Arnold, Anthony Charles v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANTHONY CHARLES ARNOLD, )

) No. 08-01-00298-CR

Appellant, )

) Appeal from the

v. )

) 238th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-26,194)

)

O P I N I O N

Anthony Charles Arnold was originally indicted for aggravated sexual assault and aggravated kidnapping. Enhanced charges were later sought on two prior charges for possession of cocaine with intent to distribute and Appellant was re-indicted. Appellant pled true to the enhancement paragraphs. The jury found him guilty and the judge sentenced him to life imprisonment in the Texas Department of Criminal Justice. Appellant now brings six issues in this appeal. We affirm.

The victim, C.K. went with friends to a Midland bar called The Ranch. They had a few beers on the way and more at the bar. Appellant approached C.K. and her friends and introduced himself as T-bone. He offered them cocaine, and tried to get them to dance with him. The women tried to ignore him.

About 12:30 a.m., C.K. went outside to get fresh air and her cigarettes from the car. As she walked to the car, Appellant grabbed her from behind and dragged her to his car. C.K. was intoxicated and unable to forcefully resist.

As they drove away from the bar, Appellant reached into his backseat and threw some type of powder into her face that burned her mouth and nose. She later realized it was detergent. When the car slowed on a dark road, C.K. jumped out and tried to run away. Appellant chased her down, and tackled her into the bar ditch along the road. Appellant sexually assaulted C.K., but was unable to maintain an erection and never ejaculated. Frustrated, Appellant said his name was Craig, ran back to his car and drove away.

C.K. walked to a nearby house and, at about 1:45 a.m., the police were called. Other officers were dispatched to the Ranch bar, after C.K.=s friends reported that she was missing. Two of her friends accompanied the officers to the house where C.K. was being questioned. C.K. told the police how she was abducted and raped. She described her assaillant as a black male, 5'10" in height, heavy set, wearing a white or light colored shirt, khaki shorts, a light colored (golf style) straw hat, and said that the name he gave her at the bar was T-Bone. She described his car as a dark colored Geo Metro hatchback.

A radio dispatch of the assailant=s nickname and description was monitored by an officer who recognized the name. The name AT-Bone,@ was on a list they maintained in their vehicles. They went to Appellant=s house to question him. Appellant answered the door in shorts and no shirt. A tattoo of Appellant=s nickname, T-Bone, was visible on his back. He said that he had been at the bar, the Ranch that evening. He said that he only been home for about thirty minutes before the police arrived. Appellant became argumentative so he was handcuffed and placed in the backseat of one of the police vehicles. The officers continued to talk with Appellant=s wife at the residence while other officers went to obtain a search warrant.

C.K. was driven to Appellant=s house. She immediately recognized the car in Appellant=s driveway as the car in which she had been abducted. Appellant was taken out of the police car and stood up in front of the headlights. The officers had Appellant speak so that C.K. could hear his voice. She immediately identified him as her assailant. Appellant was placed under arrest.

After Appellant was arrested, his car was impounded. Fingerprints were taken and photos were made of Appellant=s vehicle. A box of laundry detergent and a CD were found in the backseat of the vehicle. C.K.=s fingerprints were discovered on the front windshield of Appellant=s car. A few days later, her watch was found where she was assaulted.

Cliff Hardwick was appointed as Appellant=s counsel. Teresa Clingman was the assistant District Attorney on the case. Ms. Clingman originally made a written plea bargain offer of twenty-five years. It was negotiated down to fifteen years. A week later, Ms. Clingman learned that Appellant had prior felony offenses and a prior sexual assault arrest so she retracted the plea offer of fifteen years. After seeking enhanced charges, she made another plea bargain offer of forty years. Mr. Hardwick was later removed from the case and the court appointed John Roosa and Raymond Fivecoat.

Appellant=s first four issues assert that his pretrial attorney and his trial attorney both provided ineffective assistance of counsel. We will address all four points together.

Standard of Review

The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two step analysis adopted by the United States Supreme Court in Strickland v. Washington.[1] See Hernandez v. State, 988 S.W.2d 770, 771 72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as the Acounsel@ guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney=s representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771.

Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App. -El Paso 1997, no pet.). Allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Calderon, 950 S.W.2d at 126. When a claim of ineffective assistance of trial counsel is reviewed by this Court, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.

Appellant first argues he received ineffective assistance of counsel from his pretrial counsel, Cliff Hardwick, because he failed to advise him of either the twenty-five-year or

fifteen-year plea offers made by the State on the original indictment. Appellant claims that if he had known about the deal he would have accepted the offer. Where defense counsel has failed to inform a criminal defendant of plea offers made by the State, the defendant is prejudiced by the missed opportunity of accepting such bargain and presenting it to the trial court for consideration in sentencing. Ex parte Lemke, 13 S.W.3d 791, 796 (Tex.Crim.App. 2000). Where the defendant has been prejudiced by counsel=s failure to convey a plea bargain offer, the appropriate remedy is to reinstate the original offer. Id. at 798. The State may, however, demonstrate that intervening circumstances have so changed the factual premises of its original offer that with just cause, it would have modified or withdrawn its offer prior to its expiration date. Id.

