Opinion
No. 06-03-00181-CR
Submitted: June 25, 2004.
Decided: August 3, 2004. DO NOT PUBLISH.
On Appeal from the 6th Judicial District Court, Lamar County, Texas, Trial Court No. 19037.
MEMORANDUM OPINION
Nathaniel Dewayne Martin was indicted for aggravated robbery. He was tried by a jury and convicted. The trial court set Martin's punishment at sixty years' confinement and a $10,000.00 fine. On appeal, Martin raises five issues: (1) whether he received ineffective assistance of counsel because his counsel failed to object to the in-court identification testimony; (2) whether the trial court erred in denying Martin's motion to suppress the witness identification testimony; (3) whether the evidence is legally and factually insufficient to support the conviction; (4) whether the trial court erred in entering a "use of deadly weapon" finding in the judgment; and (5) whether the evidence is legally and factually insufficient to convict Martin as a party. We resolve all these issues against Martin and affirm the judgment. On the evening of March 28, 2002, several teenagers gathered at a parking lot in Paris, Texas. Some of the teenagers got of their vehicles and visited on the parking lot grounds. After awhile, all of the teenagers left in their vehicles except Gerald Barham, Ashley Smith, and Jennifer Springer. Barham and Smith were in Springer's car, and Springer was in Barham's truck. They had previously noticed two men in a maroon Oldsmobile car drive slowly through the parking lot several times, looking intently at them. The maroon car eventually pulled up and parked near Barham, Smith, and Springer. The driver of the maroon car did not speak, but the man in the passenger seat spoke to Barham and told him to come over to the car. Barham approached, but suddenly jumped back when he got near and noticed that the passenger had a shotgun pointed out the car window at him. The passenger ordered Barham to give him his money and wallet and the girls' purses. Barham complied as much as he could, but only Springer had a purse. The men in the maroon car drove off. Barham and the girls immediately called the police, who arrived shortly. The victims described both men to the police, and the police later apprehended both men hiding under a boat near the maroon car they had abandoned. The robbery occurred around 9:00 p.m. Police were alerted at 9:20. The suspects were found at 9:27 p.m. and were in custody at 9:34. At approximately 10:30 p.m., Barham and the two girls were called to the police station to view the suspects. All three identified Addis Scales as the passenger who had the gun and Martin as the driver of the maroon car. Martin first contends he was deprived of effective assistance of counsel at the trial. He bases this contention on only one alleged error on counsel's part, i.e., counsel failed to object to Barham's in-court identification of Martin as one of the robbers. He argues that the in-court identification was inadmissible because it was based on an impermissibly suggestive pretrial "show up" at the police station the night of the robbery. Martin contends the suggestive "show up" at the police station tainted the in-court identification and made it unreliable, and counsel should have objected to it for that reason. After the State rested, Martin did move to suppress the in-court identification evidence and moved for a directed verdict, but the trial court denied the motions. Because both of these two issues, i.e., ineffective assistance of counsel and the admissibility of the identification testimony, hinge on the reliability of the identification, we will discuss the issues together. For a defendant to successfully raise ineffective assistance of counsel, he must prove that (1) his trial counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) but for the deficient performance, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986). Proof of counsel's deficient performance must be firmly founded in the record, and the proof is not sufficient unless it shows that trial counsel's acts were not motiviated by sound trial strategy. Williamson v. State, 104 S.W.3d 115 (Tex. App.-Texarkana 2003, pet. ref'd). Counsel's failure to object to evidence will not be judged deficient performance unless the objection would have been properly sustained. Jackson v. State, 973 S.W.2d 954 (Tex.Crim. App. 1998); Roberson v. State, 852 S.W.2d 508 (Tex.Crim. App. 1993). The defendant has the burden to show by clear and convincing evidence that suggestive pretrial identification procedures gave rise to a substantial likelihood of misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). If the defendant satisfies this burden, the State must then prove by clear and convincing evidence that the in-court identification was not impermissibly tainted by the pretrial procedures, but was of sufficient independent origin to be reliable. Williams v. State, 477 S.W.2d 885, 889 (Tex.Crim.App. 1972). Even if a pretrial identification procedure was impermissibly suggestive, the in-court identification is admissible if it is reliable because it was based on the witnesses' observations at the time of the offense, and thus was not affected by the pretrial procedures. Neil v. Biggers, 409 U.S. 188, 198-99 (1972). Martin contends the trial court found the pretrial "show up" to be impermissibly suggestive, so the burden shifted to the State to prove the in-court identification was reliable. We disagree. The trial court did find that the "show up" at the police station was impermissibly suggestive, but it also found "the totality of the identification procedures at the police station shows a reliable procedure. . . ." Thus, the trial court found that the procedure at the police station did not give rise to a substantial likelihood of misidentification. Martin therefore did not satisfy his burden to show the pretrial identification procedure at the