Sedrick Domonique Haywood v. State ( 2013 )

Affirmed and Memorandum Opinion filed November 7, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00102-CR
SEDRICK DOMONIQUE HAYWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1258266
MEMORANDUM OPINION
Appellant Sedrick Domonique Haywood was convicted of aggravated
robbery and sentenced to 45 years‘ confinement in prison. See Tex. Penal Code
Ann. § 29.03 (West 2011). Appellant now appeals his conviction in four issues. In
his first issue, appellant contends his conviction should be reversed because the
trial court allowed voir dire to continue when he was not present in the courtroom.
We conclude this is a statutory violation and is harmless. In his second issue,
appellant argues the trial court erred when it admitted the complainant‘s in-court
identification of appellant because he contends it was tainted by an impermissibly
suggestive pre-trial show-up identification. Appellant did not preserve this issue
for our review. In his third issue, appellant contends the evidence is legally
insufficient to support his conviction. We disagree because the complainant‘s
identification, the surveillance video from the crime scene, and other evidence tie
appellant to the crime. Finally, in his fourth issue, appellant argues he received
ineffective assistance of counsel. As to each complaint, however, appellant failed
to show one of the required elements of an ineffective assistance claim. We
therefore affirm the trial court‘s judgment.
BACKGROUND
On April 7, 2010, Laura Martinez was working alone behind the counter at
the EZ Loan on Wirt Road. At about 1:30 that afternoon, Martinez observed
appellant walk into her store and pull a mask over the top half of his face. Seeing
appellant‘s action, Martinez hit the panic button hanging around her neck.
Appellant quickly leaped over the counter, pointed a gun at Martinez‘s face, and
told her to give him the money. Martinez opened the till with her key and put the
money from the till in appellant‘s black bag. Martinez then entered the code to
open the store‘s safe, but the lock was a timed lock and would not open for twelve
minutes.
As time passed, appellant grew increasingly impatient and repeatedly told
Martinez she was taking too long getting the money and to hurry up. Appellant
also told Martinez there were police everywhere and if they came, he was going to
kill her. Martinez began to pray and beg for her life, however appellant told her he
was going to kill her whether he got the money or not because she had seen his
face. Appellant then demanded Martinez‘s driver‘s license and told her that if he
2
got caught, he was going to kill her and her family. After appellant noticed the EZ
Loan‘s surveillance camera, he walked over to check if the door to the EZ Loan
was locked and he threatened Martinez that if the door was locked, he was going to
kill her. When he checked the door, appellant saw a marked police car pull up to
the EZ Pawn next door. At that point, appellant ran out of the EZ Loan without
any of the money.
Martinez estimated that appellant was in the store for nine minutes.
Martinez testified that she saw appellant‘s face before he pulled the mask down.
Martinez also testified that she could see through the mask even after appellant had
pulled it down over part of his face because the material was thin.
The State played the surveillance video from the EZ Loan during Martinez‘s
testimony. The video shows appellant wearing a white muscle shirt, black
basketball shorts, a sheer black mask covering part of his head, white high top
shoes, and a black baseball hat.
Responding to a report of an aggravated robbery, Officer Williams of the
Houston Police Department saw appellant running along the front of the Fiesta
supermarket adjacent to the EZ Loan. According to Williams, he saw appellant
running away from a small carrousel and food vending area. Williams testified
that appellant was being boxed in by police and he looked desperate. Williams
pulled his patrol car in front of appellant, blocking his path. Williams then chased
appellant on foot into and then out of the Fiesta before tackling him in the parking
lot.
Officer Negron traced the route appellant had run looking for evidence.
Negron recovered appellant‘s black beanie and black White Sox hat near the Fiesta
shopping carts and his .45 caliber handgun from under the children‘s carrousel.
Negron testified that the handgun was loaded with a bullet in the chamber so that
3
all appellant ―needed to do was squeeze the trigger.‖
Officer Golemon was working as part of a Houston Police Department
tactical unit patrolling near the EZ Loan. Goleman heard a holdup alarm go out
over the police radio and decided to respond because the EZ Loan was fairly close.
When Golemon arrived on the scene appellant was already in custody, so he went
directly to the EZ Loan.
The EZ Loan was unoccupied when he arrived but Golemon found a visibly
upset Martinez at the EZ Pawn next door. Golemon then took Martinez back to the
EZ Loan so she could describe what had happened. Once they entered the EZ
Loan, Golemon found a black bag on the floor still containing the cash from the
till.
Golemon asked Martinez to accompany him to see if she could identify the
person already in custody. Golemon then drove Martinez to the location where
appellant was being held in custody, which was behind the Fiesta. Golemon then
asked Martinez if ―the person that was standing outside the patrol car was the
person who did this.‖ Martinez then identified appellant as that person. According
to Golemon, at the time Martinez identified appellant as the suspect, appellant was
the only person at the scene in handcuffs and there were police officers standing
near him.
