” “the prosec ution

. . . shall be dismiss ed.” Tex. Code Crim. Proc. art. 32.01. I n his wr i t ap p l i ca t ion, Robinson urg ed that at the time that he filed his application 550 day s had elapse d since he was in i t ially arr ested for the offe nse. Moreove r, he reque sted that the char g es be dismiss ed wi t h p re

j u dice. See Cantu v. State , 253 S.W .3d 273, 283 (Tex. Crim. App. 2008) (explaining that seeking dismiss al rathe r than speedy trial “will g ener ally wea ken a speedy -trial claim bec ause it shows a de sire to have no trial instead of a speedy one”)

. On appea l, Robinson gen erally asser ts that the district court’s failure to g rant his motion and his writ application was improper, “inevitably impaired” his d efense beca use the memories of the witnesses had fade d an d beca use evidenc e beca

me unavailable , and cause d him anxiety ; howeve r, Robinson does not clea rly set o u t h o w h i s ability to prese nt a defe nse was impaired or specific ally identify how or what relevant evidence beca me unavailable. See Brooks , 1999 Tex. App. L EXI S 1525, at *3-4 (over ruling speedy tri al i s s u e an d noting that there was no evidenc e that defe ndant’s ability to prese nt defe nse was impaired). As discussed previously , the

s u rveillanc e footag e chronic ling the events as well as the rec ording of Robinson’s interview with the police wer e available for examination and wer e prese nted during the trial. Moreove r, althoug h Robinson repe ats some of his challeng es to the ledg er that wer e discussed in his su ff i ci ency challeng e, as s u m m ar i z ed above, Rodrigue z testified how she deter mined the value of the stolen proper ty , and Robinson was able to cross-e x amine her reg arding

her r ecollec tions of t he events in question. Finally , althoug h Robinson contends o n appea l that the stolen box was not adequately tested, he doe s not assert that the box somehow beca me unava ilable due to the pa ssag e of time. 10I n any event, beca use Robinson was repr esente d by counsel when he filed his motion for speedy trial and when he filed his writ application, the district court was not require d to and did
not rule on the motion or the application. See Robinson v. State , 240 S.W .3d 919, 922 (Tex. Crim. App. 2007); see also Cavitt v. State , No. 01-13-00900- CR, 2015 Tex. App. L EXI S 4137, at *14 n.2 (T ex . Ap p . — Hous ton [1st Dist.] Apr. 23, 2015, pet. ref ’d) (explaining that trial court was not obliga ted to ru l e on pro se writ of habea s corpus filed one and half y ear s afte r defe ndant’s arr est contending that rig ht to speedy trial has been violated when defe ndant was repr esente d by counsel); cf. Stockton v. State , No. 03-13-00505- CR, 2014 Tex. App. L EXI S 9627, at *2 (Tex. App.—Austin Aug

. 28, 2014, no pet.) (mem. o p . , not desig nated for publication) (conc luding that speedy -trial complaint was not prese rved beca use trial court never ruled on his reque st and noting that trial court might not have ruled beca use defe ndant was repr esente d by counsel when he filed his pro se motion for s p ee d y t ri al). Def

endants have no rig ht to hy brid repr esenta tion, and a “trial court is fre e to disreg ard any pro se motions pre sented by a defe ndant who is repr esente d by counsel.” Robinson , 240 S.W .3d at 922. Moreove r, “a trial court’s decision not to rule on a pro se motion” is not “subjec t to review ” on appe al. Id.

For all of these r easons, we overr ule Robinson’s first issue on appea l.

Ef fective Assistance of Cou nsel

I n his second issue on appea l, Rob in s o n a r g ues that he was denied eff

ective assistance of counse l before the start of the trial and during the trial.

