Affirmed and Memorandum Opinion filed September 23, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00636-CR
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CLARENCE JAMISON HUGHES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 916,092
M E M O R A N D U M O P I N I O N
Appellant was convicted of aggravated robbery and sentenced to forty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In four issues, he contends (1) the evidence is insufficient to corroborate the accomplice witness testimony, (2) the trial court erred in permitting evidence that a co-defendant named appellant as one of the robbers, (3) he was denied effective assistance of counsel, and (4) the trial court erred in allowing the jury to hear testimony about a lineup at which appellant=s lawyer was not present. We affirm.
I. Factual Background
At approximately 6:30 p.m. on June 4, 2002, Donald Harvey picked up Christopher Gaskin in his car. The two drove around while Harvey sold drugs. Harvey and Gaskin later decided to go to a men=s club and invited their friend, Billy Ray Simmons, to come with them. Simmons drove in his car to appellant=s house so appellant could join them. Harvey and Gaskin were in Harvey=s car, and Simmons and appellant were in Simmons=s car. On the way to the men=s club, Harvey purchased a portable two-way radio (walkie-talkie) that could be used to communicate with Simmons, who had a similar radio. After discovering that the men=s club was closed for remodeling, one of the men saw a car leaving an automated teller machine (ATM) in a bank parking lot, and both cars followed the vehicle to the driver=s home.
In the meantime, Roger Fulghum, the complainant, was at home in bed. Shortly after midnight on June 5, 2002, his wife woke with a severe headache. The complainant=s wife drove herself to a nearby clinic, where the doctor recommended she go to the hospital. When the complainant learned his wife would be going to the hospital, he called his sister-in-law to stay with his two young children and joined his wife at the hospital. At the hospital, the complainant learned his wife would be admitted, so he drove home to inform his sister-in-law and arrange care for his children. Because his wife was being admitted, the complainant took her purse with him. On his way home, at approximately 4:00 in the morning, the complainant stopped at an ATM and withdrew one hundred dollars. It was the complainant that appellant and the three other men followed from the bank parking lot.
The complainant drove home and parked his car in the garage. After parking his car, he noticed two other cars in the street in addition to his sister-in-law=s car. As he was looking at the cars, a man carrying a shotgun said ADon=t move@ and ran toward the complainant. The complainant ran toward his house hoping to get inside but then decided he did not want to risk the man following him into the house. In an attempt to show he was not a threat, the complainant placed the contents of his pockets and his wife=s purse on the ground and then laid down. The man with the shotgun then placed his hand on the complainant=s back and asked how much money was in the wallet and who was in the house. The complainant responded that the wallet contained one hundred dollars and his children and sister-in-law were in the house. The man then said, ALet=s get in the car.@
The complainant unlocked the driver=s door and stepped into his car. As he got into the car, the complainant saw another man with a handgun coming toward him. The complainant described the man with the handgun as a black man with a light complexion, slim build, and frizzy hair. He also said the man was wearing a green and blue shirt and had a black bandana around his nose and mouth. The complainant then got in his car, locked the doors, and started to back down the driveway. After one of the other men moved one of the cars to block the driveway, the complainant drove across his lawn in an attempt to escape. As he drove, the man with the shotgun shot into the passenger side window and hit the complainant in the arm. After he was certain the men had driven away, the complainant went inside his house where his sister-in-law called the police and an ambulance.
Several days later, Harvey was stopped by a Houston police officer on a routine traffic stop. Harvey was in possession of the complainant=s credit cards. Harvey gave a statement in which he implicated Gaskin, Simmons, and appellant in the robbery. Gaskin was subsequently arrested and gave a statement to the police identifying Harvey as the man with the shotgun and appellant as the one with the handgun. An arrest warrant was issued for appellant. When the police attempted to arrest appellant, he led them on a high speed chase, running several stop signs. Following a lineup, the complainant tentatively identified appellant as the robber who carried the handgun.
At trial, Gaskin and Simmons testified that along with Harvey and appellant, they committed the robbery against the complainant. Gaskin testified that he and Harvey were driving in the same car and that Harvey used a shotgun in the robbery. Gaskin also testified that it was appellant who had used the handgun. According to Gaskin, Harvey attempted to get into the passenger side door as the complainant was driving away, and when he discovered the door was locked, Harvey shot into the car through the passenger window. Gaskin confirmed that on the night of the robbery, appellant was wearing jeans and a green and blue shirt. Simmons also admitted driving one of the cars during the robbery. He and appellant were in the same vehicle. Simmons testified that when they arrived at the complainant=s house, Harvey got out of his car carrying a shotgun and appellant got out of the other car with a handgun.
