No. 01-05-01027-CR
Opinion issued May 31, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 248th District Court Harris County, Texas, Trial Court Cause No. 1034792.
Panel consists of justices TAFT, JENNINGS, and ALCALA.
ELSA ALCALA, Justice.
Appellant, Carl Edward Goodall, appeals the trial court's judgment convicting him of aggravated robbery with a firearm. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon Supp. 2006). Appellant pleaded not guilty. A jury found appellant guilty, and the trial court assessed punishment at the minimum of 25 years' imprisonment after accepting appellant's pleas of true to two enhancement paragraphs. See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2006). In his sole issue on appeal, appellant contends that he was denied effective assistance of counsel when his trial attorney "failed to challenge the highly suggestive one-person identification procedure." We conclude that appellant has not shown that the trial court would have excluded the identifications by the witnesses, even if his trial attorney had filed a motion to exclude their testimony. We affirm.
Background
On the evening of February 18, 2005, as it was "getting dark," complainant was riding his bike to a corner store in his neighborhood. He saw a friend and stopped to talk with her. While the two were talking, complainant's friend ran behind a tree when she saw a man crossing the street with a gun. Complainant's friend recognized the man with the gun as someone with whom she had spoken briefly a few minutes earlier. The man stood next to the back bicycle tire with a shotgun as he told complainant to get off the bicycle. Complainant "dropped the bicycle and took off running" to a nearby porch. Using her mobile phone, complainant's friend called the police, who responded quickly. Complainant and his friend each described the robber. Complainant stated that the robber as a "black male [wearing a] black jacket, black pants, approximately 6 feet, 200 pounds, with a shotgun." Complainant also told police that the man was wearing a red pullover with a hood. Complainant's friend described the man as being "dark," wearing a long coat and "like this sweatshirt . . . got a hood go to it, he had a red hood, a red hood with the jacket thing and he had a cap, a cap over his head." She also described the shotgun to police. Complainant's friend said she could see the man because of a yard light. After speaking with complainant and his friend, several police officers searched the area for the perpetrator. Officers detained appellant about a half-mile from the site of the robbery as he walked through a parking lot with a shotgun in his hand. According to the officer, appellant seemed "high on drugs." Appellant did not have a bicycle with him; complainant's bicycle was never recovered. The officer drove appellant to meet complainant and his friend to allow them the opportunity to try to make an identification. Complainant and his friend viewed appellant inside the patrol car and illuminated by the vehicle's interior lights; they also viewed appellant outside the car. Both complainant and his friend "in a matter of seconds" identified the appellant as the person who had committed the robbery. They also identified the shotgun that appellant had been carrying when he was detained by police officers as the same gun that was used in the robbery. Complainant and his friend testified at trial and identified appellant as the robber without objection from appellant's counsel. Complainant's friend testified that although appellant was no longer wearing the long coat, she was able to identify appellant because he was wearing the "red hood thing" and the "tennie [sic] shoes" that the perpetrator had been wearing. Both witnesses reported that no one suggested that appellant was the person who committed the robbery or pressured them into identifying appellant. Appellant denied committing the offense. Appellant testified that he had been doing a carpentry job with his brother-in-law on the day of the robbery. At "about 8:00 [or] 8:30," appellant and his brother-in-law finished the job and were walking to the bus stop when a man approached them and offered to sell them the shotgun. Appellant asserted that he bought the gun because he "needed a gun around the house." Appellant claims that not long after buying the gun, he was arrested while walking down a street with the gun in his possession. Although appellant's trial counsel did not move to suppress the identification evidence, he challenged the accuracy of the witnesses' identification by cross-examination and by arguing mistaken identity to the jury in closing arguments. Ineffective Assistance of Counsel
In his sole issue in this appeal, appellant contends that he was denied effective assistance of counsel because his trial attorney did not file a motion to suppress the witnesses' identification of appellant that resulted from the highly prejudicial one-person showup just minutes after the robbery. The standard for evaluating ineffective assistance of counsel claims is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App. — Houston [1st Dist.] 1996, no pet.). To be entitled to a new trial because his trial counsel was ineffective, appellant must show (1) that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) that but for counsel's error, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. In determining whether the Strickland test has been met, we focus on the totality of the representation afforded and not on individual, alleged errors. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). The defendant bears the burden of proving ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). An appellate court will not speculate to find an attorney ineffective. Gamble, 916 S.W.2d at 93. 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. Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App. 2000). A trial court's failure to file a motion to suppress evidence is not per se ineffective assistance, and counsel is not required to engage in the filing of futile motions. Hollis v. State, No. 03-04-00550-CR, 2007 WL 486602, at *5 (Tex.App.-Austin Feb. 16, 2007, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2587 (1986)); see Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App. 1991). We will not find trial counsel's assistance to be ineffective for failing to file a motion to suppress evidence when we conclude that such a motion was unlikely to have been successful. Hollis, 2007 WL 486602, at *9. The record shows that a motion to suppress the identification evidence was unlikely to have succeeded. See id. When faced with a challenge to an out-of-court identification, a trial court must look to the totality of the circumstances surrounding the identification to determine whether a procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. See Webb v. State, 760 S.W.2d 263, 269, 272 (Tex.Crim.App. 1988). The trial court must determine (1) whether the identification procedure was impermissibly suggestive, and (2) whether the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). A defendant must prove each prong by clear and convincing evidence. Goldberg v. State, 95 S.W.3d 345, 378 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Barley, 906 S.W.2d at 33-34). When evaluating whether a defendant has satisfied the second prong of the admissibility test, the trial court must consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). These five factors include: (1) the opportunity to view the criminal at the time of the crime; (2) the witnesses' degree of attention; (3) the accuracy of the witnesses' prior description of the criminal; (4) the level of certainty demonstrated by the witnesses at the confrontation; (5) the length of time between the crime and confrontation. Barley, 906 S.W.2d at 34-35. A one-person showup does not by itself violate due process. See Biggers, 409 U.S. at 198, 93 S. Ct. at 382. Applying the five factors to the evidence in the record supports the admissibility of the out-of-court identification. Concerning the first factor, the witnesses had ample opportunity to view the robber, as he was standing at the rear wheel of complainant's bicycle when the confrontation took place. Additionally, complainant's friend spoke with appellant before the robbery took place. Under the second factor, the witnesses' degree of attention, the record shows that the witnesses were able to describe appellant with detail, indicating a high degree of attention. The third factor also points in favor of admission. The descriptions were shown to be accurate by the police finding appellant wearing clothing similar to that described by both witnesses. Although appellant no longer wore a coat when he was arrested, he wore the red jacket with hood and tennis shoes that he had worn during the robbery. Additionally, appellant was arrested carrying a gun that also matched the witnesses' description. Under the fourth factor, the witnesses were certain of their identifications at the time of the showup, identifying appellant as the robber in a matter of seconds. The fifth factor, the length of time between the crime and the confrontation, also points in favor of admission of the evidence because only minutes passed between the robbery and the officer returning with appellant in custody. Having weighed the five Biggers factors, we conclude that any motion to suppress that appellant's trial counsel might have filed would have been unlikely to succeed. See Goldberg, 95 S.W.3d at 378 (stating that defendant must show by clear and convincing evidence that suggestive procedure gave rise to very substantial likelihood of irreparable misidentification to prevail in motion to suppress identification evidence). We hold that because he has not shown that the trial court likely would have granted the motion to suppress the identification evidence, appellant has not met his burden of proving ineffective assistance of counsel. See Hollis, 2007 WL 486602, at *9. Conclusion
We affirm the judgment of the trial court.