To su cc ee d o n an ineffe ctiveness claim, a defe ndant must overc ome the strong presumption that his trial “counse l’s conduct falls within the wide rang e of rea sonable profe ssional

11assistance ” and must show that the attorney ’s “rep re s en t ation fell below an objective standard of

rea sonablene ss . . . under preva iling profe ssional norms” and that “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Strickland v. W

ashington , 4 6 6 U. S

. 668, 688, 689, 694 (1984). Evaluations of eff ectivene ss are based on the totality of the repr esenta tion. Frangias v. State , 450 S.W .3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State , 413 S.W .3d 816, 837 (Tex. App.—Austin 2013, pet. ref ’d) (providing that assessment should consider cumulati v e ef fec t of counsel’s defic iencies)

. Fur thermore , even t h o u gh a d efe ndant is not entitled to repr esenta tion that is err or fre e, a single err or can rende r th e repr esenta tion ineffe ctive if it “wa s eg reg ious and had a seriously deleter ious impact on the balanc e of the re prese ntation.” Frangias , 450 S.W .3d at 136.

I n g e n e r a l, d ir e c t a

p p e a ls d o n o t p r o v id e a u s e f u l v e h ic le f

o r p r e s e n ti n g in e f

f e c ti v e n e s s claims beca

use t he record fo r t h at t y

pe of claim i s usually undevelope d. Goodspee d v. Stat e , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). “This is true with reg ard to the question of defic ient perf ormanc e . . . wher e counsel’s rea sons f or failing to do something do not a ppear in the rec ord.” Id. (stating that “counse l’s conduct is revie wed with g rea t defe renc e, without the distorting eff ects of hindsight”)

. I n addition, befor e their repr esenta tion is deeme d ineffe ctive, trial attorney s should be aff orded the opportunity to e x plain their actions. Id. I f that opportunity has not been provided, as in this case , an appellate court should not deter mine that an attorney ’s perf ormanc e was ineffe ctive unless the conduct at issue “wa s so outrag eous that no compe tent attorney would have e ng ag ed in it.” See G arcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001).

On appea l, Robinson contends that he was denied eff ective assistance of counsel by his pretria l counsel when his attorney failed to file a motion s eeking his rele ase afte r he had been 12“sitting in jail for g rea ter than the allotted 90 day s, without prosec ution.” See Tex. Code Crim. Proc.

art. 17.151 , § 1 (providing that defe ndant who is acc used of felony and “who is detained in jail pending trial . . . must be relea sed on per sonal bond or by reduc ing the amount of bail require d” if State is not re ady for trial within “ 90 day s from the commence ment of his detention”) . Moreove r, Robinson asser

ts that h e received ineffe ctive assistance of counsel beca use his pretria l attorney failed to file a writ of habea s corpus seeking his r elea se and seeking to ha ve his c harg es dismissed afte r no indictment had been prese nted within 180 day s of his arr est and his place ment into custody

. See id. art. 32.01. Robinson also asser ts that this ineffe ctive assistance was further compounded by the fa ct that he ha d to file his own pro se motions to the district court re questing rele ase.

The ineffe ctiveness claims summarized above are based on his pretria l attorney ’s alleg ed failure s to act, and the rec ord befor e this Court is not sufficie ntly develope d to evalua te those purported failure s beca

use neither his pretria l attorney “nor the State have been g iven an opportunity
to respond to” the claims. See Mene field v. State , 363 S.W

. 3 d 5 9 1 , 593 (Tex. Crim. App. 2012). Reg arding the alleg ed failure to reque st Robinson’s rele ase on bond afte r 90 day s, the rec ord in this

case does show that Robinson’s pretria l attorney was ap p o in te d in Dec ember 2011 and that Robinson filed a pro se motion in Fe bruar y 2012 seeking his rele ase beca use 90 day s had passed since he was taken into custody

. See Tex. Code Crim. Proc. art. 17.151. Howeve r, the re cord also reve als that Robinson’s pretria l attorn ey fi l ed a motion to reduc e Robinson’s bond in Marc h 2012, that the district court g rante d the motion, and that Robinson was rele ased on a persona l bond subject to the condition that he not commit any offe nses during his relea se. Turning to Robinson’s claim that his pretria l attorney was i neff ective for failing
to seek a dismiss al of the char g es afte r no indictment had been p re sented within 180 day s, the 13rec ord does not establish why his p re t ri al co u nsel did not make the reque st urg ed by Robinson.

