No. 01-07-00176-CR
Opinion issued November 6, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the 10th District Court, Galveston County, Texas, Trial Court Cause No. 05CR2294.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.
SHERRY RADACK, Chief Justice.
A jury convicted appellant, Martin Lee Garza, of murder and assessed punishment at forty-five years' confinement. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). In four points of error, appellant contends that (1) the trial court erred in admitting an in-court identification that he claims is the product of an impermissibly suggestive pretrial identification procedure, (2) the evidence is legally insufficient to support the conviction, (3) the evidence is factually insufficient to support the conviction, and (4) appellant was provided ineffective assistance of counsel at trial. We affirm.
BACKGROUND
On August 29, 2005 at about 2:00 p.m., while working at a construction job in the backyard of a house, Miguel Guzman and Pompilio Gonzales were approached by a man in a neighboring backyard. Guzman approached the man, at which time the man began to insult him. Gonzales observed the man during the whole argument, which lasted between 12 and 15 minutes, from a distance of 11 to 18 feet. The man was wearing shorts and no shirt. During the argument, the man pulled a silver gun from the pocket of his shorts and began to shoot at Gonzales and Guzman. Guzman was shot and killed, and Gonzales was shot in the arm before escaping to the front of the house. At the time of the shooting, Officers Fillmore and Raglin were leaving Queen's Barbecue, two blocks away. Hearing the gunshots, they went toward the scene and found Gonzales in front of the house, bleeding from his arm. He directed them to the back of the house, where they found Guzman dead. While speaking with a police officer, Gonzales saw the shooter walking into Queen's Barbecue, wearing a yellow shirt and blue jeans. Gonzales tried to tell the officer that the shooter was walking nearby, but could not communicate effectively due to his inability to speak English. After the police secured the scene, Officer Gomez presented to Gonzales Donald Hammill for possible identification as the shooter. Gonzales told police that Hammill was not the shooter. After transferring Gonzales to the hospital, the police presented appellant to him for identification as the shooter. Gonzales positively identified appellant as the shooter. At trial, Gonzales again identified appellant as the shooter. Celina Williams, aresident of the house adjacent to the lot where the shooting took place, and the wife of Donald Hammill, testified that she was in her house at the time of the shooting. She heard yelling and gunshots from the neighboring backyard. After hearing the gunshots, she looked out of her kitchen window and saw "one of the construction workers" with blood on his shirt running to the front of the house. Her husband left the house to investigate and reentered holding something wrapped in a towel, which he took upstairs. After her husband entered the house, Williams went outside to attempt to help Guzman, but he was already dead. While she was outside, she saw a silver Isuzu Rodeo, which belonged to appellant, pass through the alley adjacent to her house. Appellant would use the alley when leaving his house. Donald Hammill, Williams's husband, was also in his house at the time of the shooting. While leaving the bathroom, he heard gunshots coming from the area behind the house. Upon hearing the gunshots, he looked out a window and saw appellant walking toward his house. Hammill went outside to see if appellant was okay. Hammill testified that he knocked on appellant's door and spoke with him about the shooting. Appellant told him "I don't have my gun" and that he needed his gun. Hammill told appellant to leave and that he, Hammill, would get the gun. When Hammill asked appellant where the gun was located, appellant told him that he had thrown it at the victim. Hammill then got a towel, used it to pick up the gun,, and put the gun in his attic in a closed panel behind his water heater. Although the exact circumstances are disputed, Hammill eventually told Officer C. Davies that he had the gun. Officer Davies then took possession of the gun to be used as evidence in this case. Sergeant R. Ochoa conducted gunshot residue tests on Donald Hammill and appellant. Thomas Rusty White, a forensic chemist with the Department of Public Safety Crime Laboratory Service, testified that he analyzed the gunshot residue tests obtained by Sergeant Ochoa. The gunshot residue test for Hammill revealed no gunshot residue. The test on appellant revealed one particle of gunshot residue. White testified that finding gunshot residue on a person does not necessarily mean he fired a gun, he could have been near a person firing a gun or he could have touched a surface with gunshot residue on it. Gunshot residue can also be removed by moving around, wiping your hands, or washing your hands Officer E. Gonzales testified that ammunition found in appellant's kitchen and spent bullet casings found at the scene matched the type used in the gun taken from Hammill's attic. Additionally, bullets found at the scene had been fired from the gun. Appellant was apprehended by Officer J. Bertolino at around 4:00 p.m., while driving a few blocks from the scene of the crime. Appellant was wearing jeans and a yellow shirt. Officer E. Gonzales inventoried appellant's car. In the car, Officer Gonzles found a bank receipt, Court's Exhibit 2, dated August 29, 2005 at 3:04 p.m. Although appellant contends that the receipt would have exonerated him, it was ruled to be inadmissible hearsay and not allowed into evidence. IMPERMISSIBLY SUGGESTIVE PRETRIAL IDENTIFICATION PROCEDURE
