Kanavius Dorsey v. State ( 2015 )

Opinion issued July 30, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00685-CR
———————————
KANAVIUS DORSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1408986
MEMORANDUM OPINION
A jury convicted appellant, Kanavius Dorsey, of the first-degree felony
offense of aggravated robbery, and the trial court assessed punishment at twenty
years’ confinement.1 In two issues, appellant contends that (1) the State failed to
present sufficient evidence that he committed the robbery and (2) his trial counsel
rendered ineffective assistance by failing to move to suppress the complainant’s
pre-trial identification of him and by failing to challenge the complainant’s in-court
identification of him.
We affirm.
Background
Around 4:00 o’clock on the afternoon of November 1, 2013, seventy-two-
year-old Alice Fusilier, the complainant, stopped by her bank in northeast Houston
and withdrew several hundred dollars to pay her utility bills. Fusilier next stopped
at a gas station to purchase some cigarettes from the convenience store. As
Fusilier got out of her car, she noticed a maroon or “reddish” colored “fairly new”
car with black-tinted windows pull into the gas station’s parking lot and stop. A
man got out of the passenger seat of the car, and Fusilier passed him on the
sidewalk as she walked to the convenience store. She stepped against the wall of
the store to let the man pass by, and after he passed her, the man hit her in the head
with his closed fist and snatched her purse. The man ran back to the car and
jumped into the passenger seat before the car drove away. Fusilier tried to see the
1
See TEX. PENAL CODE ANN. § 29.03(a)(3) (Vernon 2011) (providing that person
commits offense of aggravated robbery if he commits robbery and causes bodily
injury to another person who is sixty-five years of age or older).
2
license plate number of the car and then used the convenience store’s phone to call
9-1-1.
Fusilier testified that she got a “good look” at the man both before he hit her
and as he ran back to the car. She also stated that the car had a black and white
license plate, that the license plate number started with either “BMW” or “BWM,”
and that the plate number ended with “25.” She told police officers that she was
not sure of the car’s make or model, but that it might have been a Mercury or a
Honda. Fusilier identified appellant in court as the man who robbed her. She also
testified that nearly three weeks after the offense Houston Police Department
(“HPD”) officers showed her two photo-arrays. She did not identify anyone in the
first photo array. She identified appellant in the second photo-array and stated that,
at the time, she “did not know for sure if that was the right person. But [she] had a
feeling that [she] had seen this person, but [she] didn’t know where [she] could
have seen him from unless he was the one that attacked [her].” She further
testified, “Now that I see [appellant] here in court, I strongly feel that he’s the one
that attacked me.” Defense counsel did not object to any of this testimony, nor did
he move to suppress Fusilier’s pre-trial identification or object to her in-court
identification of appellant.
On cross-examination, Fusilier testified that, immediately after the robbery,
she gave a description of the suspect to HPD Officer L. Patterson. She described
3
her assailant as a young black male who had a medium complexion and was
approximately 5’7” or 5’8” tall.2 She stated that when she saw appellant’s picture
in the photo-array, she “felt like [she] had seen this person or that this person
resembled the person that attacked [her].” She recalled that she definitively said to
the officer showing her the photo-arrays that appellant “was the one.” Fusilier also
had the following exchange with defense counsel:
[Counsel]: And you stated you met with the DA before this
case, correct?
[Fusilier]: Last week.
[Counsel]: All right. And did you talk about this case with
her?
[Fusilier]: Last week.
[Counsel]: Did you see any photographs of [appellant] that
day?
[Fusilier]: Yes.
[Counsel]: All right. How many photographs did you see?
[Fusilier]: Two, I think.
[Counsel]: Two different ones?
[Fusilier]: Yes.
[Counsel]: All right. Did you get to look at them for a while?
[Fusilier]: Just asked me if I identify him.
[Counsel]: Okay. And you had also seen photographs of
[appellant] before that, correct?
[Fusilier]: Yes.
2
Fusilier agreed, on cross-examination, that appellant’s complexion is “dark.”
Further, HPD Officer Rocchi testified that appellant is 6’1” tall.
4
[Counsel]: And you would agree you’ve seen all those
photographs before making the identification of
him here in court today, right?
