Opinion
NUMBER 13-12-00070-CR
06-06-2013
DENZEL JERMAINE COLLIER, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court of
Montgomery County, Texas.
MEMORANDUM OPINION
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Garza
A jury convicted appellant, Denzel Jermaine Collier, of murder, see TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011), found an enhancement paragraph alleging a prior felony conviction "true," and assessed punishment at imprisonment for life and a fine in the amount of $9,187.00. By eight issues, which we reorganize as four, appellant contends: (1) the trial court erred in denying his motion for continuance; (2) the trial court erred in denying his motion to suppress photographic array identification evidence; (3) he was denied effective assistance of counsel; and (4) the prosecutor engaged in prosecutorial misconduct by (a) referring to an extraneous offense in his opening statement; and (b) making improper comments during his opening statement and closing argument. We affirm.
I. BACKGROUND
Appellant was convicted of murdering Jerome "Pops" Lewis. Lewis was shot through the eye at point-blank range when he peered through the window of his front door after hearing a knock at the door. Lewis lived in one of two trailers located on a lot in Conroe, Texas. According to the State, Lewis's murder was a mistake—a botched "hit" ordered by appellant's cousin, Harold Taylor, from jail. The intended victim was David "Day-Day" Whigby, a confidential informant who lived in the adjacent trailer; Whigby was scheduled to testify against Taylor in an upcoming trial.
Inexplicably, in the "Statement of Facts" section of appellant's brief, the victim is identified as David Whigby.
Lucresia Glaze left Lewis's trailer shortly before the murder and encountered appellant walking toward the trailer. She later identified appellant from a photographic line-up. Other witnesses included another cousin of appellant, John Clark, who testified that on the night of the murder, appellant blurted out that he had just killed someone and that he had hidden the murder weapon in a backyard chiminea. The next day, Clark observed children playing near the chiminea, retrieved the gun, and hid it in a nearby structure, out of the reach of children. The court heard testimony that the murder weapon and unspent cartridges were the same make, model, and manufacturer as a shell casing found at the murder scene. A DNA swab taken from the murder weapon was consistent with appellant's DNA.
A chiminea is a freestanding front-loading fireplace or oven with a bulbous body and usually a vertical smoke vent or chimney. See http://en.wikipedia.org/wiki/chimenea (last visited May 23, 2013).
After investigating appellant's girlfriend and her cell phone records, appellant was later arrested in Dallas.
II. MOTION FOR CONTINUANCE
By his first issue, appellant contends the trial court erred in denying his motion for continuance. On the first day of trial, appellant's counsel noted that Robie Utley, a material defense witness, had been subpoenaed, but had not appeared. Defense counsel told the trial court that Utley was a material defense witness because he would impeach the State's eyewitnesses and would testify about a previous shooting in the same block to show that the murder was part on an ongoing drug war. The defense also stated that Utley was a necessary witness for the defense's motion to suppress the photographic identification evidence. The prosecutor assured the trial court that Utley would appear. Based on the prosecutor's assurances, the trial court denied the motion for continuance.
Although defense counsel had advised the trial court that Utley should be present when the court considered appellant's motion to suppress, the trial court nonetheless heard the motion to suppress without Utley. At the hearing, the defense presented two witnesses, Glaze and Elias Perez, the City of Conroe police detective who interviewed Glaze the night of the murder. During his examination of Detective Perez, defense counsel asked Detective Perez if he recalled that Glaze said she had smoked crack at Utley's house before talking to the police. Detective Perez said that Glaze may have said that in the interview, but he did not recall whether she did.
Other than telling the trial court that if present, Utley would "impeach" Glaze's testimony, defense counsel did not explain to the trial court what testimony Utley would have provided or how it would have "impeach[ed]" Glaze's testimony. On appeal, appellant simply argues that he was "obviously prejudiced" by Utley's failure to appear at the suppression hearing because Utley was "a material witness for impeachment purposes."
Utley testified the following day. Defense counsel asked if he recalled telling the police in an interview that Glaze had told him she saw a Hispanic individual the night of the murder. Utley denied making that statement in his police interview.
"We review a trial court's ruling on a motion for continuance for [an] abuse of discretion." Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). "To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion." Id. When a motion for continuance is based on an absent witness, an appellant must show: (1) that he exercised diligence to procure the witness's attendance; (2) that he did not consent to the witness's absence; (3) that the motion was not made for delay; and (4) the facts expected to be proved by the absent witness. Nelson v. State, 297 S.W.3d 424, 432 (Tex. App.—Amarillo 2009, pet. ref'd).
Here, appellant has not shown—to either the trial court or this Court—the facts that he expected to be proved by Utley's testimony at the suppression hearing. See id. Accordingly, we cannot say that the trial court abused its discretion in denying appellant's motion for continuance. See Gallo, 239 S.W.3d at 764. We overrule appellant's first issue.
III. MOTION TO SUPPRESS
By his second issue, appellant contends the trial court erred in denying his motion to suppress evidence of the photographic identification of appellant by Glaze. At the suppression hearing, defense counsel argued that: (1) the photographic array shown to Glaze was unnecessarily suggestive because it depicted only one black male with lighter skin and five black males with darker skin; and (2) Glaze's identification was unreliable because (a) she had been smoking crack all evening, and (b) on the night of the murder, she told one of the investigating police officers that when she passed appellant, he had his head down.