In his first point of error, appellant contends that the trial court erred in admitting the testimony of Pompilio Gonzales, in which he identified appellant as the shooter. Specifically, appellant contends that Gonzales's in-court identification was inadmissible due to an impermissibly suggestive pretrial identification procedure that created a high likelihood of irreparable misidentification. Standard of Review
We defer to a trial court's determination of historical facts supported by the record when the trial court finds facts based upon an evaluation of the credibility and demeanor of the witnesses. Colgin v. State, 132 S.W.3d 526, 531 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) We similarly defer to the trial court's rulings on mixed questions of law and fact when they turn on the credibility of witnesses. Id. We review de novo, however, mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. Here, the admissibility of Gonzales's in-court identification testimony does not turn on a credibility evaluation, and therefore we review it de novo. A pretrial identification procedure 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. Burkett v. State, 127 S.W.3d 83, 86 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We apply a two-step analysis to determine the admissibility of an in-court identification and ask (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a very substantial likelihood of irreparable misidentification. Id. A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Id. The analysis requires an examination of the totality of the circumstances surrounding the identification. Id. Analysis
Appellant argues that the pretrial identification procedure used by Officer Gomez was impermissibly suggestive because (1) appellant was the only person presented to Gonzales and (2) appellant was handcuffed at the time of presentation. "The very nature of a single show-up identification conducted in the presence of police officers is suggestive, but the real inquiry in such a case is whether the particular confrontation was so unnecessarily suggestive as to deny due process." Jackson v. State, 682 S.W.2d 692, 695 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd). The court in Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1981) gave several reasons why a single show-up identification may be necessary. First, by viewing the alleged perpetrator immediately after the commission of the offense, the witness is allowed to test his recollection while his memory is still fresh. Id. Additionally, the quick confirmation or denial of identification expedites the release of innocent suspects. Id. This enables the police to release the innocent suspect and continue the search for the criminal while he is still within the area and before he can substantially alter his looks and dispose of the evidence of the crime. Id. Finally, any possible prejudice caused by the suggestive procedure can be exposed by rigorous cross-examination of the witness. Id. In Cole v. State, 474 S.W.2d 696, 698 (Tex.Crim.App. 1971), the court recognized that the countervailing policy considerations of preventing the possible overnight detention of an innocent individual and the possible interruption of the search for the real criminal may be sufficient to make a single show-up four and one half hours after the commission of the crime permissible. Similarly, the use in this case of a single show-up of Hammill immediately after the shooting and appellant four hours after the shooting, was done to "eliminate and clarify" the case. By presenting Hammill to Gonzales immediately after the crime, the police eliminated him as a suspect and were able to continue their search for the real criminal. Gonzales' decision not to identify Hammill as the shooter is evidence that, although suggestive, the presentation of appellant to Gonzales for identification was not unduly suggestive as to deny appellant of due process of law. Were the presentation of an individual, alone and in handcuffs, always unduly suggestive, Gonzales would have identified Hammill as the shooter. Instead, Gonzales immediately told the police that Hammill was not the man who shot him; Hammill was too young and lived in the front house; the man who shot him lived in the back house — appellant's house. Additionally, Gonzales's identification of the killer as the man who lived in appellant's house is evidence that Gonzales had identified appellant as the killer prior to the identification procedure. Finally, appellant had the opportunity to expose any possible prejudice during cross-examination. See Garza, 633 S.W.2d at 512. Despite rigorous questioning by appellant's trial counsel, Gonzales continually affirmed that he identified appellant as the shooter "because he's the one who shot at me." Gonzales testified during cross-examination that he did not identify appellant as the shooter at the pretrial identification because appellant is the same race, height, or has similar eyes as the shooter, but because he is the one that shot Gonzales. Gonzales did not feel that the police wanted him to identify appellant as the shooter or that they would be annoyed if he said no. We hold that, under the totality of the circumstances, the presentation of appellant to Gonzales was not so impermissibly suggestive as to deny appellant due process of law. We overrule point of error one. LEGAL SUFFICIENCY In his second point of error, appellant contends the evidence is legally insufficient to support a conviction of murder. A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1). Appellant argues that the evidence was insufficient to identify him as the shooter beyond a reasonable doubt. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State , 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State , 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State , 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State , 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman , 828 S.W.2d at 422. In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict. Matson , 819 S.W.2d at 843. Analysis