[Fusilier]: Yes.
Defense counsel did not challenge Fusilier’s in-court identification on the basis
that the State had shown her additional pictures of appellant which might have
tainted this identification.
HPD Officer M. Rocchi testified that on November 6, 2013, he was
conducting surveillance in the parking lot of Fusilier’s bank when he saw a maroon
2008 Chevrolet Malibu with “limo tinted,” or “completely blacked out,” windows
pull into the parking lot. The license plate, which was black and white, read
BB2N125. Officer Rocchi followed the car as it left the bank, and he eventually
observed the driver, appellant, get out of the car. The car was registered to a man
named Prince Woods, who was the passenger in the car at the time of the stop.
When police conducted an inventory search of this car, they did not find any items
belonging to Fusilier.
HPD Officer R. Gray, a robbery investigator, testified that when he spoke
with Fusilier after the incident she gave him two possible license plate numbers:
BW2225 and BW2M25. Officers discovered appellant in a car with the license
plate BB2N125, and Officer Gray testified that if someone quickly looked at the
license plate, the “N and the 1 could look like an ‘M.’” Officer Gray prepared two
5
photo-arrays, the first of which contained a picture of Prince Woods, and the
second of which contained appellant’s picture. Officer Gray did not administer
these photo arrays to Fusilier himself, but he instead gave them to HPD Sergeant
D. Hartford, who did not know who the suspects were or where their pictures were
placed in the arrays.
Officer Gray also testified concerning the different types of identifications
that witnesses can make when viewing photo-arrays: (1) a positive identification,
in which the witness is “positive” that the person in the array is the suspect; (2) a
strong-tentative identification, in which the witness essentially says, “[I]t really,
really looks like that person right there[,] but I don’t want to say I’m sure”; (3) a
weak-tentative identification, in which the witness says, “[I]t kind of looks like this
person, but I’m not sure”; and (4) a negative identification, in which the witness
says, “I don’t recognize anyone on this [array] or it’s none of these.” After
viewing the photo array that contained appellant’s picture, Fusilier made a “strong
tentative” identification of appellant.
Sergeant Hartford testified that Fusilier did not identify anyone in the first
photo-array that he showed her. When she saw the second photograph in the
second photo-array, appellant’s photograph, Fusilier “kind of stiffened, her eyes
got wide and she put that photo to the side as opposed to the others when she went
through the first stack.” She told Sergeant Hartford that the second picture “really
6
looked like the man that punched her in the head” and that “[t]he facial features
appeared to be the same as she remembered.”
Appellant called his girlfriend, Chasity Smith, to testify on his behalf. Smith
testified that November 1, 2013, was her mother’s birthday and that she and
appellant arrived at her mother’s house around 3:30 or 4:00 p.m. and stayed there
for “most of the day” celebrating. She testified that appellant, who had driven
them to her mother’s house, did not leave at any point because he would have had
to drive her car and she does not let appellant drive her car if she is not there with
him. Smith at first testified that she does not know anyone named Prince Woods,
but she later admitted on cross-examination that she has heard the name as
someone who associates with appellant.
The jury ultimately found appellant guilty of the offense of aggravated
robbery, and the trial court assessed punishment at twenty years’ confinement.
This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant contends that the State failed to present sufficient
evidence that he committed aggravated robbery.
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 to determine whether any rational fact
7
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the
jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the
8
conflicts in favor of the prosecution and therefore defer to that determination.”).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at
778). “Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). In reviewing the sufficiency of the evidence, we consider all of
the evidence in the record, “both direct and circumstantial, whether admissible or
inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
B. Aggravated Robbery
To establish that appellant committed the offense of aggravated robbery as
charged in the indictment, the State had to prove that appellant, while in the course
of committing a theft of property owned by Alice Fusilier, and with intent to obtain
and maintain control of the property, intentionally and knowingly caused bodily
injury to Fusilier, a person at least sixty-five years old, by striking her with his
hand. See TEX. PENAL CODE ANN. § 29.03(a)(3) (Vernon 2011). The State is
required to prove, beyond a reasonable doubt, that the defendant is the person who
committed the charged crime. Roberson v. State, 16 S.W.3d 156, 167 (Tex.
