Fredrick Como, Jr. v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-98-00049-CR





Fredrick Como, Jr., Appellant



v.



The State of Texas, Appellee





FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-91-44, HONORABLE ROBERT T. PFEUFFER, JUDGE PRESIDING





A jury found appellant Fredrick Como, Jr., guilty of burglary of a vehicle. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 30.04, 1973 Tex. Gen. Laws 883, 927 (Tex. Penal Code Ann. § 30.04, since amended). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for sixty years. Appellant contends the evidence is legally and factually insufficient to sustain his conviction, that evidence was erroneously admitted, and that he did not receive effective assistance of trial counsel. We will overrule these contentions and affirm.

At about 4:30 a.m. on January 29, 1991, Christopher Coley was awakened by a sound outside his San Marcos apartment. He looked outside and saw "a leg sticking out, a foot, from the passenger's side of my car." Coley opened the door of his apartment and shouted at the man to get out of his car. The man did so and looked up at Coley. Coley, who testified that he got a good look at the burglar, identified appellant at trial as the man he saw. Appellant was holding a T-top from Coley's automobile. (1) Coley then ran downstairs into the parking lot. Meanwhile, appellant took the second T-top from the car and fled. Coley gave chase, but appellant succeeded in getting away in a white Mercury Cougar. Coley returned to his apartment and reported the incident to the police.

San Marcos police officer Karon Guenther was working as patrol sergeant that night. She testified that earlier that month, the San Marcos police had received a written report from the Houston police informing them that two black males were coming to San Marcos with the intent to steal T-tops. The report included a description of the suspects' usual manner of operation, which included checking into a local motel and renting a car. Based on this information, San Marcos police formulated a plan of action to be followed should such a theft occur. According to plan, police units throughout San Marcos began to check motels for the suspect Mercury Cougar after Coley reported the theft of his T-tops.

Officer Sherry Peyton went to a Motel 6. In the parking lot, she saw a white Mercury Cougar which, upon inspection, appeared to have been driven recently. As she stood by the vehicle, she heard someone walking on the upper breezeway. Peyton looked up and saw a black man wearing a jacket matching Coley's description watching her. When he saw the officer look at him, the man fled into a room. Peyton identified appellant at trial as this man.



Appellant was registered at the motel under a false name. When the police went to the room, they found that it was occupied by appellant and a second man, who was pretending to be asleep. Appellant had the keys to the rented Mercury Cougar in his pocket. The police found gloves and pliers in the room, but did not recover Coley's stolen T-tops. Coley was brought to the motel. When he saw appellant standing on the breezeway, he immediately identified him as the man he saw burglarizing his car.

Evidence is legally sufficient to support a criminal conviction if, viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant argues that the evidence in this cause is legally insufficient because he was not identified as the man who broke into Coley's car and because the State did not prove that he acted with the requisite intent.

Appellant's contention that he was never identified as the man inside Coley's car is mistaken. Coley testified that he saw a man inside his car, that he watched the man get out of the car, and that appellant was that man. This testimony is clearly sufficient to identify appellant as the man who entered Coley's vehicle without his consent. Coley also testified that appellant took the T-tops from his car and fled. The jury could reasonably infer from this that appellant entered the car with the intent to commit theft. Appellant's contention that the evidence is legally insufficient to sustain the conviction is without merit.

When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

Appellant points out that there was no fingerprint evidence linking him to the burglary and that the stolen T-tops were not found in his possession. Nevertheless, given Coley's positive identification and the abundant circumstantial evidence, it cannot be said that the jury's verdict was contrary to the great weight of the evidence. Point of error three is overruled.

Appellant next urges that Guenther's testimony describing the information received from the Houston police constituted inadmissible evidence of extraneous misconduct. See Tex. R. Evid. 404(b). This contention was not preserved for review because appellant did not object to Guenther's testimony on this basis. Tex. R. App. P. 33.1(a). Appellant's trial objections were that the testimony was hearsay and that its probative value was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403, 802; see also Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh'g) (rules 403 and 404(b) require separate objections). We also note that when initially questioned about the Houston police report, Guenther did not testify that appellant was named therein. Thus, the testimony to which appellant lodged his trial objections did not constitute evidence that appellant was guilty of extraneous offenses. (2)

The State informed the court that it was not offering the testimony to prove the truth of the matter stated, but to explain why the police acted as they did. The district court admitted the challenged testimony with an oral instruction that the jury was to consider the testimony "for the limited purpose of allowing the State to establish the state of mind of the witness in respect to the events to which she will be testifying, but you may not consider the information for the truth of the matters asserted." By the same point of error, appellant contends the court should have included a similar limiting instruction in its jury charge. See Rankin v. State, 974 S.W.2d 707, 712 (Tex. Crim. App. 1996) (limiting instruction should be given both at time testimony is admitted and in jury charge).

