Tobechukwu Ifechukwu v. State ( 2011 )

Affirmed and Memorandum Opinion filed August 9, 2011.

In The

Fourteenth Court of Appeals

___________________

NO. 14-10-00405-CR

___________________

Tobechukwu Ifechukwu, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1221513

MEMORANDUM OPINION

A jury convicted Tobechukwu Ifechukwu of aggravated robbery and sentenced him to eighteen years’ imprisonment.  On appeal, Ifechukwu argues the trial court erred by (1) denying his motion to suppress involuntary statements made to police officers; (2) allowing testimony before the jury relating to an impermissibly suggestive photo-spread lineup that gave rise to a likelihood of misidentification; and (3) admitting evidence before the jury that was not relevant to his punishment.  In his final issue, Ifechukwu argues he received ineffective assistance of counsel.  We affirm.

I

On June 5, 2009, Shawna Maurice and David Blanks were working at a Cash Advance America when Tobechukwu Ifechukwu entered the store under the guise of getting a loan.  Shortly thereafter a second man, later identified as “Darnell,” walked in and went directly to the far side of the store, keeping an eye out the window but never looking at anyone else.  Ifechukwu then pulled out a gun, pointed it at Blanks’s head, and ordered both employees to get on the ground.  Meanwhile, Darnell, who also had a gun, locked the front door.  Ifechukwu instructed Maurice to crawl to the safe and open it.  She complied, fearing for her life, and gave him the “dummy bag,”[1] while Darnell searched the registers for money.  The robbers then ordered Maurice and Blanks to crawl to the back of the store.  Darnell bound their arms and legs with duct tape while Ifechukwu demanded their cell phones and asked where he could find more money.  Ifechukwu told them to stay on the floor or he would shoot them, and the robbers returned to the front of the store.  Maurice and Blanks waited until they heard a customer enter the store and, realizing the robbers were gone, freed themselves from the tape and called police.

About two weeks later, Detective Roberto Rincon of the Harris County Sheriff’s Department separately showed Maurice and Blanks the same photo array.  Both witnesses claimed they saw Ifechukwu’s face clearly during the robbery, and both confidently identified Ifechukwu from the photo array as the first robber.  During the trial, the State played a video from a surveillance camera that recorded the robbery, which corroborated Blanks’s and Maurice’s accounts of the events.

On the evening of June 12, 2009, Lieutenant John Ross of the Houston Police Department led three other officers in arresting Ifechukwu for the robbery.  After Lieutenant Ross drove Ifechukwu to the Fondren police station and read him his Miranda rights, Ifechukwu voluntarily submitted a written confession, admitting to the June 5 armed robbery as well as a number of others.  The following morning, Officer Darren Schlosser of the Houston Police Department conducted a recorded interview in which Ifechukwu voluntarily confessed again to the June 5 robbery as well as twelve extraneous offenses.  The trial court below, however, tried Ifechukwu only for the June 5 aggravated robbery.  After finding him guilty, a jury sentenced him to eighteen years’ imprisonment. 

II

In his first issue, Ifechukwu argues the trial court erred in denying his motion to suppress what he contends were involuntary written and recorded confessions.  Specifically, Ifechukwu alleges Sergeant Garza,[2] who worked undercover to facilitate Ifechukwu’s arrest, threatened to shoot him with a stun gun if he did not cooperate and thus coerced Ifechukwu into making false confessions. 

A

We review a trial court’s decision to deny a motion to suppress a defendant’s confession using an abuse-of-discretion standard.  Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005).  During the suppression hearing, the trial court is the exclusive trier of fact and judge of the witnesses’ credibility.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Mason v. State, 116 S.W.3d 248, 256 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  An appellate court affords almost total deference to the trial court’s determination of historical facts supported by the record, especially when the trial court’s findings are based on an evaluation of credibility and demeanor.  Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).  If the trial court’s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, we must sustain it.  Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Flores v. State, 172 S.W.3d 742, 748 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

The constitutional right to due process prohibits the government from using an involuntary confession against an accused.  State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999).  When a defendant presents evidence raising a voluntariness question, the prosecution has the burden of proving voluntariness by a preponderance of the evidence.  Id. at 725.  A statement is involuntary only if there was coercive police conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.  Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).  Whether a confession was involuntary as a matter of fact must be decided by the totality of the circumstances on an individual basis.  Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).  Relevant circumstances include the length of detention and interrogation, whether the defendant was permitted to access to his family or an attorney, and the presence or absence of physical brutality.  Id.  Further, the police conduct must be causally related to the confession in question.  Colorado v. Connelly, 479 U.S. 157, 164 (1986).  The ultimate question is whether the suspect’s will was overborne.  Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). 