App.—Austin 2000, pet. ref’d). “[T]he identity of the alleged perpetrator may be
9
proven by circumstantial evidence.” Orellana v. State, 381 S.W.3d 645, 653 (Tex.
App.—San Antonio 2012, pet. ref’d) (citing Welch v. State, 993 S.W.2d 690, 693
(Tex. App.—San Antonio 1999, no pet.)). The State may also establish identity by
inferences. Roberson, 16 S.W.3d at 167. “For the purposes of proving guilt
beyond a reasonable doubt, direct and circumstantial evidence are equally
probative.” Id. (citing McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App.
1989)). “[A] direct in-court identification is the preferred procedure” for
establishing the identity element of an offense. Wiggins v. State, 255 S.W.3d 766,
771 (Tex. App.—Texarkana 2008, no pet.).
Here, the robbery occurred outside a convenience store around 4:00 in the
afternoon when it was still light outside and visibility was good. Fusilier testified
that she got a “good look” at the man who robbed her, both as the perpetrator
walked toward her before the robbery occurred and as the perpetrator ran back to
the car after the robbery. Although Fusilier’s initial description of the robber to
police—that he was approximately 5’7” or 5’8” tall and was a black male with a
“medium” complexion—did not accurately describe appellant, who is 6’1” tall and
who has a “dark” complexion, Fusilier identified appellant as the robber both in a
pre-trial photo-array and in court. Upon viewing the photo-array, Fusilier gave a
“strong tentative” identification of appellant as the robber, stating that she “did not
know for sure” if appellant was the robber but that she “felt like [she] had seen this
10
person or that this person resembled the person that attacked [her].” Fusilier stated
that she did not know where she could have seen the person she identified “unless
he was the one that attacked [her].” Fusilier also identified appellant in court as
the man who robbed her, testifying, “Now that I see him here in court, I strongly
feel that he’s the one that attacked me.”
On appeal, appellant argues that Fusilier’s pre-trial identification was
tentative and her in-court identification unreliable. However, defense counsel did
not object to the admission of Fusilier’s pre-trial identification or to Fusilier’s in-
court identification. Furthermore, even if appellant had objected to this testimony,
we may consider this evidence when conducting our sufficiency review. See
Dewberry, 4 S.W.3d at 740 (noting that, in sufficiency of evidence review, we
consider all evidence in record, both direct and circumstantial, whether admissible
or inadmissible).
The State also presented evidence that, after the robbery, Fusilier spoke with
police officers and informed them that the robber jumped in the passenger seat of a
red or maroon four-door, newer model sedan with dark tinted windows. She told
the officers that she was not sure of the make or model of the car, but that it might
have been a Mercury or a Honda. She also told the officers that she saw a black
and white license plate on the car and that the license plate number began with
either “BMW” or “BWM” and ended with “25.” Officer Rocchi testified that
11
several days after the robbery, he was conducting surveillance at Fusilier’s bank
when he saw a 2008 maroon Chevrolet Malibu pull into the parking lot. This car
had extremely dark “limo” tinting on the windows and a black and white license
plate with a number that read BB2N125. Officer Gray testified that if someone
quickly looked at the license plate, the “N and the 1 could look like an ‘M.’”
Officer Rocchi followed the car as it left the bank’s parking lot and eventually
made contact with its occupants, including appellant, who was driving. All of this
evidence points to appellant as being the individual who robbed Fusilier.
Having viewed all of the evidence in the light most favorable to the verdict,
as we must when reviewing the sufficiency of the evidence, we conclude that the
State presented sufficient evidence that appellant committed the charged robbery.
We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant contends that his trial counsel rendered
constitutionally ineffective assistance by (1) failing to file a motion to suppress
Fusilier’s pre-trial identification of him, and (2) failing to challenge Fusilier’s in-
court identification of him.
A. Standard of Review
To establish that trial counsel rendered ineffective assistance, an appellant
must demonstrate, by a preponderance of the evidence, that (1) his counsel’s
12
performance was deficient and (2) there is a reasonable probability that the result
of the proceeding would have been different but for his counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Cannon v.
