Rashad Bruce Harris v. State

Affirmed and Memorandum Opinion filed December 16, 2008 Affirmed and Memorandum Opinion filed December 16, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00983-CR ____________ RASHAD BRUCE HARRIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1106916 M E M O R A N D U M   O P I N I O N A jury found appellant, Rashad Bruce Harris, guilty of aggravated robbery with a deadly weapon. The jury assessed punishment at 99 years= confinement. In three issues, appellant contends (1) the trial court abused its discretion in admitting evidence of a videotaped line-up, (2) he received ineffective assistance of counsel, and (3) the trial court abused its discretion in refusing to permit him to display his body tattoos to the jury. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. I. Background Early in the morning of October 30, 2006, George and Elaine Duvall drove into the parking garage at the Texas Medical Center because Mrs. Duvall was scheduled for surgery that morning. As they stepped out of their car, a white Chevrolet Impala drove up behind their vehicle blocking it. An individual, later identified as appellant, stepped out of the car, pointed a sawed-off shotgun at the Duvalls and told them to lie down on the ground. As appellant stepped into the car to retrieve Mrs. Duvall=s purse, he kicked her in the shoulder. Appellant began riffling through a tote bag sitting in the back seat of the car and became frustrated because there was no money in the tote bag. Mrs. Duvall explained that her purse was on the floor behind the passenger seat. Appellant stepped out of the car and kicked Mrs. Duvall in the ribs before he retrieved her purse. After taking Mr. Duvall=s wallet and Mrs. Duvall=s purse, appellant drove away. Although the parking garage camera recorded a white Chevrolet Impala crashing through the parking garage gate, the Impala did not have a rear license plate, so police could not determine to whom the car was registered. A Houston Police detective later learned that one of Mrs. Duvall=s credit cards was used on the day of the robbery to purchase cellular phone minutes for a cellular phone account registered in appellant=s name. On October 31, 2006, the day after the Duvalls were robbed, appellant was arrested on another charge. Officer Steven Hooper of the Houston Police Department obtained appellant=s photograph from his arrest and prepared two identical photo arrays and showed them to the Duvalls.[1] Both Mr. and Mrs. Duvall tentatively identified appellant as the person who committed the robbery. Because the Duvalls= identifications were tentative, no charges were filed against appellant at that time. On January 26, 2007, Officer Hooper attempted to videotape a line-up to show the Duvalls, but appellant refused to participate in the line-up. Appellant refused two more times to participate in the line-up before he agreed to participate on February 28, 2007. Officer Hooper showed the videotaped line-up to Mr. and Mrs. Duvall separately. Mr. Duvall positively identified appellant, but Mrs. Duvall was unable to identify appellant. Appellant was subsequently indicted and convicted of aggravated robbery with a deadly weapon and sentenced to 99 years in prison. II. Motion to Suppress In his first issue, appellant contends the trial court erred in denying his motion to suppress evidence of the videotaped line-up. Prior to trial, appellant filed a motion to suppress the videotaped line-up identification because he was denied counsel at the time the line-up was videotaped. Appellant refused twice to participate in the videotaped line-up. The third time Hooper asked appellant to participate, appellant requested an attorney and informed Hooper his attorney=s name was Pat Kelly. Hooper contacted Pat Kelly, but Kelly informed Hooper that appellant was not his client. Subsequently, Officer Hooper contacted the District Attorney=s office and filed a charge of interfering with public duties against appellant. After charges were filed, appellant participated in the videotaped line-up. We review a trial court=s ruling on a motion to suppress under an abuse‑of‑discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 127 S.Ct. 145 (2006). If supported by the record, a trial court=s ruling on a motion to suppress should not be overturned on appeal. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all the evidence presented. Id. If the record is silent regarding the reasons for the trial court=s ruling or the trial court makes no explicit findings of fact and neither party has timely requested findings from the trial court, we imply the necessary findings that would support the ruling when the evidence supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 818B19 (Tex. Crim. App. 2006). We give almost total deference to the trial court=s determination of historical facts, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant filed a motion to suppress prior to trial, which the court denied. At trial, when the State introduced the videotaped line-up into evidence, appellant stated, AWe have no objections, Your Honor.@ Because appellant affirmatively stated he had no objections, he failed to preserve error for review. When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object to the same evidence to preserve error. Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004). However, during trial, when a defendant affirmatively states that he has Ano objections@ to admission of the evidence, he waives error despite the pretrial ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Mikel v. State, 167 S.W.3d 556, 558 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Moreover, even if appellant had preserved error, the trial court did not err in denying his motion to suppress. In his motion, appellant argued that the videotaped line-up was inadmissible because he had been denied counsel prior to taping of the line-up. The right to counsel does not attach until initiation of adversary judicial proceedings including formal charge, preliminary hearing, indictment, information, or arraignment. Texas v. Cobb, 532 U.S. 162, 167‑68, 121 S.Ct. 1335, 1340, 149 L.Ed.2d 321 (2001). An arrest alone does not trigger the right. Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). Because no felony complaint or indictment had been filed on the aggravated robbery, appellant=s right to counsel had not yet attached on this charge. See id. Appellant argues he was entitled to counsel because the District Attorney=s filing of charges of interfering with public duties initiated adversary judicial proceedings. The Sixth Amendment guarantees a criminal defendant assistance of counsel at the initiation of adversary proceedings against him and at any subsequent Acritical stage@ of the proceedings. Estelle v. Smith, 451 U.S. 454, 469B70, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Thompson v. State, 93 S.W.3d 16, 23 (Tex. Crim. App. 2001). Not every event following the inception of adversary judicial proceedings constitutes a Acritical stage@ so as to invoke the right to counsel under the Sixth Amendment. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Green, 872 S.W.2d at 720. Whether a particular event is a critical stage depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. Green, 872 S.W.2d at 720. The proceeding at issue in this case involved only staging and videotaping of the line-up. A pre‑indictment videotaped line‑up made in the absence of witnesses, and shown to witnesses when the accused was not present either pre‑indictment or post‑indictment, does not constitute a critical stage so as to require the presence of counsel. Poullard v. State, 833 S.W.2d 270, 271B73 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). Therefore, appellant=s Sixth Amendment right to counsel was not violated. Appellant=s first issue is overruled. III. Ineffective Assistance of Counsel In his second issue, appellant contends trial counsel rendered ineffective assistance when she failed to object to evidence that appellant initially refused to participate in the videotaped line-up. Officer Hooper testified that appellant refused to participate in the videotaped line-up three times, and that appellant did not agree to participate until charges of interfering with public duties were filed. Appellant=s trial counsel did not object to Officer Hooper=s testimony. To prevail on an ineffective‑assistance claim, an appellant must prove by a preponderance of the evidence that: (1) counsel=s performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume that trial counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy, unless that presumption is rebutted. See id. at 813B14; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This standard has never been interpreted to mean that the accused is entitled to errorless or perfect counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). When reviewing a claim of ineffective assistance, we look to the totality of the representation and not to isolated instances of error or to only a portion of the trial record to determine that the accused was denied a fair trial. Thompson, 9 S.W.3d at 813. A claim for ineffective assistance of counsel must be firmly supported in the record. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When, as in this case, there is no evidentiary record developed at a hearing on a motion for new trial, it is difficult to show that trial counsel=s performance was deficient. See id. at 833. Trial counsel may have had a specific strategy for her conduct, and a reviewing court may not speculate on trial counsel=s motives in the face of a silent record. Thompson, 9 S.W.3d at 814. On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An attorney=s decision whether to object is inherently tactical. See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.CFort Worth 1997, pet. ref=d). Where the record is silent regarding the reasons for counsel=s decisions, an appellant cannot overcome the presumption that his attorney rendered adequate assistance. Bone, 77 S.W.3d at 833. Here, the reasons for counsel=s decisions are not demonstrated in the record. Evaluating the attorney=s choices made during trial would require us to second-guess her strategy through hindsight, an exercise that cannot support a finding of ineffective assistance. Consequently, appellant has failed to overcome the presumption that his attorney=s assistance was reasonable.[2] Appellant=s second issue is overruled. IV. Body Tattoos In his third issue, appellant contends the trial court erred in denying his request to show the jury his body tattoos. At trial, Mrs. Duvall testified that the person who robbed them was shirtless, and she did not notice any tattoos on his body. Prior to the close of the State=s evidence, appellant asked to stand before the jury without his shirt to show them his body tattoos. Appellant argued the evidence was relevant to show that Mrs. Duvall mistakenly identified him as the robber because she testified that she did not notice any tattoos. The State objected to appellant showing the jury his tattoos because there was no evidence that he had acquired the tattoos before the robbery. Appellant argued that he had been incarcerated from the day after the robbery until the day of trial and the tattoos were Aobviously professional,@ so it was clear that the tattoos were acquired prior to the robbery. The trial court held that appellant would be permitted to show his tattoos if he testified, or otherwise presented evidence, as to when he acquired them. Appellant did not testify as to when he acquired the tattoos, nor did he introduce other evidence on the issue. Whether evidence is admissible lies within the discretion of the trial court and its decision will not be overturned absent a clear abuse of discretion. Sorto v. State, 173 S.W.3d 469, 491 (Tex. Crim. App. 2005). Courts have broad discretion in deciding if the proper predicate has been laid for the admission of evidence. Baker v. State, 879 S.W.2d 218, 220 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). Demonstrative evidence must be properly authenticated and identified before it is admissible. Id. Visual, real or demonstrative evidence is admissible if it tends to solve an issue in the case and is relevant. Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Because appellant=s counsel failed to lay any predicate regarding the inception of appellant=s tattoos, the existence or non-existence of appellant=s tattoos was not relevant to identification. Therefore, the trial court did not abuse its discretion in disallowing the evidence. In addition to whether appellant committed the necessary elements of each charged offense, his identity was a relevant issue in this case. Mr. Duvall identified appellant in a videotaped line-up and in court. Mrs. Duvall did not recall seeing any tattoos on appellant. However, it would be improper for appellant to show his tattoos to the jury without an explanation as to when the tattoos were acquired. This explanation could have been satisfied through the cross‑examination of appellant, or from another witness with personal knowledge of the relevant facts. Appellant presented neither. Without a proper predicate, the proffered evidence was not relevant and was more prejudicial than probative. Appellant=s third issue is overruled. The judgment of the trial court is affirmed. /s/ Charles Seymore Justice Judgment rendered and Memorandum Opinion filed December 16, 2008. Panel consists of Justices Yates, Seymore, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Officer Hooper showed the photo arrays to the Duvalls separately so as not to taint the other=s potential identification. [2] The State argues that counsel did not render ineffective assistance because evidence that appellant refused to participate in the line-up is admissible as evidence of his consciousness of guilt. In support of its argument, the State cites several out-of-state cases that have found similar evidence admissible. See Commonwealth v. Johnson, 668 A.2d 97, 106B07 (Pa. 1995); People v. McGee, 614 N.E.2d 1320, 1324B26 (Ill. App. 1993); People v. Huston, 210 Cal.App.3d 192, 216B18 (4th Dist. 1989). The State admits, however, that Texas courts have not squarely addressed this issue. Because it is not necessary to the disposition of this appeal, we decline to speculate as to whether evidence of appellant=s refusal to participate in the line-up would be admissible in Texas.