After the hearing on Ifechukwu’s motion to suppress, the trial court reached the following conclusions: (1) Ifechukwu’s statements were voluntary; (2) the officers made no threats or promises to him; and (3) even if Sergeant Garza did threaten Ifechukwu with a stun gun, such conduct did not render the subsequent confessions to other officers involuntary.  We afford almost total deference to that determination if it is supported by the record. See id.; see also Guzman, 955 S.W.2d at 89.

B

The record reflects that on the evening of June 12, 2009, Sergeant Garza went undercover to Ifechukwu’s apartment complex with a valid arrest warrant.  When Sergeant Garza saw Ifechukwu outside the apartment building, he notified Lieutenant Ross, who was waiting about two blocks away, via radio.  Ifechukwu testified Sergeant Garza revealed himself as a police officer, showed Ifechukwu a stun gun, and threatened to shoot Ifechukwu with it unless he cooperated.  Lieutenant Ross arrived within thirty seconds of receiving Sergeant Garza’s radio message, arrested Ifechukwu, and drove him to the Fondren police station.  Ifechukwu and Sergeant Garza rode in separate vehicles and did not see each other again.  Lieutenant Ross testified Ifechukwu was very cooperative and never indicated he had been threatened by or was afraid of any of the officers.  Lieutenant Ross further testified Sergeant Garza did not carry a stun gun during the arrest and Ifechukwu was never threatened in Lieutenant Ross’s presence or to his knowledge.

Lieutenant Ross testified that about three hours after the arrest, he read Ifechukwu his Miranda rights and Ifechukwu, after indicating he understood his rights, willingly gave a signed, written statement confessing to a number of armed robberies, including the June 5 crime for which Lieutenant Ross arrested him.  Ifechukwu testified, however, that although Lieutenant Ross made no threats, he dictated statements and instructed Ifechukwu to copy them, and Ifechukwu complied out of fear.  But Lieutenant Ross testified Ifechukwu wrote the substance of the statement on his own, with Lieutenant Ross providing only basic instructions, such as where Ifechukwu should sign the document.

On June 13, roughly twelve hours after the arrest, Officer Schlosser interviewed Ifechukwu to follow up with the investigation. The roughly two-hour-long interview was recorded on DVD.  Officer Schlosser told Ifechukwu it was in his best interest to talk during the interview and advised Ifechukwu of his constitutional rights, including his right to remain silent, to have an attorney present during the interview and throughout the process, to terminate the interview at any time, and explained that anything Ifechukwu said could be used against him.  Ifechukwu nodded his head and gave verbal acknowledgment that he understood his rights but wanted to waive them.  At no point did Ifechukwu ask to terminate the interview or request counsel.   

At the suppression hearing, however, Ifechukwu testified, “I was afraid because I already been threatened with a stun gun.  If I don’t cooperate they going to use a stun gun on me, so had to say everything they told me to say then—although I was told, you know, to feel relaxed and all that.”  Ifechukwu testified Officer Schlosser met with him for 30–45 minutes before the interview and gave Ifechukwu a list and details about a number of robberies, instructing Ifechukwu to confess to those robberies during the interview. But Officer Schlosser denied speaking to Ifechukwu about the case prior to the interview and further asserted he did not know about some of the other robberies until Ifechukwu confessed to them. 

The trial court could have reasonably discredited Ifechukwu’s testimony in favor of Lieutenant Ross’s to conclude no one threatened Ifechukwu.  The trial court further concluded that, even if Sergeant Garza did make the alleged threat, Ifechukwu voluntarily gave statements to Lieutenant Ross and Officer Schlosser.  The record supports this conclusion because, as the trial court noted, there was a lack of causality between the alleged threat and the subsequent confessions.[3] See Colorado, 479 U.S. at 164; see also Smith v. State, 547 S.W.2d 6, 11 (Tex. Crim. App. 1977) (explaining a confession is not involuntary if there was a break in the stream of events from the initial coercion to the giving of the confession).  Additionally, there was no evidence of physical brutality.  See Gomes, 9 S.W.3d at 337.  Accordingly, the record supports the conclusion that Ifechukwu’s will was not overborne, and the trial court did not abuse its discretion in denying his motion to suppress the statements.  Creager, 952 S.W.2d at 855.  We overrule Ifechukwu’s first issue.

III

In Ifechukwu’s second issue, he argues the trial court erred by refusing to exclude testimony that identified Ifechukwu as one of the robbers from what he contends is an impermissibly suggestive photographic lineup.  Specifically, Ifechukwu argues that although all six photos are the same size, his head is obviously larger than those of the other five subjects.

