Brian Douglas Just v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-99-00711-CR

Brian Douglas JUST,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-1057-B
Honorable Sam Katz, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 1, 2000

AFFIRMED

Brian Douglas Just was charged with and convicted of burglary of a habitation. On appeal, Just argues he was denied effective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Just, a high school student, burglarized the home of Billy Snelling. On the day of the burglary, Snelling's neighbor, Karen Lotz, saw Just running from Snelling's house towards a drainage ditch carrying a rifle case. Lotz recognized Just as the person who occasionally mowed Snelling's lawn. Lotz later identified Just from a photographic line-up. Chris Howton, who knew Just from the neighborhood, also saw Just running in the drainage ditch with a rifle case in his hand shortly after the burglary. Just was charged with the offense of burglary of a habitation. At trial, a jury found Just guilty and the trial court sentenced him to five years probation, a $2,500 fine, and 180 days of electronic monitoring.

Discussion

In three points of error Just argues he was denied effective assistance of counsel. We disagree.

Standard of Review

In reviewing a claim of ineffective assistance of counsel, we follow the test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail, a defendant has the burden of showing by a preponderance of the evidence: (1) his trial counsel's performance was deficient, and (2) there is a reasonable probability that the outcome was different as a result of the deficient performance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This showing must be sufficient to overcome the strong presumption trial "counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment and sound trial strategy." Chavez v. State, 6 S.W.3d 56, 60 (Tex. App.--San Antonio 1999, pet. ref'd) (citing Strickland 466 U.S. at 689). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700.

Failure to File a Motion to Suppress

Just first argues the photo spread shown to Lotz was impermissibly suggestive. Therefore, Just contends, his trial counsel's failure to file a motion to suppress the identification and request a hearing on the issue constituted ineffective assistance of counsel. We disagree.

Even if we assume trial counsel's failure to file a motion to suppress Lotz's photo identification rose to the level of deficient performance under Strickland, the shortcoming was not outcome determinative. At trial, Lotz identified Just as one of the persons running out of Snelling's home on the day of the burglary. Lotz said she was only forty feet away from Just when she saw him and that she recognized him from the neighborhood as someone who did yard work for Snelling. Thus, the jury had credible identification evidence to consider with or without Lotz's prior photo identification. Just has therefore failed to meet prong two of the Strickland test. We overrule this point of error.

Failure to Quash Indictment

Just next contends trial counsel's failure to quash the indictment deprived him of effective assistance. Specifically, he claims Paragraph B of the indictment was legally insufficient because it failed to give him notice of specific property stolen. We reject this argument. The Texas Court of Criminal Appeals "has repeatedly held that an indictment for burglary as set forth in [section 32.02(a)(3)] . . . is not fatally defective because it fails to allege the owner, value, description, nature, etc., of the property which the accused allegedly intended to steal." DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988). Generally, an indictment only needs to track the language of the penal statute to be legally sufficient. Id. at 67. It is not necessary for the state to allege evidentiary facts. Id.

Here, Paragraph B tracks the language of section 30.02(a)(3) of the Texas Penal Code. See Tex. Pen. Code Ann. 30.02(a)(3) (Vernon Supp. 1999). Thus, the indictment was legally sufficient and trial counsel's failure to file a motion to quash the indictment did not deprive Just of effective assistance. See Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). Even if trial counsel had quashed the indictment and requested additional factual information to prepare a defense, the State could have amended the indictment to add the information omitted. DeVaughn v. State, 749 S.W.2d at 67. Therefore, Just has not shown "but for counsel's [failure to quash the indictment], the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Consequently, this argument is without merit and Just's second point of error is overruled.

Failure to Object to Inadmissible Hearsay

Just also complains he was deprived of the effective assistance of counsel because trial counsel failed to object to hearsay testimony linking him to the burglary. He argues the following hearsay testimony by Lotz is inadmissible because it does not fall within an exception to the hearsay rule:

STATE: ... when you went to [find] your son, did anyone mention seeing people running by?

LOTZ: Yes, sir; they did.

STATE: ... And did they know who that was?

LOTZ: Some of them said some names, a couple of them did.

STATE: What names did they say?

LOTZ: Brian Just and Garret Mercer.

The State, on the other hand, argues this testimony, while hearsay, falls under the present sense impression or excited utterance exceptions to the hearsay rule. See Tex. R. Evid. 803(1)-(2).

We decline to decide whether Lotz's testimony amounted to inadmissible hearsay. We also do not decide whether trial counsel's failure to file a motion to suppress the complained of testimony amounted to deficient performance because Just has failed to show the outcome of his trial would have been different as a result of the deficient performance. "A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other." Ladd v. State, 3 S.W.3d 547, 565 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 1680 (2000).

Here, both Lotz and Howton identified Just in court as the person they saw running with a rifle case in his hand the day of the crime. Lotz even identified Just as the person she saw leaving Snelling's home. Moreover, both recognized Just as someone who lived in their neighborhood and Howton knew Just's name and address. Thus, there would have been evidence of Just's identity even if trial counsel had objected successfully to any hearsay testimony by Lotz. We therefore overrule Just's final point of error.

The judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

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