State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure to
make either of the required showings of deficient performance and sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of
the Strickland test negates a court’s need to consider the other prong.”).
The appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). The second prong of Strickland requires the appellant to demonstrate
prejudice—“a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
13
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review
is highly deferential to counsel, and we do not speculate regarding counsel’s trial
strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To
prevail on an ineffective assistance claim, the appellant must provide an appellate
record that affirmatively demonstrates that counsel’s performance was not based
on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see
Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate
alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65
S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct.
1690, 1694 (2003) (“If the alleged error is one of commission, the record may
reflect the action taken by counsel but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive or was taken because the counsel’s
alternatives were even worse. The trial record may contain no evidence of alleged
errors of omission, much less the reason underlying them.”) (internal citations
14
omitted). Because the reasonableness of trial counsel’s choices often involves
facts that do not appear in the appellate record, the Court of Criminal Appeals has
stated that trial counsel should ordinarily be given an opportunity to explain his
actions before a court reviews the record and concludes that counsel was
ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.
B. Failure to Challenge Pre-trial and In-Court Identifications
Trial counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S. Ct. 2574, 2587 (1986)). Counsel is not required to perform a useless or futile
act. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“But a
reasonably competent counsel need not perform a useless or futile act.”); Mooney
v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (“Counsel is not required to
engage in the filing of futile motions.”). Rather, to satisfy Strickland and prevail
on an ineffective assistance claim based on defense counsel’s failure to file a
motion to suppress, the 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. See Wert, 383
S.W.3d at 753 (citing Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App.
1998)). Likewise, to succeed on an ineffective assistance claim based on a failure
15
to object, appellant must demonstrate that if trial counsel had objected, the trial
court would have erred in overruling the objection. Oliva v. State, 942 S.W.2d
727, 732 (Tex. App.—Houston [14th Dist.] 1997, pet. dism’d). Trial counsel’s
failure to object to admissible evidence does not constitute ineffective assistance of
counsel. Id.
“An in-court identification is inadmissible when it has been tainted by an
impermissibly suggestive pretrial photographic identification.” Gamboa v. State,
296 S.W.3d 574, 581 (Tex. Crim. App. 2009) (quoting Loserth v. State, 963
S.W.2d 770, 772 (Tex. Crim. App. 1998)). Courts use a two-step analysis to
determine the admissibility of an in-court identification: (1) whether the out-of-
court identification procedure was impermissibly suggestive; and, if so,
(2) whether that suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). In determining whether the pretrial identification procedure was so
impermissibly suggestive “as to give rise to a very substantial likelihood of
irreparable misidentification,” we consider the totality of the circumstances.
Gamboa, 296 S.W.3d at 581–82; Mendoza v. State, 443 S.W.3d 360, 363 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“If the pretrial procedure is found to be
impermissibly suggestive, identification testimony would nevertheless be
admissible where the totality of the circumstances shows no substantial likelihood
16
of misidentification.”); Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.—Houston
[1st Dist.] 2003, no pet.) (“If sufficient indicia of reliability outweigh
suggestiveness, then an identification is admissible.”). Factors that we consider
when making this determination are: (1) the witness’s opportunity to view the
defendant at the time of the crime; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s prior description of the defendant; (4) the witness’s level
of certainty at the time of the confrontation; and (5) the length of time between the
offense and the confrontation. Gamboa, 296 S.W.3d at 582.
“[I]t is well established that, even where the pre-trial identification
procedure is impermissibly suggestive, in-court testimony of an identification
witness will still be admissible as long as the record clearly reveals that the
witness’ prior observation of the accused was sufficient to serve as an independent
origin for the in-court identification.” Lesso v. State, 295 S.W.3d 16, 25 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d) (stating such in context of overruling
claim of ineffective assistance based on failure to move to suppress in-court
identification of defendant); Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (“[W]hen an in-court identification is based
upon knowledge independent from the allegedly improper pre-trial procedure, it is
admissible.”). An appellant must show by clear and convincing evidence that the
17
in-court identification has been irreparably tainted to obtain reversal. Mendoza,
443 S.W.3d at 363.
Here, appellant concedes that “[t]here is nothing in the record to suggest that
the [pre-trial] photo array was suggestive,” but he argues that a motion to suppress
Fusilier’s pre-trial identification “would have been successful due to [Fusilier’s]
uncertainty and her inaccurate description of her attacker. The trial court could not
have been assured that her pre-trial identification was reliable.” Fusilier described
her attacker to Officer Patterson as a young black male who had a medium
complexion and was approximately 5’7” or 5’8” tall. The record contains evidence
that appellant has a “dark” complexion and that he is 6’1” tall. Appellant also
points to the fact that Fusilier’s pre-trial identification of him was “tentative” as a
basis for rendering this evidence inadmissible.