A

            Whether the pre-trial suspect-identification procedure in this case was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of witnesses’ credibility and demeanor, and we review such questions de novo.  See Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.—Houston [14th Dist.] 2000, no pet.).[4]

In-court identification is inadmissible if it is tainted by an impermissibly suggestive pretrial photographic identification.  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).  To determine whether a pretrial identification procedure was so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law, we use a two-step analysis which inquires (1) whether the pretrial procedure was impermissibly suggestive, and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial.  Simmons v. United States, 390 U.S. 377, 384 (1968); see also Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App. 1995).  Ultimately, it is the appellant’s burden to show by clear and convincing evidence that the in-court identification is unreliable, and identification testimony is admissible if the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification.  Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993); see also Santos v. State, 116 S.W.3d 447, 453 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). 

B

We first consider whether the pretrial procedure in this case was impermissibly suggestive.  A pretrial identification procedure may be suggestive by the manner in which it is conducted, such as if police point out the suspect or suggest that the suspect is included in the photo array.  Barley, 906 S.W.2d at 33.  Suggestiveness may also arise if the suspect is the only individual closely resembling the pre-procedure description.  Id.  Neither due process nor common sense requires all the individuals in a pretrial identification to be identical.  See id. at 33–34 (concluding a photographic array consisting of six black males of similar features was not unduly suggestive, even though the photos had variable lighting and backgrounds); Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985) (concluding a pretrial lineup of black males with varying skin tones was not unduly suggestive despite subjects differing by a range of five inches in height and thirty-five pounds in weight).  But the subjects’ appearances should be sufficiently similar as to provide a reasonable test for the witnesses’ ability to reliably identify the perpetrator.  Escovedo v. State, 902 S.W.2d 109, 117 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

In this case, Detective Rincon developed the photo array by choosing photos of five black males with physical characteristics similar to Ifechukwu’s, including consideration of hairstyle, skin texture, size, build, and skin tone and color.  Detective Rincon testified the goal for using similar subjects is to prevent witnesses from focusing on any single characteristic of a subject without adequately considering the other photos.  He further testified he showed Blanks and Maurice the same photo lineup on June 17 and 18, respectively, and gave each of them a “photo show up instructions form,” which explained the guilty party may not be in any of the photos, they were not required to choose a photo, and it was important for them not to choose an innocent subject.  The witnesses both signed copies of this form to indicate their understanding of the instructions.  Blanks identified Ifechukwu immediately and Maurice identified him after about a minute.  Because both witnesses clearly saw Ifechukwu’s face during the crime, they both testified to being very confident about their identifications.  Blanks and Maurice similarly testified Detective Rincon never indicated which photo showed the suspect or suggested they choose a particular photo, and they did not speak to each other about the photos.  At trial, both witnesses identified Ifechukwu as the robber with certainty, even though Ifechukwu had a beard and more hair at trial than during the crime.  

After reviewing the record and the photographic array therein, we conclude the lineup was not impermissibly suggestive.  Ifechukwu argues the lineup was impermissibly suggestive because it incorporated a photo in which his head appeared obviously larger than those of the other five subjects in the lineup.  But all six subjects are black males with bald heads and similar facial features and structures.  The photos are the same size and have similar plain backgrounds, and the photos are similarly cropped such that each subject’s head fills most of the picture with a small portion of his upper torso also visible.  To the extent Ifechukwu’s head looks larger than the other subjects’ heads, it appears to be a reflection of his physical characteristics and not of photo manipulation.

Furthermore, both Maurice and Blanks testified the men in the pictures were of similar shape, size, and build, and they were given plenty of time to identify the suspect.  Maurice specifically testified that there was “not really” anything different about the six subjects in the photos.  It is undisputed that Detective Rincon did not suggest which photo the witnesses should choose.  On cross-examination, Ifechukwu’s counsel asked Maurice and Blanks whether one of the subjects had a particularly big head, and both testified that Ifechukwu’s head was very large.  However, both witnesses testified they identified Ifechukwu at trial based on their memories from the robbery and not from the photo.  Ifechukwu has not shown by clear and convincing evidence that the photo lineup was impermissibly suggestive, and accordingly we do not reach the second prong of the analysis.  Delk, 855 S.W.2d at 706.  We overrule Ifechukwu’s second issue.

IV

In Ifechukwu’s third issue, he contends the trial court erred by admitting irrelevant extraneous-offense testimony during his punishment hearing.[5] The thrust of Ifechukwu’s complaint, however, seems to be that the evidence was insufficient to support a connection between Ifechukwu and the extraneous offense.  Ifechukwu further alleges the State failed to provide proper notice of its intent to use that offense against him pursuant to Texas Rules of Civil Procedure 37.07.  Regardless of how Ifechukwu frames this complaint, the State contends, and we agree, he waived the argument by failing to object to the testimony at trial.