Appellant argues that the evidence is legally insufficient to support a conviction of murder because the testimony of Gonzales, Hammill, and Williams is unreliable, and because the physical evidence fails to single out appellant as the shooter. However, when evaluating the legal sufficiency of the evidence, we do not weigh any evidence or evaluate the credibility of the witnesses. See Adelman , 828 S.W.2d at 418, 421. Therefore, an argument that the witnesses' testimony is unreliable is inappropriate in a legal sufficiency review. Appellant also argues that Gonzales's testimony cannot be considered for any evidentiary value due to the reasons set out in his first point of error. In a legal sufficiency review, "an appellate court ` must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider.'" See Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004) (emphasis in original) (citing Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim.App. 1988)). Because the court admitted Gonzales's testimony, we must consider it as part of our evaluation of the sufficiency of the evidence. See id. In Branch v. State, 774 S.W.2d 781, 786 (Tex.App.-El Paso 1989, pet. ref'd), a witness testified that he saw the defendant hit the victim on his head in sufficient light for one or two seconds from a distance of five to seven feet. The El Paso Court of Appeals held that his testimony was sufficient to identify the defendant as the murderer. Id. In this case, Gonzales testified that appellant shot both him and Guzman. He observed appellant from a distance of eleven to eighteen feet for twenty minutes during the middle of the day and could see the shooter "very well." Additionally, Hammill testified that he saw appellant walking away from the scene of the crime and that appellant told him that he threw the gun at Guzman. Evaluating the evidence in the requisite light, we hold that Gonzales's testimony was legally sufficient evidence for a rational jury to conclude that appellant was the man who shot Guzman. See id. We overrule appellant's second point of error. FACTUAL SUFFICIENCY
In his third point of error, appellant challenges the factual sufficiency of the evidence. Specifically, he argues that (1) Gonzales's testimony is unreliable due to an improperly suggestive pretrial identification procedure, (2) Hammill and Williams's testimony is suspect to the point of discounting it, (3) there is no physical evidence linking appellant to the crime, and (4) appellant was cooperative with the police. Standard of Review
In conducting a factual-sufficiency review, we view all of the evidence in a neutral light, Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997), and will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that the appellant contends most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The fact-finder alone determines what weight to place on contradictory testimony, because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 4. Analysis
First, appellant argues that "the jury verdict hinges on the testimony of one distraught eyewitness subjected to a pre-trial identification procedure that was so improperly suggestive as to render subsequent in-court identification unreliable". We construe this argument to mean that the appellant believes we should disregard Gonzales's testimony during our review of the factual sufficiency on the evidence. However, in evaluating whether the evidence is factually sufficient to sustain a conviction, "we consider all the evidence that the trial judge permitted the jury to consider, including erroneously admitted evidence. See Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App. 2007). Because we evaluate all of the evidence, we use Gonzales's testimony as part of our analysis. If appellant's argument pertains to the credibility of Gonzales's testimony, the argument still fails. The fact-finder determines the credibility of a witness. Cain, 958 S.W.2d at 407 n. 4. Second, appellant argues that Hammill's and Williams's testimony is suspect to the point of discounting it. He argues that Hammill is not credible because he (1) possessed the gun, (2) did not immediately inform the police that he possessed the gun, (3) hid the gun in a towel in his attic, and (4) is a felon and drug user. Appellant argues that Williams's testimony is not credible because she went outside, leaving her children alone inside, while a killer was on the loose. He argues that "[i]t is impossible to rationally believe" that she would leave the house under these circumstances. An appellate court can only assess matters of credibility that can be determined from a cold appellate record. Johnson, 23 S.W.3d at 8. Here, we cannot determine from the cold record the credibility of Hammill or Williams. As such, we defer to the fact-finder's determination of their credibility. Id. Third, appellant argues that there is no evidence that links either the bullet casings found in appellant's apartment or the particle of gunpowder residue found on appellant's hands to the crime scene. But, this evidence is only a portion of all the evidence that we