Robert Allen Rabe v. The State of Texas--Appeal from 292nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERT ALLEN RABE,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00153-CR

Appeal from the

292nd District Court

of Dallas County, Texas

(TC#F-0273388-PV)

MEMORANDUM OPINION

Robert Allen Rabe appeals his conviction for aggravated robbery. Appellant pleaded not guilty but was found guilty by a jury, which assessed his punishment at forty-eight years imprisonment. In his sole issue presented on appeal, appellant contends he received ineffective assistance of counsel. We affirm.

FACTUAL SUMMARY

Appellant and two other men robbed complainant Mark Nilan, a liquor store cashier. After stealing approximately $500 at gunpoint, the robbers dragged Nilan to a back room. After the robbers left, Nilan called the police. The robbery was caught on tape by video surveillance equipment installed at the store and the video tape was admitted into evidence and shown to the jury. Nilan described appellant as a white male, 35, with brown hair, no facial hair, wearing a red cap. He described the gun as a silver .38-caliber revolver. He did not mention the presence of any tattoos on the robber s forearms. Appellant s sister testified that appellant is left-handed, but the video tape shows the gun in the robber s right hand.

About three weeks after the robbery, a Dallas police officer showed Nilan a six-man photo lineup that included appellant s picture; Nilan identified appellant as one of the robbers. He also identified appellant during the trial as being one of the men who robbed the store.

During the punishment phase of the trial, appellant s counsel re-called appellant s sister to the witness stand; she testified that her brother had tattoos on both forearms. The presence of these tattoos was corroborated by appellant s pen packets and appellant took off his shirt to display his tattoos to the jury. In argument, counsel acknowledged that he should have presented this evidence earlier, asked the jury to find both enhancements not true and assess the minimum punishment of five years. Counsel filed a motion for new trial, but did not elaborate on the reasons for the motion other than to assert that the verdict was contrary to the law and the evidence and did not seek a hearing on the motion. The trial court denied the motion and this appeal ensued.

ASSISTANCE OF COUNSEL

In his sole issue, appellant contends that his counsel was ineffective for not presenting evidence regarding his tattoos during the guilt-innocence phase of the trial.

Standard of Review

We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First, the defendant must show that trial counsel s performance was deficient, that is, counsel s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. Second, the defendant must show that counsel s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This requires the defendant to show 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; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

It is the defendant s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. In reviewing a claim of ineffective assistance of counsel, 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 might be considered sound trial strategy. Id.; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. An appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, whether the action was the result of strategic design or the result of negligence. Thompson, 9 S.W.3d at 814.

Review of Record

We are disturbed by counsel s untimely introduction of potentially exculpating evidence. Yet we are confused as to why, if counsel was arguing misidentification, counsel asked the jury to give his client the minimum sentence of five years, and why counsel did not base his motion for new trial on misidentification or seek a hearing on the motion. Although the State argues that we cannot presume counsel s statement that he failed in [his] duty to have been made in reference to the tattoos, it is apparent from the context of this remark that counsel was, indeed, referring to the tattoos. Assuming, without deciding, that counsel s conduct fell outside of the wide range of reasonable professional assistance, appellant cannot meet the second Strickland prong, i.e., he cannot demonstrate that the results of the proceeding would have been different but for counsel s unprofessional conduct.

It is evident in the record that counsel filed appropriate motions, vigorously cross-examined the State s witnesses, and offered evidence that appellant is left-handed. The complainant unhesitatingly identified appellant as one of the robbers, and the jury was able to view the videotape during their deliberations and to compare the images from that video to appellant s face. From the sentence they imposed, forty-eight years in prison, it is apparent that they were not persuaded to impose a lighter sentence based on the testimony concerning the tattoos. Therefore, we hold that appellant cannot show that the outcome of his trial would have been different but for counsel s error.

CONCLUSION

We overrule appellant s sole issue.

We affirm the trial court s judgment.

PER CURIAM

December 30, 2004

Before Panel No. 5

Larsen, McClure, and Andell, JJ.

(Andell, J., sitting by assignment)

(Do Not Publish)