Opinion issued August 31, 2006
In The
Court of Appeals
For The
First District of Texas
NOS. 01-05-00029-CR
01-05-00030-CR
LENESS JAMES WILLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause Nos. 993050 & 994809
MEMORANDUM OPINION
A jury found appellant, Leness James Willis, guilty of two offenses of aggravated robbery in cause numbers 993050 and 994809 and assessed his punishment at confinement in prison for 25 years. In his sole issue, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to challenge pretrial and in-court identifications by witnesses who participated in a “tainted” pretrial show-up procedure. We affirm the judgment of the trial court.
Background
On July 2, 2004, a man entered a Randall’s supermarket and threatened a cashier with a gun. The man then proceeded to the Wells Fargo Bank branch located inside the store, threatened the tellers with a gun, and demanded money. Each of the tellers placed the money on the counter, and one teller, Chris Rennie, collected the money and placed it in a plastic Fourth of July hat sitting on the counter. One of Rennie’s co-workers placed two tracking devices in with the cash that enabled the authorities to follow the location of the money.
Rennie testified that, at the time of the robbery, the suspect was wearing sunglasses, a multicolored knit hat, a black sweat shirt, baggy jeans, and black shoes. There was no evidence that the witnesses were able to supply any specific information to the police regarding the suspect’s height, weight, age, or other identifying features. The suspect left the store without being apprehended. Police picked up the signal from the tracking device placed in the money and, based upon the speed at which the signal was moving, determined that the money was being carried by someone on foot. The police saw appellant walking down the street carrying two bags and gave chase. After tackling and arresting appellant, a police officer found the stolen money and the tracking devices inside the bags.
When appellant was arrested, he was wearing a white t-shirt and blue shorts. Although appellant was in possession of the stolen money, it was not in the hat that the tellers provided, and appellant was not carrying a gun. After appellant’s arrest, the police took him back to the scene, where he was positively identified by Rennie and his two co-workers.
Appellant testified during the guilt phase of trial. He denied committing the robbery and explained that he found the money near a tree while he was walking down the street. He also testified that, after his arrest, the police brought him back to the bank to be identified by the witnesses to the robbery. He alleged that police suggested to the witnesses that he was the man found with the stolen money and that the police left him in a hot car to give the witnesses the impression that he had been running.
Ineffective Assistance of Counsel
In his sole issue, appellant contends that his trial counsel rendered ineffective assistance because he failed to challenge his pretrial and in-court identifications by witnesses who had participated in a “tainted” pretrial show-up procedure. He argues that where the sole disputed issue at trial was the identity of the perpetrator, his defense counsel’s failure to challenge the admissibility of this important evidence was clearly prejudicial to his case.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s error, the result of the proceedings would have been different. Id. at 687-88, 104 S. Ct. at 2064, see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is the appellant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. There is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. 466 U.S. at 689, 104 S. Ct. at 2065. To prevail on an ineffective assistance of counsel claim, the appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). In the absence of a record reference concerning counsel’s reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his actions. Thompson, 9 S.W.3d at 814.
Appellant contends that his trial counsel was ineffective because he failed to challenge the presentation of identification witnesses at trial who had participated in a tainted pretrial identification procedure. He contends that the identification procedure was so suggestive and conducive to mistaken identification as to deny him due process of law when the identification was used at trial.
The test for determining whether a one-on-one identification violated an accused’s due process rights is whether the presentation of the accused was unnecessarily suggestive and subject to irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S. Ct. 375, 381-82 (1972). A claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967); Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982); Jackson v. State, 682 S.W.2d 692, 695 (Tex. App.—Houston [1st Dist.] 1984, pet ref’d). Although a one-on-one confrontation does not necessarily violate due process, showing a single person for purposes of identification is inherently suggestive. Stovall, 388 U.S. at 302, 87 S. Ct. at 1972. Such a procedure may be appropriate, however, when the confrontation occurs at the scene of the crime shortly after the offense while the witnesses’ memories are still fresh. Garza 633 S.W.2d at 512.
In determining whether the identification was subject to irreparable misidentification, appellate courts look to five factors: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the length of time between the crime and confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977).
Here, appellant was brought back to the scene less than one hour after the aggravated robbery. Each witness positively identified appellant as the assailant. There was no uncertainty demonstrated in any of the witnesses’ identifications and one of the police officers who assisted in the search of appellant testified that he did not suggest that appellant was involved in the robbery. See Hudson v. State, 675 S.W.2d 507, 510 (Tex. Crim. App. 1984) (on-the-scene identification was not impermissibly suggestive where defendant matched description given by complainant, was found in the immediate vicinity of the offense, and confrontation occurred shortly after offense); Louis v. State, 825 S.W.2d 752, 756 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (on scene identification was not impermissibly suggestive where confrontation occurred one hour after offense and complainant immediately identified defendant).
Appellant also claims that the pre-trial identifications “could have been performed in a more neutral environment.” Appellant contends that the identifications were impermissibly suggestive because he was handcuffed and in front of police cars when the witnesses identified him. Similar situations have been held to be not impermissibly suggestive. See Hudson, 675 S.W.2d at 510; Doty v. State, 820 S.W.2d 918, 922 (Tex. App.—Fort Worth 1991, pet. ref’d) (identification not impermissibly suggestive where, shortly after theft, witness was taken to scene of arrest and asked to identify suspect while seated in police car and after being removed from police car); Markham v. State, 644 S.W.2d 53, 58 (Tex. App.—San Antonio 1982, no pet.) (identification not unnecessarily suggestive where, 10 minutes after theft, suspect was driven to scene of crime in a police car and identified by a witness in presence of police officers).
In this case, there is no evidence in the record showing counsel’s reasons for not challenging the presentation of identification witnesses at trial. While appellant did file a motion for new trial, there is nothing in the record to indicate whether the trial court held a hearing or ruled on the motion. In the absence of a record, we will not speculate on counsel’s reasoning. See Gamble, 916 S.W.2d at 93. Accordingly, we hold that appellant has not overcome his burden of showing that his trial counsel’s performance fell below the standards of professional norms. Id.
Accordingly, we overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.