Ethridge, Michael Andrew v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed June 30, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00245-CR

NO. 14-04-00246-CR

NO. 14-04-00247-CR

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MICHAEL ANDREW ETHRIDGE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 965,218; 965,254 & 965,255

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M E M O R A N D U M O P I N I O N

Appellant Michael Andrew Ethridge was convicted by a jury of two counts of aggravated robbery and one count of theft from a person. He was sentenced to life in prison for each of the aggravated robbery charges and to two years for the theft charge, plus a $10,000 fine for each of the three offenses. Appellant argues in two issues that he received ineffective assistance of counsel. We affirm.

On August 23, 2003, appellant rang Pamela Lindsey=s doorbell, forced his way into her home, and took her purse and wedding ring while threatening her with a gun. About one month later, appellant robbed Andrea White at gunpoint as White was getting into her car in her driveway. In October of 2003, appellant grabbed Kathleen Rogers=s purse as she got out of her car in her driveway. Rogers called the police; appellant was quickly apprehended and identified by Rogers. After appellant=s arrest, Lindsey and White each identified appellant in a lineup.

In two issues, appellant complains that he received ineffective assistance of counsel. Ineffective assistance claims are governed by the now familiar two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) prejudice, or that the result of the proceeding would have been different but for trial counsel=s deficient performance. Id. at 687B96;Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, A>any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.=@ Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Without specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14 (noting that when the record contains no explanation for counsel=s decisions, an appellate court should be hesitant in deciding whether the Amotivation behind counsel=s actions@ was Aof strategic design or the result of negligent conduct@).

In his first issue, appellant argues that he received ineffective assistance of counsel due to his counsel=s failure to challenge the manner in which appellant was identified by Rogers. The allegedly improper Ashow-up@ occurred after appellant had been stopped. After Deputy Constable Leonard Crouch arrived at Rogers=s house in response to Rogers=s call to police, he obtained a description of appellant and broadcast that description over his police radio. A car containing three people, including appellant, was soon stopped by another constable. Deputy Crouch drove Rogers to the scene of the traffic stop. Each individual was brought out of the police car so that Rogers could see him or her, and Deputy Crouch then asked Rogers if she recognized any of the people. Rogers identified appellant as the man who stole her purse. Appellant argues that this procedure was impermissibly suggestive.

During appellant=s testimony, he admitted that he stole Rogers=s purse. Without commenting on the appropriateness of the identification procedure employed by the constables, we find that it was reasonable trial strategy for counsel not to challenge the identification when counsel likely knew that appellant would take the stand and admit to taking Rogers=s purse. Further, appellant clearly was not prejudiced by counsel=s decision not to challenge the identification when appellant admitted the theft of Rogers=s purse. See Strickland, 466 U.S. at 694B95. Accordingly, appellant=s first issue is overruled.

In his second issue, appellant contends that he received ineffective assistance of counsel due to counsel=s failure to challenge the lineup employed for the two aggravated robbery charges. Appellant argues that the lineup was impermissibly suggestive because of the large difference in height between the seven members of the lineup.

A lineup is considered impermissibly suggestive if other participants in the lineup are greatly dissimilar in appearance from the suspect. Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height, or age. Id. Minor differences in appearance, however, will not render a lineup impermissibly suggestive. Id.

Our viewing of the videotaped lineup in the instant case indicates that the lineup consisted of seven men, their heights ranging from approximately five feet ten inches to six feet five inches. All seven men were African-American; all were similarly dark-complected; and all had either a slender or medium build. It is true that appellant, at six feet five inches, was the tallest member of the lineup, but two of the other men, at six feet four inches, were within one inch of appellant, and at least one of the other men was six feet tall. Further, Lindsey emphasized in her testimony that she identified appellant in the lineup because of something distinctive about his eyes, not his height. White said that she recognized appellant immediately and that she did not really rely on height or size in making the identification. Accordingly, we find that the lineup here was not impermissibly suggestive. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995) (finding that a lineup was not impermissibly suggestive where Athere was a discrepancy in heights of the five participants of several inches@ and where witnesses=testimony indicated that height did not influence their identifications).

Because we find that the lineup was not impermissibly suggestive, appellant=s counsel was not ineffective for failing to challenge the identifications that resulted from it. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) (failing to object to admissible evidence does not constitute ineffective assistance). Accordingly, we overrule appellant=s second issue.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 30, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).