Opinion
NO. 01-16-00342-CR
07-13-2017
REYNALDO ORTEGA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1461108
MEMORANDUM OPINION
Reynaldo Ortega was convicted of aggravated robbery and sentenced to thirty years' confinement. In his sole issue, Ortega argues that he received ineffective assistance of counsel because his trial counsel did not attempt to suppress the complainant's pre-trial and in-court identifications of Ortega as one of the men who robbed him. According to Ortega, the identification evidence was irreparably tainted and therefore inadmissible because the pre-trial identification occurred at a showup where the complainant viewed Ortega handcuffed in the back of a squad car after being told that the police had caught him fleeing from the complainant's stolen vehicle. We affirm.
Factual Background
Two men rob Schmidt and drive off in his Camaro
One evening around 11:30 p.m., the complainant, pseudonymously referred to as John Schmidt, ended his work shift and drove his car, a black Chevrolet Camaro, to a self-service carwash at 20th Street and Shepherd in the Houston Heights. The carwash was dimly lit, and Schmidt was the only one there.
While Schmidt was washing his car, a man approached him from his left, holding a gun, and said, "I'm jacking you. It's a robbery, I'm jacking you. Give me your stuff." Schmidt "hesitated for a minute" and then a second man approached him from his right, holding a gun, and said, "Give me your wallet, your phone [and] your stuff." Schmidt gave them his wallet, phone, and keys, and they drove off in his car.
Schmidt ran across the street to a Jack in the Box, where he called 911. Schmidt told the call-taker that he had just been robbed by two Hispanic males. He said that the robbery had occurred about five minutes earlier and that both assailants had guns. He said that they had taken his wallet, phone, and car and fled east on 20th Street. The call-taker told Schmidt that an officer was being dispatched to the scene.
While he waited for an officer to arrive, Schmidt called 911 two more times. In his second call, Schmidt was told that the police either had found his vehicle or were in pursuit of it and would pick him up once the scene was secured. In his third call, Schmidt provided the call-taker a more detailed description of the assailants. He again said that they were two Hispanic males with guns. He also said that they both appeared to be in their twenties. Schmidt described the first assailant as being about six feet tall and skinny with "reddish-black" Nikes and a black jacket. He described the second assailant as being about five-foot-seven and medium built with "all black" Nikes, a black jacket, and black baseball cap.
The police chase and apprehend a man driving the Camaro
Houston Police Department Officer R. Worsham was dispatched to the scene of the robbery. The call slip stated that the suspects had stolen a black Camaro and were last seen driving east on 20th Street, which was in Worsham's direction.
While en route, Worsham saw a black Camaro turning southbound from 20th Street. Worsham began to follow it. The Camaro drove off at a high rate of speed, and a brief chase ensued. The Camaro eventually crashed into a building and stopped on a residential street, and the driver and passenger exited the car and fled on foot in opposite directions. Worsham testified that the passenger appeared to be wearing a black jacket and jeans, but he could not recall whether the passenger was wearing anything on his head. Worsham further testified that the driver was wearing a red sweatshirt and pants with red shoes and was not wearing anything on his head.
Worsham saw the driver run into the neighborhood, which the police then searched with K-9 and helicopter units. The police eventually found the driver hiding under a moped cover in a resident's backyard. Worsham testified that when the police found the driver, he was no longer wearing a red sweatshirt but was still wearing red shoes.
Schmidt identifies the driver as one of the men who robbed him
Once the driver had been apprehended, an officer drove to the carwash, picked up Schmidt, and drove him to the scene of crash. The officer explained to Schmidt that the police had caught one of the men who had run from his car but that the other man had gotten away. The officer told Schmidt that the police now wanted him to attempt to identify the man in custody.
When Schmidt arrived at the scene of the crash, he saw Ortega handcuffed in the back of a squad car with the windows rolled down. Schmidt identified Ortega as the first assailant who had pointed a gun at him and robbed him.
The police recovered various items of property from the scene. From Schmidt's Camaro, the police recovered Schmidt's wallet, as well as a blue and red Patriots beanie, a black welder's cap, and a knife, none of which belonged to Schmidt. The police found a black jacket in a yard in the direction that the Camaro's passenger had fled. Schmidt's cell phone was inside one of the jacket's pockets. Finally, the police found two guns in the Camaro's travel path, one of which had an uncommon design and appeared to be "foreign."
Procedural Background
Ortega was indicted for aggravated robbery, enhanced by one prior felony conviction. His trial counsel did not attempt to suppress evidence of Schmidt's pre-trial identification of Ortega and did not object to Schmidt's identification-related testimony at trial.
Schmidt testified that the man police had in custody at the scene was the same man who pointed a gun at him and robbed him. And Officer Worsham and K-9 handler Officer D. Neck identified Ortega as the Camaro driver who fled from Worsham and was later found under the moped cover.