During appellant‘s trial, Martinez testified about her identification of
appellant on the day of the robbery. According to Martinez, she identified
appellant as the suspect between twenty and thirty minutes after the aggravated
robbery occurred. When Golemon drove Martinez to the back of the Fiesta, he
asked if she recognized him as the person who robbed the EZ Loan. Martinez
testified that she was shown a single person and that she knew ―it was him as soon
as they pulled up.‖ During her testimony, Martinez denied that the police
4
suggested appellant was the person who had robbed the EZ Loan. Instead,
Martinez testified that her identification of appellant was based on what he was
wearing and the fact she had seen his entire face prior to the point when he pulled
the mask over half of his face. Martinez also identified appellant in court as the
person who robbed her, stating that she was a hundred percent sure of her
identification.
The following day, appellant gave a statement to Sergeant Robert Wilkinson
of the Houston Police Department. The entire interview was videotaped. The
video was then played during appellant‘s trial over appellant‘s objection. Prior to
the start of the actual interview, Wilkinson gave appellant the required statutory
warnings. According to Wilkinson, appellant acknowledged the warnings, but he
did not recall appellant expressly waiving his rights. In his statement, appellant
wore the same clothing he was seen wearing in the EZ Loan surveillance video and
admitted that the gun found under the carrousel at the Fiesta was his. Appellant
also claimed that he was too intoxicated to remember what had happened the day
before. Appellant went on to state that was he sorry for what he had done and
apologized to the lady in the EZ Loan.
The jury found appellant guilty of aggravated robbery, and the trial court
sentenced him to 45 years‘ confinement in prison. This appeal followed.
ANALYSIS
As mentioned above, appellant brings four issues on appeal. Because
appellant‘s third issue challenges the sufficiency of the evidence supporting his
conviction, we address it first.
I. The evidence is legally sufficient to support appellant’s aggravated
robbery conviction.
In his third issue, appellant contends the evidence is legally insufficient to
5
support his conviction. Specifically, appellant complains that the evidence is
insufficient to establish his identity as the perpetrator of the aggravated robbery of
the EZ Loan. We disagree.
A. Standard of review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In making this review, an appellate court considers all evidence in the
record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999)).
We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Romero v. State, 406 S.W.3d 695, 697
(Tex. App.—Houston [14th Dist.] 2013, pet. struck). We defer to the jury‘s
responsibility to resolve any conflicts in the evidence fairly, weigh the evidence,
and draw reasonable inferences. Id. The jury alone decides whether to believe
eyewitness testimony, and it resolves any conflicts in the evidence. Id. Therefore,
the testimony of a single eyewitness can be enough to support a conviction. Id.
(citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). In addition,
because it is the sole judge of the weight and credibility of the evidence, the jury
may find guilt without physical evidence linking the accused to the crime. Id. In
conducting a sufficiency review, we do not engage in a second evaluation of the
weight and credibility of the evidence, but only ensure the jury reached a rational
decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.]
6
2012, pet. ref‘d).
B. The evidence supporting appellant’s conviction
A person commits aggravated robbery if he commits robbery and he uses or
exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2). A person commits
robbery if, in the course of committing theft with the intent to obtain or maintain
control of the property, he intentionally or knowingly threatens or places another in
fear of imminent bodily injury or death. Id. at § 29.02(a)(2) (West 2011). A
firearm is a deadly weapon. Id. at § 1.07(a)(17) (West 2011). The State must
prove beyond a reasonable doubt that the defendant is the person who committed
the charged offense. Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—Houston
[14th Dist.] 2012, pet. ref‘d).
In his third issue, appellant challenges only the sufficiency of the evidence
establishing his identity as the person who robbed the EZ Loan. In arguing that the
evidence is legally insufficient, appellant urges this Court not to consider his video
statement to Sergeant Wilkinson in evaluating the sufficiency of the evidence. In
addition, appellant argues the evidence is insufficient because (1) he was arrested
wearing black basketball shorts but Martinez testified the person who robbed the
EZ Loan was wearing white basketball shorts; (2) there was no physical evidence
connecting him to the EZ Loan or the handgun found under the Fiesta carousel;
and (3) appellant has significant tattooing on his face and Martinez, during her trial
testimony, did not recall that the suspect had any tattoos or coloring on his face.
Initially, we disagree with appellant‘s argument that we should not consider
in our sufficiency evaluation the video statement in which appellant wore the same
clothes as the suspect in the surveillance video, claimed ownership of the handgun
7
found at the Fiesta, and apologized for what he had done.1 When evaluating the
sufficiency of the evidence, we examine all of the evidence, whether it was
properly admitted into evidence or not. Winfrey, 393 S.W.3d at 767. Yet even if
the video statement could be excluded from the sufficiency analysis, we conclude
there is legally sufficient evidence supporting the jury‘s verdict.
