Opinion issued November 20, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00485-CR
JEANETTE MARIE GREENE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 905,134
O P I N I O N
A jury convicted appellant, Jeannette Marie Greene, of arson. Appellant stipulated to two prior felony convictions, and the trial court assessed punishment at 25 years’ confinement. We affirm.
Background
Darrell Greene was appellant’s former common-law husband, and Kathie Ritchie was his girlfriend. On October 8, 2001, someone set Ritchie’s car on fire.
The State presented evidence that appellant had been involved in a physical altercation and had argued with Darrell Greene the day before the arson. The State also produced telephone messages to Ritchie, on which appellant’s voice was positively identified, stating, “You know what Bitch, I may kill each one of ya’ll slowly. You know what, you better go outside. Because you know, right there on the side right there it’s a Corona bottle filled up with gasoline.” The evidence showed that the car was burned after having been doused with an accelerant and that a Corona bottle smelling of gasoline was found nearby.
The State also produced the eyewitness testimony of Reginald Guy, who told the arson investigator at the scene of the crime that he had seen a short, dark-complexioned woman leaving the scene of the arson in a silver or grey Taurus with newspaper over the license plate. Later that day, after having been shown a driver’s license picture of appellant by police, Guy identified her as the woman whom he had seen driving away. He also identified her in court.
There was evidence that, even though appellant did not own a Taurus, she was driving a rented Taurus of the day on the arson.
Ineffective Assistance of Counsel
In point of error one, appellant contends that she received ineffective assistance of counsel at trial. Specifically, appellant contends that her attorney should have filed a motion to suppress Guy’s in-court identification of her as the person whom he had seen fleeing the crime scene. She argues that Guy’s identification was tainted by an impermissibly suggestive pretrial identification, which she alleged occurred when the police showed Guy appellant’s driver’s license and asked if appellant was the woman whom Guy had seen fleeing the scene of the arson.
The legal standard set out in Strickland v. Washington, 466 U.S. 668 104 S. Ct. 2052 (1984), applies to appellant’s claim. To prevail on her claims, appellant must first show that her counsel’s performance was deficient. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Specifically, appellant must prove, by a preponderance of the evidence, that her counsel’s representation fell below the objective standard of professional norms. Id. Second, appellant must show that this deficient performance prejudiced her defense. Id. Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Id. Under normal circumstances, the record on direct appeal will not be sufficient to show 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. Id. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id., quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
We acknowledge that many Texas courts have held that showing a witness a “photo spread” containing a single photograph is an impermissibly suggestive pretrial identification procedure, and we in no way endorse the use of such a pretrial identification procedure. However, because there is nothing in the record to show why counsel chose not to attempt to have Guy’s in-court identification suppressed in this case, appellant cannot meet the first prong of the Strickland test. See Bone, 77 S.W.3d at 830 (“We are once again asked whether an appellate court may reverse a conviction on ineffective assistance of counsel grounds when counsel’s actions or omission may have based upon tactical decisions, but the record contains no specific explanation for counsel’s decisions. Once again, we answer that question ‘no.’”).
Because the court [of appeals] itself did not discern any particular strategy or tactical purpose in counsel’s trial presentation, it therefore assumed that there was none. This inverts the analysis. Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. From this trial record, one could conclude that there were legitimate and professionally sound reasons for counsel’s conduct or one could speculate that there were not. Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.
Id. at 836. We do not believe that appellant has met her burden of showing that counsel had no plausible trial strategy in failing to object to Guy’s in-court identification, and we will not speculate about the lack of trial strategy simply because we do “not discern any particular strategy or tactical purpose.” Id. Therefore, we conclude that appellant has failed to meet the first prong of the Strickland test.
Furthermore, we believe that appellant also fails to meet the second prong of Strickland. Even if appellant had successfully challenged Guy’s in-court identification, the remaining evidence would have been legally sufficient to tie appellant to the arson. Evidence that Guy told the arson investigator that he saw a short, dark-complexioned woman fleeing the scene of the crime in a Taurus with newspaper on the license plate would have been admissible because it occurred before the allegedly suggestive pretrial procedure, i.e., before police showed Guy appellant’s driver’s license. There was other evidence, from which the jury could have rationally concluded that appellant was, in fact, the unidentified woman whom Guy had seen. The jury was able to see appellant and to determine whether she was short and dark-complexioned, as Guy had described the woman to the arson investigator. The jury also heard appellant’s voice on the audiotaped telephone messages, in which she had threatened to burn the victim using gas from a Corona bottle; a Corona bottle smelling of gasoline was recovered from the scene. There was also Guy’s untainted testimony that he had seen a silver Taurus leaving the scene of the arson. One of appellant’s own witnesses testified that appellant was driving a rented Taurus on the day of the arson, although he believed that it was brown or tan.
