Kenneth Kyle Key v. The State of Texas--Appeal from 358th District Court of Ector County

Opinion filed May 3, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00203-CR

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KENNETH KYLE KEY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-26,132

O P I N I O N

Kenneth Kyle Key appeals from a jury conviction for murder. The jury assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. We affirm.

Background Facts

Appellant was indicted for intentionally and knowingly causing the death of Edwardo Salazar by shooting him with a deadly weapon. He pleaded not guilty and proceeded to a jury trial. In presenting its case, the State relied heavily on the identification testimony from eyewitness Damon Marichalar and the testimony of James Perez. Marichalar testified that he was working as an ice cream vendor with the victim when appellant attempted to rob them. He testified that, when the victim told appellant that they did not have any money, appellant shot the victim in the stomach. Marichalar further testified that he identified appellant as the perpetrator in a live lineup. He again identified appellant as the perpetrator at trial. Perez testified that he was with appellant and two other people on the night of the shooting. He testified that he did not see appellant shoot the victim but that he heard the shot. He further testified that appellant admitted to shooting the victim.

Appellant=s defense consisted of attacking the integrity of the police investigation and attacking the credibility and veracity of the State=s witnesses. On cross-examination, the police officers who conducted the investigation testified that they failed to block off the alley where the perpetrator fled in his car. Therefore, they were unable to obtain tire tracks that could have been compared to the tires on appellant=s vehicle. The police further testified, on cross-examination, that they failed to fingerprint the shotgun shell found at the scene, admitting it was likely to have the fingerprints of the perpetrator.

Appellant=s trial counsel attacked the State=s witnesses= credibility and the veracity of their testimony. During cross-examination of Marichalar and police, trial counsel developed the testimony that Marichalar had identified a different perpetrator in a previous live lineup and in a photo lineup. Counsel impeached Perez on cross-examination using the disparities between the two statements he gave to police and his trial testimony.

Trial counsel argued that there were several suspects during the course of the investigation but that the police failed to fully eliminate each one as the possible perpetrator. Appellant presented two witnesses to show that another suspect fit the profile and could have been the perpetrator in this case. Despite trial counsel=s efforts, the jury found appellant guilty and assessed punishment at ninety-nine years confinement and a fine of $10,000.

Issue Presented

Appellant contends that his trial counsel=s performance was so deficient that he was denied effective assistance of counsel to which he is entitled under the Federal and State Constitutions.

Standard of Review

To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer=s performance fell below an objective standard of reasonableness and that there is a Areasonable probability@ the result of the proceeding would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The purpose of this two-pronged test is to judge whether counsel=s conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999) (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).

The review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.CEastland 2005, pet. ref=d). When the record is silent on the motivations underlying counsel=s tactical decisions, an appellant usually cannot overcome the strong presumption that counsel=s conduct was reasonable. Thompson, 9 S.W.3d at 813. In order to defeat Strickland=s presumption of reasonable professional assistance, Aany 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)). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel=s actions. Id.

Discussion

Appellant contends that his trial counsel was ineffective in failing to object to hearsay evidence and in failing to object to evidence of appellant=s extraneous offenses. Appellant also contends that trial counsel was ineffective in failing to file a motion to suppress the identification testimony and in failing to request a jury instruction relating to the unreliability of eyewitness testimony. Appellant further contends that trial counsel was ineffective in failing to request a jury instruction on the requirement of corroboration for accomplice testimony and in failing to request an instruction on the lesser included offense of manslaughter or negligent homicide. Finally, appellant contends that trial counsel was ineffective at the punishment stage of the trial by opening the door to the fact that appellant was involved in a street gang.

Appellant=s contentions are not supported by the record. The record demonstrates that trial counsel presented a solid defense. There is nothing in the record to support appellant=s argument that his counsel=s actions were not based on sound trial strategy. Judicial review must be highly deferential to trial counsel, and we must avoid the harmful effect of hindsight. Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). Appellant has failed to rebut the presumption that trial counsel=s actions were reasonable. Therefore, appellant has not shown that he received ineffective assistance of counsel. We overrule appellant=s issue on appeal.

Conclusion

We affirm the trial court=s judgment.

RICK STRANGE

JUSTICE

May 3, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.