Martinez, the only eyewitness to the aggravated robbery, made an in-court
identification of appellant as the person who entered the EZ Loan, pulled a mask
over part of his face, leaped over the counter, demanded that she give him money,
and repeatedly threatened her life while pointing a handgun at her. The jury heard
Martinez‘s testimony that the suspect was wearing white basketball shorts, and that
she did not recall the suspect having any tattoos or coloring on his face. But the
jury was also shown the surveillance video from the EZ Loan, which depicted the
suspect wearing black basketball shorts. The jury also had an opportunity to
compare for itself the appearance of the suspect in the video with the appearance of
appellant sitting in the courtroom.
In addition, the jury was made aware of the lack of fingerprints on the
handgun found under the Fiesta carousel and the undisputed fact that appellant did
not have on his person any physical evidence from the EZ Loan when he was
1
To the extent appellant‘s third issue could be construed as challenging the trial court‘s
admission of his video statement over his objection that he had not expressly waived his rights as
required by article 38.22 of the Texas Code of Criminal Procedure, we conclude such a challenge
fails. There is no requirement that a defendant expressly waive his rights under Article 38.22 of
the Texas Code of Criminal Procedure. Turner v. State, 252 S.W.3d 571, 583–84 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref‘d). Instead, an implied waiver is sufficient. See id. Here, as
the video admitted during his trial demonstrates, appellant was informed of his rights,
acknowledged he understood them, and then proceeded to answer Sergeant Wilkinson‘s
questions. We conclude appellant validly waived his rights under article 38.22. See id. (―In the
present case, [the police] properly advised appellant of his rights on videotape and asked
appellant if he understood his rights. Appellant indicated he did understand and then proceeded
to answer [the officer‘s] questions. Thus, based on the totality of the circumstances, we hold
appellant validly waived his rights under article 38.22.‖).
8
arrested. But the jury also heard testimony about items seen in the surveillance
video that Officer Negron found discarded along what would have been the
suspect‘s flight path if he had run from the EZ Loan to the Fiesta. Finally, the jury
heard Officer Williams‘s testimony that he observed appellant running in front of
the Fiesta, stopped his patrol car in front of appellant, and chased appellant while
repeatedly ordering him to halt; appellant continued running and finally had to be
tackled in the parking lot.
The jury heard all of this evidence, including the evidence emphasized by
appellant, and still found appellant guilty of aggravated robbery. We conclude that
the evidence, when viewed in the light most favorable to the verdict, was sufficient
for a reasonable jury to reach that verdict. See Bradley, 359 S.W.3d at 917
(holding the complainant‘s testimony covering all elements of charged offense was
legally sufficient to support conviction for aggravated robbery); see also Delacruz
v. State, 278 S.W.3d 483, 487 (Tex. App.—Houston [14th Dist.] 2009, pet. ref‘d)
(―[A]ppellant‘s flight from [the police] from near the scene of the offense serves as
additional circumstantial evidence of his guilt.‖). We overrule appellant‘s third
issue.
II. Appellant was not harmed by the trial court’s decision to proceed with
voir dire after appellant voluntarily absented himself from the
courtroom.
In his first issue, appellant contends the trial court erred when it conducted
part of the voir dire process after he voluntarily absented himself from the
courtroom. According to appellant, this action by the trial court violated his right
to be present during trial under the federal and state constitutions as well as his
statutory right to be present during trial under article 33.03 of the Texas Code of
9
Criminal Procedure.2
A. Facts relevant to appellant’s first issue
On January 27, 2012, the trial court began voir dire in appellant‘s trial.
Appellant was present in the courtroom throughout the morning session. Once the
trial court had completed its portion of the voir dire, it sent the venire panel to
lunch. During the lunch break, the bailiff advised the trial court that appellant
refused to leave his cell to conclude voir dire. The trial court found appellant had
voluntarily absented himself and continued with the voir dire and jury selection.
The record is silent regarding whether appellant‘s defense counsel communicated
with appellant regarding his unwillingness to leave his cell, but defense counsel did
not object to completing voir dire and jury selection in appellant‘s absence.
After one of the venire members asked what had happened to appellant, the
trial court explained that the law allows a criminal defendant to voluntarily absent
himself from the trial proceedings under certain circumstances and that appellant
chose to do that following the lunch recess. Defense counsel then questioned the
venire members on whether they would hold appellant‘s absence against him. The
State agreed to strike the venire members who stated that appellant‘s voluntary
absence from the courtroom was a circumstance they would hold against him.
The next trial day, after appellant was arraigned, the trial judge asked
appellant if he intended to attend and participate in his trial and he responded that
he did. Before the jury was sworn, appellant‘s defense attorney raised an objection
under Article 33.03 of the Texas Code of Criminal Procedure, asking the trial court
to not swear in the jury and to instead select a new jury. The trial court overruled
2
Because appellant has not provided any explanation or authority for construing the
Texas Constitution as conferring greater protection in this area of the law than the federal
constitution, we will not separately address his state constitutional argument. Vasquez v. State,
324 S.W.3d 912, 918 n.4 (Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d).
10
appellant‘s objection as untimely. The record establishes that appellant was
present for the remainder of his trial.