Identity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). We believe that there is sufficient circumstantial evidence to identify appellant as the perpetrator in this case. First, there was evidence that appellant’s voice was identified on the victim’s answering machine, on which she made very specific threats against the victim. The arson committed was very similar to the threats made by appellant. Second, there was evidence of the acrimonious history between the two women. Third, there was evidence that Guy saw a woman generally matching appellant’s description fleeing the scene of the crime. Fourth, there was evidence that the woman whom Guy saw was driving a Taurus, as well as evidence that appellant was driving a rented Taurus on the day of the offense. Thus, even if Guy’s identification of appellant had been suppressed, the remaining evidence would have been legally sufficient for the jury rationally to conclude that appellant committed the arson.
Because appellant is not able to show to a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached, she fails to meet the second prong of the Strickland test. See Herron v. State, 86 S.W. 3d 621, 634 (Tex. Crim. App. 2002).
Accordingly, we overrule point of error one.
Motion to Substitute Counsel and Motion for Continuance
1. Relevant Facts
Appellant was originally indicted in this case under cause no. 890309 and was represented by retained counsel, Douglas Haynes, as early as October 10, 2001. The prior indictment was apparently dismissed, and the case was reindicted under the present cause number on March 11, 2002. Douglas Haynes continued as retained counsel under the new indictment, and the case was set for a pretrial conference on March 28, 2002.
On that date, appellant filed a motion to substitute counsel and a motion for continuance of the trial date, which were set for the following week. Appellant wanted to have Kenneth David Cager represent her, rather than Douglas Haynes.
The trial court held a hearing on the motion to substitute, at which Cager represented to the court that he could not be prepared in time for the trial setting the following week. Rather than delay the trial setting, the trial court denied the motions to substitute and for continuance, but stated that she would reconsider the motion to substitute in the event that the court did not reach the case the following week.
2. Law and Analysis
In point of error two, appellant contends that the trial court violated her Sixth Amendment right to counsel of her choice by denying the motion to substitute counsel and motion for continuance. See U.S. Const. amend. VI.
The Texas Rules of Criminal Procedure provide that “[a] criminal action may be continued on the written motion . . . of the defendant, upon sufficient cause shown.” Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Granting or denying a motion for continuance is within the discretion of the trial court and will not be reversed on appeal unless it is shown that the court abused its discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).
“The right to counsel of one’s choice is not absolute, and may under some circumstances be forced to bow to ‘the general interest in the prompt and efficient administration of justice.’” Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App. 1992) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978)). In deciding whether to grant a continuance because of the absence of the defendant’s choice of counsel, the trial court should weigh the following factors: (1) the length of delay requested; (2) whether other continuances were requested and whether they were denied or granted; (3) the length of time in which the accused’s counsel had to prepare for trial; (4) whether another competent attorney was prepared to try the case; (5) the balanced convenience or inconvenience to the witnesses, the opposing counsel, and the trial court; (6) whether the delay is for legitimate or contrived reasons; (7) whether the case was complex or simple; (8) whether the denial of the motion resulted in some identifiable harm to the defendant; and (9) the quality of legal representation actually provided. Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982).
Considering some of those factors in this case, we observe that: (1) the motion for continuance did not specify the length of the delay requested, but Cager stated that he would not be ready to proceed with the trial setting the following week; (2) the record does not reflect any prior motions for continuance, but does show that there had been some prior conflicts between appellant and Haynes regarding the filing of a motion to reduce bond; (3) the record shows that Haynes had represented appellant from at least October 10, 2001 through March 28, 2002; and (4) despite the apparent conflicts between appellant and Haynes over the motion to reduce bond, appellant did not seek to replace Haynes as counsel of record until one week before trial, even though the case had been pending for over 170 days; (5) Cager, appellant’s proposed new attorney, was not prepared to try the case; (6) the State was ready for trial, but the record does not otherwise indicate how the State, the trial court, or the witnesses would be prejudiced; (7) the trial was a serious matter, but not especially complex; (8) no particular prejudice to appellant, other than the fact that she never had her motion to reduce bond addressed before trial, is evident from the record; and (9) despite appellant’s allegations of ineffective assistance of counsel, which we addressed earlier, Haynes had adequate time to prepare for trial and presented and cross-examined witnesses on appellant’s behalf.
Although some of the Windham factors may favor the granting of the requested continuance, under an abuse-of-discretion standard, it is not our role to reweigh the factors, but to determine whether the trial court could reasonably have balanced them and concluded that the fair and efficient administration of justice weighed more heavily than appellant’s right to counsel of his choice. See Rosales, 841 S.W.2d at 375 (applying Windham factors and determining that trial court did not abuse discretion in denying motion for continuance); Daniels v. State, 921 S.W.2d 377, 381 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (same). Under the circumstances of this case, we hold that the trial court did not abuse its discretion.
We overrule point of error two.
We affirm the judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.
En banc consideration was requested by a justice of the Court. See Tex. R. App. P. 41.2(c).
A majority of the Court voted against en banc consideration.
Justice Jennings, dissenting from the denial of en banc consideration. See Tex. R. App. P. 47.5.
Publish. Tex. R. App. P. 47.2(b).