No. 05-02-01886-CR
Opinion Filed December 17, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74790-M. Affirm.
Before Justices JAMES, FITZGERALD, and LANG-MIERS.
KERRY P. FITZGERALD, Justice.
Eugene Travis Smith appeals his conviction for murder. After the jury found appellant guilty, the trial court found the enhancement allegation true and sentenced appellant to sixty years' imprisonment. Appellant brings six points of error on appeal contending (a) the evidence is legally and factually insufficient to support his conviction; (b) the trial court erred in denying appellant's motion to suppress identification testimony; (c) the trial court erred by admitting evidence appellant was not a diligent workman; (d) appellant lacked effective assistance of counsel at trial; and (e) the cumulative effect of the above errors mandates reversal. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Jeff Comeaux was shot and killed in the early morning of June 14, 2001. Comeaux and appellant were both parolees with leg monitors, and they both worked the 3:00 p.m. to midnight shift at Community Waste Disposal as diesel mechanics. Comeaux had worked there for at least a year and recently had been promoted. Appellant had worked there for a few months. During that time, appellant asked different people about purchasing guns of different caliber, including .25 caliber. Generally, Comeaux and appellant got along fairly well. On June 13, 2001, Comeaux, appellant, and another mechanic, David Springer, were repairing a truck's brakes when appellant walked away. Jimmy Space, the company's welder, had to help Comeaux and Springer finish the job. Space confronted appellant about not working, and appellant swore at him and walked away. Appellant went into the bathroom, and he got into a fight with a Hispanic co-worker and knocked him down. Comeaux also tried to talk to appellant, but appellant swore at Comeaux and told him he did not want to work. At midnight, appellant left and met his girlfriend, Deannine Smith, in her red car. Comeaux telephoned his wife at about 12:15 a.m. and told her he was leaving work. Comeaux's wife became concerned when Comeaux did not arrive home at his usual time. At about 2:30 a.m., fearing he might have had an accident, she decided to retrace his route. When she got to the apartment's parking lot, she saw Comeaux's car parked in the lot. However, the door was open, and some of Comeaux's belongings were strewn around. She went upstairs and called the police. At 3:00 a.m., the police arrived and told her they had found Comeaux's body and that he was dead. Comeaux's body was found on the sidewalk of a neighboring apartment complex about 538 feet from his car. Comeaux had been shot four times with a .25 caliber semi-automatic firearm, once in the left eye, once in the left cheek, and twice in the back of the head. Another bullet was found fired into the ground near Comeaux's car; this bullet was fired from the same gun that fired the bullets found in Comeaux's body. James McCarter lived in an apartment near where Comeaux was killed. Between 12:30 and 1:00 a.m., he heard two men arguing, and then he heard three gunshots. McCarter waited a few minutes after the gunshots and he looked out the window. McCarter saw a black man running away from him, and he saw the man jump into a waiting red car, which sped away. Michael Cummins testified he lived on the bottom floor of the apartments where Comeaux was killed. Cummins heard four gunshots between 12:30 and 1:00 a.m. He looked out the window, and he saw appellant standing over Comeaux's body and holding a gun. Cummins went outside and stood in the shadows. Cummins saw appellant go toward a car and get in the passenger side, which drove away. Both appellant and Comeaux had leg monitors pursuant to their conditions of parole. The receivers for the monitors have a range of about 150 feet. The receiver in Comeaux's apartment showed he came within range on June 14 at 12:50 a.m. and that he went out of range during that same minute. Appellant came within range of the receiver in his residence at 1:11 a.m. Appellant lived about twelve to fifteen miles from Comeaux's apartment. Deannine Smith, who is now appellant's wife, testified she was appellant's girlfriend on June 13 and 14, 2001. She drove her car, a red Escort, to Community Waste Disposal, and appellant sat in her car to eat on his break. After he finished working, he returned to her car, and they drove to a nearby park. Appellant was "very upset," and "he was very scared he would go back to jail" because he had hit the Hispanic employee. Deannine tried to calm him down. After about five minutes at the park, they went to appellant's home, arriving about 1:00 a.m. They were awakened the next morning by a telephone call from appellant's parole officer, who told appellant he needed to report. Appellant drove Deannine home. About two weeks later, Deannine saw appellant at a grocery store, and he gave her $500. He told her he had quit his job because "he just couldn't take his job anymore," and he asked her to pick up his paycheck and tool box from Community Waste Disposal. Appellant testified he and Comeaux were