No. 04-06-00453-CR
Delivered and Filed: April 11, 2007. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas. Trial Court No. 2005-CR-2994, Honorable Philip A. Kazen, Jr., Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
CATHERINE STONE, Justice.
Raul Pacheco was convicted of the offenses of aggravated robbery and burglary of a habitation with intent to commit a felony, and pled not true to two enhancement allegations. The jury found both enhancement paragraphs true and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. On appeal, Pacheco contends that he received ineffective assistance of counsel, the trial court erred by failing to suppress his identification based upon a highly suggestive and suspect photo array, and that an enhancement allegation caused egregious harm. We overrule Pacheco's issues and affirm the trial court's judgment.
Background
Pacheco was charged by indictment with the offenses of aggravated robbery and burglary of a habitation with intent to commit a felony resulting from his robbery of Angelita De Hoyos Lopez. With a gun, Pacheco forced his way into Lopez's home, demanded money and gold, and hit her on the head with the gun and strangled her with a sock until she passed out. When she regained consciousness, she was able to fight back and leave her house, at which point Pacheco drove off in her car. The jury found Pacheco guilty on both counts and he pled "not true" to the enhancement allegations and elected that punishment be set by the jury. The first enhancement paragraph stated that Pacheco had previously been convicted of the felony of ROBBERY-BOD INJURY-BUS-STRGA and the second enhancement paragraph stated that Pacheco was convicted of the felony of BURGLARY/HABITATION-HABITUAL. The jury found both enhancement paragraphs "true" and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. Ineffective Assistance of Counsel
In his first issue, Pacheco contends he received ineffective assistance of counsel during the punishment phase of the trial. The standard for determining whether a defendant has been deprived of his right to effective assistance of counsel is the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687; Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). The defendant must show that counsel's performance fell short of an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). Any claims of ineffective assistance of counsel must be "firmly founded in the record," with the record affirmatively demonstrating the merits of the claim. Id. at 813. The reviewing court does not look at isolated acts or omissions, but reviews the totality of the representation to determine whether counsel was ineffective. Id. Prejudice is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex.Crim.App. 1986), cert. denied, 489 U.S. 1091 (1989). Pacheco argues that his trial counsel was ineffective because he "repeatedly called the jury's attention to Mr. Pacheco's prior convictions, conceded the extraneous offenses by telling the jury that it did not have to worry about those being proven beyond a reasonable doubt, called the trial process 'nonsense that we do' and informing the jury that the sentence they imposed did not matter because Mr. Pacheco was going to be facing a Life sentence regardless." Pacheco contends that these statements cannot be considered rational conduct or a "trial strategy" for a defense counsel. In response, the State argues that Pacheco's ineffective assistance claim should be rejected because the record is silent on trial counsel's strategy and trial counsel has not been accorded the opportunity to explain his actions. The State also argues that trial counsel's decision to focus on Pacheco's remorse was completely reasonable in light of Pacheco's prior robbery convictions. In the absence of a developed evidentiary record which adequately reflects the motives behind counsel's action and inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14. To conclude that the representation by Pacheco's counsel was deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. The fact that another attorney might have pursued a different course of action or tried the case differently does not establish ineffective assistance of counsel. Dickerson v. State, 87 S.W.3d 632, 637 (Tex.App.-San Antonio 2002, no pet.). Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Pacheco is unable to satisfy the first prong of Strickland. Thompson, 9 S.W.3d at 814. Failure to make the required showing of either Strickland prong, deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance. Id. at 813. Further, even if these remarks made by Pacheco's counsel during the punishment phase could be deemed erroneous, Pacheco has not met his burden of establishing the second prong of the Strickland standard. Pacheco's only references to this prong are his statements arguing that "counsel could have had no conceivable strategy in making the argument that he did, because that argument assuredly meant that the jury would return the maximum sentence it could under law." Such a general conclusion does not demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Holland, 761 S.W.2d at 314. In light of Pacheco's numerous prior convictions for violent robberies and the overwhelming evidence of Pacheco's involvement in the robbery at issue, there is no reasonable probability that the result of the trial would have been different had Pacheco's trial counsel conducted a different closing argument during the punishment phase of the trial. Accordingly, we hold that Pacheco has failed to establish deficient performance by his trial counsel and we therefore overrule his first point of error. Witness Identification
