Opinion
Nos. 05-09-00569-CR, 05-09-00570-CR
Opinion issued June 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F06-67956-O and F06-67957-O.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
OPINION
A jury found Anthony Stephen Choice guilty of two aggravated robberies; the trial court assessed his punishment at fifteen years' confinement in both cases. The trial court subsequently granted Choice's motion for new trial on the ground he received ineffective assistance of counsel. The State appealed. This Court vacated the trial court's order granting a new trial and reinstated the trial court's original judgments. Choice appeals those judgments, raising two new bases for his argument that he received ineffective assistance of counsel. We affirm the trial court's judgments.
Background
Choice's arguments center on the manner in which witnesses identified him after the two aggravated robberies. The first robbery took place at a Payless shoe store. The robber took a pair of shoes and left the store after showing Patricia Ramos, a Payless employee, a knife in his waistband. Within seconds, the robber returned to the store and retrieved a bag he had left on the counter; this time a second Payless employee, Mayra Rodriguez, saw the knife in the robber's waistband. Both women heard the robber instruct them not to call the police or he would be back. Shortly after the Payless robber left the store, Mart Ruby was preparing to exit his truck in the same parking lot. Initially a woman approached him asking for money. Then a man came up behind Ruby and held a knife to his throat. Ruby followed the man's instructions: he left his wallet in the car, put the keys in the ignition, and got out of the truck. The robber drove away in Ruby's truck. Police soon located Ruby's truck. When officers drew near the truck, the driver jumped out and ran. Police officers caught up with him, subdued him, and placed him in a squad car. Officers then picked up Ramos and Ruby and brought them to the site where the driver had been apprehended. Ramos identified the driver as the man who robbed her earlier that day. Ruby identified his truck and identified the driver as the man who had robbed him. The next day, Rodriguez was shown a photo lineup; she identified a picture of Choice as the man who had threatened her and Ramos at the store. At trial, Ruby and the officers involved in apprehending the driver the day of the robberies all identified Choice as that man. Choice was indicted for the aggravated robberies of Ramos and Ruby. A jury convicted him, and the trial court assessed his punishment at fifteen years' imprisonment for each offense. But the trial court later granted Choice's motion for new trial, finding he had received ineffective assistance of counsel. The State appealed, and this Court vacated the new-trial order and reinstated the trial court's May 9, 2007 judgments. See State v. Choice, Nos. 05-07-01037-CR, 05-07-01038-CR, 2008 WL 3117668, at *5 (Tex. App.-Dallas Aug. 7, 2008, no pet.) [hereinafter " Choice I"]. Choice now appeals those judgments, once again urging he received ineffective assistance of counsel.Ineffective Assistance of Counsel
We review a claim of ineffective assistance of counsel under well-settled standards. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The defendant must prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for a specific act or omission by his counsel. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Because of the unusual procedural history of this case, we have already reviewed the ineffective-assistance grounds raised by Choice in his motion for new trial. See Choice I, 2008 WL 3117668, at *5. The identification arguments raised by Choice in this second appeal were not specifically raised in that motion. However, Choice's trial counsel was questioned concerning these issues at the hearing on the motion for new trial. We acknowledge direct appeal can be an inadequate vehicle for raising a claim for ineffective assistance of counsel because the record is generally undeveloped. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In this case, though, Choice's trial counsel has had the opportunity to explain his actions. See id. ("trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective"). Accordingly, we have an appropriate record to evaluate Choice's issues.The Showup Identifications
In his first issue, Choice contends his trial counsel was ineffective for failing to object to evidence of the "showup" identifications made by Ramos and Ruby after Choice was apprehended. Choice's trial counsel did not object when evidence of the identifications was offered during Ramos's testimony or Ruby's testimony. At the hearing on the motion for new trial, he testified that, in his opinion, the showup identifications were legal and he had no lawful objection to them. The admissibility of an identification is a mixed question of law and fact which we review de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). Our test for whether a pretrial identification should be excluded has two steps: (1) whether the police used an impermissibly suggestive procedure, and (2) if so, whether, given the totality of the circumstances, there was "a very substantial likelihood of irreparable misidentification." Wilson v. State, 267 S.W.3d 215, 217 (Tex. App.