KENNETH LEWIS NEWTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 31, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01412-CR
............................
KENNETH LEWIS NEWTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-57224-PN
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OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Kenneth Lewis Newton was charged by indictment with robbery by threat.   See Footnote 2  On his plea of not guilty on September 19, 2006, a jury found appellant guilty as charged. The following day appellant pleaded true to two enhancement paragraphs contained in the indictment. After finding the enhancement allegations true, the jury assessed appellant's punishment at 45 years in the Texas Department of Corrections. This appeal ensued.
        On appeal, appellant presents two issues. In the first issue, appellant complains he received ineffective assistance of counsel because his attorney failed to object to evidence of his post-arrest silence. In his second issue, appellant asks whether the trial court erred in overruling appellant's objection to the admission of a video tape for lack of a proper chain of custody.
        By way of a “cross-point,” the State requests us to correct the trial court's judgment to show appellant pleaded true to the enhancement allegations and they jury found the allegations true. For reasons that follow, we resolve appellant's issues against him. We resolve the State's “cross-point” in its favor and reform the judgment to show that appellant pleaded true to the enhancement allegations and the jury found the allegations true. As reformed, we affirm.
Background
        On September 9, 2004, Requel Granados and Martha Bonilla were working at the Burger Street restaurant.   See Footnote 3  Granados testified that after 2 p.m., only two employees work in the restaurant. Around 7:30 p.m. a man came into the restaurant, ordered a medium Coke, and gave Granados a five-dollar bill. Granados went to the cash register to get change. When she returned, the man, who was wearing sunglasses and a cap, had a small gun wrapped in a towel. The man had a bag. He told Granados to put the money in the bag. Granados thought the gun was real; she complied with the robber's demand. About $900 was taken in the robbery.
        Bonilla witnessed these events. Both women identified appellant at trial as the man who robbed the restaurant on September 9, 2004. A video camera captured the events in questions. A video tape was admitted into evidence and played for the jury.
        On October 15, 2004, the same two women were working at the same restaurant; Bonilla was working in the front and Granados was counting money in the back. Bonilla alerted Granados that a man walking toward the restaurant was the same man who had robbed them before. The man was carrying the same bag and was, again, wearing a cap and sunglasses. Reocgnizing the man immediately, Bonilla activated a silent alarm. Granados also recognized the man and was very scared. Granados dialed 911 and gave her cell phone to a customer in the drive-through to call the police. Granados did not want the robbert to see her on the telephone. Within five to seven minutes, the police arrived. Apparently the man was waiting for the other customers to leave the restaurant.
        After both Granados and Bonilla identified appellant at the scene as the man who had robbed them in September, the police arrested appellant. A search of appellant's person reveals a toy gun, a rag, and sunglasses just like the ones the robber had worn in September. Those items were offered, and admitted, into evidence. Again, a video camera captured the events.
        Both women identified appellant at trial as the man who robbed Granados on September 9, 2004. Both the video tape from September 9, 2004 and the video tape from October 15, 2004, were admitted into evidence and played for the jury.   See Footnote 4 
        Mitchell D. Gatson testified he was an eighteen-year veteran with the Dallas Police Department. On October 15, 2004, Gatson was assigned to Northeast Operations in the ICP Unit.   See Footnote 5  He was working a one-man squad in a marked squad car on that date when he responded to a “robbery in progress” call in the 9200 block of Skillman at a Burger Street restaurant. When he arrived at that location, he saw the suspect standing against the counter. Because Gatson had information a weapon was involved, he waited for back-up. Dallas police officer Jason Sibley soon arrived as back-up, along with several other officers. Gatson thought there was another customer inside, but when the police made entry, the customer left. Gatson drew his weapon and arrested appellant without incident. Sibley handcuffed appellant. A search of appellant revealed the items earlier described. After the employees identified appellant as the man who had robbed the restaurant in September, Officer Bailey transported appellant to the police station.
        On cross-examination, Gatson testified there was no robbery in progress when he arrived on October 15, 2004. He did not talk to the other customer in the restaurant. There were two Latin female employees behind the counter. Appellant was arrested because the two employees said he had robbed them several weeks before. Appellant also had an unrelated outstanding warrant for his arrest. Gatson took the cap and sunglasses off appellant after he was handcuffed. Sibley found a gun wrapped up in a white hand towel in appellant's right pants pocket. To Gatson's knowledge, no statements were taken from appellant at the scene. However, normal procedure is to take statements after a detective is assigned to the case.
        Detective Donald Whitsitt testified he was a thirty-year veteran with the Dallas Police Department. He was a detective with the physical evidence section (PES) of the crimes against persons section (CAPS) of the Dallas Police Department. Whitsitt had nine-plus years collecting evidence at crime scenes. He tried unsuccessfully to lift fingerprints from a cup, a doorknob, and the counter top at the scene of the robbery on September 9, 2004. He did collect a video tape.
        Detective Arlan Mason testified he was a sixteen-year veteran with the Dallas Police Department and was, at the time of trial, assigned to the narcotics ATF division; however, he had formerly been assigned as a robbery detective. Mason was originally assigned to investigate this case, but he had no leads. However, when appellant entered the restaurant a second time and was arrested, Mason's investigation led to aggravated robbery charges being filed against appellant.
        Appellant presented no evidence at the guilt-innocence stage of trial.
        On appeal appellant specifically complains about the following testimony given by Detective Mason:
 
