NO. 07-01-0412 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JUNE 10, 2002

______________________________ ROBERT JAMESCOLEMAN, AP PELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 208 th DISTRICT COURT OF HARRIS COUNTY; NO. 840,065; HON ORABLEDENIS E COLLINS , JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Robert Jam es Colem an appea ls his conv iction for a ggravated robbe ry and the resulting punishment of 66 years confinem ent in the Institutional Division of the Departm entof Crim inal Justice and a $1 ,000 fine. In his ap peal, he contendsthat t he j ury sho uld have been charged on thelesser-included offense of robbery and that he received2

ineffecti ve assistan ce of counse l. Finding no error, we affirm the conviction for the reasons exp licated. On March 25, 2 000 , Car lo s Me ndez, the ow ner of a nightclub called Boulev ard Nights, had closed the club and wa s saying goodnight to three other patrons in the parking lot. He was approached by appellant, w ho pointed a gun at Mende z and asked f or h is walletand money. Appellant al so fired the gun at the ground near Mendez’s feet. Mende z gave appellan t his necklace, wallet, and m oney. He then s truggled with appellant, who fired a shot, but Mend ez wasnot hit. Appellantfled while shooting one m ore round and gotinto the bed of a pickup truck driven by Jose Zepeda. M endez got into his own car a nd followed the twome n while calling the police on his cell phone. The police finall y caught up with the vehicle, and the d river stopped. However, appellant gotout of the truck and ran away. Whil e doing so, he d rop ped Me nde z’ s w allet . A ppe llant

w as s ubs equ ent ly apprehended. No gun was ever found, but a spent shell casing from a .40 caliber gun was found in the nightclub parking lot. A strike m ark was also found in the asphalt.
In his first issu e, appellant argues the j ury sho uld have b een cha rged on t he lesserincluded offense of robbery. The request wa s based on Zepeda’s testim ony, whotestified on cross-exa mination that after he an d a pp el l an t h ad be en pl ac ed i n t he sa me police car, he asked appellant, “ [w] hat are the y ta lking abo ut? What gu n?” Ap pella nt a rgu es t hat this testimony

was s ufficient to raise the issue of whe ther or not a gun w as involved and thus he should have received an instruction on the lesser offens e.3

A person com mits the offense of robbery if, in the course of co mm itting theft and with intent to obtain or m aintain control of property, he intentionally or knowingly threatens or places another in fear of im minent bodily injury o r death. Tex. P en. Code Ann. §29.02 (a)(2) (Vernon 1994). A person com mits aggravated robbery if he u ses or e xh ib its a dea dly weapon w hile comm itting a robbery. Id. § 29.03 (a)( 2). An accused is entitled to a charge o n a lesser -included offense if the lesser offense is included within the proof necess aryto establi sh the offense charged and there is som e evidence in the record that would perm it a jury torat iona lly find t hat , if guilty, the accused is guilty only of the lesser offense. Rousseau v. State , 855 S.W.2d 666, 673 (Tex.Crim .App.), cert. deni ed, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993).
There is no dispute that the elem ents of the lesser offense are included in the proof necess aryto establish aggravated robbery. Therefore, we m ust determ ine wh ether th ere is som e ev iden ce in therecord tha t w ould permit the jury to f ind appellant is only guil tyof the lesser of

fen se. In doin g so , we m ust con side r all t he e vide nceintr odu ced at t rial, whether produced by the State or appellant. Penry v. S tate, 903 S.W.2d 715, 755 (Tex. Crim .App. ), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995 ). Also, we ma ynot consider the credibi lity of th e evidence an d if it con flicts with ot her evide nce in determining whe ther an instruction should be given. Id. It is notenough that th e ju ry m ay di sb el i ev e c ru ci al ev i de nc e p er ta i ni ng to th e g re at er offe ns e, th er e mu st be so me evidence germa ne to the lesser-included offense for the fac tfinder to consider. Ski nner v. State , 956 S.W.2 d 532, 543 (Tex.Crim .App. 1997), cert. deni ed, 523 U.S. 1079, 1184

S.Ct. 1526, 140 L.Ed.2d 677 (1998). Anything m ore t han a sci ntillaof e vide nceis sufficient to en title a def endant to an instruction on a lesser-included offense. King v. State , 17 S.W.3d 7, 21 (Tex.App.--Hous ton [14 th Dist.] 2000, pet. ref’d). Nevertheless, the entire record mu st be examined rather tha n ex tra ctin g ce rta in ev iden ce a nd e xa m ining it in a vacuum

