Courtney Eugene Peace v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Courtney Eugene Peace Appellant Vs. Nos. 11-00-00297-CR, 11-01-00408-CR, & 11-01-00409-CR B Appeals from Dallas County State of Texas Appellee Courtney Eugene Peace and Nakia Sharnette Strange were both indicted for the aggravated robbery of Lynette Lerma on January 30, 2000, and for attempting to cash the check which was taken in the robbery. Appellant was also indicted for the aggravated assault of Jennifer Moody, Lerma=s friend who was with her at the time of the robbery. All five indictments were tried at the same time. Both Appellant and Strange entered pleas of Aguilty@ to the indictments for attempting to cash the stolen check, but they entered pleas of Anot guilty@ to the other indictments. The theory of their joint defense was that the check was stolen by two other people, that appellant and Strange had agreed to cash the check, and that they were going to divide the money with the men who gave them the check. The jury did not believe them; it assessed punishment of 15 years confinement for appellant[1] on the aggravated robbery, 15 years confinement for appellant on the aggravated assault, and 20 years confinement for Strange[2] on the aggravated robbery. The trial court assessed punishment on the guilty pleas, ordering confinement for each for a term of 2 years and a fine of $1,000. Appellant appeals.[3] We affirm the judgments of the trial court. The Three Appeals Appellant filed his brief in Cause No. 11-00-00297-CR (the Aguilty plea@) on August 23, 2001, presenting 45 issues for appellate review. Issues Nos. 1 thru 4 and 6 thru 45 claim that appellant=s court-appointed trial counsel rendered Aineffective assistance.@ Appellant filed his brief in Cause Nos. 11-01-00408-CR and 11-01-00409-CR on April 11, 2002, presenting 26 issues for appellate review. All but three of those issues claim that appellant=s court-appointed trial counsel rendered Aineffective assistance.@ Appellant argues in Issue No. 5 of both briefs that the trial court erred in denying his motion to suppress photographic identifications. Appellant argues in Issues Nos. 11 and 12 of his second brief that the trial court erred in failing to grant the motion for new trial. The Photographic Identifications Appellant was with Strange when she was arrested while attempting to cash the check which had been stolen from Lerma a few hours earlier. The police had Lerma and Moody drive by the check-cashing facility to see if appellant and Strange were the ones who had robbed Lerma and who had tried to rob Moody. The two witnesses did make positive identifications at that time, and they later identified appellant and Strange from photographic lineups. Appellant argues on appeal that the eye-witnesses= viewing at the check-cashing facility was impermissibly suggestive and that it tainted their subsequent photographic identifications and their in-court identifications. The Court of Criminal Appeals discussed a similar contention in Loserth v. State, 963 S.W.2d 770, 771-74 (Tex.Cr.App.1998): An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. The test is whether, considering the totality of the circumstances, Athe photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.@ Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). * * * The following five nonexclusive factors should be Aweighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances@: 1. The opportunity of the witness to view the criminal at the time of the crime; 2. The witness= degree of attention; 3. The accuracy of the witness= prior description of the criminal; 4. The level of certainty demonstrated by the witness at the confrontation; and 5. The length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). * * * The reviewing court should therefore consider the five Biggers factors, which are all issues of historical fact, deferentially in a light favorable to the trial court=s ruling. * * * When the trial court does not make express findings of historical facts, the facts are viewed in a light favorable to the court=s ruling. See also Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Cr.App.1999), cert. den=d, 531 U.S. 828 (2000). In Garza v. State, 633 S.W.2d 508, 511 (Tex.Cr.App.1981), the Court of Criminal Appeals discussed the Atrilogy@ of United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); and Stovall v. Denno, 388 U.S. 293 (1967). The court noted that permitting a witness to view suspects shortly after the offense allows the witness to Atest his recollection while his memory is still fresh and accurate@ and that Athe quick confirmation or denial of identification expedites the release of innocent suspects.