[Prosecutor]: And in Texas, in order to be admissible before a jury, it either has to be in writing or video recorded; is that correct?
 
 
 
[Mason]: That's correct.
 
 
 
[Prosecutor]: And you gave the defendant in this case an opportunity to give a written statement?
 
 
 
[Mason]: That's correct.
 
 
 
[Prosecutor]: And he did not give one; is that correct?
 
 
 
[Mason]: That's correct.
 
 
 
[Prosecutor]: He signed-did you give him his Miranda rights?
 
 
 
[Mason]: Yes sir, I did.
 
 
 
[Prosecutor]: Did he sign the Miranda card?
 
 
 
[Mason]: Yes sir.
 
 
 
[Prosecutor]: But he later wouldn't give a written statement?
 
 
 
[Mason]: That's correct.
 
        Appellant did not testify at the guilt-innocence stage of trial; however, he did testify at the punishment stage and maintained his innocence.
        Appellant contends that because his trial counsel failed to object to evidence of his post- arrest silence, he is entitled to a reversal of his conviction. We quote from appellant's brief omitting footnote 1 following “reversible error:”
 
“The defendant received ineffective assistance of counsel where trial counsel failed to object to the admission of evidence of the defendant's post-arrest silence, which was brought out in cross- examination and referred to in argument. The admission of this evidence would have been reversible error where the defendant's implausible testimony was linked, in the State's argument, to the post-arrest silence.”
Thomas v. State, 812 S.W.2d 346 (Tex. App.-Dallas 1991 [pet. ref'd]).   See Footnote 6 
 