. Enriq uez v. State , 21 S.W.3d 277, 278 (Tex.Crim .App. 2000).
In this instance, there were four witnesses to the crime, M endez and the three club patrons, J ames Falcon, Laura Dura n, and Janice Solis. All four witnesses observe d appellant with a gun and also heard or saw himfire it. Ad ditio nally , th e po lice fou nd s hell casings in the parking lot and a strike m ark on the ground. Zepeda himself testified on direct exam ination that he heard a gunshot w hile waiting on appellant in his truck by the side of the club. Appel lant then came runni ng to the truck and told himto d rive . Ze ped a av erred a ppe llant had a gu n w hen he w

as in the back of the truck and also heard gunshots from the bed of the pickup w hile he was driving. On cross-exa mination, Zepeda state d he had not seen appellant with a gun prior to arriving at the club. He al so answ ere d th e qu est ion a ffir m ativ ely, “[w ]hileyou w ere in the same car w ith Mr. Coleman, didn ’t you say, ‘W hat are they tal king about? W hat gun?’” Howeve r, on redirect exam ination, he denied having said those exac t words a nd agreed thathe knew

appellan t had a gun that night. Ap pellant did not testify during the guilt/innocence phase.5

The statement alle gedly made by Zepeda doe s not rise to m ore than a scintilla of evidence tha t ap pella nt d id no t ha ve agun . E ven if Zepeda ma de the statem ent, he had already testified thathe had n ot seen a gun on appellant ea rlier in the eve ning, but heard gunshots both at the nightclub and com ing from the bed of the pickup truck. Thus, w ithin the context of his entir e testimony, the state ment does not reflect either positively or neg ativ ely

on the exist ence of a gun, but m erely shows a q uery on the part of Zepeda. Moreo ver, the evidence is overw helming that appellant had a gun. The trial court did not err in failing to inst ruc

t th e j ury on t he le sse r-in clud ed o ffe nse . A ppe llant ’s firs t is sueis overruled.
In his second issue, appellant claims he received ineffective assistance of counsel during trial. In that regard, he contends th at his cou nse l faile d topro per ly us e his challenges f or cause in voir dire and object to the State’s argum ent during the guil t/innocen ce phase of the t rial. The sta ndard by which we review the effectiveness of counsel is set forth in Stric kland v. Washi

ngton, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and ad opted by our Court of Criminal Appeals in Hernandez v. State , 726 S.W.2d 53, 57 (Tex.C rim.App. 1986). Under that standard, a claimant m ust sho w hi s counsel’s perform anc e was d efic ient and tha t th e de fici ent

per for m anc e pr

ej udiced h is defense. Stric

kland, 466 U.S. at

687. Thus, he m ust show that, but for

counsel’s err ors, the result of the proceeding would have been different. Id. There is a strong presum ption thattrial counsel rendered adequate assistance and m ade all signifi cantdecisions in the exercise of

reasonab le professional judgm ent. Id. at 690. Further more, counsel’s6

performance is judged by the totality of the representation and not from isolated instances of error. Id. at 695. Appellant argues that (1) an unidentified ven irem an r aise d co nce rnsreg ard ing h is father’s robbery where no one was caught, and (2) Juror No. 15 had friends and relatives who had been robbed, and he said it would affect him . Both persons were selected on the jury. Further, appellant asserts, he would have had two additional strikes for JurorNos. 1 and 35 if his counsel had properly m oved to strike themfor cause.
The reference in the record given to us by appellant with respect to the unidentified juror indicates that

Juror No. 3's father ow ned a retail store and had been held up five or six years a go. However, the juror s tated there was nothing about that event w hich w ould affect his ability to be fair and impartial. Later, the sam e juror w as questioned again bythe court and ga ve the sam e re spo nse . C oun sel w as n ot in eff

ect ive i n fa iling to st rikethis juror when the record shows he c ould be fair and impartial. See Bernal v . State, 930 S.W.2d 636, 639 (Tex.App.--Corpus C hristi 1996, pet. ref’d).
Juror No. 15 testified that her father-in-law was robbed at gunpoint, a close friend had also been robbed atgunpoint, and her brother-in-law killed his son-in-law, who w as under the influence of drugs. The j uror stated, “[t]hey happ ened just a few mo nths ag o because the m an isnow in the hosp ital after a severe stroke. It w ould affect m y judgm ent.” However, later the State asked if there was anyone who k new they could not be a fair j uror to either the State or the def ense, and no hands w

ere raised. The record does not show7

thatappellant’s counsel challenged this juror for cause or used a strike to rem ove her from thepan el.
A challenge for cause m ay be m ade to a j uror who has a bias or prejudice in favor of or agains t a defe ndant. Tex. Code C rim. Proc. Ann. art. 35. 16(a)(9) (Vernon 1989). The decision in Hernandez v. State , 28 S.W.3d 660 (Tex.App.--Corpus C hristi 2000, pet. ref’d), is helpful here. In that case, a j uro r state d th at s he d id not think she could j udge the defendant

