Opinion
No. 10-03-00151-CR
Opinion delivered and filed November 10, 2004. DO NOT PUBLISH.
Appeal From the 10th District Court, Galveston County, Texas Trial Court # 02CR0068. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
MEMORANDUM Opinion
Appellant, Randy Warren Patton, was charged by indictment with Burglary of a Building. He pled not guilty, and a jury found him guilty. The trial court assessed punishment and sentenced him to twenty years' imprisonment. Patton now appeals in a single issue that he received ineffective assistance of counsel at trial because his counsel failed to object to: 1) testimony relating to the identification of his shoeprint at the scene of the burglary; 2) testimony that the area being patrolled was "a high crime area"; 3) references by law enforcement officer of another officer's investigations; and 4) the State calling a witness not on the State's witness list. We will overrule Patton's single issue and affirm the judgment.
BACKGROUND
A patrolling officer in the business area at Hwy 146 in Galveston County passed a vehicle with the trunk open and with a generator sticking out of the back. The officer followed the vehicle and secured a traffic stop for failure to turn without signaling. The officer identified the driver as Randy Patton and the passenger as Charles Chambers. Other officers were requested and an area was located where they thought a burglary might have taken place due to a cut fence and part of the metal building had been peeled back. The owner of the business was called and confirmed that the generator and a chop saw (found in Patton's car) came from his business. Wire cutters were also observed in plain view in Patton's car. Shoeprints were observed at the scene so the officers compared the shoeprints with Patton's and Chamber's shoes and determined that they were similar. There was identifying material (spaghetti, which was at the scene of the burglary) on Chambers' shoes but no identifying material on Patton's shoes. An identification officer came to the building. He did not find any fingerprints and took pictures of the shoeprints. Before trial, Patton's motion in limine was granted, which stated in relevant part:. . . evidence at trial make no reference to the following:
2.
All testimony or evidence that the area in which the events are to have occurred is perceived by police officers or others as a "Drug Trafficking Area or High Crime Zone", . . .
8.
Any reference by law enforcement officers, or other State's witnesses, to other witness statements, other officer's reports or investigations, rumors, or statements by experts, or as to results of scientific tests or pre-trial examination of the evidence by others.
16.
Any and all identification evidence, whether of Defendant's person, clothing or vehicle, or of the alleged instrument utilized by the offender in this cause, unless and until the admissibility thereof has been established, after all objections are made thereto.Patton's trial counsel did not object when the State introduced testimony relating to: 1) Patton's shoeprint identification at the crime scene; 2) the scene being in a high crime area; and 3) one investigating officer getting conflicting stories from Patton and Chambers. INEFFECTIVE ASSISTANCE OF COUNSEL Patton argues that his trial counsel was ineffective because he failed to object to: 1) testimony relating to the identification of his shoeprint at the scene of the burglary; 2) testimony that the area being patrolled was "a high crime area"; 3) references by a law enforcement officer that an investigating officer was getting conflicting stories from the suspects; and 4) the State calling a witness not on the State's witness list. The State argues that Patton's trial counsel's performance did not fall below the Strickland standard. The State says counsel is not ineffective for failing to object to admissible evidence. The State also argues that Patton's counsel actually used the lack of expert analysis to argue that there was no proof beyond a reasonable doubt. We must adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The assessment of whether a defendant received ineffective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. A single error can be so substantial that it causes the attorney's assistance to fall below the Sixth Amendment standard. Id. Objective Standard of Reasonableness When reviewing a claim of ineffective assistance of counsel under the first prong of Strickland, there is a strong presumption that defense counsel's conduct was reasonable and constituted sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). We evaluate the totality of the representation from counsel's perspective at trial, rather than counsel's isolated acts or omissions in hindsight. Gutierrez v. State, 8 S.W.3d 739, 749 (Tex.App.-Austin 1999, no pet.). Appellant has the ultimate burden to overcome this presumption and demonstrate not only that counsel's performance was unreasonable under the prevailing professional norms, but that the challenged action was not sound trial strategy. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). 1. Motion in Limine Related Evidence To preserve a complaint for appellate review, a timely and specific objection must be made and a ruling obtained. TEX. R. APP. P. 33.1(a)(1)(A). The granting of a motion in limine will not preserve a complaint of error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994). Therefore, it is necessary that an objection be made when the subject is raised during trial. Id. (citing Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985)). Even though Patton's trial counsel did not object to evidence identified in the granted motion in limine, there is no evidence in the record that the strategy for his actions was unreasonable or unsound. Patton has not overcome the presumption that his counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Stafford, 813 S.W.2d at 506. First, based on a review of the record, allowing the admission of testimony relating to Patton's shoeprint identification actually assisted Patton's counsel in attempting to raise reasonable doubt. Patton's counsel argued that the police could have done a more thorough job in their investigation ( e.g., they did not take shoeprint impressions for comparison) and established that none of the officers testifying about the shoeprint comparison had training in shoeprint identification and that the testifying officers did not know the brand of Patton's shoes or the size of the shoes. The State merely provided testimony by officers that the shoeprint and the shoe looked "similar," which Patton's counsel argued was not proof beyond a reasonable doubt that Patton was inside the building, which is required for burglary. Therefore, there is nothing in the record to show that not objecting to the testimony about the shoeprint identification was unreasonable. Second, the testimony regarding the crime scene area being "a high crime area" was merely a statement describing why the patrolling officer was in the area and why he was patrolling slowly through the area. There is nothing in the record to indicate that not objecting to this officer's testimony was unreasonable. Finally, the testimony where one officer referred to another officer getting conflicting stories from the suspects was just that simple — there was no expansion by the witness as to the conflicts except that neither cared what the other was saying. Again, there is nothing in the record to indicate that not objecting to this officer's testimony was unreasonable.
2. State's Witness List
Patton argues that his counsel was ineffective in failing to object to the testimony by the identification officer (Officer Crowe) because he was not listed on the State's witness list. Even though Officer Crowe was not on the State's witness list, Patton's counsel again used Officer's Crowe's testimony to attempt to raise reasonable doubt as to whether Patton was inside the building. During cross-examination, he obtained testimony that Officer Crowe did not identify the size of the shoes, does not know the brand of the shoes, he did not personally remove the shoes from Patton, he did not take any latent shoeprints for comparison, he merely did a general comparison of the looks of the shoes and the shoeprints, and he had training in fingerprint comparison, not shoeprint comparison. Therefore, there is no indication in the record that it was unreasonable for Patton's trial counsel to not object to this testimony because he strategically used it to attempt to show reasonable doubt. We do not reach prong two of Strickland, having failed to find deficient performance under prong one on all of Patton's contentions. Therefore, we overrule his single issue.CONCLUSION
Having overruled Patton's single issue, we affirm the judgment.It is unclear whether Patton also claims ineffective assistance of counsel because his counsel allegedly failed to suppress the shoeprint identification testimony. Because Patton's counsel did obtain a motion in limine for "all identification evidence, whether of Defendant's person, clothing . . .", we do not consider this assertion.
The pictures of the shoeprints were not admitted into evidence.
Contention two of Patton's single issue.
Contention three of Patton's single issue.
Contention one of Patton's single issue.
Covered by motion in limine no. 16.
Covered by motion in limine no. 2.
Covered by motion in limine no. 8.