@ Also, the court noted that this permits the police to continue their search before the criminal can dispose of evidence of the crime. The record shows that, when the police officer arrived at the check-cashing establishment about ten hours after the robbery and in response to a report that someone was trying to cash the check which was taken in the robbery, appellant was standing in the parking lot while Strange was in the establishment. Strange had Lerma=s social security card, and appellant referred to Strange as ALynette.@ The officer called Moody and Lerma, asking them to come there to identify the check and to look at the suspects as they drove by the location on their way to meet the officer. Moody drove slowly through the parking lot and then parked behind a nearby gasoline station. The officer went to their car, and they both positively identified appellant and Strange as the persons who had robbed Lerma and attempted to rob Moody. Three days later, another police officer asked Moody and Lerma to see if they could identify the robbers from two different six-person photographic lineups. Moody promptly identified appellant=s photograph. Lerma picked two photographs which were similar in appearance, and one of them was appellant=s photograph. Both Moody and Lerma identified Strange in the other photographic lineup. Both Moody and Lerma made positive identifications of appellant and Strange during the trial. Both testified that their identification was based upon their view of the robbers at the time of the crime. The record does not show an impermissibly suggestive drive-by viewing, and it does not show that the drive-by viewing tainted the photographic lineup. The record does not show that the witness identification testimony during trial was tainted, neither by the drive-by viewing nor by the photographic lineup. Ibarra v. State, supra; Loserth v. State, supra; and Garza v. State, supra. Issue No. 5, as stated in both briefs, is overruled. Motion for New Trial Appellant has not shown that the trial court erred in refusing to grant his motion for new trial. See TEX.R.APP.P. 21.3 and TEX. CODE CRIM. PRO. ANN. art. 40.001 (Vernon Supp. 2002). The standard of review on the denial of a motion for new trial is Aabuse of discretion.@ Bolden v. State, 634 S.W.2d 710, 711 (Tex.Cr.App.1982). As noted in Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Cr.App.1979): The factors involved in determining whether to grant a new trial on newly discovered evidence...are well established. The record must reflect that: (1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant=s failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. (Emphasis added) See also Wortham v. State, 903 S.W.2d 897, 899 (Tex.App. - Beaumont 1995, pet=n ref=d). Issues Nos. 11 and 12 in the brief for the second and third appeals (the aggravated robbery conviction and the aggravated assault conviction) are overruled. Assistance of Counsel The standard of review for claims of Aineffective assistance of counsel@ is well established. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The Court of Criminal Appeals made it clear in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999), that the Anow familiar two-prong Strickland test@ applies to all aspects of criminal proceedings. Consequently, the law is that, in order to obtain a reversal of his conviction, appellant must first show that his counsel was deficient; then, he must also show that Athe result of the proceeding would have been different@ if his counsel had rendered effective assistance. The records in the cases before us do not show ineffective assistance of counsel. Appellant=s counsel had difficult cases. Appellant and Strange were arrested while Strange was attempting to cash the check which was stolen from Lerma. Lerma and Moody both made positive identifications of them as the two persons who had confronted them at the time Lerma was robbed on the night before Strange attempted to cash the stolen check. Strange had Lerma=s social security card in her possession at the time of their arrest, and appellant referred to Strange as ALynette@ during the police investigation. Issues Nos. 1 thru 4 and 6 thru 45 in the brief for the first appeal (the state jail felony conviction) and Issues Nos. 1 thru 4, 6 thru 10, and 13 thru 26 in the brief for the second and third appeals (the aggravated robbery conviction and the aggravated assault conviction) are overruled. This Court=s Ruling The judgments of the trial court are affirmed in all three appeals. BOB DICKENSON SENIOR JUSTICE May 16, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Wright, J., and McCall, J., and Dickenson, S.J.[4] [1]Appellant=s periods of confinement for all three felonies will be served concurrently. [2]Strange had a prior criminal record; these were the first convictions for appellant. [3]The convictions of Strange are not before this court. We note that her conviction for aggravated robbery was affirmed by the Dallas Court of Appeals on December 10, 2001. That opinion was not published, and the Court of Criminal Appeals has refused her petition for discretionary review. [4]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.