-Waco 2008, pet. ref'd). A one-man showup-or on-the-scene confrontation-has some degree of suggestiveness. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982). But the admission of evidence of a one-man showup, without more, does not violate due process. Neil v. Biggers, 409 U.S. 188, 198 (1972). The issue is really one of reliability. We weigh the following factors against the danger of misidentification in our effort to assess reliability under the totality of the circumstances: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the witness's level of certainty at the confrontation, and (5) the length of time between the crime and the confrontation. Garza, 633 S.W.2d at 513; Wilson, 267 S.W.3d at 217. Ramos testified she engaged the robber in the store initially by asking if he needed assistance. Then she continued to watch him because she thought his actions were suspicious. She clearly was paying close attention to the robber: she became concerned early on that he was trying to steal the shoes because she watched him cut off the store's sensor; she confronted him when he tried to leave the store with the shoes; and she saw him up close again when he returned to retrieve his bag from the counter. The officers who apprehended Choice testified he matched the description Ramos had given them, and Ramos was certain Choice was the robber when she saw him after he was apprehended. Finally, her identification was made-at most-just two hours after the robbery. Ruby did not have as long a period of time to observe the robber as Ramos did. However, the robber confronted him at midday and was close enough to Ruby that the robber could stick Ruby's neck with his knife. Certainly, given the dangerous circumstances of the confrontation, Ruby was attentive to the robber. Like Ramos, Ruby gave a description that matched Choice and "absolutely" identified Choice as the man who took his truck. And Ruby testified officers came to his home and took him to make the identification "maybe an hour" after he had made his original report at the scene of the robbery. We conclude, under the circumstances of this case, that both showup identifications were reliable. We discern no substantial likelihood of irreparable misidentification by Ramos or Ruby. See Garza, 633 S.W.2d at 513. Thus, the showup identifications were admissible. Choice's trial counsel's decision not to object to the identifications did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. We overrule Choice's first issue.Photo Lineup
In his second issue, Choice argues his trial counsel was ineffective for failing to object to the photo lineup by which Rodriguez identified Choice as the man who had threatened her and Ramos. At trial, Choice's attorney requested and received a hearing outside the presence of the jury before the results of the photo lineup were admitted into evidence. The police officer who prepared and conducted the lineup testified at that hearing. She explained how she chose photographs of five men who were of a similar appearance and age to Choice. She also described the procedure she used when conducting the lineup: explaining to Rodriguez that the robber she saw at Payless might or might not be among the photos, and allowing Rodriguez to examine them with no interference or suggestion from the officer. Rodriguez testified as well and confirmed the officer had not pressured her or suggested one photo in any way. At the end of the hearing, Choice's attorney stated he had no objection to the admission of the identification. Finally, at the hearing on the motion for new trial, he stated:I can't recall anything about any of the testimony concerning the IDs that suggested in any form — shape or form to me that anything had been done to — to create an unfair or suggestive unlawful kind of an identification procedure. If there had been, then my job is to object. I didn't see anything like that.Again, our first inquiry as to the admissibility of a pre-trial identification is whether the procedure used was impermissibly suggestive. See Wilson, 267 S.W.3d at 217. Choice contends the lineup was impermissibly suggestive because Rodriguez testified that one of the robber's eyes had a "swollen . . . sty kind of thing" and she recognized that feature in Choice's picture in the lineup. The original photo lineup depicts men with many similar features and characteristics. On close observation, Choice's left eye does appear swollen in his picture. But of the six photos in the lineup, only one depicts a man with both eyes wide open. In each of the other photos either the subject's eyelids are heavy or shadowed, or his eyes are only partially open. And one of the other photos depicts a man with what appears to be a slight bruise and swelling under his left eye. We conclude the photo lineup was not impermissibly suggestive. Thus, it was admissible at trial, and Choice's trial counsel's decision not to object to the identification did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. We overrule Choice's second issue as well. We affirm the trial court's judgments.