Franklin Eugene Arie v. The State of Texas--Appeal from 185th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-03-00325-CR

Case Date: 09/02/2004

Plaintiff: Tryon Road Special Utility District

Defendant: The City of Longview, Texas--Appeal from 188th District Court of Gregg County

Preview:Franklin Eugene Arie v. The State of Texas--Appeal
from 185th District Court of Harris County
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11th Court of Appeals
Eastland, Texas
Opinion
Franklin Eugene Arie
Appellant
Vs. Nos. 11-03-00325-CR, 11-03-00326-CR, & 11-03-00327-CR Appeals from Harris County State of Texas
Appellee
The jury convicted Franklin Eugene Arie of three offenses of aggravated robbery, found the enhancement allegations
to be true, and assessed appellant s punishment at confinement for life for each offense. We affirm.
Appellant s court-appointed counsel has filed a brief in which he states that these appeals present no meritorious issues
for review. Counsel analyzes the indictment, the pretrial proceedings, the voir dire proceedings, the sufficiency of the
evidence, the charge to the jury, and the punishment proceedings and concludes that trial counsel provided reasonably
effective assistance and that the evidence is both legally and factually sufficient.
Counsel has furnished appellant with a copy of the brief and advised appellant of his right to review the record and to
file a pro se brief. A pro se brief has been filed. Counsel has complied with the procedures outlined in Anders v.
California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807
(Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137
(Tex.Cr.App.1969).
In his pro se brief, appellant contends that the trial court failed to instruct the jury concerning accomplice testimony,
that the trial court erred in failing to instruct the jury at the punishment phase as to the burden of proof concerning
prior convictions, and that the trial court erred in admitting evidence of his 1987 conviction for carrying a weapon. In
three points, appellant challenges the effectiveness of his trial counsel.
First, appellant argues that Glen Brinegar was a party to the aggravated robberies. Therefore, appellant contends that
the trial court should have given an instruction on the law of parties. We disagree.
Brinegar testified that he knew appellant because appellant had dated his niece Stephanie Keller. On January 16, 2003,
Brinegar, Keller, appellant, and appellant s sister were riding around in Brinegar s car. Brinegar was driving, and
appellant and Keller were completely out of it on pills and alcohol. They went to a truck stop, and appellant s sister
went to go make some money. Brinegar and Keller waited. Appellant and his sister got out of an 18-wheeler rig and
got back into Brinegar s car. Keller drove the car to a Shell station. Appellant was sitting in the front seat, and
Brinegar and appellant s sister were in the back.
Brinegar testified that, when they stopped at the Shell station, appellant said that he was going to get some money.
Appellant came back to the car with an 18-pack of Bud Light and with some money in his hand. Keller drove back to
the truck stop, and they left appellant s sister there. Keller, Brinegar, and appellant drove to a Chevron station, and
appellant went into the store. This time, appellant returned to the car carrying a box of Marlboro Lights, and Brinegar
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did not see any money in appellant s hands.
They went back to the truck stop but could not find appellant s sister. They then drove to a Whataburger, and appellant
got out of the car. He was not carrying anything when he came back into the car. They drove to appellant s mother s
house to see if Keller could spend the night there. When appellant s mother said no, Brinegar drove to appellant s
brother s house. There, appellant and his brother started to argue about a gun. Brinegar testified that he did not know
what gun they were fighting about. As he was backing out of the driveway, Brinegar heard a gunshot.
Brinegar testified that he knew someone was shot but he did not know who. Brinegar had his niece drop him off at a
Shell station, and he stayed there for a while. He then walked down the road, and the police stopped him and asked
him if he knew anything about a robbery that occurred that night. Brinegar told the officers that appellant had gone into
the Shell station, the Chevron station, and the Whataburger.
Brinegar testified at trial that he did not know what appellant was doing at the places where they stopped, that
appellant did not give him any money, and that he had not seen a gun in appellant s hand. Brinegar did not remember
why they had stopped at the Shell station, the Chevron station, or the Whataburger. He also said that he was a little bit
afraid of appellant.
The record does not support appellant s contention that Brinegar was responsible as a party and that such an instruction
was warranted. There was no evidence that Brinegar participated before, during, or after the offense with the required
mental state so that he was susceptible to prosecution for the same or a lesser included offense. TEX. CODE CRIM.
PRO. ANN. arts. 7.01, 7.02, & 38.14 (Vernon 1977 & 1979); Paredes v. State, 129 S.W.3d 530, 536
(Tex.Cr.App.2004). Trial counsel did not err in failing to request, and the trial court did not err in failing to give, a jury
instruction on parties. This point is overruled.
Appellant also complains that the trial court erred by failing to charge the jury at the punishment phase that the burden
of proof was beyond a reasonable doubt. We disagree.
At the punishment hearing, the State introduced evidence of appellant s 1991 Texas conviction for aggravated robbery,
his 1993 Illinois conviction for robbery, his 1999 Illinois conviction for robbery, and his 1987 Texas conviction for
carrying a weapon. TEX. CODE CRIM. PRO. ANN. art. 37.07, 3 (Vernon Supp. 2004) provides that unadjudicated
extraneous offenses and bad acts must be proved beyond a reasonable doubt; however, there is no requirement that
prior final convictions must be proved beyond a reasonable doubt as appellant argues. Bluitt v. State, No. 723-02, 204