As the State points out, however, the fact that Fusilier gave a “strong
tentative” identification as opposed to a “positive” identification of appellant after
viewing the pre-trial photo-array and the fact that her initial description of her
attacker to Officer Patterson differed in two ways from appellant’s actual physical
appearance are relevant to the weight that the jury should give to Fusilier’s pre-trial
identification, not to its admissibility. See Jackson v. State, 657 S.W.2d 123, 128
(Tex. Crim. App. 1983) (holding such when defense counsel showed witness ten
photographs and she identified six photographs as being of defendant when only
18
one photograph was of defendant and when, at trial, witness could not recall
clothes perpetrator wore at time of offense).
Furthermore, to the extent appellant argues that the prosecutor’s showing
Fusilier two pictures of appellant a week before the trial renders Fusilier’s pre-trial
identification of him inadmissible, we note that Fusilier’s pre-trial identification of
appellant occurred in November 2013 and appellant did not go to trial until eight
months later in July 2014. Thus, the prosecutor’s showing of two pictures of
appellant to Fusilier could have had no effect on her selection of appellant in the
pre-trial photo array. See id. (“What the court overlooked was that what occurred
at the instigation of defense counsel [showing the witness ten photographs] almost
three months after the station house confrontation could not affect the
suggestiveness of the confrontation at the time it occurred.”). We conclude that
appellant has not demonstrated, by a preponderance of the evidence, that Fusilier’s
pre-trial identification of him was inadmissible and that, therefore, the trial court
would have granted a motion to suppress the pre-trial identification. See Wert, 383
S.W.3d at 753.
Appellant also argues that “[a] motion to suppress the in-court identification
would have also been successful because it was tainted by the unreliable pre-trial
photo array and the prosecutor’s actions shortly before trial.” On cross-
examination, defense counsel asked Fusilier whether she had spoken with the
19
prosecutor before the trial. Fusilier responded that she had, “last week.” The
following exchange occurred:
[Counsel]: Did you see any photographs of [appellant] that
day?
[Fusilier]: Yes.
[Counsel]: All right. How many photographs did you see?
[Fusilier]: Two, I think.
[Counsel]: Two different ones?
[Fusilier]: Yes.
[Counsel]: All right. Did you get to look at them for a while?
[Fusilier]: Just asked me if I identify him.
[Counsel]: Okay. And you had also seen photographs of
[appellant] before that, correct?
[Fusilier]: Yes.
[Counsel]: And you would agree you’ve seen all those
photographs before making the identification of
him here in court today, right?
[Fusilier]: Yes.
The record contains no further information concerning the photographs that
Fusilier viewed when she met with the prosecutor one week before the trial.
Even if the prosecutor’s showing of two photographs to Fusilier the week
before trial was impermissibly suggestive, a matter we need not decide, to establish
that defense counsel rendered ineffective assistance by failing to object to
Fusilier’s in-court identification of him, appellant must demonstrate that the trial
20
court would have erred in overruling an objection to the in-court identification,
which requires a showing that the prosecutor’s pre-trial actions gave “rise to a very
substantial likelihood of irreparable misidentification.” See Gamboa, 296 S.W.3d
at 582.