police station gave rise to a substantial risk of misidentification at trial. We agree with the trial court's findings and hold the in-court identification of Martin was of such independent origin as to be reliable of itself, and was not rendered unreliable by the pretrial procedures. There is sufficient evidence supporting the trial court's ruling in this regard. The pretrial "show up" at the police station was conducted within an hour and a half from the time of the robbery. Each victim separately viewed a separate videotape of Martin and Scales. The police had asked the victims if they could come to the station and make statements because the police had caught two black males they thought "might be it." All three victims positively identified Scales. Barham positively identified Martin also, while Smith and Springer said Martin "looked like" the driver of the car, but they could not positively identify him. At the trial, Barham positively identified Martin. He testified he had ample time to observe Martin during the robbery; he was close to both men, no more than three feet from Scales; and although it was somewhat "shadowy" in the interior of the car, he could see the faces of Martin and Scales plainly. He said Scales had dark skin and had his hair in "corn rows," while Martin had lighter skin. All three victims paid a high degree of attention to the men and accurately described them to the police just a few minutes after the crime was committed. We agree with the trial court that the evidence clearly and convincingly shows that Barham's identification of Martin, both at the police station "show up" and in court, was sufficiently reliable and of independent origin to be admissible and to support the judgment. Because Martin's motion to suppress the identification evidence and his motion for a directed verdict were both properly overruled by the trial court, Martin's trial counsel was not ineffective in failing to object when the in-court identification testimony was offered. Jackson, 973 S.W.2d 954; Roberson, 852 S.W.2d 508. Martin next contends that, excluding the identification evidence, the evidence is legally and factually insufficient to support his conviction. We have found the identification evidence as to Martin to be valid, reliable, and properly admitted, so it will not be excluded from our consideration. Moreover, when considering the sufficiency of the evidence, we consider all of the evidence, including that which may have been improperly admitted. Wilson v. State, 7 S.W.3d 136 (Tex.Crim.App. 1999). There is ample evidence to support Martin's conviction. In addition to the positive in-court identification testimony, there is other evidence pointing to Martin's direct participation in the robbery. There is evidence that Martin was with Scales at all times during the robbery; they were together in the front seat in a maroon Oldsmobile car; and they drove around for some time watching the victims before the robbery occurred. The victims accurately described Martin and Scales to police just minutes after the robbery, and Martin and Scales were apprehended together by police very shortly thereafter. Police found them hiding under a boat near the maroon car they had abandoned. A temporary car tag was on the vehicle showing Martin as the buyer, and in the trunk, there was a paper receipt showing that Martin had purchased the car recently. A social security card and driver's license belonging to one of the victims, and one of the victims' purses, were found abandoned along the road the robbers traveled to the place where they abandoned the vehicle. The social security card, driver's license, and purse were identified by the victims as belonging to them. Two house keys and two car keys were found under the boat where Martin and Scales were hiding. The car keys fit the maroon Oldsmobile. We find all of this evidence legally and factually sufficient to support Martin's conviction. Martin also contends the trial court erred in entering a "use of a deadly weapon" finding in the judgment. He argues that, because he was at most only a party to the offense, a deadly weapon finding was proper only if the evidence showed and the jury found that he either personally used a weapon during the offense, or knew that a weapon would be used in the offense. The trial court's action in this respect was not error. Martin was not convicted as a party but as a principal. The trial court gave the jury a charge on the law of parties, but Martin was not indicted as a party. The verdict of the jury read: "We, the jury find the defendant 'GUILTY' of the offense of Aggravated Robbery, as charged in Count One of the Indictment." The jury also answered a special issue reading, "Do you find from the evidence beyond a reasonable doubt that the Defendant, NATHANIEL DEWAYNE MARTIN, used a deadly weapon, to-wit: a firearm in the commission of the offense of Aggravated Robbery. Answer 'WE DO' or 'WE DO NOT' ANSWER: WE DO." We find sufficient evidence, both legally and factually, to support a finding that Martin knew a firearm would be used in the robbery. Sarmiento v. State, 93 S.W.3d 566 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd); Johnson v. State, 6 S.W.3d 709 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Thus, the trial court properly entered the deadly weapon finding in the judgment. See Johnson v. State, 151 Tex.Crim. 192, 206 S.W.2d 605 (1947); Stringfellow v. State, 111 Tex.Crim. 504, 14 S.W.2d 1031 (1929); Grayson v. State, 106 Tex.Crim. 251, 291 S.W. 908 (1927); see also, Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim. App. 1986). Last, Martin asserts there is legally and factually insufficient evidence to support his conviction as a party. We need not discuss this argument because we have held there is sufficient evidence to convict Martin as a principal. For all the reasons stated, we affirm the judgment.