In his second and third issues, Pacheco contends that the trial court erred when it failed to suppress his in-court identification based upon a highly suggestive and suspect photo array. Specifically, he argues in his second issue that Angelita Lopez's identification of him should have been suppressed because it was based upon a highly suggestive and suspect photo array which led to an unreliable in-court identification of him during the guilt/innocence phase of the trial. In his third issue, Pacheco argues that the in-court identification of him during the punishment phase of the trial by witnesses of extraneous offenses were tainted because the same impermissibly suggestive photographic lineup was used to aid in their identification. Standard of Review
Whether a trial court erred in admitting a witness's identification involves a mixed question of law and fact. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App. 1998). We extend great deference to the trial court's resolution of historical facts. Id. at 773. However, the consequences arising from those historical facts are reviewed de novo. Id. at 773-74. We therefore will review de novo the trial court's decision to deny the motion to suppress the in-court identifications, which appellant claimed were based on an impermissibly suggestive lineup. See Colgin v. State, 132 S.W.3d 526, 531 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). The Identification Procedure
In-court identifications are inadmissible when tainted by an unduly suggestive pretrial identification. See Loserth, 963 S.W.2d at 771-72. To determine whether a trial court correctly admitted an in-court identification, we use a two-step analysis and determine (1) whether the pretrial identification was impermissibly suggestive, and if so, (2) whether the suggestive pretrial identification gave rise to a substantial likelihood of irreparable misidentification at trial. Loserth v. State, 985 S.W.2d 536, 543-44 (Tex.App.-San Antonio 1999, pet. ref'd). The burden is on the defendant to show by clear and convincing evidence that the in-court identification is unreliable. Id. "Neither due process nor common sense requires that the individuals in a lineup exhibit features exactly matching the accused." Colgin, 132 S.W.3d at 532. Instead, a photo array must contain individuals who fit a rough description of the suspect. Id. Here, Pacheco contends that the photo array was impermissibly suggestive because he appeared to have a much lighter skin tone than the others, he stood out as having hair that appears more gray than dark brown or black, his eyes were darker than the others, his hair was more "spiky" and straight than the others, the other's noses were broader than his, he appeared to have the thinnest face, and his eyebrows were the most striking of the individuals in the photo array because they were extremely straight and relatively narrow. At the pre-trial hearing, Detective Hector Lopez testified that he prepared the line-up from which Angelita Lopez identified Pacheco. Detective Lopez stated that he used Crime Capture System, a computer program, to create the lineup. Crime Capture System allows detectives to enter pertinent information regarding the accused including age, sex, eye color, hair color, skin complexion, and race, and then the computer system generates the line-up. Detective Lopez further testified that all of the participants in the lineup he showed to Angelita Lopez were male, Hispanic, of the same general size and build, clean shaven, had the same hair color, and dressed in civilian clothing. The photographic array is part of the record on appeal. It consists of six white or Hispanic males who are dressed in civilian clothes and exhibit similar facial features. There are no extreme disparities in age and all appear to have the same color hair, eyes, and skin tone. Additionally, four of the six individuals, including Pacheco, have receding hairlines. Because the individuals depicted in the photo array fit the rough description of Pacheco, we hold that the photo array was not impermissibly suggestive, and did not constitute an unfair lineup. See Wilson v. State, 15 S.W.3d 544, 553 (Tex.App.-Dallas 1999, pet. ref'd). Pacheco also contends that the photo array was impermissibly suggestive because the witnesses were told that the array may include a suspect. However, it is well established that a pretrial identification procedure is not impermissibly suggestive merely because a witness may have believed one of the individuals in the photo array or lineup was a suspect. Abney v. State, 1 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (citing Webb v. State, 760 S.W.2d 263, 272 (Tex.Crim.App. 1988) for the proposition that in a substantial number of live lineups the identification witnesses will presuppose police have reason to believe one of the participants is the perpetrator). Pacheco additionally argues that the identification was tainted because the detectives did not follow the U.S. Department of Justice's guidelines that recommend a sequential presentation of the photographs. However, Pacheco presents no authority showing that such techniques are required and are not merely suggestions. See Davis v. State, No. 02-04-519-CR, 2006 WL 668849 Tex. App.