In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00090-CR
SETH ROBERTS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2014-404,057, Honorable William R. Eichman II, Presiding
October 11, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Seth Roberts, appellant, appeals his conviction for aggravated robbery. Through
two issues, he contends that 1) the evidence was insufficient to establish his identity as
the robber, and 2) he received ineffective assistance of counsel. We affirm.
Background
On September 2, 2014, a white male entered a local Subway restaurant, entered
and exited the bathroom, approached the sales-counter, drew a handgun, pointed the
weapon at the cashier, and demanded money. The cashier (Williams) opened the
register, turned around, moved-away slightly, and watched the individual via the
reflection off a glass door behind the counter. The individual, who was wearing
sunglasses, gloves, and a Texas Rangers baseball cap, removed money from the
register and left.
Williams first saw the robber when he entered the store because he not only
failed to remove his glasses but also wore gloves. The latter were not called for, in her
view, given the nature of the weather. That the person also walked to the bathroom
upon entering the store seemed odd to her.
The crime was captured on store video. It depicted a person 1) wearing a white
T-shirt, jeans, a red cap, sunglasses and black gloves, 2) removing a handgun from his
pants, 3) walking to the cash register, and 4) ejecting a round from the side of the
weapon during the incident. Video from a neighboring Domino's store depicted the
same individual entering a green SUV and leave the scene after the robbery.
Despite investigation, the police had yet to arrest anyone for the crime when two
people eventually came forth. One was appellant's roommate (Lara). The other was
Lara's mother. The latter provided a tip to law enforcement personnel identifying
appellant to be the robber. Lara had given the relevant information to his mother.
Thereafter, the police contacted Lara, who was in jail at the time. They afforded him
opportunity to view video of the robbery. After seeing it, Lara identified the robber as his
roommate and did so based on a comparison between the assailant's walk and that of
appellant. So too did he indicate that the vehicle in the video was like that owned by
appellant’s girlfriend.
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Additionally, Williams eventually encountered a picture of appellant in the
newspaper. She immediately recognized the person depicted as the one who robbed
the Subway restaurant and informed the police of same. This and other information led
to appellant's arrest. When arrested, appellant was driving a green SUV like that seen
in the Domino's video. The police discovered a gray lock box in the vehicle. Written on
the box was appellant's name, and in it were two handguns and a pair of gloves. At
least one weapon matched the handgun used in the robbery. The gloves also matched
those worn by the robber.
After trial, the jury convicted appellant of the aforementioned offense. Appellant
then appealed.
Issue One – Insufficient Evidence Regarding Identification
In his first issue, appellant contends that the eyewitness identification by Williams
and Lara were inherently unreliable. According to him, the “testimony from the victim
[employee] that she recognized Roberts from a picture she saw in the newspaper, after
the robbery occurred, and Lara’s testimony that he recognized the Appellant by how he
walked is intrinsically unreliable and should be viewed with skepticism by this Court.”
We disagree and overrule the issue.
The pertinent standard of review is well-known. Rather than reiterate it, we cite
the parties to recent authority on the matter. See e.g., Marshall v. State, 479 S.W.3d
840, 845 (Tex. Crim. App. 2016); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010).
As mentioned above, both Williams and Lara identified appellant as the robber.
They did so before and during trial. But their testimony was not the only evidence tying
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him to the crime. For instance, there is the evidence of 1) the similarities between the
SUV appellant was arrested in and that was used in the robbery as depicted in on the
Domino’s video, 2) the similarities between the items found in the SUV when appellant
was arrested and the items exhibited by the robber, i.e. gun and gloves, 3) appellant’s
ownership of a ball cap similar to that worn by the robber, 4) the similarities between the
facial hair of both the robber and appellant, 5) appellant’s knowledge of a fact involved
in the robbery that only the police and the victim knew, i.e. small amount of cash taken,
and 6) the way the suspect handled the gun, which indicated to a witness that he had
military or law enforcement experience and appellant had both.
It may well be that the testimony of Lara and Williams was subject to legitimate
criticism. Yet, it was admitted, and the jury was free to consider it. More importantly,
those jurors had the authority to assign it the level of credibility they thought appropriate.
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (stating that the jury is the
sole judge of the credibility and weight to be attached to the testimony of a witness and
when the record supports conflicting inferences, we presume that the jury resolved the
conflicts in favor of the verdict, and we defer to that determination). Therefore, viewing
the record in the light most favorable to the verdict, we find evidence upon which a
rational jury could have found, beyond reasonable doubt, that appellant committed the
robbery.
Issue Two – Ineffective Assistance of Counsel
In his second issue, appellant contends that his trial counsel was ineffective for
failing to present expert testimony regarding the unreliability of eyewitness testimony
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and for failing to request a jury instruction also on the unreliability of such evidence. We
disagree and overrule the issue.
An appellant claiming ineffective assistance of counsel bears the burden of
proving by a preponderance of the evidence that 1) counsel's representation fell below
an objective standard of reasonableness and 2) the deficient performance prejudiced
the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to
make the required showing of either deficient performance or sufficient prejudice is fatal
to a claim of ineffective assistance. Id.
Regarding the first instance of allegedly deficient conduct, the failure to call an
expert is irrelevant absent a showing that such a witness was available to testify on the
issue in question and that the testimony would have benefitted appellant. See King v.
State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Garza v. State, 298 S.W.3d 837, 842-
43 (Tex. App.—Amarillo 2009, no pet.). No such factual showing was made here.
Furthermore, the record contains no evidence as to why trial counsel did not call such a
witness. That too is problematic since we presume that counsel based his decisions
and actions on sound trial strategy. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.
App. 2007). Generally, that presumption cannot be overcome absent evidence of those
reasons and motives appearing in the record. Ex parte Niswanger, 335 S.W.3d 611,
615 (Tex. Crim. App. 2011). In other words, he may have had basis for why he did what
he did, and without knowing what that basis was we cannot assess whether it could be
viewed as sound trial strategy for purposes of analysis required by Lopez. See Ex parte
Saenz, 491 S.W.3d 819, 829 (Tex. Crim. App. 2016) (noting the court’s responsibility to
objectively scrutinize the claim of strategy). And this is especially so when counsel’s
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action is not so outrageous that no competent counsel would have pursued it.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (stating that absent
an opportunity for counsel to explain his conduct, an appellate court should not find his
performance deficient unless the challenged conduct is so outrageous that no
competent attorney would have engaged in it). Counsel’s purported omission at bar
does not fall within that realm given his vigorous cross-examination of State witnesses.
As for the missing jury instruction, the record again fails to disclose why trial
counsel did not seek it. So, nothing appears of record rebutting the presumption that
counsel's actions were based on sound trial strategy. Furthermore, appellant
acknowledged in his brief that “. . . it is difficult to fault counsel for not requesting a jury
instruction that currently does not exist in Texas . . . .” This observation seems
especially pertinent since trial counsel is not obligated to urge frivolous or baseless
matter to be effective. Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref'd) (holding that counsel need not assert baseless objections to
be effective).
In sum, we do not find that appellant carried his burden of proving ineffective
assistance.
Having overruled both issues, we affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
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