friends. While at work on June 13, appellant refused to do any work. When reprimanded by Comeaux and Space for not doing his share of the work, appellant gave various obscenity-laden speeches explaining that he was tired of being ordered around and of not having his freedom. When a Hispanic co-worker, Jose, called him a coward for not hitting Space, appellant called Jose a "wet back" and shoved him. Jose then swung at appellant and missed, and appellant hit Jose twice, knocking him down. When appellant clocked out, he joined Deannine in her car, and he pointed out Space to her and said he wanted to beat up Space. After talking for a while, they drove to the park for a few minutes and then went straight home. The next morning, appellant's parole officer telephoned and told appellant to report. Appellant took Deannine to her home, but he did not report to his parole officer because he thought he would be arrested for punching Jose. Instead, appellant cut off the monitor and became a fugitive until his arrest in January 2002. Appellant denied killing Comeaux. Detective Rick Berry talked to appellant after he was arrested in January 2002. Appellant told Berry he had an argument with Comeaux. During appellant's conversation with Berry, appellant frequently became angry and had several outbursts. Berry testified appellant became angry when asked "just seemed like anything," including questions about Deannine and where he had been for the last six months. Appellant told Berry he did not kill Comeaux. Kimberly Collins, a unit supervisor with the Texas Department of Criminal Justice, testified appellant had anger management problems. She also testified that another parolee working at Community Waste Disposal reported appellant and Comeaux had "a real bad argument" that night. MOTION TO SUPPRESS
In his first issue, appellant contends the trial court erred in not granting appellant's motion to suppress Michael Cummins's in-court identification of appellant as the man standing over Comeaux's body and holding a gun shortly after the shots were fired. Appellant argues the photographic lineup shown to Cummins was impermissibly suggestive. The standard of review for a ruling on a motion to suppress an in-court identification due to an impermissibly suggestive pretrial identification procedure is the Guzman standard. Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App. 1998); see Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). Whether a photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor, and we therefore review the issue de novo. Loserth, 963 S.W.2d at 772-73; Guzman, 955 S.W.2d at 89. 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. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). Determining the admissibility of an in-court identification involves a two-step analysis: (1) whether the out-of-court identification procedure was impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Each case must be considered on its own facts. Simmons, 390 U.S. at 384. Furthermore, the analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 385. The defendant must prove the two elements by clear and convincing evidence. Barley, 906 S.W.2d at 33-34. If the defendant meets this burden, then the in-court identification is inadmissible unless the State can prove by clear and convincing evidence that the identification was of "independent origin." See United States v. Wade, 388 U.S. 218, 240 (1967); Williams v. State, 477 S.W.2d 885, 889 (Tex.Crim.App. 1972). When determining the admissibility of identification testimony, reliability is the crux of the matter. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Loserth, 963 S.W.2d at 772. Testimony is reliable if the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure. See Loserth, 963 S.W.2d at 772. In Neil v. Biggers, 409 U.S. 188 (1972), the United States Supreme Court enumerated five nonexclusive factors used to assess reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Id. at 199-200. We view these five factors in the light most favorable to the trial court's ruling. Ibarra v. State, 11 S.W.3d 189, 195-96 (Tex.Crim.App. 1999). The five factors, viewed in this manner, are then reviewed de novo against "the corrupting effect" of the suggestive pretrial identification procedure. Id.; Loserth, 963 S.W.2d at 773-74. Appellant argues the photographic lineup shown to Cummins was unduly suggestive. At the hearing on the motion to suppress, Deannine Smith, appellant's wife, was shown the lineup, and she testified "all the other individuals are dark skinned and my husband is light," which was "very obvious" to her because appellant was "very light skinned compared to all the other gentlemen." Detective Rick Berry testified he put together the lineup based upon Cummins's description of the suspect as a black male with a thin mustache. Cummins did not describe the man's skin tone to Berry, and Berry was not trying to persuade Cummins to pick appellant's picture based on the skin tone of the people in the lineup. Berry testified that appellant did not appear lighter skinned than the men in the other photographs. Appellant's trial counsel told the court, "to be quite