The first two factors that we consider in determining whether a pre-trial
identification procedure gave rise to a “very substantial likelihood of irreparable
misidentification” are the witness’s opportunity to view the defendant at the time
of the crime and the witness’s degree of attention. See id. Here, the robbery
occurred outside around 4:00 in the afternoon, when it was still daylight. Fusilier
testified that she saw a car pull into the gas station and a man climb out of the
passenger seat of the car. The man walked towards her and passed directly by her
before turning around, hitting her on the back of her head, grabbing her purse, and
running back to the car. She stated that she got a “good look” at the man both as
he walked toward her and as he ran back to the car. Fusilier thus had a good
opportunity to view appellant at the time of the crime, and the fact that she was the
victim of the offense indicates that her degree of attention paid to appellant was
likely higher than if she had been a mere bystander. See id. at 582; Barley v. State,
906 S.W.2d 27, 35 (Tex. Crim. App. 1995) (“[T]he witnesses were more than just
casual observers of the crime. Therefore, they had more reason to be attentive.”).
21
The third factor to consider is the accuracy of the witness’s prior description
of the criminal. See Gamboa, 296 S.W.3d at 582. As we have already discussed,
the initial description of the robber that Fusilier gave to Officer Patterson differed
from appellant’s physical appearance in two respects—appellant’s complexion is
“dark” instead of “medium,” and he is 6’1” tall instead of 5’7” or 5’8” tall. This
factor, therefore, weighs against a finding that the allegedly improper pre-trial
procedure did not give rise to a very substantial likelihood of irreparable
misidentification. See id.
The fourth factor is the witness’s level of certainty at the time of the
confrontation. See id. Although Fusilier gave a “strong tentative” identification of
appellant at the time that she viewed the photo-array, stating that she “did not
know for sure if that was the right person” but that she “had a feeling that [she] had
seen this person, but [she] didn’t know where [she] could have seen [appellant]
from unless he was the one that attacked [her],” at trial, she testified, “Now that I
see [appellant] here in court, I strongly feel that he’s the one that attacked me.”
Thus, at the time of her in-court identification, Fusilier had a high level of certainty
that appellant was the one who robbed her.
The fifth factor is the length of time between the offense and the
confrontation. See id. The robbery occurred on November 1, 2013. Fusilier
viewed the photo-arrays and identified appellant on November 18, 2013, seventeen
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days later. The trial, during which Fusilier identified appellant in court as the
robber, occurred in July 2014, eight months after the offense. The eight-month
interval does not detract from Fusilier’s identification because she consistently
identified appellant as the robber and was able to recall details of the offense. See
Delk v. State, 855 S.W.2d 700, 707 (Tex. Crim. App. 1993) (holding that eighteen-
month delay between offense and trial did “not detract from the identification
given the details the [witness] was able to recall and the consistency in her
testimony”); Burkett, 127 S.W.3d at 89 (holding that six-month delay “did not
detract from the complainant’s identification in this case because of her consistent
testimony and ability to recall details”).
Thus, the only factor that weighs against a finding that the prosecutor’s
showing of two photographs of appellant to Fusilier the week before trial did not
give rise to a very substantial likelihood of irreparable misidentification is the
accuracy of Fusilier’s initial description of the robber. When we consider the
totality of the circumstances and weigh them against the allegedly improper pre-
trial procedure, the trial court could have reasonably found that the procedure did
not give rise to a “very substantial likelihood of irreparable misidentification” and
could have permissibly denied a challenge to Fusilier’s in-court identification. See
Gamboa, 296 S.W.3d at 582. To establish that defense counsel rendered
ineffective assistance by failing to move to suppress Fusilier’s pre-trial
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identification, appellant needed to establish that had defense counsel filed the
motion or made the challenge the trial court would have granted the motion to
suppress. See Wert, 383 S.W.3d at 753. To establish that defense counsel
rendered ineffective assistance by failing to object to Fusilier’s in-court
identification, appellant needed to establish that, had defense counsel objected, the
trial court would have erred in overruling the objection. Oliva, 942 S.W.2d at 732.
Because appellant did not establish that the trial court would have granted a
motion to suppress Fusilier’s pre-trial identification or would have erred in
overruling an objection to Fusilier’s in-court identification, appellant has not
demonstrated that defense counsel’s failure to move to suppress the pre-trial
identification or object to the in-court identification fell below an objective
standard of reasonableness. See Wert, 383 S.W.3d at 753. Appellant, therefore,
cannot establish that defense counsel’s failure to move to suppress and failure to
object constituted ineffective assistance.
We overrule appellant’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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