-Fort Worth 2006, pet. ref'd) (mem.op.). Therefore, this contention is inadequately briefed and consequently presents nothing for our review. Id.; see Tex. R. App. P. 38.1(h). Finally, Pacheco claims in his third issue that identifications during the punishment phase of his trial by extraneous witnesses Clarabel Newcomb, Rebecca Lopez, Rebecca Danielle Lopez, Maria Carranza, and Zendy Casarez were tainted because they each saw a picture or sketch of him in a newspaper or on TV before they made their identifications. However, this factor does not relate to whether the pretrial identification procedure was impermissibly suggestive, nor does Pacheco cite any authority for this proposition. Because this argument is also inadequately briefed, we will not consider this factor when deciding whether the pretrial identification procedure was impermissibly suggestive. See Tex. R. App. P. 38.1(h). Because Pacheco failed to prove by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive during the guilt/innocence and punishment phases of his trial, we need not determine whether the procedure gave rise to a very substantial likelihood of misidentification. Abney, 1 S.W.3d at 275 (citing Ford v. State, 919 S.W.2d 107, 117 (Tex.Crim.App. 1996)); Colgin, 132 S.W.3d at 532. We therefore overrule Pacheco's second and third issues. Jury Charge on First Enhancement paragraph
In his final issue, Pacheco argues that the trial court caused him egregious harm when it instructed the jury concerning an enhancement allegation that referred in nonsensical terms to a concept that is not an offence under the laws of the State of Texas or any other jurisdiction. The first enhancement paragraph of the indictment alleged: "Before the commission of the offense alleged above. . . on the 9th day of June A.D., 1989, in Cause Number 87 CR4911, in Bexar County, Texas, the defendant was convicted of the felony of ROBBERY-BOD INJURY-BUS-STRGA." Pacheco pled "not true" to the allegation and even though he did not object to the enhancement paragraph at trial, he now contends that the enhancement paragraph did not allege a felony recognized by the State of Texas. He argues that this alleged error invited jurors to speculate as to the nature of his prior offense and thus caused him egregious harm. The State is required to prove the allegations in an enhancement paragraph beyond a reasonable doubt. Williams v. State, 980 S.W.2d 222, 226 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). The purpose of an enhancement paragraph is to give a defendant notice of the prior convictions the State intends to use to enhance the punishment. Id.; See Brooks v. State, 957 S.W.2d 30, 33. Since the purpose of the enhancement paragraph is to provide notice, "'[i]t is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense.'" Williams, 980 S.W.2d at 226. Adequate notice of any prior conviction used for enhancement of punishment constitutes a "'description of the judgment of former conviction that will enable [the accused] to find the record and make a preparation for a trial of the question whether he is the convict named therein.'" Fairrow v. State, 112 S.W.3d 288, 294 (Tex.App.-Dallas 2003, no pet.) (quoting Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.)). "It is well settled that a prior conviction alleged for enhancement may be established by certified copies of a judgment and sentence and authenticated copies of the Texas Department of Criminal Justice records." Carriere v. State, 84 S.W.3d 753, 758 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Here, the State alleged in the indictment that Pacheco was convicted of robbery-bod injury-bus-strga in 1989. The State proved this conviction at trial by introducing into evidence his judgment revoking probation which also established that he was convicted of this offense. Additionally, the jury charge submitted by the court exactly tracks the allegations in the indictment and was supported by evidence introduced at trial. The enhancement paragraphs in the indictment identified the prior convictions by cause number, date, county, and offense. These facts are more than enough information for Pacheco to find the records and litigate his identity as the convict. Furthermore, his claim that robbery-bod injury-bus-strga is not a recognized felony is disingenuous. As the State argues, "robbery-bod injury" is an abbreviation for robbery causing bodily injury, the "bus" is an abbreviation for business, and "strga" is an abbreviation for strangulation. Given proof provided on the record and to the trial court, the enhancement paragraphs provided adequate notice and his argument that robbery-bod injury-bus-strga is not a recognized felony is without merit. We thus overrule Pacheco's fourth issue. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.