Gari Manfredo Chacon v. State

Affirmed and Memorandum Opinion filed April 1, 2008 Affirmed and Memorandum Opinion filed April 1, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00228-CR ____________ GARI MANFREDO CHACON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1102782 M E M O R A N D U M   O P I N I O N A jury found appellant, Gari Manfredo Chacon, guilty of aggravated robbery and assessed punishment at 60 years= imprisonment and a $10,000.00 fine. On appeal, appellant raises the following three issues: (1) the trial court erred in denying his motion to suppress a pretrial line-up identification because it was impermissibly suggestive; (2) the evidence is legally and factually insufficient to uphold his conviction; and (3) appellant received ineffective assistance of counsel because his trial attorney failed to object to evidence that a third person viewed the pretrial line-up. We affirm. BACKGROUND On November 15, 2004, two men robbed Karen Carnes and her fiancé, Christopher Martin, in their apartment. Carnes discovered the first intruder in her hallway. Wearing a bandana across his face, the intruder pointed a gun at Carnes, told her he was robbing her, and pulled her into the back bedroom. The second intruder, wearing a hooded shirt and baseball cap, tied Carnes= wrists together behind her back and bound her ankles. She was gagged, and her head was covered with a towel. Martin was forced into the back bedroom as well at gunpoint by the first intruder and at knife point by the second intruder; he was pushed to the floor and bound at his wrists and ankles with electrical cords. The intruders then left the couple in the back bedroom and ransacked the apartment in search of valuables. Over the next twenty minutes, Martin began to untie himself. He was caught by one of the intruders, who then Ahogtied@ Martin by tying his wrists to his ankles and ankles to the door. While retying him, the intruder said AOh, you=re good. You almost got free.@ Carnes later removed the towel from her head and observed the first intruder, whom she identified as appellant. He had removed the bandana from his face. Carnes was startled by his appearance because he had a striking resemblance to her brother. Carnes observed appellant for one to two minutes while he was standing in the hallway eating. During the course of the robbery, the intruders repeatedly asked the couple for money. While the assailants spoke to Carnes and Martin in English, they spoke to one another in Spanish. When the intruders left after two hours, they took valuables belonging to Carnes and Martin, including various electronics and jewelry. The couple then managed to untie their restraints and called the police. Ten days later, appellant and the second intruder were arrested for an unrelated burglary at a nearby habitation. In February 2005, Carnes, Martin and Wesley Hocutt were asked to view a line-up.[1] Detective James Taylor of the Houston Police Department testified that the three witnesses jointly viewed the line-up in one room with him. After the viewing, Detective Taylor interviewed each witness separately.[2] Carnes immediately identified appellant, who strongly resembled her brother. Martin identified appellant by his voice based on a series of verbal responses made by the suspects during the line-up; he remembered appellant=s voice as the voice demanding money during the robbery. Appellant was arrested and charged by indictment with aggravated robbery for the November 15, 2004 incident. A jury found appellant guilty and assessed punishment at 60 years= imprisonment and a $10,000.00 fine.[3] PRETRIAL LINE-UP IDENTIFICATION In appellant=s first issue, he alleges that the trial court erred in denying his motion to suppress evidence because the pretrial line-up identification procedure was impermissibly suggestive. In this two-fold argument, appellant complains that the pretrial line-up procedure was unduly suggestive because: (1) appellant, unlike three other participants, required a translation and (2) three witnesses viewed the line-up together in one room. A pretrial identification procedure may be so suggestive and conducive to misidentification that use of the identification at trial would deprive the defendant of due process. Simmons v. U. S., 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). In reviewing whether the trial court erred in denying a motion to suppress a pretrial identification, we ask (1) whether the out-of-court procedure was impermissibly suggestive; and, if so, (2) whether the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33. We consider the following factors in determining whether a very substantial likelihood of irreparable identification has occurred: (1) the witness= opportunity to view the criminal act; (2) the witness= degree of attention; (3) the accuracy of the suspect=s description; (4) the level of certainty at the time of confrontation; and (5) the time between the crime and confrontation. Id. at 34-35. In applying this analysis, we view the totality of the circumstances and make a determination as to the reliability of the identification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001). Appellant has the burden to show by clear and convincing evidence that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). The admissibility of an identification is a mixed question of law and fact which we review de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Appellant complains of a line-up conducted at the Harris County Jail in which he and four other Hispanic males participated. Prior to conducting the line-up, Detective Taylor spoke with the five participants outside the line-up room and told them he would be giving two sets of instructions during the line-up: they would be asked to state their individual ages, weights, and heights and to repeat three specific phrasesB AGive me the money,@ AOh, you=re good,@ and AI=m sorry, I=m sorry.