Lewis Hawkins, Jr. v. The State of Texas--Appeal from 27th District Court of Bell County

lewis hawkins jr. IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-176-CR
LEWIS HAWKINS, JR.,
APPELLANT
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 38,986, HONORABLE STANTON B. PEMBERTON, JUDGE

Appellant, Lewis Hawkins, Jr., was convicted of burglary of a habitation. Tex. Pen. Code Ann. 30.02 (1989). The jury found the enhancement allegations to be true and assessed punishment at thirty years' imprisonment. Appellant raises two points of error complaining that the evidence was not sufficient and that he was denied the effective assistance of counsel at trial. We will affirm the conviction.

 
THE OFFENSE

In January 1990, a Killeen residence was burgled. The police investigator concluded that the burglars entered the house through the bathroom window. Evidence showed that six figurines, usually placed on the window sill, were found on the ground outside the bathroom window and muddy footprints were found inside the bathroom. The police found Hawkins' palm print on the inside window sill of the bathroom window. They also found the fingerprints of Kerwin Blue, Hawkins' companion on the night of the burglary, in the bathroom.

The circumstantial evidence on which Hawkins' conviction rests consists of: (1) expert testimony identifying Hawkins' palm print and Blue's fingerprints and footprints at the residence; (2) testimony that Hawkins' car was parked behind the residence at the time of the burglary; and (3) testimony that Blue and Hawkins were seen together near the burgled residence on the night of the burglary.

 
SUFFICIENCY OF THE EVIDENCE

Hawkins complains that the evidence was insufficient to establish that he left the palm print at the residence on the night of the burglary. He argues that the evidence did not exclude the reasonable hypothesis that he had, at some earlier time, been inside the residence and left his palm print on the painted window sill.

When reviewing the sufficiency of the evidence, be it direct or circumstantial, we must consider the evidence in the light most favorable to the verdict and limit our review to determining whether any rational trier of fact could have found, from the evidence presented, the elements of the charge beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Cr. App. 1989). We cannot sustain a conviction based on circumstantial evidence if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Goff v. State, 777 S.W.2d 418, 420 (Tex. Cr. App. 1989). The State need not present evidence excluding every conceivable hypothesis except that of the defendant's guilt; it must only exclude every reasonable hypothesis. Phelps v. State, 594 S.W.2d 434, 436 (Tex. Cr. App. 1980). "A hypothesis is reasonable only if it is consistent with the facts and circumstances proved." G.K.G. v. State, 730 S.W.2d 182, 184 (Tex. App. 1987, no pet.).

The mere "possibility" that a defendant's prints may have been left at a time other than the time of the burglary does not necessarily render the evidence insufficient to support a conviction. The evidence will still be sufficient to support the conviction when only highly unlikely possibilities could account for the innocent presence of the defendant's fingerprints. Phelps, 594 S.W.2d at 436.

Hawkins called several witnesses who testified that he had worked for them cleaning houses under construction or repair in the neighborhood of the burgled residence. The first witness owned a business subcontracting cleaning crews to several home-builders. This witness employed Hawkins until 1988. He believed that Hawkins continued to work with builders during 1988 but did not know if Hawkins was doing this same work in 1989. Moreover, he could not recall if his crews had worked on the residence in question. The owners of the burgled residence custom built the house and moved into it in June 1989. The first witness' testimony did not suggest a reasonable possibility that Hawkins had been inside the house before the burglary.

The second witness, a roofer, testified that as a member of his crews, Hawkins worked on new homes when the interior was under construction, well before the interior trim was in place or painted. This testimony presents no reasonable hypothesis that Hawkins left fingerprints on a painted surface in the burgled house in the course of his employment with the roofer.

The third witness, a construction contractor, testified that as a member of his cleaning crews, Hawkins conducted final "wipe-downs" of new residences after the completion of the interior painting. This witness testified unequivocally, however, that his construction company had never worked on the burgled residence. This testimony also presents no reasonable hypothesis that Hawkins had been inside the residence prior to the burglary.

The likelihood that the defendant had access to the fingerprinted surface is a critical factor in determining the sufficiency of fingerprint evidence. Phelps, 594 S.W.2d at 436. The homeowners did not know Hawkins and had never given him permission to enter their home. Although Hawkins had cleaned houses in the neighborhood, there was no evidence that Hawkins ever cleaned the burgled residence. Based on the evidence, Hawkins' presence at the residence before the burglary was so unlikely that it does not represent a reasonable hypothesis inconsistent with the jury's guilty verdict. We conclude that under the circumstances of this case the palm print was sufficient evidence to support the conviction.

Even if the palm print alone were insufficient to place Hawkins at the residence during the burglary, other evidence also links him to the scene. The car he was driving was parked at the vacant house behind the burgled residence around the time of the theft. That same evening witnesses saw Hawkins with Blue, an individual who left positively identified fingerprints and footprints at the residence. We conclude that a rational trier of fact could have found Hawkins guilty beyond a reasonable doubt. We overrule the first point of error.

 
INEFFECTIVE ASSISTANCE OF COUNSEL

In his second point of error, Hawkins complains that he was denied the effective assistance of counsel because his attorney did not object to, or move to suppress, the identification testimony given by Kenneth Gray, a witness for the state.