B. The trial court’s decision to continue with the voir dire after
appellant voluntarily absented himself from the courtroom did
not violate appellant’s constitutional right to be present during all
phases of his trial.
Under the Sixth Amendment to the United States Constitution, a criminal
defendant threatened with the loss of liberty must be physically present during all
phases of the proceedings against him. Miller v. State, 692 S.W.2d 88, 90 (Tex.
Crim. App. 1985) (citing Lewis v. United States, 146 U.S. 370 (1892)). The right
to be present can be waived if the criminal defendant voluntarily absents himself
after the commencement of the trial proceedings. Id. (citing Taylor v. United
States, 414 U.S. 17 (1973)); Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.—
Dallas 2000, pet. ref‘d). A trial commences at the time the work of impaneling
jurors begins. Miller, 692 S.W.2d at 91. Therefore, once voir dire begins in his
presence, a criminal defendant may voluntarily absent himself from the
proceedings without a violation of the Sixth Amendment right to be present during
all phases of the trial. Id.; Tracy, 14 S.W.3d at 826.
In this case, appellant was present at the commencement of voir dire and
throughout the trial court‘s questioning of the venire. The record establishes the
trial court recessed the proceedings for lunch once it had completed its portion of
the voir dire. The record further establishes that appellant voluntarily chose to not
return to the courtroom for the completion of the voir dire process following the
lunch recess. Because appellant was physically present when the trial commenced,
his Sixth Amendment right to be present was not violated as a result of the trial
court‘s decision to continue with voir dire following his voluntary absence. Tracy,
14 S.W.3d at 826.
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C. Appellant was not harmed by the violation of his statutory right
to be present under article 33.03 of the Texas Code of Criminal
Procedure.
Article 33.03 requires a defendant in a felony prosecution to be personally
present at trial. Tex. Code Crim. Proc. Ann. art. 33.03 (West 2006). A defendant‘s
statutory right to be present cannot be waived until after the jury is selected.
Miller, 692 S.W.2d at 91; see also Tracy, 14 S.W.3d at 826. For purposes of
article 33.03, the jury is selected when the parties have handed in their respective
jury lists with their peremptory challenges marked. Miller, 692 S.W.2d at 93.
Because appellant absented himself from the trial prior to that point, his statutory
right to be present was violated when the trial court continued with voir dire in his
absence. Tracy, 14 S.W.3d at 826.
We turn next to the required harm analysis. See Johnson v. State, 169
S.W.3d 223, 229, n.15 (Tex. Crim. App. 2005) (―In appellate parlance, trial court
mistakes are referred to as ‗errors,‘ . . . which may be reversible, depending on the
applicable harm analysis (if any).‖). Because a violation of article 33.03 is a
statutory error, we may not reverse unless the error affected a substantial right.3
3
Although appellant concedes he was present for the beginning of the voir dire process
and voluntarily absented himself from the rest, he argues we should apply the harm analysis for
constitutional error found in Tex. R. App. P. 44.2(a). He cites two cases for that proposition:
Sumrell v. State, 326 S.W.3d 621 (Tex. App.—Dallas 2009), pet. dism’d, improvidently granted,
320 S.W.3d 338 (Tex. Crim. App. 2010) (per curiam), and Bledsoe v. State, 936 S.W.2d 350
(Tex. App.—El Paso 1996, no pet.). We conclude these cases do not control the outcome here
because they are distinguishable.
In Sumrell, unlike the present case, the record was silent regarding whether the
defendant‘s absence during voir dire was voluntary. As a result, the court determined the
defendant‘s constitutional right to be present during all phases of his trial was violated, and it
applied the harm analysis for constitutional error found in Rule 44.2(a). See Sumrell, 326
S.W.3d at 624 (―We will not presume on the record before us that appellant‘s absence was
voluntary.‖). As addressed above, the record here establishes that appellant‘s choice not to
participate in the full voir dire process was voluntary, making this a statutory violation, not a
constitutional error.
12
Tex. R. App. P. 44.2(b); Tracy, 14 S.W.3d at 827. A substantial right is affected
when the error (1) had a ―substantial and injurious‖ effect or influence in
determining the jury‘s verdict, or (2) leaves one in grave doubt whether it had such
an effect. Tracy, 14 S.W.3d at 827. A substantial right is not affected and the
error is harmless if, after reviewing the entire record, the appellate court
determines the error did not influence, or had only a slight influence, on the trial‘s
outcome. Id.
No violation of a substantial right occurs during voir dire unless the record
shows the defendant was denied a fair and impartial jury. Id. (citing Ladd v. State,
3 S.W.3d 547, 562 (Tex. Crim. App. 1999)). Here, the record reflects that
appellant‘s defense counsel conducted a thorough voir dire, discussed appellant‘s
absence, and the trial court struck those venire members who stated that appellant‘s
voluntary absence from the courtroom was a circumstance they would hold against
him. We conclude that the record shows that the jury picked during appellant‘s
absence was fair and impartial, and appellant has not demonstrated otherwise. We
overrule appellant‘s first issue.