@ After this discussion, Detective Taylor walked the participants into the room and began the line-up with his instructions. The participants were first instructed to state their individual ages, weights, and heights, turn around, and move their heads up and down and side to side. Participant one had apparent difficulty understanding the instructions in English. To assist, one of the other participants translated the instructions from English to Spanish. Participant one then responded in English. Participants two through four responded in English. Participant five, identified as appellant, also had apparent difficulty understanding the instructions given by Detective Taylor in English. One of the other participants translated the instructions from English to Spanish. Appellant then responded in Spanish.[4] The participants were then asked to repeat the phrases, AGive me the money! Oh, you=re good! I=m sorry, I=m sorry!@ All participants, including appellant, immediately responded in English. Like appellant=s weight, height, and age, his voice is an identifying physical characteristic. See U.S. v. Wade, 388 U.S. 218, 222-23 (1967). Physical characteristics, such as one=s voice, need not be identical in a line-up. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). The fact that appellant responded partially in Spanish does not single him out and does not impermissibly suggest identification. All participants were required to repeat the same phrases, and appellant was not the only individual assisted with a translation. Moreover, both witnesses identified appellant without any prompting or reinforcement. Carnes testified that she immediately identified appellant because he strongly resembled her brother. Martin testified that he identified appellant by his voice. Martin remembered appellant=s voice as the voice demanding money the night of the robbery. Additionally, all participants were Hispanic, of the same weight, height, and age, and in the same clothing.[5] Appellant also argues that the witnesses possibly spoke with one another during the viewing because they were in a small room. However, the record does not affirmatively show any verbal or nonverbal communication between the witnesses during the viewing. Moreover, the fact that witnesses jointly viewed a line-up, in and of itself, is not impermissibly suggestive. See Hughes v. State, 962 S.W.2d 689, 696 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d). Here, Detective Taylor, who was in the room with the witnesses during the viewing, testified that the witnesses did not speak with each other about possible suspects. Detective Taylor also testified that he interviewed each witness separately. Carnes and Martin testified that they did not speak to anyone regarding the identification during the viewing and were interviewed separately. Accordingly, the trial court did not abuse its discretion in holding that the out-of-court identification procedures were not impermissibly suggestive and did not cause the witnesses to misidentify appellant. Because the identification procedure is not impermissibly suggestive, we need not determine whether it created a substantial likelihood of misidentification. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). We overrule appellant=s first issue. LEGAL AND FACTUAL INSUFFICIENCY In appellant=s second issue, he argues that the identity evidence is legally and factually insufficient to uphold his conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). When reviewing the factual sufficiency of the evidence to support a conviction, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414‑15 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Additionally, we give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8-9. Two eyewitnesses, Carnes and Martin, positively identified appellant as one of the intruders in the November 15, 2004 robbery. They made these identifications by recognizing appellant=s face and voice. Because the intruders covered their faces, appellant challenges the witnesses= ability to make an identification. Specifically, appellant argues that Carnes= and Martin=s identifications are unreliable because: (1) Carnes was face down when the intruders committed the crime and (2) the faces of the intruders were covered during the course of the robbery.[6] After reviewing the evidence under the applicable standards of review, we hold that a rational trier of fact could have concluded beyond a reasonable doubt that appellant was one of the intruders. Additionally, we hold that the evidence is not so weak as to be against the great weight and preponderance of the evidence. Carnes testified that she was able to immediately identify appellant in the line-up and subsequently in court because he strongly resembled her brother. Although the first intruder initially covered a portion of his face with an bandana, Carnes testified that he later removed the bandana, exposing his entire face. Carnes testified that she then turned her head and had an opportunity to observe the first intruder for one to two minutes. Furthermore, Martin testified that he recognized appellant=s voice during the line-up as the same voice demanding money during the robbery. Carnes and Martin testified that the intruders asked for money throughout the robbery, giving Martin ample opportunity to hear and remember the voice. Martin testified that he specifically remembered the way appellant said money because of his Spanish accent and emphasis on the letter Ao.