II. Sufficiency of the Evidence
In his fourth issue, appellant contends the evidence is insufficient as a matter of law to corroborate the accomplice witness testimony. Under article 38.14 of the Code of Criminal Procedure, a conviction cannot be based on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The evidence is insufficient if it proves merely the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). However, the corroborating evidence need not connect the defendant directly to the crime or be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Vasquez, 67 S.W.3d at 236; Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). If the combined weight of all the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462. In reviewing this point, we must eliminate the accomplice testimony from consideration and then examine the testimony of other witnesses to ascertain if there is any inculpatory evidence that tends to connect the accused with the commission of the offense. Solomon, 49 S.W.3d at 361.
The complainant testified that he was attacked first by a man carrying a shotgun. As he stepped into his car, the complainant saw another man coming toward him with a handgun. The second man had a light complexion, frizzy hair, and wore a green and blue shirt. The complainant tentatively identified appellant in a lineup. A witness=s identification, even if less than positive, is sufficient to corroborate an accomplice=s testimony. Valenciano v. State, 511 S.W.2d 297, 299B300 (Tex. Crim. App. 1974); Torres v. State, 632 S.W.2d 844, 845 (Tex. App.CHouston [14th Dist.] 1982, no pet.). Here, the complainant identified appellant in a lineup, then identified appellant at trial as the man he had identified in the lineup. The complainant accurately described appellant=s appearance, and the complainant=s description of the robbery matches the co-defendants= descriptions of the events. This evidence sufficiently tends to connect appellant to the crime.
In addition, when the police attempted to arrest appellant, he led them on a high speed chase through his neighborhood, ignoring police indications to pull over, and running several stop signs before eventually stopping and surrendering. The Texas Court of Criminal Appeals has found A[e]vidence of flight and guilty demeanor, coupled with other corroborating circumstances, may tend to connect a defendant with the crime.@ Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997). Accordingly, appellant=s flight from the police further corroborates the accomplice testimony of Gaskin and Simmons. Issue four is overruled.
III. Confrontation and Hearsay
In his first issue, appellant contends the trial court erred in permitting the State to elicit testimony that Harvey gave a statement naming appellant as one of the shooters because Harvey did not testify at trial. Prior to trial, appellant filed a motion in limine requesting the State refrain from mentioning statements of the co-conspirators until the admissibility of their statements could be determined. At trial, appellant objected to the State=s use of Harvey=s statement. During Gaskin=s testimony, the State asked:
Q. Did DonaldCdid you see Donald or hear Donald Harvey say who the other gunman was?
A. Hughes
Q. Okay. So, Donald HarveyCwho=s your girlfriend=s brother, right?
A. Yes, sir.
Q. Csays that Clarence Hughes was the gunman?
[Defense counsel]: Objection, asked and answered.
THE COURT: Sustained.
Q. How many gunmen did Donald Harvey say there were?
A. Two.
Q. Who did he say those two gunmen were?
[Defense counsel]: Objection, asked and answered.
* * * * *
THE COURT: Your objection is sustained.
The above testimony reflects that appellant failed to object to the State=s first reference to Harvey=s statement and then objected to the State=s questions as being redundant. Each of appellant=s objections were sustained.
Appellant also complains of the following testimony by Gaskin:
Q. Mr. Gaskin, when you talked to the police on June the 10th when you were arrested, I believe you indicated that you were just shownCbecause initially you denied any involvement, correct?
A. Right.
Q. Once they showed you that portion of Donald Harvey=s interviewCand it was a[n] interview on videotape, right?
A. Right.
Q. Cyou were able to see Donald Harvey, correct?
A. Right.
Q. When they played the portion where he identified you and Clarence Hughes as the gunmen, did Donald Harvey say which gun you had?
[Defense counsel]: Objection, hearsay.
A. No, sir.
THE COURT: Sustained.
Q. He identified you and Clarence Hughes as the gunmen, correct?
A. Yes, sir.
Q. Is it your understanding that Simmons identified the defendant as one of the gunmen as well?
[Defense counsel]: Objection, hearsay.
A. Yes, sir.
THE COURT: Sustained.