III. Appellant did not preserve his identification issue for appellate review.
In his second issue on appeal, appellant contends that the trial court erred
when it admitted Martinez‘s in-court identification of appellant because he
The Bledsoe case is distinguishable because the court applied the harm analysis found in
former Rule 81(b)(2) of the Rules of Appellate Procedure. See Bledsoe, 936 S.W.2d at 351.
Under that rule, all errors were subject to reversal unless found harmless ―beyond a reasonable
doubt.‖ The current rule, however, distinguishes between constitutional and non-constitutional
errors, with the latter being governed by the more lenient ―substantial rights‖ analysis found in
Rule 44.2(b). See Taylor v. State, 109 S.W.3d 443, 451 (Tex. Crim. App. 2003). When faced
with a case presenting non-constitutional error under the current rule, an appellate court applies
the Rule 44.2(b) harm analysis, not the harm analysis found in Rule 44.2(a) or former Rule
81(b)(2). See VanNortrick v. State, 227 S.W.3d 706, 709–10 (Tex. Crim. App. 2007); Aguirre-
Mata v. State, 992 S.W.2d 495, 498 (Tex. Crim. App. 1999).
13
contends it was the product of an impermissibly suggestive one man show-up
identification at the scene of the aggravated robbery. Appellant did not object to
Martinez‘s in-court identification, however.
To preserve error for appellate review, a party must (1) make a timely
objection, (2) state the basis for the objection, and (3) obtain a ruling from the trial
court. Tex. R. App. P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App.
2003). Even constitutional errors may be waived by a failure to object at trial.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Appellant does
not cite anywhere in the record where he lodged an objection to Martinez‘s in-
court identification of appellant as the person who robbed the EZ Loan, and our
own independent search of the record has revealed no such objection. Because
appellant failed to object, he has not preserved this issue for appellate review. Tex.
R. App. P. 33.1; Ballah v. State, No. 14-10-00460-CR, 2012 WL 19653, at *2
(Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet. ref‘d) (mem. op.) (citing Perry
v. State, 703 S.W.2d 668, 670, 673 (Tex. Crim. App. 1986)); see also Wright v.
State, 374 S.W.3d 564, 575–76 (Tex. App.—Houston [14th Dist.] 2012, pet. ref‘d).
We overrule appellant‘s second issue.
IV. Appellant is not entitled to a new trial based on ineffective assistance of
counsel.
In his fourth issue on appeal, appellant contends he was denied effective
assistance of counsel because his trial counsel (1) failed to communicate with him,
(2) failed to investigate, (3) failed to object timely to appellant‘s absence during
voir dire, (4) failed to object to hearsay, (5) failed to object to cumulative
testimony, (6) failed to object to the State‘s use of leading questions while
examining Martinez, (7) assisted Martinez during trial counsel‘s own cross-
examination of her, (8) failed to file pre-trial motions to suppress appellant‘s video
14
statement and Martinez‘s identification of appellant, (9) failed to point to conflicts
in the evidence and the lack of forensic evidence connecting appellant to the crime
during closing argument, and (10) failed to identify specific grounds in his motion
for directed verdict.
A. Standard of review
In reviewing claims of ineffective assistance of counsel, we apply a two-
prong 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)). To establish
ineffective assistance of counsel, an appellant must prove by a preponderance of
the evidence that (1) his trial counsel‘s representation was deficient in that it fell
below the standard of prevailing professional norms, and (2) there is a reasonable
probability that, but for counsel‘s deficiency, the result of the trial would have been
different. Id.
An accused is entitled to reasonably effective assistance of counsel. King v.
State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Bradley, 359 S.W.3d at 916.
Reasonably effective assistance of counsel does not mean error-free representation,
however. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel‘s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel‘s performance for examination.
Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Therefore, when evaluating a claim of ineffective assistance, the appellate
court looks to the totality of the representation and the particular circumstances of
the case without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
15
There is a strong presumption that trial counsel‘s actions and decisions were
reasonably professional and were motivated by sound trial strategy. Salinas, 163
S.W.3d at 740. It is not sufficient that an appellant show, with the benefit of
hindsight, that his counsel‘s actions or omissions during trial were merely of
questionable competence. Lopez, 343 S.W.3d at 143. Instead, in order for an
appellate court to find that counsel was ineffective, counsel‘s deficiency must be
affirmatively demonstrated in the trial record and the court must not engage in
retrospective speculation. Id. at 142. When such direct evidence is not available,
we will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined. Id. at 143.