Kenneth Gray lived next door to the vacant house behind the burgled residence. He testified that on the night of the burglary, he saw two men outside the vacant house. One man was standing in front of a white station wagon parked near the vacant house. The station wagon was running and the headlights were on. The man repeatedly looked from side to side. A second man came out from behind the vacant house carrying a large box which he placed in the back seat of the station wagon. Gray asked his wife to call the police and then stepped outside to continue watching the two men. The two men checked under the hood of the car, then got inside and drove away. Gray testified that the man who carried the box sat in the passenger seat and nodded to him as they departed. At trial Gray identified Hawkins as this man.

On the day after the theft, the police investigator showed Gray two photos, one of Hawkins and one of Blue, and asked Gray if he could identify either as one of the two men he had seen at the vacant house. On cross-examination the investigator testified that Gray identified Hawkins as the man standing in front of the car, who then got into the driver's seat. This conflicted with Gray's testimony that Hawkins was the passenger.

After the investigator testified, Gray took the stand again. He testified that when he looked at the photos he identified Hawkins as one of the men standing in front of the car when the two men lifted the hood. He maintained that Hawkins was the man who carried the box and sat in the passenger seat. Gray also testified that the investigator never asked him who was driving the car.

Hawkins contends on appeal that the identification was tainted by an impermissible "photographic spread" which gave rise to a substantial likelihood of irreparable misidentification. Additionally, he points out that Gray's testimony is the only evidence, other than the palm print, placing Hawkins near the burgled residence. Hawkins argues that because Gray's trial testimony was inconsistent with the investigator's testimony relating Gray's statement as to who was driving the car, and because the photo array was impermissibly suggestive, trial counsel's failure to object to or to move to suppress Gray's identification was an omission so substantial as to render counsel's assistance ineffective.

The right to effective assistance of counsel merely ensures the right to reasonably effective assistance. Ex Parte Duffy, 607 S.W.2d 507, 516 (Tex. Cr. App. 1980). This is not a promise of errorless counsel whose competency is judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Cr. App. 1984). We must be highly deferential in scrutinizing counsel's performance to eliminate the distorting effects of hindsight. Strickland v. Washington, 466 U.S. 668, 689 (1984).

The Court of Criminal Appeals has adopted the test set forth in Strickland to determine the validity of an ineffective assistance claim. Holland v. State, 761 S.W.2d 307, 314 (Tex. Cr. App. 1988), cert. denied, 489 U.S. 1091 (1989); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Cr. App. 1986). A convicted defendant must show, first, that trial counsel's performance was deficient in such a manner as to render it not reasonably effective, and second, that the deficient performance so prejudiced the defense that the defendant was deprived of a fair trial. Holland, 761 S.W.2d at 314. This court must determine whether, in light of all the circumstances, the attorney's omission was outside the wide range of professionally competent assistance. Id.

Although the photo-spread consisting of only the defendant's and his companion's pictures is highly suggestive, we must examine the totality of the circumstances to determine if the photo-spread gave rise to a substantial likelihood of irreparable misidentification. Madden v. State, 799 S.W.2d 683, 695 (Tex. Cr. App. 1990) cert. denied, 111 S. Ct. 1042 (1991). If the circumstances reveal no substantial likelihood of misidentification, then the testimony will be deemed reliable and, therefore, admissible. Id.

To assess the reliability of the identification under the totality of the circumstances we weigh five factors against the corrupting effect of the suggestive identification procedure: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated at the trial confrontation; and (5) the time between the crime and the confrontation. Id.

Six months after the incident, Gray testified at trial that he had watched Hawkins and his companion for about ten minutes on the night of the burglary, from eight-thirty to eight-forty p.m. Although he saw the two men at night, there was a street light in front of his house and floodlights surrounding it casting ample light on the scene. He gave a detailed explanation about where the two men stood and what they did during the time the car was parked near the vacant house. He did not describe Hawkins except to say that he had a darker complexion than the other man at the scene. At trial Gray unequivocally identified Hawkins as the man carrying the box. He also stated that the two men drove a white station wagon and he identified the first four figures of the license plate as 499J.

Before Gray took the stand, a woman testified that around eight-twenty that same evening she saw two black men get into a white station wagon with brown wood siding which was parked in a church parking lot a few blocks from the burgled residence. She identified Hawkins as the driver and testified that the license plate number was 499JEB.

After weighing the factors and considering the corroborating testimony of the witness at the church, we conclude that the totality of the circumstances reveals no substantial likelihood of misidentification. Because Gray's testimony was reliable, we conclude counsel did not perform deficiently by failing to object to, or to move to suppress, admissible identification testimony. We note that counsel extensively cross-examined Gray and the investigator about the inconsistency in their testimony. In her closing argument she discussed the inconsistency and the fact that the investigator only showed Gray two photos to identify Hawkins. We conclude that counsel's performance was reasonably effective, and therefore we need not consider the second part of the Strickland test, whether counsel's alleged error could have effected the result. We overrule Hawkins' second point of error.

Accordingly, we affirm the conviction.

 

Bea Ann Smith, Justice

 

[Before Chief Justice Carroll, Justices Jones and B.A. Smith]

Affirmed

Filed: August 14, 1991

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