The record clearly reflects an intervening and evolving knowledge of Appellant=s criminal history that changed the factual premises of its original plea offer of twenty-five years. The original plea offers were withdrawn with just cause. See Ex parte Lemke, 13 S.W.3d at 796. Appellant has failed to show that counsel=s performance was deficient or that the results of the proceedings would have been different. We overrule Issue One.

Appellant next complains that trial counsel failed to cross-examine two witnesses. The State called Glenda Hyatt as the first punishment witness. She testified that Appellant sexually assaulted her 1997, in a similar manner to the facts of this case. Appellant was found guilty in that case for the offense of sexual assault and theft. The State next called Detective Sheldon Johnson, who investigated the Hyatt sexual assault. He testified as to that investigation.

The record does not show why trial counsel did not cross-examine either witness. Yet, it is well settled that the decision of whether to cross examine a witness is a matter of trial strategy. Valdes Fuerte v. State, 892 S.W.2d 103, 111 (Tex.App.--San Antonio 1994, no pet.). Appellant has simply not overcome the strong presumption of counsel=s competence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Moreover, Appellant has failed to demonstrate prejudice resulting from the lack of cross examination. He has not shown what evidence would have come before the jury as a result of such inquiries, whether that evidence would have affected Hyatt=s or the detective=s credibility, or that the result of the proceedings would have been different. Id. at 812. We overrule Issue Two.

Appellant also complains that trial counsel was ineffective for not objecting to the

in-court identification of Appellant and for failure to renew Appellant=s motion to suppress the pretrial identification. Appellant also argues that his counsel was ineffective for failing to object to the pretrial identification because the identification was tainted and was unduly suggestive. We set aside a conviction based on an in court identification only when the in court identification was the result of a pretrial identification procedure that was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001); Wilson v. State, 15 S.W.3d 544, 552 (Tex.App.--Dallas 1999, pet. ref=d). We evaluate whether the pretrial procedure fatally tainted the in court identification by reviewing the totality of the surrounding circumstances. Conner, 67 S.W.3d at 200; Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App. 1983); Wilson, 15 S.W.3d at 552.

The Texas Court of Criminal Appeals has outlined five nonexclusive factors that should be weighed against the corrupting effect of any suggestive identification procedures 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=s degree of attention; (3) the accuracy of the witness=s 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. Loserthv. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998); Wallace v. State, 75 S.W.3d 576, 585 (Tex.App.--Texarkana 2002), aff=d, 2003 W.L. 21884324 (Tex.Crim.App. 2003). A[I]f the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed >reliable= . . . .@ Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988).

The evidence shows that in her 911 call, C.K. described the suspect as a black male, in his twenties, about 5'9" to 5'10" tall, heavy set, muscular, wearing a white or light colored

T-shirt, Khaki shorts, and a straw golfer=s hat. The nickname T-Bone was given in the description. The vehicle description was a dark colored Geo Metro hatchback. The officers had a list of nicknames provided by the Investigative Service Bureau in their vehicles that they used to determine that T-Bone was a name often used by Appellant. The date of birth and the description of the suspect on their list matched the description given by C.K.

Less than an hour after C.K. was sexually assaulted, the officers arrived at Appellant=s house. A green Geo Metro hatchback was parked in the driveway at Appellant=s home. The hood of the vehicle still felt warm to the touch.

About two-hours after the sexual assault, C.K. was driven to the Appellant=s house. She immediately recognized the car in the driveway as the one used by the Appellant, and she recognized the Appellant as the man who abducted and sexually assaulted her.

C.K. had ample time to view her attacker before and during the commission of the crime. She had been approached by him at the bar, she was pulled by him into his car, and then sexually assaulted by him. Though she was intoxicated, there was no evidence that she was so intoxicated that she lacked the mental faculties to identify the Appellant. She was able to give police a detailed description of Appellant=s car, his clothing, his race, his height, his age, and physique. C.K. was also able to identify Appellant at trial. Therefore, examining the totality of the circumstances, we do not believe that the pretrial identification procedure was impermissibly suggestive or that there was a very substantial likelihood of misidentification. Wallace, 75 S.W.3d at 584. Accordingly, we hold Appellant=s counsel did not render ineffective assistance by failing to object to C.K.=s in-court identification or in choosing not to renew Appellant=s motion to suppress the pretrial identification of Appellant. We overrule Issue Three.