Fur therm o re , Robinson has not demonstrated that if a dismiss al had been g rante d under article 32.01, the dismiss al would have resulted in all of the char g es being dismiss ed with prejudice as he reque sted; on the contra

ry , g ener ally speaking , the relief available under article 32.01 is temporar y in nature beca

use the defe ndant can be rea rre sted afte r an indictment is later prese nted. See Ex parte Countryman , 226 S.W .3d 435, 438-39 (Tex. Crim. App. 2007); see also Tex. Code Crim Proc. art. 12.01(4)( A) (pr o v i d i n g that felony theft has five-y ear statute of limit ations). Moreove r, as summarized above, Robinson was rele ased from the c ustody of Comal County

a fe w months after his arr est, was later arr ested and sentenc ed to six months’ imprisonment in Be x ar County , and was transfe rre d to the custody of Comal County afte r finis hing his sentenc e in Be x ar County , and an indictment was prese nted approximately three months afte r he was returne d to the custody of Comal County

. Cf. Ex parte Countryman , 226 S.W .3d at 438-39 (upholding deter mination that claim under article 32.01 beca

me moot afte r indictment was returne d); see also Griffis v. State , 441 S.W .3d 599, 606 (Tex. App.—San Antonio 2014, pet. ref ’d) (not i ng that if g rand jury returns indictment by time complaint is broug ht to trial court, court is not require d to rele ase defe ndant from custod y ). Finally , we note that Robinson was g iven cre d i t fo r his period of incar cer ation in Be x ar County when the district court ente re d i t s judgme nt of conviction in this case , see Ferrin v. State , Nos. 05-98-02010—02011- CR, 1999 Tex. App. L EXI S 9611, at *2 (Tex. App.—Dallas Dec

. 30, 1999,

no pet.) (not desig nated for publication) (providing that if person is confine d in another jurisdiction, he is entitled to cre dit “if a detainer or hold is lodge d ag ainst him by the first jurisdiction” (citing Ex parte Bynum , 772 S.W .2d 113, 114 (Tex. Crim. App. 1989))) , and that the possibili ty of obtaining

14cre dit f

or his time serve d in B exar County might have fra med his attorney ’s dec ision to not seek a dismiss al of the c harg es.

Ba sed on the rec ord befor e this Court and g iven the unique circ umstances prese nted,

we cannot conclude that Robinson has demonstrated a failing on the part of his pr etrial counsel so eg reg ious that no effe ctive attorne y would have e ng ag ed in it. I n addition to chal l en g ing the repr esenta tion provided by his pretria l counsel, Robinson also contends that the lawy er appointed to his case afte r his pretria l counsel withdrew was ineffe ctive. First, Robinson contends that his trial counsel improperly moved for a direc ted verdic t reg arding an alterna tive char g e for theft. As summarized above, Robinson was convicted of the state-jail felony of st ealing proper ty with a value betwee n $1,500 and $20,000, but t he indi ctment orig inally alleg ed an alterna tive theft char g e stating that Robinson stole proper ty that was worth less than $1,500. See Tex. Penal Code § 31.03(e) (4)( D). Although the alterna tive char g e did alleg e that the proper

ty stolen had a value that was worth less than the amount alleg ed for the offe nse in which he wa s convicted, the alterna tive char g e also contained an additional alleg ation that Robinson had previously been convicted of theft six times. Acc ording ly , the alterna tive char g e was a state-ja i l felony just like the offe nse for which he was convicted. Compare id. § 31.03(e) (3) (spec ify ing that theft is class A misdemeanor if value of proper ty is betwee n $50 0 an d $ 1 ,500), with id. § 31.03(e) (4)( D) (providing that offe nse is state-jail felony if value of proper ty is $1,500 or less and if defe ndant has pre viously been c onvicted of the ft on two or more occa sions). When movi n g to strike the alterna tive char g e, Robinson’s trial counsel explained that the evidenc e reg arding the value of the proper ty at i s s u e demonstrated that the proper ty was