WL 1259867 (Tex.Cr.App., June 9, 2004). Therefore, no error occurred when trial counsel did not ask and the trial
court did not give such an instruction. This point is overruled.
Appellant argues that the trial court erred in admitting State s Exhibit No. 11, the judgment and sentence from his 1987
conviction for carrying a weapon. The exhibit was properly admitted pursuant to Article 37.07, section 3(a)(1). This
contention is overruled.
Appellant further argues that he was denied the effective representation by his trial counsel. In order to determine
whether appellant s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has
shown that counsel s representation fell below an objective standard of reasonableness and, if so, then determine
whether there is a reasonable probability that the result would have been different but for counsel s errors. Strickland v.
Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong
presumption that counsel s conduct fell within the wide range of reasonable professional assistance, and appellant must
overcome the presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Stafford v. State, supra.
Appellant specifically contends that his counsel was ineffective because she failed to object to State s Exhibit No. 11,
because she failed to request instructions on the burden of proof as to his prior final convictions, because she failed to
object to Brinegar s testimony, and because she failed to request an instruction on the law of accomplice testimony. As
stated above, none of these instances constituted error; therefore, none resulted in appellant s denial of reasonably
effective representation.
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Appellant also argues that his trial counsel was ineffective because she was appointed only on the day of trial, because
she failed to move to sever the offenses, and because she failed to suppress evidence concerning the gun. The record
does not support appellant s arguments.
The record reflects that, at the end of the voir dire proceedings on September 2, 2003, appellant informed the court that
he was unhappy with his trial counsel. Appellant told the trial court that trial counsel had been representing him for
eight months and that he felt that she had done absolutely nothing for him. The trial court reminded appellant that his
trial counsel had investigated the case and was prepared for trial. Appellant continued to tell the trial court that counsel
did not care what happened to him and that she was ineffective. The exchange ended with the trial court warning
appellant that, if he continued to disrupt the proceedings any more by yelling at the jury, by yelling at [his] lawyer,
then [he could not] stay in the courtroom. The trial court further informed appellant that this was the word of warning
because appellant was not helping himself with his actions or by his demeanor. Counsel s failure to request a severance
appears to have been sound trial strategy. Had the offenses been severed and separate trials conducted, conviction of
more than one offense could have resulted in the trial court, in its discretion, ordering the sen-tences to run
consecutively or to be stacked. TEX. PENAL CODE ANN. 3.04(b) (Vernon 2003). However, by allowing the offenses
to be consolidated, in the event of the conviction of more than one offense, the sentences would have to run
concurrently and could not have been stacked. TEX. PENAL CODE ANN. 3.03(a) (Vernon 2003). The record does
not reflect any ground upon which trial counsel could have attempted to suppress evidence concerning the gun. All of
appellant s challenges to the effectiveness of his trial counsel are overruled.
All of appellant s arguments in his pro se brief have been considered. Each argument is overruled.
Following the procedures outlined in Anders, we have independently reviewed the record. We agree that the appeals
are without merit.
Bimal Joshi testified that, on January 16, 2003, he was the cashier at the Humble Shell station. At approximately 9:54
p.m., appellant came into the store and attempted to purchase an 18-pack of beer. When Joshi asked appellant for
identification, appellant pulled a gun and said: I don t have ID, but I have this. Joshi feared for his life and gave
appellant the money as requested.
Opal Boudreaux testified that, on January 16, 2003, she was working as the nighttime cashier at the Chevron station.
At 11:42 p.m., appellant came up to the cash register and asked for a package of Marlboro Lights. Boudreaux turned to
reach for the cigarettes. When she turned back to face appellant, he pointed a gun at her stomach and asked for all of
her money. Boudreaux testified that she thought appellant would kill her. She handed him the cash, and he left.
Basel Loo testified that he was the manager of the Whataburger on I-45 and Louetta. Loo testified that appellant
entered the Whataburger on January 17, 2003, at 12:45 a.m., asked for money, and said that he had a gun in his pocket.
When Loo asked to see the gun, appellant pulled out a pistol. Loo testified that, at that point, he knew this was real and
that he was afraid that appellant might shoot him or one of his employees. Loo opened the register, and appellant
removed the cash.
When all of the evidence is viewed in the light most favorable to the verdicts, we find that a rational trier of fact could
have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). Therefore, the evidence is legally sufficient to support the
convictions. After viewing all of the evidence in a neutral light, we do not find that the evidence supporting the verdict
is so weak that the verdict is clearly wrong and manifestly unjust or that the evidence contrary to the verdict is so
strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, No. 539-02, 2004
WL 840786 (Tex.Cr.App. April 21, 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67
S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d
126 (Tex.Cr.App.1996). The evidence is factually sufficient to support the convictions.
The judgments of the trial court are affirmed.
PER CURIAM
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September 2, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
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