weigh in determining the factual sufficiency of the evidence. See Cain, 958 S.W.2d at 408. The State presented eyewitness evidence by Gonzales that appellant was the shooter; testimony by Hammill that the gun is appellant's; testimony by Hammilll that he saw appellant walk away from the scene of the crime; testimony by Williams that a car of the same make, model, and color as appellant's drove by the crime scene shortly after the crime; evidence of gunshot residue on appellant's hand; and evidence that bullets of the same type used in the crime were found in appellant's house. We cannot conclude that the evidence is so weak that the verdict is clearly wrong or manifestly unjust. See Johnson, 23 S.W.3d at 11. Lastly, appellant argues that his cooperation with the police demonstrates that the verdict is against the great weight of the evidence. We cannot agree that evidence that appellant chose to cooperate with the police so overwhelms the great weight of the State's evidence that the verdict is manifestly wrong and unjust. We overrule appellant's third point of error. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth point of error, appellant contends that he was provided ineffective assistance of counsel at trial. Specifically, he argues that his trial counsel was ineffective due to a failure to lay the proper predicate to introduce Court's Exhibit 2, a bank receipt appellant claims exonerates him. Standard of Review
To prevail on his claim of ineffective assistance of counsel, appellant must show that his counsel's performance was deficient, and that there is a "reasonable probability" — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel's deficient performance. Ex parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). The purpose of the constitutional requirement of effective counsel is to ensure a fair trial. Id. at 353 n. 6 (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). The "benchmark" for evaluating a claim of claim of ineffectiveness, therefore, is whether counsel's conduct "so undermined the proper functioning of the adversarial process" that one cannot rely on the trial "as having produced a just result." Id. at 353 (citing Strickland, 466 U.S. at 686, 104 S. Ct. at 2064). In that relatively rare instance, only, may a criminal defendant obtain a new trial on the grounds that his attorney provided constitutionally deficient assistance. Id. at 353-354 (emphasis added). The constitutional right to counsel ensures the right to reasonably effective counsel, not errorless counsel whose competency or accuracy of representation we may judge by hindsight. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). To meet his burden to show that his counsel was constitutionally deficient, appellant must establish, by a preponderance of the evidence, that his trial counsel was not acting as "a reasonably competent attorney," and that his advice was not "within the range of competence demanded of attorneys in criminal cases." Ex Parte Chandler, 182 S.W.3d at 354 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). Appellant must also show that counsel's constitutionally deficient performance prejudiced his defense, by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See id. (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Under this two-pronged analytical framework, appellant must also overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." See id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)). In evaluating counsel's representation under a Strickland analysis, our review is "highly deferential" because we presume that counsel's actions "fell within the wide range of reasonable and professional assistance." Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002)). Under normal circumstances, the record on direct appeal will not be sufficient to demonstrate that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). A Strickland claim must, therefore, be "firmly founded" in a record that "affirmatively demonstrate[s]" the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). When the record on direct appeal is sufficient to prove that counsel's performance was deficient, therefore, an appellate court "should obviously address the claim. . . ." Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App. 2000). But, when counsel's reasons for failing to do what the defendant contends should have been done do not appear in the record, as, for example, when trial counsel has not been afforded an opportunity to explain his actions, we should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). Unless claims of ineffective assistance are clearly demonstrated of record, therefore, we normally will not speculate to find trial counsel ineffective when the record is silent on his reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Analysis
Appellant argues that his trial counsel had sufficient time to produce a custodian of records or affidavit in order to properly establish the predicate to offer Court's Exhibit 2, a bank receipt that appellant argues casts doubt upon whether he had sufficient time to commit the crime. Because there is nothing in the record to explain counsel's conduct, appellant cannot meet the first prong of the Strickland test. See id. We cannot conclude that appellant has met his burden of showing that counsel had no plausible trial strategy in choosing not to obtain a custodian of records or affidavit, and we will not speculate about the lack of trial strategy simply because we do not discern any particular strategy or tactical purpose. Id. We overrule appellant's fourth point of error. Conclusion
We affirm the judgment of the trial court.