15worth more tha n $1,500. After considering the ar g uments of both parties, the district c ourt struck the alternative charg e from the i ndictment. I n response , the S tat e as k ed t he dis trict court to order Robinson’s trial counsel to not make arg uments that the value of the proper ty at issue was worth less than $1,500, and the district court g rante d that reque st. I n light of the prec eding , Robinson contends that by moving t o s trike the alterna tive char g e and by seeming ly ag ree ing that the evidenc e was sufficie nt to support the prim ary offe nse cha

rg ed, his trial counse l “bar red himself from disputing the evidenc e” and from reque sting a lesser- included offe nse instruction u n der the alterna tive

c h a r g e . S e e T e x. Co d e Cr im

. Pr o c . a r t. 3 7

. 0 9 ( d e f

in in g le s s e r in c lu d e d o f

f e n s e a s , a mo n g o th e r th in g s , offe nse established by same or less than all fa ct s require d to establish commission of char g ed offe n s e). Acc ording ly , Robinson contends that his trial attorney ’s actions wer e per se ineffe ctive and abdic ated his duty

to provide counse l. As with Robinson’s claims reg arding his pretria l counsel’s perf ormanc e, the rec ord in this case does not provide any g uidance reg arding Robinson’s trial attorney ’s decision to reque st t h at the alterna tive char g e be struck. Moreove r, althoug h the alterna tive char g e may not have technica lly been a lesser- included offe nse, g iven that the alterna tive char g e only require d proof that the proper ty stolen was worth less than $1,500 rathe r than betwee n $1,500 and $20,000, the decision
to forg o the alterna tive char g e might have been based on an all-or- nothing strateg y that courts have upheld in the context of lesser- included offe nses. Cf. Okonk wo v. State , 398 S.W .3d 689, 697 (Tex. Crim. App. 2013) (explaining that trial strateg y might involve decision to not reque st lesser- included char g e); Tolbert v. Stat e , 306 S.W .3d 776, 781 (Tex. Crim. App. 2010) (discussing all-or- nothing strateg y ); Turner v. State , No. 03-12-00285- CR, 2014 Tex. App. L EXI S 8706, at * 2 0 (T ex.

16App.—Austin Aug

. 8, 2014, pet. ref ’d) (on re h ’g) (m em. op., not desig nated for publication) (stating that in absenc e of rec ord evidence reg arding counse l ’s s t ra teg y , court cannot specula te as to whether strateg y exis ted and that “[t] he failure to reque st a lesser- included-of fense instruction, without explanation f

or trial counsel’s decisions, does not c ompel a conclusion that trial counsel’s perf ormanc e was defic ient”); see also Mene fied , 363 S.W .3d at 592-93 (explaining that direc t appea l is g ener ally inadequa te vehicle for prese nting ineffe ctiveness cla i m reg arding alleg ed failure to reque st lesser- included instruction); W ood v. State , 4 S.W .3d 85, 87 (Tex. App.—For t Worth 1999, pet. ref ’d) (noting t h at failure to reque st lesser- included instruction can constitute ineffe ctive assistance but that failure to reque st might also constitute sound trial strateg y ). I n addition, under the alterna tive char g e, the State would have had to prove that Robinson had previously been convicted of theft on two or more oc casions. B y having the alter

native cha

rg e struck, Robinson’s attorney eff

ectively preven t ed t h e S tate from emphasizing to the jury during its closing arg ument that Robinson had been pr eviously convicted of