@ See McInturf v. State, 544 S.W.2d 417, 419 (Tex. Crim. App. 1976) (holding that voice identification constitutes direct evidence); Terrell v. State, 766 S.W.2d 561, 564 (Tex. App.CBeaumont 1989, no pet.) (stating that voice identification is sufficient, in and of itself, to prove identity); Williams v. State, 747 S.W.2d 812, 813 (Tex. App.CDallas 1986, no pet.) (recognizing that voice identification, based on statements made during the crime, is sufficient to identify defendant as assailant). Appellant also assumes that he was the only line-up participant with a Spanish accent. However, appellant cites to no evidence in the record supporting this assumption. But see Davis v. State, 180 S.W.3d 277, 284-85 (Tex. App.CTexarkana 2005, no pet.) (holding that the line-up procedure was not impermissibly suggestive where only two voices were presented for witness identification). We also note that participant one received the same translation as appellant. Having found both identifications proper and reliable, we hold that the identity evidence is legally and factually sufficient to support appellant=s conviction. We overrule appellant=s second issue. INEFFECTIVE ASSISTANCE OF COUNSEL In appellant=s third issue, he alleges that he received ineffective assistance of counsel because his trial attorney failed to object to evidence of a third person who viewed the pretrial line-up. To prove ineffective assistance of counsel, appellant must demonstrate that his counsel=s performance was deficient because it fell below an objective standard of reasonableness, and there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003). Here, appellant did not allege ineffective assistance in a motion for new trial, and the record contains no explanation for counsel=s conduct. We may therefore reverse only Aif the conduct was so outrageous that no competent attorney would have engaged in it.@ Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Appellant alleges that his trial counsel rendered ineffective assistance because he failed to object to Detective Taylor=s testimony that he contacted Hocutt to view the line-up. The complained-of testimony is as follows: The State: Who did you contact to show this lineup to? Officer Taylor: I contacted Karen Carnes, Thomas Martin, and Wesley Hocutt. The State: Okay. Let=s talk about Karen Carnes and Chris Martin. Those were the complainants B listed complainants in the aggravated robbery that took place on November 15, 2004, correct? Officer Taylor: Yes, sir. Hocutt=s name was not mentioned thereafter. According to appellant, the isolated mention of Hocutt=s name was evidence of an extraneous offense because a reasonable juror could surmise that Hocutt was there to view the line-up as a victim of another offense in which appellant was involved. We disagree. Officer Taylor=s statement that he contacted Hocutt to view the line-up is not evidence that appellant had committed an extraneous offense. In fact, the trial court explicitly suppressed all evidence of other burglaries, and there is no evidence in the record that either party violated this evidentiary ruling. Furthermore, there may have been strategic reasons for not objecting to Officer Taylor=s response; however, we may not speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 814. We cannot say that defense counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@ See Garcia, 57 S.W.3d at 440. We overrule appellant=s third issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed April 1, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). 1 Hocutt was a witness in an unrelated burglary in which appellant was a suspect. 2 Although Detective Taylor testified that the three witnesses jointly viewed the line-up and were interviewed separately, Carnes and Martin testified that they viewed the line-up separately and were interviewed separately. 3 A person commits aggravated robbery when he exhibits a deadly weapon in the course of committing theft of property and has the intent to obtain and maintain control of the property. Tex. Penal Code Ann. '' 29.02, 29.03, 31.03 (Vernon 2003). 4 Although appellant had difficulty initially understanding the instructions in English, he appeared to have no difficulty understanding and responding to the instructions to move his head up and down and side to side. 5 We also note that Carnes testified that the intruders were bilingual, speaking to her and to Martin in English and to one another in Spanish. The argument that appellant spoke no English would tend to rule out his role as the intruder. 6 Appellant also argues that Martin=s identification is unreliable because he incorrectly testified that appellant had gray and black hair at the time of the robbery. However, this argument is irrelevant for purposes of identification because Martin identified appellant by his voice, not his physical appearance.