Appellant did not request such a limiting instruction in the charge or object to its absence. It has recently been held that the omission of an instruction on a defensive issue is not charge error in the absence of a request or objection. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). This holding applies to the omission of any instruction except those that deal with "issues upon which a trial court has a duty to instruct without a request from either party or issues that have been timely brought to the trial court's attention." Id. at 64. Assuming that the district court had a duty to give a limiting instruction in its charge, any harm arising from the error was diminished by the limiting instruction given when the testimony was adduced. See Jones v. State, 944 S.W.2d 642, 654 (Tex. Crim. App. 1996). On this record, egregious harm to appellant is not shown. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Point of error two is overruled.

Finally, appellant contends his trial counsel was ineffective because he did not object to Coley's identification testimony. Prior to trial, the district court granted a defense motion to conduct a hearing on appellant's contention that any in-court identification would be tainted by an allegedly prejudicial pretrial identification procedure. This hearing was not held and appellant subsequently obtained new counsel. The new attorney did not pursue the identification issue.

To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance must be judged in its totality, rather than by isolating individual errors or omissions. Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd). We also must avoid the distortions of hindsight, and evaluate counsel's conduct from his perspective at the time of trial. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A defendant asserting an ineffective assistance claim must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This burden is made more difficult when, as in this cause, no motion for new trial was filed and there is no record focused on the conduct of counsel See id. at 772 (Baird, J., concurring).

One-on-one identification procedures are often criticized, but they do not inevitably render inadmissible subsequent in-court identifications. The dispositive question in every case is whether the procedure gave rise to a very substantial likelihood of irreparable misidentification, to be determined from the totality of the circumstances. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). While an objection could have been made that Coley's identification of appellant at trial was tainted by the one-on-one identification at the motel on the night of the offense, appellant has not demonstrated that such a objection would have been meritorious. See id. (factors to consider). The record does not support a finding that the alleged error denied appellant a fair trial. Point of error one is overruled.

The judgment of conviction is affirmed.





Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers*

Affirmed

Filed: March 4, 1999

Do Not Publish





* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. Coley testified that his car had two removable panels in its roof. This arrangement is referred to as a T-top.

2. Guenther later testified on redirect that the Houston police report said that one of the men on his way to San Marcos was named Freddy Como. Appellant voiced no objection to this testimony.

gular"> Finally, appellant contends his trial counsel was ineffective because he did not object to Coley's identification testimony. Prior to trial, the district court granted a defense motion to conduct a hearing on appellant's contention that any in-court identification would be tainted by an allegedly prejudicial pretrial identification procedure. This hearing was not held and appellant subsequently obtained new counsel. The new attorney did not pursue the identification issue.

To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance must be judged in its totality, rather than by isolating individual errors or omissions. Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd). We also must avoid the distortions of hindsight, and evaluate counsel's conduct from his perspective at the time of trial. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A defendant asserting an ineffective assistance claim must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This burden is made more difficult when, as in this cause, no motion for new trial was filed and there is no record focused on the conduct of counsel See id. at 772 (Baird, J., concurring).

One-on-one identification procedures are often criticized, but they do not inevitably render inadmissible subsequent in-court identifications. The dispositive question in every case is whether the procedure gave rise to a very substantial likelihood of irreparable misidentification, to be determined from the totality of the circumstances. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). While an objection could have been made that Coley's identification of appellant at trial was tainted by the one-on-one identification at the motel on the night of the offense, appellant has not demonstrated that such a objection would have been meritorious. See id. (factors to consider). The record does not support a finding that the alleged error denied appellant a fair trial. Point of error one is overruled.

The judgment of conviction is affirmed.





Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers*

Aff