Opinion
NO. WR-94,072-01
01-11-2023
EX PARTE Marvin Leonel ROMERO, Applicant
Kenneth W. Smith, for Applicant.
Kenneth W. Smith, for Applicant.
Writ of habeas corpus denied.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson, J., joins.
Around eighteen years ago, on November 19, 2004, Applicant filed this application for a post-conviction writ of habeas corpus in Harris County challenging his conviction for aggravated robbery. The trial court entered a timely order designating issues on December 17, 2004. For reasons that remain unknown, it appears that no further action was taken until the application was belatedly forwarded to this Court on August 19, 2022. This Court has now independently reviewed the record and considered the claims raised in the application, and it has determined that Applicant's claims lack merit. Although I agree with the Court's ultimate assessment that the application should be denied, given the extraordinary delay that has occurred in this case, I believe it is appropriate to at least provide Applicant with some explanation for why his application is being denied after almost two decades.
In September 2002, Applicant was convicted of aggravated robbery and sentenced to thirty-five years’ imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Romero v. State , No. 14-02-01085-CR, 2003 WL 22707346 (Tex. App.—Houston [14th Dist.] Nov. 18, 2003, no pet.) (mem. op., not designated for publication). The facts adduced at trial showed that Applicant attacked and robbed a woman as she was backing her car out of a parking spot in downtown Houston. Applicant was not apprehended at the time, but the victim later identified Applicant in a video lineup, as well as in a second in-person lineup. At Applicant's trial, several other women identified Applicant as the person who had attacked them under very similar circumstances.
In his application for a post-conviction writ of habeas corpus, Applicant raises several allegations of ineffective assistance of trial counsel, namely, that his trial counsel was ineffective for: failing to properly challenge the suggestive identification lineup procedures used by police; failing to allege that the identification was the product of an improper illegal detention; failing to properly question witnesses at trial about possible media exposure and outside influence on their trial identification of Applicant as the perpetrator; failing to call exculpatory witnesses (other victims who allegedly did not identify Applicant during pretrial lineups); failing to object to improper cross-examination during Applicant's testimony; and failing to object to several improper closing arguments by the State.
The standard for ineffective assistance of counsel is laid out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on a claim of ineffective assistance, an applicant has the burden to prove that counsel's performance was both deficient and prejudicial to the outcome of the proceeding. Id. at 687, 104 S.Ct. 2052. The deficiency prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687–88, 104 S.Ct. 2052. There is "a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ " Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ). To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Applicant has not met his burden under either prong. The record reflects that trial counsel did indeed file a motion to suppress the victim's identification of Applicant, alleging that it was tainted by an unduly suggestive lineup procedure and was obtained in violation of Applicant's right to counsel. Applicant now alleges that trial counsel should have made different or additional arguments in support of the motion and should have presented additional evidence. But criticizing counsel's chosen strategy with the benefit of hindsight does not show that trial counsel's arguments and overall representation fell below an objective standard of reasonableness. Further, even assuming that counsel should have raised additional arguments in an effort to have the identification suppressed, Applicant has not shown that any of those arguments would have made a difference to the outcome of his trial. To find that an identification is tainted by an impermissibly suggestive lineup procedure, the record must reflect that the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Barley v. State , 906 S.W.2d 27, 34 (Tex. Crim. App. 1995) ("If indicia of reliability outweigh suggestiveness, then an identification is admissible."). The circumstances of this case, which show that the victim had ample opportunity to view her assailant and consistently identified him in two separate lineups, do not indicate that any suggestiveness in the lineup procedure outweighed the reliability of the victim's identification. The testimony from several other victims identifying Applicant as the perpetrator of similar crimes in the same area/time period further supports the reliability of the victim's identification. Thus, even if counsel should have advanced additional arguments to show that the lineup procedure was impermissibly suggestive, the victim's identification nevertheless would have still been admissible.
Applicant's trial counsel argued that Applicant had been indicted in another case and was without an attorney during the lineup and that the lineup was suggestive because the victim was informed that a suspect was in the lineups. Applicant now claims that counsel should have also argued that Applicant was the only person included in two separate lineups shown to the victim, that the other individuals pictured did not match the victim's description of the suspect, and that the victim in this case may have been aware that others had identified Applicant as the assailant in other similar robbery cases.
Similarly, with respect to Applicant's complaints regarding the State's allegedly improper cross-examination and closing argument, even assuming that counsel should have objected in the manner Applicant suggests, Applicant cannot show that such objections would have made any difference to the outcome of his trial. Applicant complains that counsel should have objected to the State's questions during his testimony asking him if the victims were lying (to which he responded in the affirmative), and then should have further objected to the State's closing argument emphasizing that Applicant was in fact the one who was lying. He also complains about the State's arguments referring to facts not in evidence regarding Applicant's robberies of other victims. But given the State's evidence of guilt and the jury's verdict, it is clear that the jury believed the victim in this case and disbelieved Applicant's alibi and blanket denial of responsibility. I cannot see how additional objections from counsel on these points would have made any difference in the jury's decision to convict. Finally, the remainder of Applicant's allegations (e.g., that he was illegally detained at the time of the lineup; that the other victims were "networking" to coordinate their identifications of Applicant and were improperly influenced by media and other outside sources; that some other unknown victims had failed to identify Applicant in other lineups and should have been called to testify as exculpatory witnesses; and that the victim in this case was possibly aware that others had identified Applicant as the perpetrator of other similar offenses) are wholly speculative and lack any factual support. Given the circumstances, I agree with the Court that Applicant has failed to demonstrate either deficiency or prejudice as is required to establish a claim of ineffective assistance of trial counsel.
Turning to the matter of the extended delay in resolving Applicant's habeas application, I wish to provide Applicant with a brief explanation of what has occurred. It has recently come to this Court's attention that dozens, possibly hundreds, of applications for writs of habeas corpus filed in Harris County during the past several decades were not timely forwarded to this Court. It is only in the past several months that the long-delayed applications have finally been forwarded. No reason or justification has yet emerged for this breakdown in the system, which plainly violates the procedural rules governing resolution of habeas applications. The sheer volume of cases this Court has received with extraordinary delays is clear evidence of a systemic failure in Harris County's processes for handling post-conviction habeas applications. Ultimately, the situation is extremely troubling, completely unacceptable, and terribly unfair to the applicants who have waited for years for any response regarding their applications. I urge Harris County to properly investigate the reason for these "lost and found" writs and ensure that nothing like this ever happens again.
See Tex. R. App. P. 73.4(b)(5) (providing that, on the 181st day after the application is received by the State, the district court "shall forward the writ record to this Court unless the district court has received an extension of time from the Court of Criminal Appeals"); Id. R. 73.5 ("Within 180 days from the date of receipt of the application by the State, the convicting court shall resolve any issues that the court has timely designated for resolution.").
Nevertheless, while I acknowledge this significant problem in the handling of Applicant's post-conviction writ application, I agree with the Court that Applicant has failed to establish entitlement to habeas relief. Therefore, I join the Court's decision denying relief.