Jurvis Cardel Carr v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00176-CR
Jurvis Cardel CARR,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR5716
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: January 30, 2013
AFFIRMED
Jurvis Cardel Carr was convicted by a jury of aggravated robbery and aggravated
kidnapping. On appeal, Carr contends the trial court erred in denying his motion to suppress his
in-court identification and his request for a jury charge on the identity suppression issue. Carr
also contends his trial counsel was ineffective in eliciting testimony regarding an extraneous
offense during the guilt/innocence phase of trial. We affirm the trial court’s judgment.
04-12-00176-CR
SUPPRESSION OF IN-COURT IDENTIFICATION
“An in-court identification is inadmissible when it has been tainted by an impermissibly
suggestive pretrial photographic identification.” Loserth v. State, 963 S.W.3d 770, 771-72 (Tex.
Crim. App. 1998); see also Hamilton v. State, 300 S.W.3d 14, 18 (Tex. App.—San Antonio
2009, pet. ref’d). A two-part analysis is applied to determine whether an in-court identification
should be suppressed. See Hamilton, 300 S.W.3d at 18. First, we consider whether the pretrial
photographic identification procedure was impermissibly suggestive. Loserth, 963 S.W.3d at
772; Hamilton, 300 S.W.3d at 18. If the first step is satisfied, we determine, from the totality of
the circumstances, whether the procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification. Loserth, 963 S.W.3d at 772;
Hamilton, 300 S.W.3d at 18. The defendant bears the burden to establish both of these elements
by clear and convincing evidence. Hamilton, 300 S.W.3d at 18.
In this case, the complainant was shown a “six-pack lineup,” or an array of six
photographs. Although one photograph is brighter than the others, the photographs were similar
with regard to the men’s hairstyles, facial hair, and facial features. Although Carr asserts that
someone other than the investigating detective should have shown the complainant the lineup, he
cites no authority to support this assertion, and the investigating detective is routinely the officer
who shows witnesses the array. See, e.g., Ex parte Miles, 359 S.W.3d 647, 654 & n.5 (Tex.
Crim. App. 2012); Gamboa v. State, 296 S.W.3d 574, 578 (Tex. Crim. App. 2011); Perez v.
State, 352 S.W.3d 751, 754 (Tex. App.—San Antonio 2011, no pet.). Carr also contends the
photographic identification procedure was impermissibly suggestive because the detective told
the complainant that he had arrested a suspect from which the complainant could infer that the
suspect’s picture was included in the lineup. It is well-established, however, that a lineup is not
impermissibly suggestive simply because a witness is told, or may infer, that the lineup includes
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a suspect, because a witness would normally assume that to be the case. Harris v. State, 827
S.W.2d 949, 959 (Tex. Crim. App. 1992); Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App.
1988); Rojas v. State, 171 S.W.3d 442, 448 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d);
Kelly v. State, 18 S.W.3d 239, 243 (Tex. App.—Amarillo 2000, no pet.). Because Carr failed to
establish by clear and convincing evidence that the lineup was impermissibly suggestive, the trial
court did not err in overruling his motion to suppress the identification, and Carr’s first issue is
overruled.
JURY CHARGE
In his second issue, Carr contends the trial court erred in denying his request for a jury
charge under article 38.23 of the Texas Code of Criminal Procedure with regard to the
suppression of the identification. The Texas Court of Criminal Appeals, however, has held that
such a jury charge would be improper. See Andujo v. State, 755 S.W.2d 138, 143 (Tex. Crim.
App. 1988); Allen v. State, 511 S.W.2d 53, 54 (Tex. Crim. App. 1974); see also McAllister v.
State, 28 S.W.3d 72, 77-79 (Tex. App.—Texarkana 2000, no pet.). Accordingly, Carr’s second
issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his final issue, Carr asserts trial counsel rendered ineffective assistance of counsel by
eliciting testimony regarding an extraneous offense committed by Carr. Specifically, when the
investigating detective testified that Carr was arrested, trial counsel elicited testimony that Carr
was arrested on an outstanding warrant pertaining to a possession of marijuana offense.
Ineffective assistance of counsel claims require a showing of both deficient performance
and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). There is a
strong presumption that trial counsel’s conduct fell within the wide range of professional
assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective
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assistance claim must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at
813. “Direct appeal is usually an inadequate vehicle for raising such a claim because the record
is generally undeveloped.” Goodspeed, 187 S.W.3d at 392. “If counsel’s reasons for his
conduct do not appear in the record and there is at least the possibility that the conduct could
have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an
ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim.
App. 2002).
In this case, immediately after the investigating detective alluded to Carr having been
arrested during the course of the investigation, trial counsel requested a bench conference to
ensure that her eliciting testimony regarding the basis for the arrest would not open the door to
other evidence. After this discussion, trial counsel elicited testimony that Carr was arrested
pursuant to a warrant that had been issued for a different offense. After this questioning, trial
counsel stated, “I just wanted to clarify why he was being arrested.”
Although the record in this case is undeveloped with regard to the precise reason for
counsel’s decision to elicit testimony regarding the arrest warrant, her comment on the record
alludes to the possibility that she had a strategic reason for her questioning. We will not,
however, speculate with regard to the basis for trial counsel’s decisions; “thus a silent record on
the reasoning behind counsel’s actions is sufficient to [overrule this issue.]” Badillo v. State, 255
S.W.3d 125, 129 (Tex. App.—San Antonio 2008, no pet.). Because Carr’s allegation of
ineffectiveness is not firmly founded in the record, his third issue is overruled.
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CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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