Opinion
No. 05-02-00609-CR.
Affirmed; Opinion Filed August 27, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-76507-QN.
OPINION
The trial court, in a bench trial, found appellant guilty of aggravated robbery and assessed his punishment at confinement for thirty years and a $3000 fine. In two issues presented for review, appellant challenges the legal sufficiency of the evidence and contends he received ineffective assistance from his counsel. We affirm. On September 29, 2001, Godwin Okeke was selling ice cream from his van on Jerome Street in east Dallas. Three persons came to his van and placed an order. While Okeke had his head in the refrigerator to get the ice cream, a man climbed inside the van, butted Okeke in the face with his head, then tried to stab him in the hand with a six-inch-long knife. The assailant then grabbed a box containing at least $250, jumped through the large van window, and escaped. When Okeke tried to use a cellular telephone to call the police, the assailant returned and grabbed Okeke from behind causing him to drop the telephone. Okeke had never seen his assailant before the robbery. Christian Coleman lived on Jerome Street and witnessed the robbery from his porch. Coleman overheard appellant and some friends talking about robbing an ice cream truck. Coleman testified that he saw appellant jump in the ice cream truck and rob Okeke. Coleman knew appellant by the nickname "Twin," because appellant had an identical twin brother. Coleman said appellant had a reputation as the neighborhood bully. Coleman claimed he could tell the twins apart because, as he told Detective Cornett, he grew up around both of them. Coleman mentioned no distinguishing characteristic that enabled him to tell them apart except that appellant was "rowdy" while the brother was "book smart." Coleman testified the neighborhood had been peaceful since appellant's arrest. Dallas Police Detective Gary Cornett testified that the case was a cold case with no leads until Okeke called with information about a possible address for the assailant. While investigating Okeke's lead, Cornett received a tip to look for someone nicknamed "Twin" at another address. After establishing that appellant and appellant's identical twin brother lived at the address, Cornett obtained a photograph of appellant which he showed to Okeke as part of a photographic lineup. Okeke identified appellant from the photographic lineup as the person who had robbed him. To clarify whether appellant or his twin brother was the assailant, Cornett also showed the photographic lineup to Coleman and Coleman's daughter, Shanequa. Both Christian and Shanequa Coleman positively identified the photograph Okeke had picked in the lineup as appellant. However, no photograph of appellant's twin brother was included in the lineup. Appellant testified that he had never seen Okeke before the trial. He said no one could tell him from his twin brother except their mother. However, he did not believe his brother committed the robbery. Appellant said he knew Coleman, had dated Coleman's daughter, and spoke to him frequently when appellant came home from school. There had been several robberies on Jerome Street and appellant denied it was coincidental that apparently they stopped after his arrest. In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction. In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment in order to determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Appellant contends that because his twin brother's photograph was not included in the photographic lineup, there is no reliable evidence appellant was Okeke's assailant. He argues "[n]o rational trier of fact would conclude that the State had proven Appellant's identity as the perpetrator of the crime when the complaining witness did not even know of the existence of an identical twin, gave no testimony on how he could distinguish one from the other, and whose identification of Appellant was never tested by the investigating officer. . . ." Appellant also characterizes Christian Coleman's eyewitness identification as unreliable because the investigating officer never verified how Coleman could distinguish appellant from his twin brother. We disagree. Appellant was not only identified by the victim, but also by Christian Coleman, who had known both appellant and his brother since their childhood, and who claimed he could tell one from the other. Appellant himself did not believe his brother had committed the crime. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The trier of fact may accept or reject any or all of the testimony of any witness. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Appellant's legal sufficiency challenge is without merit and his first issue is overruled. In his second issue, appellant contends he received ineffective assistance of counsel. In order to establish that his counsel was ineffective, appellant must first show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 690 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Appellant must then show 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; Hernandez, 726 S.W.2d at 55. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55. In evaluating the effectiveness of counsel, the reviewing court looks to the totality of the representation and the particular circumstances of each case. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). The record must affirmatively demonstrate the alleged ineffective assistance. Thompson, 9 S.W.3d at 813. Appellant first complains that in a one-day bench trial, his attorney made only three objections. Appellant contends counsel made no objections to many leading questions asked by the State and allowed hearsay evidence to be introduced without challenge. Appellant does not explain, nor does the record reflect, how more objections to leading questions and to hearsay would have altered the result. Appellant also contends his counsel was ineffective because he filed no pretrial motion challenging the photo line-up used initially to identify appellant as the perpetrator of the crime. He points out that the presentation of the photographic lineup to both Christian Coleman and Shanequa Coleman was not challenged by pretrial motion or by cross-examination. The record shows that Detective Cornett showed the lineup to Christian Coleman and five minutes later to Shanequa Coleman, at the same location. The lineup is composed of photographs of six people of similar appearance with similar hair and facial characteristics. The photographic lineup does not appear unduly suggestive. Two of the three people who identified appellant in the photographic lineup had known him from childhood. Given these circumstances, there is no reason to believe that the court would have granted a pretrial motion to suppress the lineup. The failure to file a useless motion does not demonstrate ineffectiveness as it could not possibly have altered the outcome of the trial. Even if such a motion had been urged and granted, the in-court identification of appellant by Okeke and Christian Coleman would have been properly allowed into evidence because there was an independent basis for the identification indicating reliability. See Harris v. State, 827 S.W.2d 949, 960 (Tex.Crim.App. 1992). Appellant next faults counsel for not issuing subpoenas to compel his brothers' attendance as witnesses and for not filing a written motion for continuance when his brothers failed to appear voluntarily as he expected and testify in his behalf. On cross-examination, appellant told the court that his brothers Sammy, Robert, and Ollie could confirm he was playing basketball in the park and he could not have robbed Okeke. Appellant told his brothers the correct time to be in court, they told him they would come, and yet they failed to appear. After checking the hallway for the witnesses, both before and after appellant's testimony, defense counsel asked, "Judge, is there any way you would grant a continuance?" The judge replied, "No sir." Appellant's own testimony strongly suggests he did not believe it was necessary to issue subpoenas for his brothers to compel their attendance. The record is silent as to whether appellant or his counsel made the decision not to subpoena the brothers. When the record does not reveal what advice was given by counsel, an appellate court "cannot presume that the decisions originated with the attorney and were not the result of acquiescence to the client's wishes." Pinkston v. State, 744 S.W.2d 329, 332 (Tex.App.-Houston [1st Dist.] 1988, no pet). It is also clear that a motion for continuance would have accomplished nothing. Finally, appellant claims that his counsel was ineffective for failing to present testimony at the punishment stage regarding his mental health problems. During his testimony, appellant asked the court to have mercy on him because he was "an MHMR patient." He denied committing the crime and denied that he was guilty of an earlier conviction to which he had pleaded guilty. Appellant does not indicate what evidence, if any, might have been introduced "in an attempt to ameliorate the severity of sentence." We conclude appellant has not shown a reasonable probability that, but for his counsel's errors, the result of the trial or punishment would have been different. See Strickland, 466 U.S. at 694. Appellant's second issue is overruled. The judgment is affirmed.