The jury found Ortega guilty, and the trial court sentenced him to thirty years' confinement. Ortega appeals.
Ineffective Assistance of Counsel
In his sole issue, Ortega argues that he received ineffective assistance of counsel because trial counsel "did nothing to suppress" Schmidt's pre-trial and in-court identifications of him. Ortega argues that this evidence was inadmissible because the "showup" at which Schmidt initially identified Ortega was impermissibly suggestive and conducive to mistaken identification. According to Ortega, in light of "the longstanding judicial scrutiny of eyewitness identification procedures, no reasonable defense attorney would fail to even try to suppress identification evidence" under these circumstances.
The State responds that Ortega has failed to show trial counsel performed deficiently because he has failed to show that an attempt to suppress Schmidt's pre-trial and in-court identifications would have succeeded.
A. Standard of review
To prevail on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-90, 104 S. Ct. 2052, 2064-66 (1984). Under the first prong, "the defendant must show deficient performance—that the attorney's error was 'so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Weaver v. Massachusetts, No. 16-240, 2017 WL 2674153, at *10 (U.S. June 22, 2017) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). This requires the defendant to prove "that counsel's performance fell below an objective standard of reasonableness, considering the facts of the particular case and judged at the time of counsel's conduct." Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006). Under the second prong, "the defendant must show that the attorney's error 'prejudiced the defense.'" Weaver, 2017 WL 2674153, at *10 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). This requires the defendant to prove that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Weaver, 2017 WL 2674153, at *10 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
In reviewing a claim for ineffective assistance of counsel, we are "highly deferential" to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). We indulge a "strong presumption" that trial counsel's performance "fell within the wide range of reasonable professional assistance." Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To prove that counsel's performance was deficient, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
"Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness." Id. And "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Thus, if the record does not contain affirmative evidence of counsel's reasoning or strategy, we normally presume that counsel's performance was not deficient. Blackwell, 193 S.W.3d at 21. "In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy." Id.
Ortega argues that he received ineffective assistance of counsel because his trial counsel failed to attempt to suppress the pre-trial and in-court identification evidence. "A trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel." Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). To prevail on a claim for ineffective assistance of counsel premised on counsel's failure to file a motion to suppress, the defendant "must show by a preponderance of the evidence that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction." Id. (citing Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998)).
B. Applicable law
A "showup" is "[a] police procedure in which a suspect is shown singly to a witness for identification, rather than as part of a lineup." Showup, BLACK'S LAW DICTIONARY (10th ed. 2014). Typically, the "witness is brought to the scene and asked whether a detained or arrested suspect is the perpetrator." Id.
"The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967). And it is well-established that a showup "may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law." Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). But, "the admission of evidence of a one man showup without more does not violate due process." Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.] 1981) (citing Neil v. Biggers, 409 U.S. 188, 198, 935 S. Ct. 375, 382 (1972)). Rather, the admission of such evidence violates due process only if (1) the out-of-court identification procedure was impermissibly suggestive, and (2) the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Proctor v. State, 319 S.W.3d 175, 185 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
To determine whether a showup was impermissibly suggestive, "we review the procedure to determine whether suggestiveness was created by the manner in which the pretrial identification procedure was conducted." Id.
To determine whether a showup created a substantial likelihood of irreparable identification, we consider all relevant reliability factors, including (1) the witness's opportunity to view the assailant at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the assailant, (4) the witness's level of certainty at the time of confrontation, and (5) the length of time between the crime and confrontation. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008); Barley, 906 S.W.2d at 34-35. We then weigh these factors "against the corrupting effect of any suggestive identification procedures." Barley, 906 S.W.2d at 35.
"An analysis under these steps requires an examination of the 'totality of the circumstances' surrounding the particular case and a determination of the reliability of the identification." Id. at 33. "Ultimately, 'reliability is the linchpin in determining the admissibility of identification testimony.'" Proctor, 319 S.W.3d at 185 (quoting Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999)). "If indicia of reliability outweigh suggestiveness then an identification is admissible." Barley, 906 S.W.2d at 34.
C. Ortega fails to show that motion to suppress would have been granted
Ortega, citing Barley, 906 S.W.2d at 33, argues that a motion to suppress would have been granted because the showup at which Schmidt made the initial identification was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification. As a result, Ortega contends, the identification evidence was "irreparably tainted[,]" and its use at trial denied him "due process of law." Id. at 32-34. The State responds that the identification evidence was admissible because the "indicia of reliability outweigh" the "suggestiveness" of the procedure. Id. at 34.
Assuming without deciding that the showup was impermissibly suggestive, our review of the reliability factors leads us to conclude that the procedure did not give rise to a substantial likelihood of irreparable misidentification.