For a party to preserve error for appellate review, he must demonstrate the error on the record.  Tex. R. App. P. 33.1(a); see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).  The party must make the complaint, objection, or motion in a timely manner and state the grounds for the desired ruling with sufficient specificity to make the trial court aware of his complaint.  See Nickerson v. State, 312 S.W.3d 250, 258 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).  If a party’s objection at trial does not correspond with its issue on appeal, the party has waived the issue.  Id.; see also Broxton, 909 S.W.2d at 918.  Ifechukwu’s counsel failed to lodge any objection at trial to the evidence he complains on appeal was erroneously admitted.  Furthermore, Ifechukwu concedes he did not preserve error for appeal by contending his trial counsel was ineffective for “failing to object to [the] testimony.”  Although Ifechukwu’s trial counsel’s failure to object may be considered in an ineffective-assistance-of-counsel analysis, it cannot render error preserved for purposes of considering whether the trial court properly admitted testimony of the extraneous offense.  Because Ifechukwu failed to preserve error, we overrule his third issue.

V

            In his final two issues, Ifechukwu contends he received ineffective assistance of counsel. He alleges counsel was ineffective by (1) failing to object to extraneous evidence connecting Ifechukwu with individuals who regularly carried handguns and implying Ifechukwu’s involvement with another crime; (2) failing to object to testimony regarding how the photo spread was developed, which implied Ifechukwu had a criminal history; (3) failing to object to extraneous-offense testimony during the punishment hearing, despite the State’s failure to give proper notice of its intent to use that evidence against Ifechukwu during punishment; (4) failing to call Lieutenant Ross or Sergeant Garza as witnesses during the suppression hearing; (5) failing to investigate Ifechukwu’s alibi; and (6) failing to secure a trial-court ruling on the motion to suppress illegally obtained evidence based on an invalid arrest.  Ifechukwu also re-urges the grounds for ineffective assistance he outlined in a motion for new trial, which include allegations that counsel was ineffective by (1) making agreements regarding Ifechukwu’s case with the prosecutor without his knowledge, (2) failing to fully explain the prosecution’s evidence to him, (3) failing to assign an investigator to his case until a few months before the trial, and (4) failing to visit him in the county jail.  Ifechukwu argues that the cumulative impact of these errors denied him a fair trial. 

            We review claims of ineffective assistance of counsel using a two-pronged test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).  The appellant bears the burden of proving by a preponderance of the evidence that (1) his trial counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.  Strickland, 466 U.S. at 688, 693–94; Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2002).  A reasonable probability is one sufficient to undermine confidence in the outcome, meaning “‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”  Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (quoting Strickland, 466 U.S. at 687); see also Mallett, 65 S.W.3d at 63.  A court’s analysis considers the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  And “we begin with the strong presumption that counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy.” Cadoree v. State, 331 S.W.3d 514, 527 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also Salinas, 163 S.W.3d at 740.  To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 813. 

The record for review of effective assistance of counsel is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial.  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).   Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  When the record is silent as to trial counsel’s strategy, we will not conclude defense counsel’s assistance was ineffective unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’”  Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); see also Cadoree, 331 S.W.3d at 527–28.  In making such an evaluation, however, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689).

A

Following the jury trial, Ifechukwu requested new counsel and filed a motion for a new trial, arguing he received ineffective assistance of counsel.  His trial counsel submitted an affidavit responding to his complaints.  In his motion, Ifechukwu alleges his counsel and the prosecutor made agreements without Ifechukwu’s knowledge, but counsel expressly denies that allegation.  Ifechukwu complains counsel failed to explain the evidence against him and he was thus unable to meaningfully investigate that evidence.  However, counsel asserts this complaint lacks merit because Ifechukwu confessed to each aggravated robbery brought before the trial court and thus gave the Houston Police Department the evidence used against him.  She also insists she kept Ifechukwu fully informed and explained things to him “numerous numerous times” throughout his case.  Ifechukwu further argues he was harmed by counsel’s failure to assign an investigator to the case until a few months before the trial.  But counsel asserts her investigator “spent a huge amount of time” with Ifechukwu and maintains she and her investigator “looked into everything [they] could until it became not of value.”  Ifechukwu argues he was harmed by counsel’s failure to visit him in the county jail, but counsel explains she did not visit him because she had several court settings where she and Ifechukwu had lengthy, face-to-face private visits during which she repeatedly and thoroughly discussed all aspects of the case with him.  Counsel further explains she sent her investigator to speak with Ifechukwu in jail to confirm there was nothing new to discuss.  Counsel’s affidavit additionally highlights her trial strategies, namely to mitigate Ifechukwu’s punishment by emphasizing that no one was hurt during any of the crimes.

