In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-03-044 CR
____________________
ROBBIE HUITT, Appellant
V.
THE STATE OF TEXAS, Appellee
Angelina County, Texas
Trial Cause No. 23091
The trial court found Robbie Huitt guilty of two counts of burglary of a habitation, and, after also finding the indictment's enhancement paragraph to be true, sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division. Huitt brings three issues on appeal.
In issue one, Huitt contends the evidence is both legally and factually insufficient to support his conviction for burglary as the State failed to prove the identity element of the offense beyond a reasonable doubt. In Rohlfing v. State, the Texas Court of Criminal Appeals explained the test for sufficiency of identification to support a conviction. Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981). We must be able to "conclude from a totality of the circumstances the jury was adequately apprised that the witnesses were referring to appellant." Id.
In using the "totality of the circumstances" test, however, Huitt argues the State should not be allowed to establish identity by relying either on the defendant's having been indicted or being the only person on trial. Huitt maintains the only evidence of identity presented by the State was that of Officer Campbell who stated he knew Huitt, met with him, interviewed him, took him to view burglary locations, and took him to the police department. Huitt emphasizes that Officer Campbell never testified the Robbie Huitt he discusses is the same person as the one on trial and the State never requested Campbell to identify Huitt in court.
However, during the guilt/innocence phase of the trial, Officer Campbell testified he initially brought Huitt into the police station for questioning about vehicle burglaries. During that conversation, Huitt mentioned entering a house and taking money from a jar. Then Cambell testified as follows:
Question: And this is Mr. Huitt?
Answer: Yes. This is Mr. Huitt.
Question: Okay. So, Mr. Huitt went with you and Detective Shurley?
Answer: Yes.
Question: And y'all rode around in a car?
Answer: Yes. (1)
Added to this testimony is the videotape of Campbell's interview with Huitt. The videotape, which is part of the "totality of the circumstances,"was played for the trial court. The tape is itself evidence of Huitt's being the perpetrator of the accused offenses. In it, Huitt discussed a detail of one of the offenses that were not previously known to the investigators and the tape provides a visual image by which the trial court, as the trier of fact, could compare the physical appearance of the person on the tape identified as Huitt with that of the person being tried.
In addition, Mrs. McCreary, one of the victims, was asked whether she was "in any way acquainted with the Defendant in this case, Mr. Robbie Huitt?" Mrs. McCreary replied that, though she did not know him, she had met him. Prior to discovering money missing from her home, Mrs. McCreary found Huitt standing in her kitchen; he had entered her home without permission. Huitt asked if he could do yard work for her and when she said "no," Huitt left.
Given the totality of the circumstances, we find the State identified Huitt as the perpetrator beyond reasonable doubt. Issue one is overruled.
In issue two, Huitt maintains his trial counsel rendered ineffective assistance of counsel by failing to move for a directed verdict at the close of the State's case when the State had not proved identity beyond a reasonable doubt. Our decision in issue one controls here. Issue two is overruled.
In issue three, Huitt also raises ineffective assistance of counsel because his trial counsel did not challenge the admissibility of a copy of his videotaped statement.
To prevail on this issue, Huitt must demonstrate trial counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Allegations of ineffective assistance must be firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The presumption of reasonable effectiveness cannot ordinarily be overcome absent evidence in the record of the attorney's reasons for his conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813.
Huitt did not file a motion for new trial and request a hearing to question his trial counsel; thus, the record is silent as to why appellant's trial counsel failed to object to the evidence. But, Huitt argues trial counsel could have had no reasonable trial strategy in failing to object.
However, the Texas Court of Criminal Appeals, in considering counsel's failure to object noted the possibility that
counsel at that moment may have reasonably decided that the testimony was not inadmissible and an objection was not appropriate. For an undetermined reason, counsel did not object, and only further inquiry will provide the information necessary to make the proper determination whether he provided the effective assistance envisioned under the Sixth Amendment.
Thompson, 9 S.W.3d at 814 (emphasis in original).
Here, though the State offered a copy of the videotape rather than an original, the copy is admissible to the same extent as an original unless a question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original. Tex. R. Evid. 1003; see also Ballard v. State, 23 S.W.3d 178, 182 (Tex. App.--Waco 2000, no pet.). (2) Huitt does not explain how his trial counsel successfully could have objected under Rule 1003. He does not contend there were questions regarding authenticity or there were circumstances making it unfair to admit the duplicate. Absent an evidentiary hearing in which defense counsel is provided the opportunity to explain his actions, and in which Huitt is able to fully develop evidence supporting his claim of ineffective assistance, Huitt cannot overcome the presumption that counsel rendered reasonably effective assistance. Moreover, Huitt does not establish that but for counsel's conduct, the result would have been different. Issue three is overruled.
We affirm the trial court's judgment.
________________________________
DON BURGESS
Justice
Submitted on July 21, 2003
Opinion Delivered July 30, 2003
Do not publish
Before McKeithen, C.J., Burgess, and Gaultney, JJ.
1. During the punishment phase, Officer Campbell, in discussing a contact he had with Huitt during a pursuit of a vehicle, testified as follows:
Q.: When you got the subject stopped, did you identify the subject?
A.: I did.
Q.: And who was that?
A.: It was Robbie Huitt.
Q.: And is he the same person that's here in the courtroom?
A.: Yes sir.
Also, during the punishment phase, Huitt admitted committing the burglaries and
apologized.
2.
Article X of the Rules of Evidence codifies "what was the common law 'best evidence' rule." Englund v. State, 946 S.W.2d 64, 67 (Tex. Crim. App. 1997). Rule 1002 states the general proposition that the original of a recording is required to prove its contents unless otherwise provided. See TEX.R. EVID. 1002; see also Englund, 946 S.W.2d at 67. Rules 1003 and 1004 provide exceptions to the general rule. See Hood v. State, 944 S.W.2d 743, 747 (Tex. App.--Amarillo 1997, no pet.); 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 1002.04[3] & nn. 8-14 (Joseph M. McLaughlin, ed., 2d ed. Mar.1997). The exceptions operate independently of each other. Thus, if the proponent of a duplicate recording can establish that the proffered evidence fits within either exception, the duplicate will be admissible notwithstanding the general rule.
Ballard, 23 S.W.3d at 181.