multipl e thef

ts. Second, Robinson contends that h i s t ri al counsel was ineffe ctive by failing to

cross-e x amine Rodrigue z reg arding her knowledg e about the number of car t ons in the box , the method one could use “to deter mine the number of car

tons prese nt in the box besides the ledg er, the reliability o f the ledg er, or other possibili ties for how those car tons wer e unacc ounted for.” Moreove r, Robinson asser ts that althoug h Rodrigue z testified that she made the ledg er on the night of t he alleged theft, hi s attorney failed to cross-e x amine the witness reg arding why the l edg er had a diffe rent da

te and time stamp on it. As a preliminary matter, we note that Robins o n ’s trial counsel cross-e x amined Rodrigue z reg arding her rec ollections of the night in question and reg arding the contents of the box 17and emphasiz ed repea tedly that she did not actua lly see Robinson steal the box. Moreover , in her testi m o n y , R odrig uez explained how she deter mined the number of car tons in the box that was stolen. I n addition, althoug h Robin s o n ’s t ri al attorney did not question Rodrigue z reg arding the alleg ed inconsistency betwee n her testimony stating that she prepa red the ledg er on the night of the offe nse and the date ref

lected on the ledg er, the date ref lected on the ledg er simply reve aled that the ledg er was prepa

red or printed on the morning afte r the offe nse was alleg ed to have occur red instead of on the night of the offe nse. Fur thermore , as with Robinson’s other claims of ineffe ctiveness, the

rec ord does not re veal the motivations of his trial attorne y .

I n light of the prec eding , we cannot conclude that the fa i l u re to cross-e x amine Ro d r ig u e z in th e ma

n n e r s u g g e s te d b y Ro b in s o n d e mo n s tr a te d a f a il u r e o n th e p a

r t o f h is tr ia l c o u

n s e l

s o e g r e g io u s th a

t n o e f f e c ti v e a tt o r n e y w o u ld h a

v e e n g a g e d in it

. Cf

. M in ie l v . S ta te , 8 3 1 S. W. 2 d 3 1 0 , 324 (T ex . Crim. App. 1992) (explaining that decision to not cross-e x amine witness can be wise d e c is io n a n d c o n c lu d in g th a

t f a il u r e to c r o s s - e xa

mi n e c o - d e f

e n d a n t in li g h t o f to ta li ty o f r e p r e s e n ta ti o n did not constitut e inef

fec tive assistance ). Finally , R o binson urg es that his trial attorney was ineffe ctive beca use the attorney failed to adequately investiga te the evidenc e in this case . Specifica lly , Robinson contends that had his attorney more thoroug hly investiga ted this case , he would have discovere d that 36 car tons would not have fit inside the box that was stolen. As support for this arg ument, Robinson notes that Parra more was ch ar ged with the same two counts, urg es that the trial court in Parra more’s case issued a di re cted verdic t for the count alleg ing theft of an amount that was less than $1,500, and mentions that Parra

more’s trial counsel arg ued that “if the jury couldn’t cou[n ] t 3 6 b o x es , they could not convict.” 18Howeve r, the infor mation reg arding Parra more offere d by Robinson as support for his arg ument is outside the rec ord of this case . Even so, the fac t that Parra more’s trial attorney might have chosen to eng ag e in a trial strat egy that was not employ ed in this case does not compel a

co n clusion that Robinson’s trial attorney was ineffe ctive, particula rly wher e, as here , the reco rd does not contain any information reg arding his attorney ’s motivations for alleg edly failing to more thoroug hly

investiga te the ca

pacity of the box. Cf. Castrui ta v. State , No. 03-10-00419- CR, 2012 Tex. App. L EXI S 5709, at *8 (Tex. App.—Austin J uly 12, 2012, no pet.) (mem. op., not desig nated for publication) (explaining that fac t that attorney “could have chosen a differ ent trial strateg y is not enoug h to show that his assistance wa s i n ef fe cti ve”)