Trial counsel should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective. Menefield v. State, 363 S.W.3d
591, 593 (Tex. Crim. App. 2012). Absent specific explanations for counsel‘s
decisions, a record on direct appeal will rarely contain sufficient information to
evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). When no reasonable trial strategy could justify trial counsel‘s
conduct, however, trial counsel‘s performance falls below an objective standard of
reasonableness as a matter of law, regardless of whether the record adequately
reflects trial counsel‘s subjective reasons for acting as he did. Andrews v. State,
159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
The Court of Criminal Appeals recently stated that it is a rare case in which
trial counsel‘s ineffectiveness is apparent from the record, allowing an appellate
court to address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at
143. The court declared that it is a ―difficult hurdle to overcome: the record must
demonstrate that counsel‘s performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify
16
trial counsel‘s acts or omissions, regardless of his or her subjective reasoning.‖ Id.
In other words, when trial counsel has not had an opportunity to explain his or her
actions or inactions, an appellate court cannot find deficient performance unless
the challenged conduct was ―so outrageous that no competent attorney would have
engaged in it.‖ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
If a criminal defendant can prove trial counsel‘s performance was deficient,
he must also prove he was prejudiced by his trial counsel‘s actions. Thompson, 9
S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability
that the result of the proceeding would have been different if trial counsel had
acted professionally. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Malett v. State, 65 S.W.3d 59, 63 (Tex.
Crim. App. 2001). ―If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be taken.‖ Cox v.
State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012).
B. As to each of appellant’s complaints about counsel, he failed to
establish one of the elements required to obtain a new trial.
Appellant contends his trial counsel was ineffective for ten reasons, which
we consolidate into eight. Appellant did not file a motion for new trial. As a
result, appellant‘s trial counsel was not afforded the opportunity to explain his
decisions or trial strategy relating to each of appellant‘s allegations. Accordingly,
the record is silent as to the reasons for trial counsel‘s challenged conduct.
1. Appellant did not establish that he was prejudiced as a result of his
trial counsel’s alleged failure to communicate.
Appellant contends his trial counsel was ineffective because he allegedly
failed to communicate with appellant. More specifically, appellant contends his
trial counsel did not accept his proposed defense of misidentification. Even if we
17
assumed trial counsel‘s communication with appellant was deficient, we conclude
he has not established prejudice because the record establishes that appellant‘s
defense of misidentification was presented at trial and he was still found guilty.
Appellant has not established that the result of the trial would have been different
had his trial counsel communicated with him more effectively on this issue. See
Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (failure to establish the
prejudice prong of Strickland test precludes any relief).
2. Appellant did not establish that his trial counsel failed to investigate
his case.
Appellant next contends his trial counsel was ineffective because he did not
arrange for appellant to view the EZ Loan surveillance video until June 24, 2011—
the same day appellant was required to decide whether the trial court or the jury
would assess his punishment in the event he was found guilty. But this date was
approximately six months before trial, and appellant does not explain how the fact
that it was the same day he was required to make a decision on punishment
establishes a failure to investigate or somehow renders his trial counsel‘s
performance deficient. See Perez v. State, No. 14-07-00414-CR, 2008 WL
5220302, at *4 (Tex. App.—Houston [14th Dist.] Dec. 11, 2008) (―A bre[a]ch of
the duty to investigate may result in a finding of ineffective assistance where the
result is that any viable defense available to the accused is not advanced.‖), aff’d
310 S.W.3d 890 (Tex. Crim. App. 2010). We conclude appellant has failed to
overcome the strong presumption of reasonable professional assistance with
respect to his counsel‘s efforts to investigate. See Salinas, 163 S.W.3d at 740.
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3. Appellant was not prejudiced as a result of the timing of trial
counsel’s objection to his absence during voir dire.
Appellant also contends his trial counsel was ineffective because he did not
timely object to appellant‘s absence from part of voir dire in violation of article
33.03 of the Code of Criminal Procedure. Assuming trial counsel‘s performance
was deficient when he did not object at the time that appellant voluntarily absented
himself from the proceedings, but instead objected the next day prior to the jury
being sworn, we conclude appellant has not established that he was prejudiced by
this deficient conduct. Because a defendant‘s statutory right to be present during
trial cannot be waived until after the jury is selected, counsel‘s failure to object
promptly did not impact his ability to raise that issue on appeal. Miller, 692
S.W.2d at 91; see also Tracy, 14 S.W.3d at 826. Indeed, appellant raised the issue
in this appeal, and we addressed it on the merits and determined he was not harmed
as a result of the violation of article 33.03. Therefore, appellant has not established
by a preponderance of the evidence that he was prejudiced as a result of his trial
counsel‘s belated objection.
4. Appellant did not establish that his trial counsel performed
deficiently by failing to make certain evidentiary objections.
Appellant next complains that his trial counsel was ineffective because he
failed to make certain evidentiary objections. Appellant first contends his trial
counsel was ineffective because he failed to object to Officer Negron‘s testimony
regarding how he came to backtrack through the path appellant traveled after
leaving the EZ Loan. According to appellant, this testimony was inadmissible
hearsay. We disagree. See Poindexter v. State, 153 S.W.3d 402, 408 n.21 (Tex.
