No. 14-04-00830-CR
Opinion filed January 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 976,467. Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
CHARLES W. SEYMORE, Justice.
Appellant, Sandinkas Tierra Jamerson, appeals a conviction for robbery. In one issue, appellant contends that she was denied effective assistance of counsel because her attorney failed to challenge complainant's in-court identification. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUND
In February of 2005, the complainant, Alfredo Rodriquez, was robbed at a gas station. A man holding a gun approached the complainant as he opened his car door. The man with the gun and another unidentified person beat the complainant. A woman later identified as appellant took the complainant's wallet and car keys from his pocket, got in his car, and drove away with her unidentified accomplices. The complainant called his brother from the gas station. After his brother arrived at the gas station, the two drove through the surrounding area looking for the stolen vehicle. Unable to find the car, the two returned to the gas station and called the police. As the complainant was describing the offense to the police officers, he saw his stolen car pass by. The police chased the car until it crashed into a ditch. Appellant and the other two occupants ran out of the car, but appellant slipped and was apprehended by the police. The other two occupants escaped. Appellant was placed in a patrol car at the scene where the complainant positively identified her as the person who took his wallet and keys. A jury found appellant guilty of aggravated robbery and assessed punishment at thirty years' confinement. II. DISCUSSION
In her sole issue, appellant contends that she received ineffective assistance of counsel when her attorney failed to challenge the complainant's in-court identification of appellant. She contends that the complainant's out-of-court identification of appellant at the scene of the robbery was obtained by an impermissibly suggestive procedure. Thus, appellant argues, that her counsel should have moved to suppress any subsequent in-court identification. In evaluating an ineffective-assistance-of-counsel claim, we apply a two prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). First, we must determine whether the attorney's performance was deficient; i.e., that the performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687-88. If we find the attorney's performance deficient under the first prong, then we must determine whether the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687. In other words, appellant must show a reasonable probability that, but for her counsel's errors, the result of the proceeding would have been different. Id. at 694. Here, even assuming that appellant would have prevailed on a motion to suppress had her attorney challenged the complainant's identification, appellant has failed to meet her burden under Strickland. There is a strong presumption that an attorney's performance falls within the range of reasonable assistance. Id. at 689. An isolated incident of alleged miscalculation does not necessarily render counsel ineffective, especially "when the record provides no discernible explanation of the motivation behind counsel's actions." Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Appellant did not file a motion for new trial, and the record is devoid of any information indicating why appellant's counsel chose not to file a motion to suppress. At trial, counsel for appellant rigorously cross-examined the complainant and the police officers concerning the complainant's initial description of his attackers. In her closing argument, appellant's counsel argued that mistaken identification was "the key thing." In the absence of any showing to the contrary, we conclude that counsel's apparent decision to argue misidentification before the jury rather than file a motion to suppress was objectively reasonable trial strategy. Further, the complainant testified that the third attacker wore a black bandana, a gray blouse or sweater, and black pants. A police officer at the scene testified that appellant was found fleeing from the complainant's stolen car within hours of the robbery wearing a black "doo-rag," a gray shirt, and black pants. Given the incriminating circumstances of appellant's arrest, there is not a reasonable probability that the outcome would have been different had the complainant's in-court identification been suppressed. Because appellant has failed to meet both prongs of the Strickland test, we overrule her sole issue. Accordingly, the judgment of the trial court is affirmed.