1. Opportunity to view assailant at time of crime
Schmidt testified that, although it was dark outside, he got a "pretty good" look at the first assailant and saw his face "clearly." Schmidt said that he was standing only a few feet away from him during the robbery. See Barley, 906 S.W.2d at 35 (viewing defendant from close distance at time of crime indicates that pretrial identification is sufficiently reliable). And he said that neither assailant was wearing a mask. See id. ("unobstructed" view of defendant at time of crime indicates pretrial identification is sufficiently reliable); Hollins v. State, No. 01-13- 00129-CR, 2014 WL 768327, at *6 (Tex. App.—Houston [1st Dist.] Feb. 25, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that complainant's testimony "that he stood face-to-face with appellant during the robbery and looked directly at him" weighed in favor of reliability of pre-trial identification).
2. Degree of attention
Schmidt was not a "casual" observer but rather the target of the crime and therefore had "more reason to be attentive." Barley, 906 S.W.2d at 35. And Schmidt's account of the robbery indicates that he was in fact attentive, as he was able to describe the order in which the assailants approached him, what they said to him, what they were wearing, what weapons they possessed, and in what direction they drove off in his car. Schmidt also testified that he noticed differences in Ortega's appearance at trial from his appearance the night of the robbery, including that Ortega no longer had a shaved head and had grown out his facial hair, which further indicates that Schmidt was paying close attention at the time of the robbery. See id. (prior description indicates identification was reliable when witness is "able to identify cosmetic differences in appellant's appearance at the hearing and trial from his appearance at the scene").
Notably, Schmidt also testified that the first assailant's gun looked like an old "Russian" or "Soviet" gun, and one of the responding officers, Officer F. Jerz, testified that a distinctive, foreign-looking gun was later found in the Camaro's travel path.
3. Accuracy of prior description of assailant
In his calls to 911, Schmidt generally described the first assailant as a Hispanic male in his twenties who was about six feet tall and skinny, and Ortega generally matched this description. See Barley, 906 S.W.2d at 35 (prior description indicates identification was reliable when defendant "fits within" description). Schmidt also described the first assailant as wearing "reddish-black" shoes, and Worsham testified that Ortega was wearing red shoes when he was caught.
However, there were several discrepancies between Schmidt's prior description of his first assailant and his testimony at trial. For example, Schmidt did not tell the 911 call-taker that the first assailant was wearing a blue and red or blue and orange beanie, but he later testified at trial that the first assailant was wearing such a beanie when he robbed him. Also, Schmidt told the 911 call-taker that the first assailant was wearing a black jacket, but he later testified at trial that he was wearing a brown jacket. Although Worsham testified that the driver appeared to be wearing a red sweatshirt when he exited the Camaro and that the red sweatshirt was consistent with the clothing description given to him by Schmidt, Schmidt did not tell the 911 call-taker that either of his assailants was wearing a red sweatshirt and did not provide any such testimony at trial.
4. Level of certainty at time of confrontation
When Schmidt arrived at the scene of the crash and was shown Ortega in the back of the police car, he immediately recognized Ortega as the first assailant and was confident of his identification. See Nunez-Marquez v. State, 501 S.W.3d 226, 237-38 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (holding that showup did not give rise to substantial likelihood of irreparable misidentification when complainants immediately identified defendant and their identifications occurred while robbery was still fresh in their memories); Hollins, 2014 WL 768327, at *6 (holding that complainant's pre-trial identification was reliable when complainant "immediately recognized appellant and was confident of his identification"). And Schmidt testified multiple times at trial that he believed the person the officers had in custody was the same person who had pointed a gun at him and robbed him.
5. Length of time between crime and confrontation
Less than two hours passed between the crime and confrontation. Schmidt was robbed at around 12:15 a.m., and he made the showup identification of Ortega between 1:45 and 2:00 a.m., while the robbery was still fresh in his memory. See Nunez-Marquez, 501 S.W.3d at 237-38 (holding that showup did not give rise to substantial likelihood of irreparable misidentification when identifications occurred while robbery was still fresh in complainants' memories); Hollins, 2014 WL 768327, at *6 (holding that complainant's pre-trial identification was reliable when it occurred "approximately twenty to thirty minutes after the robbery had occurred").
Weighing these factors, we hold that the indicia of reliability of the pre-trial identification outweigh the corrupting effect of the showup procedure. Schmidt saw Ortega's face "clearly" at the time of the robbery and identified Ortega less than two hours later when the event was still fresh in his mind. Also, there were several identification details that were specific to Ortega's dress and the weapon used that were consistent at the time of the 911 calls and two hours later at the showup and Schmidt's identification of Ortega as his assailant. Under these circumstances, the showup did not create a substantial likelihood of irreparable misidentification.
We hold that Ortega's trial counsel's failure to attempt to suppress the identification evidence was not ineffective assistance. Therefore, we overrule Ortega's sole issue.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Higley, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).