            The trial court denied Ifechukwu’s motion for a new trial, concluding counsel did “very well.”  The record supports the finding that counsel acted reasonably as to these points and, to the extent Ifechukwu raises them again on appeal, we conclude the record fails to establish counsel’s representation fell below an objective standard of reasonableness, or that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.  See Strickland, 466 U.S. at 688, 693–94; Mallett v. State, 65 S.W.3d at 62–63.

B

1

            Ifechukwu raises a number of additional ineffective-assistance complaints.  He argues counsel was ineffective by failing to object to inadmissible extraneous evidence referring to his potential involvement in a past crime and his association with people who carried .22-caliber weapons; failing to object to testimony regarding how Detective Rincon made the photo array, which implied Ifechukwu had a prior criminal background; failing to call Lieutenant Ross or Sergeant Garza to the stand during the suppression hearing; and failing to secure a trial-court ruling on the motion to suppress illegally obtained evidence acquired with an invalid search warrant.  However, the record is silent regarding these alleged errors and, if indeed they are errors at all, they are not so egregious such that no reasonable trial strategy could explain them.  See Thompson, 9 S.W.3d at 814 (citing Strickland, 466 U.S. at 689).  Because the record is silent as to counsel’s strategy, Ifechukwu fails to rebut the presumption that counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy.  See Cadoree, 331 S.W.3d at 527.  Accordingly, we do not reach the second prong of the Strickland test.

2

Ifechukwu also argues counsel was ineffective by failing to object to extraneous-offense testimony during the punishment hearing when the State failed to provide proper notice of its intent to use that offense against Ifechukwu.  However, counsel’s affidavit confirms she received prior notice of all twelve extraneous offenses the State raised during the punishment hearing.  Ifechukwu also alleges counsel should have objected to the testimony because there was insufficient evidence linking Ifechukwu to the extraneous offense to allow the testimony to come before the jury.  However, counsel’s affidavit highlights the fact that Ifechukwu confessed to the extraneous offense in question on the video, which was properly admitted into evidence and played for the jury.  Accordingly, there was sufficient evidence to support submission of this offense and counsel did not render ineffective assistance by not objecting to admissible testimony.  See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011), cert. denied, Martinez v. Tex., ___ S. Ct. ___, 2011 WL 1596224 (2011).

3

Finally, Ifechukwu argues counsel was ineffective by failing to investigate his alibi and call meaningful alibi witnesses on his behalf.  Counsel’s affidavit addresses this complaint.  She states Ifechukwu repeatedly requested she contact people on his behalf only to then call them liars and allege they were stealing money from him.  She explains Ifechukwu’s alibi, after a number of changes, was ultimately that he had been driving alone for an hour or two when the robbery occurred, leading counsel to conclude any witnesses who “possibly saw him hours earlier would be of no help and could even damage us before the jury.”  Counsel’s actions and decisions were reasonably professional and motivated by sound trial strategy.  See Cadoree, 331 S.W.3d at 527.

Because Ifechukwu fails to rebut the presumption that counsel acted reasonably in some of his complaints, and because in the remainder of his complaints the record demonstrates counsel’s actions were reasonably professional and motivated by sound trial strategy, we conclude Ifechukwu’s counsel was not ineffective. We overrule issues four and five.

* * *

            For the foregoing reasons, we affirm the trial court’s decision.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Brown, Boyce, and Jamison

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] When asked to explain the contents of the dummy bag, Maurice testified, “just two twenties and a bunch of ones and I think a check maybe.”

[2] Sergeant Garza’s first name is not in the record.

[3] The trial-court judge denied Ifechukwu’s motion to suppress explaining, “I imagine most officers when they are arresting somebody say you got to cooperate when they are arresting somebody.  They are not talking about something that may happen three hours later or twelve hours later are they going to make a statement.”

[4] Mixed questions turn on an evaluation of credibility and demeanor “when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.”  Loserth, 963 S.W.2d at 773 (citing Miller v. Fenton, 474 U.S. 104, 114–15 (1985)); see also Guzman, 955 S.W.2d at 87.

[5] Specifically, Ifechukwu’s complaint refers to the testimony of Kurt Brecht, who was the victim of one of the aggravated robberies Ifechukwu confessed to during Officer Schlosser’s interview.