Crim. App. 2005) (―[T]estimony by an officer that he went to a certain place or
performed a certain act in response to generalized ‗information received‘ is
normally not considered hearsay because the witness should be allowed to give
19
some explanation of his behavior.‖). An attorney‘s failure to object to admissible
testimony does not constitute ineffective assistance of counsel. See Bradley, 359
S.W.3d at 919 (―Counsel is not ineffective for failing to raise an objection that
lacks merit.‖).
Next, appellant contends his trial counsel was ineffective for failing to object
to Officer Negron‘s allegedly hearsay testimony regarding the actions of two other
police officers who transported the items he found outside the Fiesta to the police
property room. In addition, he contends his trial counsel was ineffective for failing
to object to Negron‘s testimony regarding the purpose of hollow point bullets.
According to appellant, this testimony was cumulative of another police officer‘s
trial testimony. Finally, appellant asserts his trial counsel was ineffective because
he did not object to the State‘s use of leading questions during its direct
examination of Martinez.
Assuming without deciding that the challenged testimony was inadmissible,
we conclude appellant has not established that his trial counsel‘s decision not to
object was so outrageous that no competent attorney would have engaged in it. An
attorney is not necessarily ineffective for failing to object to inadmissible evidence.
McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref‘d). Because jurors often view lawyers who make numerous objections as
trying to conceal the real truth from them, appellant‘s trial counsel could have
made the strategic decision not to object to the challenged testimony because he
did not believe it would impact his misidentification defensive strategy, or because
he believed the evidence would have come in anyway. See McKinney v. State, 76
S.W.3d 463, 473 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (stating that an
attorney may decide to not object to inadmissible evidence for strategic reasons);
Young v. State, 10 S.W.3d 705, 713 (Tex. App.—Texarkana 1999, pet. ref‘d)
20
(stating that it can be sound trial strategy for trial counsel to not object to leading
questions when the evidence will likely come in anyway); Henderson v. State, 704
S.W2d 536, 538 (Tex. App.—Houston [14th Dist.] 1986, pet. ref‘d) (―Failing to
object to every introduction of improper evidence or questioning does not indicate
that appellant‘s representation was ineffective. Not objecting can be a trial
strategy.‖). Therefore, on this record, we conclude appellant did not establish that
his trial counsel performed deficiently by failing to object to the challenged
testimony.
5. Appellant’s trial counsel did not assist Martinez in testifying against
appellant during cross-examination.
Appellant next asserts his trial counsel was ineffective when he allegedly
assisted Martinez in testifying against appellant during counsel‘s cross-
examination. The challenged cross-examination proceeded as follows:
[Q.] This particular individual who pointed that gun at you on April
7, 2010, had you seen him before that date?
A. No.
Q. Okay. So how much time would you estimate the two of you
were in the store together?
A. At least, you know, eight to nine minutes.
Q. Eight to nine minutes. So except for that mega-second, if you
will, that he was putting that mask on, they took ten minutes, he was
in your presence, at least part of his face was always covered; is that
correct?
A. Part of it.
Q. Okay. And when you initially – the first time you talked to the
police, did you ever tell them that this person had any distinctive
marks about his facial area that you could see uncovered?
A. Not that I remember, no.
Q. Okay. Did you recall seeing any coloring or tattooing or
anything in the person‘s face or about the area that was not covered by
21
the mask?
A. Not that I remember, no.
Q. Okay. And if you did — I realize for obvious reasons you were
upset — that‘s something that you probably would have told the
police; is that right?
A. I would think so, if they asked that question.
Appellant, who had substantial tattooing on his face, contends the last
question renders his trial counsel ineffective because he assisted Martinez in
testifying against him. We disagree. Instead, when the entire line of questioning is
examined, it is clear that appellant‘s trial counsel was asking Martinez questions
designed to elicit testimony in support of appellant‘s misidentification defense: the
amount of time Martinez and the armed robber were in the EZ Loan together; the
fact that the armed robber‘s face was partially covered for the majority of that
time; and the fact that Martinez did not recall seeing any marks or tattooing on the
armed robber‘s face. We conclude that asking questions directly relevant to a trial
strategy being followed, and gaining a concession from Martinez that she did not
recall the robber having facial tattoos (which appellant clearly had), does not
constitute ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S.
365, 384 (1986) (holding counsel‘s competence is presumed and appellant must
rebut that presumption by proving that his attorney‘s representation was
unreasonable under prevailing professional norms and that the challenged action
was not sound trial strategy).
To the extent appellant contends his trial counsel was ineffective because he
conceded that she had legitimate reasons for being upset while she was in the
presence of the armed robber, we disagree. Trial counsel‘s recognition that
Martinez had been through a traumatic event when someone entered her place of
business, pointed a gun at her, and then threatened her, did not harm appellant‘s
22
case or assist the State‘s.
6. Appellant has not shown he was prejudiced as a result of trial
counsel’s failure to file a pre-trial motion to suppress appellant’s
video statement.