. Moreove r, ot her than specula ting about the capa city of the stolen box , Robinson has not prese nted any information establishing that a more thoroug h investiga

tion of the box would have in fac t reve aled that 36 car tons could not fit inside the box . I n addition, it is not clear from this rec ord that the box that was stolen was eve r re cover ed. Acc ording ly , we cannot conclude that the alleg ed failure was so egr eg ious that no eff ective a ttorney would have e ng ag ed in it. Although we need not consider the matter further , we note that an attorney ’s eff ectivene ss is based on the totality of the repr esenta tion. See Frangias , 450 S.W .3d at 136. During jury selec tion for Robinson’s trial, Robinson’s trial attorney emphasized the State’s burden to prove the elements of t he offense alleg ed, questioned the panel members r ega rd i n g their abili ty to serve

on the j ury and to make a deci s i o n based only on the evidence presented, expl ained a defe ndant’s rig ht to not testify , asked the panel members about whether they would hold a defe ndant’s decision to not testify

ag ainst him, and moved to strike various pane l members for cause . Prior to trial, his

19trial attorney moved to suppress portions of Robinson’s interview with the police on the g rounds that

those portions wer e not rele vant and wer e more prejudicia l than probative. Moreove r, his attorney

succe s s fu lly moved to exclude the admission of an offe nder identification car d belong ing to Robinson that was found in Robinson’s wallet at the sce ne of the crime.

I n his opening statement during the g uilt or innocenc e portion of the trial, Robinson’s attorney explained that the evidenc e will show that another individual, Parra more, stole the car tons, emphasized that Robinson is presumed innocent, discussed the State’s bu rd en to prove its case bey ond a rea sonable doubt, explained that Robinson mig ht not testify , and urg ed the jury to r eturn

a verdic t of not g uilty afte r considering the evidenc e. During the trial, Robinson’s attorney objected
to the fac t that the State had not submitt ed a copy of the ledg er made by Rodrigue z prior to seeking
to admit it as an exhibi t. I n addition, he cross-e x amined Rodrigue z and the State’s other witnesses, including O ffice r Wahrmund. Reg arding the jury char g e, his attorney objected on the g round that there was no evidenc e that Robinson intended to steal cig are ttes. During his closing arg ument in the g uilt or innocenc e phase, Robinson’s attorney arg ued that the State had failed to meet its burden and

t h at t h ere was no evidenc e that Robinson intended to or actua lly did steal any proper ty ; on th e contra ry , his attorney

asser ted that the evide nce show ed only that Parra more stole the box. I n the punishment pha se of the trial, Robinson’s a ttorney succe ssfully objected to a portion of Officer

Wahrmund’s testimony

as spec ulation and cross-examined Offic er W arhmund. Moreove r, Robinson informed his counsel of his desire to testify , and when his attorney called him
to the stand, his attorney pointed out that he had fr eely enter ed pleas of true to the enhanc ement alleg ations and previously admitted responsibility for those prior offe nses by pleading g uilty to those

20char g es. I n addition, his attorney asked him if he had a h i s tory with drug use and if that history

resulted in the prior offe nses, and Robinson testified that his history of drug abus e p l ay ed a major part in his prior offe nses. During his closing arg ument, his attorney asser ted that the value of the proper

ty stolen was on the low end o f t h e crime char g ed, reminded the jury that Robinson pleade d true to the prior offe nses, differ entiated the offe nse at issue from other felonies with simil ar punishment rang es, and asked the jury to reme mber the offe nse at issue whe n deciding the appropr iate punishment.

For all of these r easons, we overr ule Robinson’s second issue on a ppeal.

CONCLUSION Having overr

uled all of R obinson’s i s s u es on appea l, we affirm the district court’s judgme nt of conviction.

David Pury ear , J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: Jul y

22, 2015 Do Not Publish

21