        The State responds appellant has failed to meet his burden of proving trial counsel provided constitutionally ineffective assistance. The State point to the lack of a sufficient record from which to conclude defense counsel's performance was deficient or there was a reasonable probability, but for counsel's unprofessional errors, the result would have been different. The State also points to the strong evidence in the case: two eye witnesses, two video tapes of the September 9, 2004 and the October 15, 2004 events, and physical evidence in appellant's possession at the time of his arrest.
Applicable Law
        The proper standard by which to gauge the adequacy of representation by counsel at the guilt-innocence stage was articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). See Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). The two-part Strickland test asks: (1) did counsel's performance fail to constitute “reasonably effective assistance,” i.e., did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and (2) if so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different? Strickland, 466 U.S. at 687-88; Ex parte Walker, 777 S.W.2d at 430.
        In reviewing an ineffective assistance of counsel claim, an appellate court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55.
        Appellant bears the burden of showing ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex. Crim. App. 1984). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam). Absent both showings an appellant court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
        We do not inquire into trial strategy unless no plausible basis exists for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981). The fact that other counsel might have tried the case differently will not support a finding of ineffectiveness. Small v. State, S.W.2d 536, 539 (Tex. App.-Dallas 1985, pet. ref'd). Thus, conduct must be judged on the facts of the particular case, and allegations must be firmly founded in the record. Id.
Analysis
        No post-trial evidentiary record was developed in this case at which defense counsel was able to testify to his strategy during trial. We have only the trial record before us in this appeal. That record shows that defense counsel sought, through cross-examination of the State's witnesses and through jury argument, to present a defense of mistaken identity. In other words, counsel argued that the two email witnesses were mistaken in their identification of appellant on October 15, 2004, as being the robber who robbed the restaurant some weeks earlier on September 9, 2004. Through questioning of the police witnesses, defense counsel suggested their investigation was deficient. He brought out the police did not talk to the other customer in the restaurant, and asked directly whether any oral, written, or video statement was taken from appellant.
        When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. See Jackson v. State, 977 S.W.2d 768, 771 (Tex. Crim. App. 1994). A silent record does not require an appellate court to speculate on the reason for trial counsel's decisions. Id. Our speculation on the reasons for trial counsel's actions is “not material.” Id. On the record before us, we cannot conclude trial counsel's decision not to object to appellant's post-arrest silence was so outrageous that no competent attorney would have engaged in such conduct.
        Moreover, even if counsel's performance should be deemed deficient, the record does not show there was a reasonable probability, but for counsel's unprofessional errors, the result would have been different. The evidence was strong: two eye-witnesses, two video tapes from which the jury could determine for itself whether appellant was the robber, and the physical evidence found on appellant's person in October-the same items described by the witnesses to have been used during the September robbery. Appellant has not met his burden to show ineffective assistance of counsel. We resolve appellant's first issue against him.
        In appellant's second “point of error” he contends the trial court erred in overruling his objection to the admission of a video tape because there was no proper chain of custody show. Granados testified there was a video camera in the restaurant. One of her duties was to change the tape on the machine. The video camera captured the September 9, 2004 events. Granados identified State's exhibit 1 as a video tape of September 9, 2004. Granados testified she watched the video tape the day before she testified and that it accurately depicted what occurred on September 9, 2004. After establishing the video tape was given to police detective Whitsitt by a Burger Street supervisor and that Whitsitt put the video tape in the property room, the State offered the video tape into evidence. The video tape had no audio.
        Defense counsel took Granados on voir dire examination and established she did not know where the video tape had been taken by police. Defense counsel objected as follows: “Judge, we would object at this point just on chain of custody basis. We don't believe that there has been a chain of custody established as far as the videotape is concerned.” The trial court overruled counsel's objection and admitted the video tape into evidence.
        On appeal, appellant complains that defense counsel's chain of custody objection was well taken because:
 
A videotape was played and the complainant merely discussed the events in the videotape in general. There was no testimony regarding where the camera was placed, how the videotape camera functioned, and especially what person or persons removed it while it was delivered to an identified property room. No witnesses testified regarding the reception of the videotape and preservation of it as scientifically reliable evidence.
 
Appellant also complains there was no showing which person set the video tape up for recording, and no supervisor testified about giving the tape to the police.
        Appellant recognizes the proper predicate for admission into evidence of the video tape not accompanied by audio is proof of accuracy as a correct representation of the subject at a given time, and relevancy to a material issue. Appellant further recognizes that any witness who observed the scene depicted in the video tape may lay the predicate by providing such proof, and that the trial court has considerable discretion ruling on the admission of photo evidence. See Farrell v. State, 837 S.W.2d 395, 400 (Tex. App.-Dallas 1992), aff'd, 964 S.W.2d 501 (Tex. Crim. App. 1993).
        Here, the proper predicate having been laid to show the video tape accurately depicted the events it purported to show, the trial court did not abuse its discretion in admitting the video tape into evidence.
        We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
061412F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Charges were reduced to robbery from aggravated robbery when it was discovered appellant used a toy gun during the robbery.
Footnote 3 Granados was the supervisor and Bonilla was the “chief manager.”
Footnote 4 Appellant does not complain on appeal about the admission of the video tape from October 15, 2004.
Footnote 5 Gatson explained the ICP Unit was the “[interacting policing unit” that deals with ongoing neighborhood problems.
Footnote 6 We do not find the language appellant quotes within the Thomas opinion. In footnote 1, omitted above, appellant cites, “Veteto v. State, 8 S.W.3d 805 (Tex. App.-Waco 2000, pet. ref'd). Reversal required where the prosecutor questions witnesses on three occasions about the defendant's post-arrest silence. Wainwright v. Green, 474 U.S. 284, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). 'The defendant's silence after the giving of the Miranda warnings could not be used at trial to prove his sanity.' Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). 'If the defendant remains silent after Miranda warnings are given, his silence cannot be used against him whether or not he testified at trial.'” Of the three cases cited in footnote 1, we find only one, Doyle v. Ohio, cited within the Thomas opinion.