fairly. W hen asked if she felt she could not be fair and impartial, the j uror stated it was a doubt she had . No c hallenges w ere ma de to the j uror and she was selected as an al te rn at e, who be ca me a memb er of the jury w hen another j uror becam e ill. In responding to a com plaint that counsel was ineffe ctive for not challenging the juror, the court found that the defe nse counsel, th e prosecutor, an d the judge were in the best position to evaluate the j uror’s response. Id. at666. The court further noted that counsel struck other prospective j urors and there was no evidence as to counsel’s reas ons for not striking this particular juror. Id. at666-67. In li ght of those factors, the trial court declined to speculate as to counsel’s reasons for not striking the questionable juror. Id. Further, counsel did notclai m tha t he r pr ese nceon t he j ury

act ually prej udiced him , and th e court declined to make that presum ption. Id. Other courts have also refused to find that co unsel’s failure to challenge a juror constitutes i neffective assi stance of counsel when there i s no record showing cou nsel’s reasons for not doing so. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim .A p p.8

1994); Beal v. State , 35 S.W .3d 677, 682-83 (Tex.A pp.--Houston [1 stDist.] 2000, pet. granted) ; and Shil

ling v . State , 977 S.W.2d 789, 791 (Tex.App .--Fort W o rth 1998, pet. ref’d). Sim ilarly, i n this instance, the record does not show why counsel did notchallenge Juror No. 15. We therefore decline to find that the presum ption of effective counsel has been rebutted. Further, appellanthas not claimed he wasprejudiced by th e selection of the juror or shown that the outcom e of the trial woul d have been different in light of the strong evidence of his guilt. Appellant also claims he wou ld ha ve ha d “ two (2) additional strikes (for ones used on Jurors 1 and 35) if Appellant’s trial counsel had properl y moved to strike for cause as both jur or s s ai d. ” J ur or No s. 1 a nd 35 wer e a pp ar en tl y s tr uc k f ro m t he panel by perem ptory

strikes. Although Juror No. 35 stated that if appellant did nottestifyhe w ould t hink app ell ant was hiding something, he also stated that he would follow the law, w as willing to listen to what t he witnesses h ad to s ay a nd g ive t heir tes tim ony

thecre dibilit

y it deserved. Counsel m oved to strike the j uror for cause based on his tes timony th at “he
w ould have a hard time giving punishm ent and also had a problem with the presum ption of innocence.” However, the mot ion was overruled. Nothing in these actions demon strates ineffective counsel.
As to Juror No. 1, he apparently raised his hand, along with several other persons, to indicate that if appellant did not testify, he mus t be guilty. The reafter, there was a1 The portion of the record cited by appellant actually occurred during the punishment phase of the trial. 9 discussion with one j uror, although the record does not s how w hich one. Later, counsel made the following request:
MR. CA RROLL: Yes , Ma’am . I have som e others I’d like to talk to. THE COUR

T: Like who? MR. CARROLL: No. 1 is about the issue of punishm ent where t hey said they couldn’t follow the law concerning the range of punishm ent. As to No. 2, I have that they would que stion i t if the defend ant did not te stify. He did not feel he could be fair because of that. I’d m ove to strike for cause. THE COUR

T: Granted. Although the record is not clear, it appears that Juror No. 1 was not struck for cause, but byvirtue of one of

appell ant’s peremptory strikes. Even assuming counsel ’s performance wasdeficient in faili ng to m ove to strike Juror No. 1 for cause, neither that j uror nor Juror No. 35 served on the j ury. Although ap pe l l an t c l ai ms he would have had two additional strike s, he do es not state that ther e were other jurors he would have chosen to remove from the panel by th ose strikes or identi fy those jurors. Thus, appellant has failed to show that he was prejudiced or tha t the outcom e of the trial would have been different. Appellant further complain s of counsel’s failure to preserve error when he o bjected to a portion of the State’s argum ent during the guilt/innocence phase. 1 The obj ect iona ble argument was as follows:10

. . . This is nota m inimum case s o you s hould not start it a t th e bo tto m . Th is is not someone coming up and sayi ng give me your purse or grabbing a purse and running. This is a case where s hots were fired, multiple vi ctims, high-speed chase, m ore shot s be in g fired. Th is is a capi tal murder case waiting to happ en. If

any of those victim s had be en hit by those b ullets - - MR. CLARK : He’s not c harged with capital m urder. I wou ld object to her mak ing that inference. THE COUR

T: Sustained. Although appellant objected, he failed to request an i nstruction to disregar d or move for a m istrial to preserve error.
An isolated failure to o bjec t to improper a rgument has been held not to be ineffecti ve assistance of counsel. Vasquez v. State , 819 S.W.2d 932, 938 (Tex. App.-- Corpus Christi 1991, pet. ref’d). E ven assum ing arguendo that the failure to preserve error wasdeficient, appellant has not show n that, but for couns el’s error, the outcom e of the trial would have been different. Thus, appellant’s second issue is overruled. Having overruled appellant’s two issues, we affirmthe judgm ent of the trial court.
John T. Boyd Chief Justi ce Do not publish.