A. Confrontation Clause
Appellant contends the trial court erred in denying his Sixth Amendment right to confront his accusers. The Sixth Amendment provides, in pertinent part, that in Aall criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.@ Although the Rules of Evidence permit exceptions to the normal prohibition against hearsay evidence, these exceptions do not apply to evidence that is testimonial in nature. The Constitution does not permit the admission of a testimonial statement of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross‑examination. Crawford v. Washington, 124 S. Ct. 1354, 1365 (2004). Harvey=s videotaped statement, given to police after he had become a suspect, was testimonial in nature. Id. at 1374.
Appellant, however, made no objection to Gaskin=s testimony based on a violation of the confrontation clause. To preserve error, there must be a timely, specific objection to the complained‑of testimony. See Tex. R. App. P. 33.1. Even constitutional error may be waived by failure to object at trial. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). A defendant waives his constitutional right to confront witnesses if he does not object at trial. See Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).
Although appellant objected on the basis of hearsay to some of the prosecutor=s questions, a hearsay objection does not preserve error on a confrontation claim. See Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). Hearsay objections and objections to violations of the constitutional right to confront witnesses are neither synonymous nor necessarily coextensive. Holland, 802 S.W.2d at 700; Thacker, 999 S.W.2d at 61. Further, to the extent appellant=s motion in limine raised the admissibility of the evidence based on the confrontation clause, such a motion cannot preserve error for appellate review. See Geuder v. State, 115 S.W.3d 11, 14 (Tex. Crim. App. 2003). Because appellant=s issue on appeal does not comport with his trial objection, he has waived error with regard to the confrontation clause of the Sixth Amendment. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
B. Hearsay
Appellant also alleges the testimony set forth above constitutes impermissible hearsay. However, each time Harvey=s accusation of appellant as the gunman was mentioned, appellant either failed to object or appellant objected and his objection was sustained. After the trial court sustained appellant=s objection, he failed to pursue an adverse ruling. When an objection is sustained, a party must pursue his objection to an adverse ruling; otherwise he waives error. Credille v. State, 925 S.W.2d 112, 115 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Further, to preserve error, appellant must object each time inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Therefore, appellant failed to preserve error with regard to hearsay. Appellant=s first issue is overruled.
IV. Ineffective Assistance of Counsel
In appellant=s second issue, he contends his counsel was ineffective in (1) failing to object to hearsay statements concerning Harvey=s out-of-court statement, (2) failing to object to hearsay statements referred to in the prosecutor=s opening statement, and (3) failing to object to testimony that appellant invoked his right to counsel instead of giving a statement to the police.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2004). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B96.
In assessing appellant=s claims, there is a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he or she did. See id. An appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for trial counsel=s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002).
In this case, appellant filed a motion for new trial in which he asserted the evidence was insufficient to support a finding of guilt and the trial court erred in allowing the co-defendants to testify without sufficient corroboration for the admission of their testimony. Appellant did not raise the issue of ineffective assistance in his motion for new trial. Without a hearing on a motion for new trial or a motion based on ineffective assistance, the record is silent as to why trial counsel acted as he did. In the face of a silent record, this court will not speculate about why trial counsel did or did not raise objections to the evidence. See Jackson, 877 S.W.2d at 771. In the absence of any evidence to the contrary, we cannot conclude the performance of appellant=s trial counsel was deficient. See id. Appellant=s second issue is overruled.
V. Right to Counsel at Lineup
In his third issue, appellant contends the trial court erred in allowing the jury to hear testimony from a police officer about the complainant=s viewing of a video-taped lineup and his identification of appellant from the lineup because the lineup was conducted without counsel. The right to counsel does not attach until the initiation of adversarial judicial proceedings, including formal charge, preliminary hearing, indictment, information, or arraignment. Texas v. Cobb, 532 U.S. 162, 167B68 (2001). An arrest alone does not trigger the right. McFarland v. State, 928 S.W.2d 482, 507 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); Merritt v. State, 76 S.W.3d 632, 634 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At the time appellant appeared in a lineup, no felony complaint or indictment had been filed regarding the aggravated robbery. Therefore, appellant=s right to counsel had not yet attached. See Merritt, 76 S.W.3d at 634.
Further, appellant failed to object to the complainant=s testimony concerning his identification of appellant at the lineup. When the same or substantially similar evidence is admitted without objection, any error is waived. Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994). Appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed September 23, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).