Next, appellant contends his trial counsel was ineffective for not filing a pre-
trial motion to suppress his video statement on the basis of appellant‘s alleged
failure to waive his constitutional rights expressly. While it is true appellant‘s trial
counsel did not file a motion to suppress appellant‘s video statement, he did object
at trial based on the lack of an express waiver by appellant of his constitutional
rights. The trial court overruled the objection, and therefore the issue was
preserved for appellate review. As we explained above, no express waiver was
required, and in any event the statement can be considered for purposes of a
sufficiency analysis. See ante 7–8 and note 1. Appellant has not shown that the
result of the proceeding would have been different if his trial counsel had filed a
pre-trial motion to suppress rather than lodging the objection during trial. See
Wert, 383 S.W.3d at 753 (―[T]o satisfy the Strickland test and prevail on an
ineffective assistance of counsel claim on a motion to suppress, an appellant must
show by a preponderance of the evidence that the motion to suppress would have
been granted and that the remaining evidence would have been insufficient to
support his conviction.‖).
7. Appellant has not established that trial counsel performed
deficiently by failing to move to suppress Martinez’s show-up and
in-court identifications of appellant.
―An in-court identification is inadmissible when it has been tainted by an
impermissibly suggestive pretrial photographic identification.‖ McAllister v. State,
28 S.W.3d 72, 77 (Tex. App.—Texarkana 2000, no pet.) (citing Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999)). Appellant contends his trial counsel
23
was ineffective for not filing a motion to suppress Martinez‘s in-court
identification of appellant because it was tainted by an impermissibly suggestive
show-up identification of appellant. A trial counsel‘s failure to file a motion to
suppress, however, is not per se ineffective assistance of counsel. Wert, 383
S.W.3d at 753. We conclude appellant has not established that his trial counsel‘s
failure to file such a motion was not part of a reasonable trial strategy; thus, he has
not established the first Strickland prong. See McCook, 402 S.W.3d at 52
(concluding appellant did not establish trial attorney‘s conduct was deficient
because decision to not object to inadmissible evidence could have been the result
of the attorney‘s trial strategy).
It is possible that appellant‘s trial counsel reasonably decided that the in-
court identification would be admitted even if he moved to suppress it or lodged a
trial objection. See Louis v. State, 825 S.W.2d 752, 754, 756 (Tex. App.—Houston
[14th Dist.] 1992, pet. ref‘d) (concluding on-scene identification not impermissibly
suggestive when confrontation occurred an hour after the offense, the witness
immediately identified the defendant, and cross-examination could have exposed
any possible prejudice resulting from the show-up identification). Based on that
initial decision, appellant‘s trial counsel could then have reasonably decided that
the best trial strategy was instead to expose any weaknesses in Martinez‘s
identification of appellant, or any prejudices resulting from the single suspect
identification procedure, through rigorous cross-examination. See Johnson v.
State, 176 S.W.3d 74, 79 (Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d)
(stating that simply because a trial strategy does not work does not mean that trial
counsel was ineffective); McAllister, 28 S.W.3d at 77 (―[Trial counsel] could have
reasonably chosen to highlight differences between the participants in the lineup
and inconsistencies in the witnesses‘ testimony as part of their trial strategy.‖); see
24
also Louis, 825 S.W.2d at 756 (―[A]ny possible prejudice resulting from such a
confrontation can be exposed through rigorous cross-examination of the witness.‖).
On this record, we hold appellant has not established that his trial counsel‘s failure
to file a motion to suppress Martinez‘s in-court identification amounted to deficient
performance.
8. Appellant waived his remaining contentions that trial counsel
provided ineffective assistance because appellant has not adequately
briefed the issue of prejudice.
Appellant complains that his trial counsel‘s performance was deficient when
he made a motion for directed verdict that did not set out the specific elements of
the offense that were unsupported by evidence. Appellant also argues that his trial
counsel‘s closing argument was deficient because it focused on the admissibility of
appellant‘s video statement. According to appellant, trial counsel should also have
addressed any conflicts in the evidence as well as the lack of physical evidence,
such as fingerprints and DNA, connecting appellant to the crime.
To succeed on a claim of ineffective assistance of counsel, an appellant must
establish not only that his counsel‘s performance was deficient, but also that he
was prejudiced as a result of that deficient performance. See My Thi Tieu v. State,
299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref‘d). In other
words, appellant must establish by a preponderance of the evidence that but for his
trial counsel‘s allegedly deficient motion for directed verdict and closing argument,
the result of his trial would have been different. Id. In his brief, appellant did not
provide any analysis of how the result of his trial would have been different.
Because appellant inadequately briefed the required prejudice prong of these two
contentions of ineffective assistance, he has waived them. Tex. R. App. P. 38.1(h).
25
Having addressed and rejected each of appellant‘s complaints of ineffective
assistance of counsel, we overrule appellant‘s fourth issue.
CONCLUSION
Having overruled each of appellant‘s issues on appeal, we affirm the trial
court‘s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Boyce, Jamison, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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