When we review a trial court's denial of a motion to suppress regarding identification testimony, as in this case, we are presented with a mixed question of law and fact, and therefore our review is de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.1997)); Gilstrap v. State, 65 S.W.3d 322, 327-28 (Tex. App.—Waco 2001, pet. ref'd). When reviewing a trial court's ruling on the admissibility of an identification which has been attacked as the product of an impermissibly suggestive pretrial identification procedure, the test is whether, considering the totality of circumstances, "the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Loserth, 963 S.W.3d at 772; Palma v. State, 76 S.W.3d 638, 643 (Tex. App.—Corpus Christi 2002, pet. ref'd). The goal of the review is to determine the reliability of the identification procedure. See Loserth, 963 S.W.2d at 772.
Neither due process nor common sense requires all the individuals in a pretrial identification to be identical. See 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); Gilstrap, 65 S.W.3d at 328
Here, the trial court found that the photographic array was not impermissibly suggestive. We agree. The photographic array, State's Exhibit 64, shows six black men with similar facial features and haircuts. Although appellant's skin appears slightly lighter than the others, the record contains only a black and white reproduction of the photo array, and it is difficult to ascertain whether the reproduction accurately depicts the subjects' skin tones. Moreover, minor differences in appearance, including varying skin tones, do not render a photo array impermissibly suggestive. See Buxton, 699 S.W.2d at 216. We overrule appellant's second issue.
IV. P ROSECUTORIAL M ISCONDUCT
By his fourth issue, appellant contends the prosecutor engaged in prosecutorial misconduct by: (1) referring to an "extraneous offense" during his opening statement by telling the jurors they would hear testimony from John Clark that appellant was "high on PCP" when he told Clark he had "just killed somebody"; (2) remarking in his opening statement that the State had "no idea" what appellant's defense would be and that the defense's expert witness would be flown to the trial "at your [the taxpayers'] expense"; and (3) stating, in closing argument, that appellant did not have an alibi and did not produce an alibi witness.
At the close of the State's case, defense counsel announced that he would not be calling an expert witness.
The court of criminal appeals has held that "a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc). Thus, "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Id.
In reviewing whether improper comments by the prosecutor during opening statement constitute reversible error, appellate courts have determined whether, when viewed in conjunction with the record as a whole, the statement was so prejudicial as to deny appellant a fair trial. See Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San Antonio 1996, no pet.); Brockway v. State, 853 S.W.2d 174, 176 (Tex. App.—Corpus Christi 1993, pet. ref'd); Sweaney v. State, 632 S.W.2d 932, 935 (Tex. App.—Fort Worth 1982, no pet.).
The record reflects that appellant's counsel did not object at all to the first two statements. Therefore, no issue was preserved for appellate review as to those statements. See Cockrell, 933 S.W.2d at 89. As to the prosecutor's statement in closing argument that appellant had presented "no alibi," appellant's counsel objected to the statement and the trial court sustained the objection. However, counsel did not pursue his objection to an adverse ruling, and thus failed to preserve any error. See id. Moreover, only moments before the prosecutor made the "no alibi" statement, he made a nearly identical statement—that appellant had no alibi and could not "even put his grandmother on the stand to vouch for where he was"—which was not objected to. Thus, appellant's objection was also untimely. See Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008) ("The complaint is timely only if the party makes the complaint 'as soon as the grounds for it become apparent.'").
We also conclude that, when viewed in conjunction with the record as a whole, none of the statements were so prejudicial as to deny appellant a fair trial. See Herrera, 915 S.W.2d at 97. We overrule appellant's fourth issue as to all four statements.
V. I NEFFECTIVE A SSISTANCE
By his third issue, appellant complains he was denied effective assistance of counsel. Specifically, appellant complains that his counsel was ineffective in: (1) failing to object to the prosecutor's statement in opening argument that appellant was "high on PCP" when he told Clark he had just killed someone; (2) failing to object to the prosecutor's comments in his opening statement that he did not know what defensive evidence appellant would offer and that taxpayers would bear the expense of bringing appellant's expert witness to the trial; and (3) failing to pursue to an adverse ruling his objection to the prosecutor's comment in closing argument that appellant had not presented an alibi witness.
"To obtain a reversal of a conviction under the Strickland test, a defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding." Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Deficient performance means that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 687). "To establish deficient performance, 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Id. (quoting Strickland, 466 U.S. at 688). "The prejudice prong of Strickland requires showing 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 248 (quoting Strickland, 466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). "[E]ach case must be judged on its own unique facts." Davis, 278 S.W.3d at 353.
The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel's performance was constitutionally adequate . . . ."). Counsel's effectiveness is judged by the totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.
Here, the record is silent regarding trial counsel's reasons for not objecting to the prosecutor's statements or not pursuing his objection to an adverse ruling. Therefore, appellant has not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that his actions could be considered sound trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) ("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"); see also Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851.
Moreover, appellant does not address the second prong of Strickland: whether there is a reasonable probability that but for trial counsel's alleged errors, the result would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694. Therefore, appellant has not met his burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. We overrule appellant's third issue.
VI. CONCLUSION
We affirm the trial court's judgment.
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).