honest with you, I cannot tell the difference in the six individuals." Having examined the copy of the photographic lineup in the record, we conclude the trial court did not err in concluding that the pretrial identification procedure was not impermissibly suggestive. Concerning the reliability of Cummins's identification, Cummins testified he stood in the shadows while observing the man standing over Comeaux's body, and part of the man's face was in shadow as he looked at him. Cummins could see the side of the man's face. When questioned on the morning of the crime, Cummins told Detective Berry he "didn't remember seeing anything" because he was afraid the murder involved drug dealers and he was afraid of retaliation. Several weeks later, Cummins decided to be more open with the police after Berry assured him the murder involved a fight between two co-workers and did not involve drug dealers. Cummins testified Berry showed him the photographic lineup of six photographs, and Cummins initially picked out two of the photographs before finally selecting appellant's picture. Berry testified Cummins looked at the lineup for "several seconds" before selecting appellant's picture. Applying the factors from Neil v. Biggers and viewing the evidence in the light most favorable to the trial court's ruling, we conclude the trial court could find Cummins's identification testimony was reliable. Accordingly, we hold the trial court did not err in denying appellant's motion to suppress. We resolve appellant's first issue against him. SUFFICIENCY OF THE EVIDENCE
In his second and third issues, appellant asserts the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim. App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) Appellant argues the evidence is legally and factually insufficient because it was impossible for appellant to have committed the crime and gotten home within the allotted time. The evidence from the leg monitors shows Comeaux arrived within 150 feet of the receiver in his apartment at 12:50 a.m. and that he left the receiver's range during the same minute. The first 911 call about the gun shots was placed at 12:52 a.m. Appellant came within range of the receiver in his house at 1:11 a.m. Appellant's house was about twelve to fifteen miles from the crime scene. Appellant argues, "To actually commit the murder and return home at 1:11 a.m. he would have had to act with ferocious rapidity. He simply could not have committed the crime and returned home at 1:11 a.m. Moreover, any remote possibility that he could have committed the crime, boarded the vehicle, sped home, and exited the car vanishes in light of the time-costing considerations such as traffic signals, stop lights, turns, and traffic." We disagree. Appellant had at least nineteen minutes after the gunshots to get within the range of his leg-monitor's receiver. Detective Berry testified that at least part of appellant's route was on two freeways. The record does not show whether any stop lights, turns, or traffic existed in sufficient number at one o'clock in the morning to impede appellant's progress for it to take more than nineteen minutes for him to travel twelve to fifteen miles. The jurors could conclude that traveling twelve to fifteen miles in nineteen minutes at one o'clock in the morning on a route using two freeways was neither impossible nor required "ferocious rapidity." Appellant also argues the evidence is factually insufficient because appellant lacked a motive to kill Comeaux. The evidence shows appellant and Comeaux were friends. However, the evidence also shows appellant had poor anger management skills, could easily and quickly become angry, and he and Comeaux had "a real bad argument" that night. Appellant also argues the evidence is factually insufficient because the State produced no physical evidence tying appellant to the murder. Appellant is correct. However, Cummins identified appellant as the man he saw bending over Comeaux's body and holding a gun shortly after the shots were fired. Appellant also argues the evidence is factually insufficient because Cummins's identification of appellant was not credible. Cummins stood in the shadows while observing appellant, and part of appellant's face was in shadow as he looked at him. Cummins could see the side of the man's face. When questioned on the morning of the crime, Cummins told Detective Berry he "didn't remember seeing anything" because he was afraid the murder involved drug dealers and he was afraid of retaliation. Several weeks later, Cummins talked to the police, looked at the photographic lineup, and initially picked out two pictures before finally selecting appellant's picture. Berry testified Cummins looked at the lineup for "several seconds" before selecting appellant's picture. After considering all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. After considering all the evidence in a neutral light, we conclude the proof of appellant's guilt "is [not] so obviously weak as to undermine confidence in the jury's determination, [n]or [is] the proof of guilt, although adequate if taken alone, . . . greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. We hold the evidence is both legally and factually sufficient to support appellant's conviction. We resolve appellant's second and third issues against him. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, appellant asserts he lacked effective assistance of counsel during the jury selection process. The standards for reviewing ineffective assistance of counsel claims are well-established. The appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim. App. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1980)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance — that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim. App. 1999). Appellant asserts the record shows his trial counsel's questioning of the venire occupies only twelve pages of the reporter's record, and he "simply queried whether any venire members had scheduling difficulties, if anyone would hold a failure to testify against Appellant, and who had been a victim of a crime and whether such would [a]ffect the venire members' ability to serve." Although not noted by appellant, his counsel also inquired if any members of the venire were or had been peace officers or had family members who were peace officers. Appellant does not set out what other questions appellant should have asked. We conclude appellant has not shown his counsel was ineffective. Appellant also complains of counsel's failure to object when "the trial court indicated its personal approval of a venireman who had served on a convicting jury," citing pages 111-12 of the voir dire record. We have reviewed those pages, and we find no such statement by the trial court. The trial court approved of the fact the venire member had worked at the same company for twenty-five years, but the trial court did not indicate approval of the fact the man had served on a convicting jury. Accordingly, this allegation of ineffectiveness is not supported by the record. Appellant also asserts trial counsel was ineffective because he stated he intended to exercise a peremptory challenge against a venire member who was a parole supervisor, but he failed to do so. The venire member was asked if she knew certain witnesses, and she testified she knew the name of one witness but did not know him personally, and she knew a second witness but stated her knowing him would not influence her in determining the outcome of the case. The venire member said she "could be fair and impartial to the defense in this case." Appellant has not shown his counsel was ineffective. Furthermore, the court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Appellant filed a motion for new trial but did not raise any claim of ineffective assistance of counsel. Consequently, there is no record to explain the motivation behind counsel's actions or inactions and whether they resulted from strategic design or negligent conduct. Based on the totality of this record, we cannot conclude appellant has established that trial counsel's performance fell below an objective standard of reasonableness and, thereby, has satisfied the first prong of Strickland. Therefore, we are unable to conclude that appellant has met the Strickland requirements. We resolve appellant's fourth issue against him. EVIDENCE
In his fifth issue, appellant asserts the trial court erred in admitting evidence that appellant was not a diligent workman. Hogue testified Comeaux told him he thought appellant was lazy. Appellant objected that the testimony was irrelevant, and the trial court overruled appellant's objection. To preserve error, "a party must object each time the inadmissible evidence is offered or obtain a running objection. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim. App. 2003) (footnote omitted). In this case, other evidence of appellant's laziness and lack of diligence at work was admitted without objection. Furthermore, appellant testified without objection that his fellow employees were mad at him "because I really wasn't doing any work that night at all, period." We conclude appellant has not preserved this issue for appellate review. Furthermore, even if it were preserved, it would lack merit. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. In this case, the only evidence of appellant's motive for murdering Comeaux was appellant's anger. The evidence shows appellant was angry with Comeaux and the other workers because they reprimanded him for not doing his share of the work. Thus, the evidence that appellant was not a diligent workman, and that Comeaux thought he was lazy, tended to make more probable that appellant was angry with Comeaux. We hold the trial court did not err in overruling appellant's objection. We resolve appellant's fifth issue against him. CUMULATIVE ERROR
In his sixth issue, appellant asserts the cumulative effect of the error set forth in his first five issues warrants a new trial. However, as explained above, appellant has not shown any error. Non-errors, in their cumulative effect, do not amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim. App. 1999). Accordingly, appellant has not shown he is entitled to a new trial. We resolve appellant's sixth issue against him. We affirm the trial court's judgment.