Finally, Appellant contends that trial counsel was ineffective in waiving objections preserved by the pretrial motion to suppress evidence. He argues his counsel=s failure to make an objection during trial amounted to ineffective assistance. The pretrial motion requested the suppression of all evidence seized as a result of the detention of Appellant at his residence, any statement made by Appellant, and any evidence seized as a result of the search warrant issued for the search of Appellant=s vehicle. Appellant argues that no objections were made when the following were introduced: C.K.=s fingerprints on Appellant=s vehicle; the photographs of the box of Cheer laundry detergent that was in the backseat of Appellant=s vehicle; the khaki shorts seized from Appellant=s residence; and the straw golf hats seized from the residence. Appellant concedes that the only real issue was whether the evidence seized was beyond the scope of the warrant.

After Appellant was arrested, his vehicle was impounded. A search warrant was obtained for both the house and the vehicle. After making a lawful arrest, an officer may search a suspect=s vehicle for the purpose of taking an inventory. Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987); Stephen v. State, 677 S.W.2d 42, 44 (Tex.Crim.App. 1984); Backer v. State, 656 S.W.2d 463, 464 (Tex.Crim.App. 1983). Impoundment of a vehicle is proper when the vehicle has been used in the commission of a crime. Lagaite v. State, 995 S.W.2d 860, 865 (Tex.App.--Houston [1st Dist.] 1999, pet. ref=d).

Because the search warrant included the Appellant=s vehicle and items concealed within and the vehicle was impounded after Appellant=s arrest and it was used in the commission of the crime, we find that Appellant=s argument that the search of the car went beyond the scope of the warrant is without merit. Therefore, we conclude that there was no ineffective assistance of counsel by not objecting to such evidence presented. We overrule Issue Four.

Pretrial Identification

With his fifth issue, Appellant argues the pretrial identification was unnecessarily suggestive or conducive to irreparable misidentification and should have been suppressed. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1982)(Opin. on reh=g).

An on-the-scene identification possesses a degree of suggestiveness, and under certain circumstances may amount to a denial of due process. Garza, 633 S.W.2d at 512. However, the admission of evidence of a one person show-up, without more, does not violate due process. Id. On appeal, we examine the totality of the circumstances in any case to determine if due process has been violated. Garza, 633 S.W.2d at 512-13; Armsteadv. State, 677 S.W.2d 266, 270-71 (Tex.App.--El Paso 1984), pet. ref=d, 692 S.W.2d 99 (Tex.Crim.App. 1985). The key factors used in considering the circumstances include: (1) the witness=s opportunity to view; (2) the witness=s degree of attention; (3) the accuracy of the description; (4) the witness=s level of certainty; and (5) the time between the crime and the confrontation. Id.

Based on the evidence presented, we cannot say that the procedure used in this case was impermissibly suggestive. The victim, C.K., was able to clearly view Appellant before the crime occurred, during the sexual assault and kidnapping, and at the show-up. Her description of Appellant before the show-up was detailed, as was her description of the vehicle. There was no uncertainty in C.K.=s identification of Appellant. The time that elapsed between crime and confrontation was only approximately one hour. All of these factors support the trial court=s conclusion that C.K.=s identification of Appellant was not unduly suggestive. No error is shown. We overrule Appellant=s fifth issue

The Re-Indictment

In Issue Six, Appellant contends that the court erred in failing to set aside the

re-indictment, dismiss the prosecution, and order him to be discharged. The presentment of the indictment was made on September 7, 2000. The re-indictment was made on April 5, 2001. On April 11, 2001, Appellant filed a motion to set aside the indictment. He alleged that the

re-indictment was issued in violation of Tex.Code Crim.Proc.Ann. art. 32.01 and was a due process violation. All of theses motions were denied by the trial court. Tex.Code Crim.Proc.Ann. art. 32.01 (Vernon Supp. 2003).

If a prosecution of a defendant is dismissed under Article 32.01, the defendant may be rearrested for the same criminal conduct alleged in the dismissed prosecution only upon presentation of indictment or information for the offense and the issuance of a capias subsequent to the indictment or information. See Tex.Code Crim.Proc.Ann. art. 15.14 (Vernon Supp. 2003). In addition, the Texas Court of Criminal Appeals has recently held that Article 32.01 is not applicable once an indictment or re-indictment has been returned. Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App. 1999); citing Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App. 1974); Smith v. State, 998 S.W.2d 683, 694 (Tex.App.--Corpus Christi 1999, pet. ref=d). Since Appellant was already indicted, his contention under this final point of error must fail. We find that the court was proper in its denial of these motions, that Article 32.01 has no application after the re-indictment was presented. Issue Six is overruled.

Having overruled all six issues on appeal, we affirm.

June 27, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).