Vernon Glenn Carraway, Jr. v. The State of Texas--Appeal from 176th District Court of Harris County

NO. 10-89-134-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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VERNON GLENN CARRAWAY, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From the 176th District Court

Harris County, Texas

Trial Court # 513407(Ct.2)

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O P I N I O N

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Appellant was charged in a two-count indictment with attempted capital murder and aggravated robbery, each enhanced with one prior felony conviction. A jury found Appellant guilty of aggravated robbery. The trial court found the enhancement allegations true and assessed punishment at seventy-five years in prison. We will affirm.

Around 9:00 p.m. on November 15, 1987, the P & H Foodstore, located at 10731 South Main Street, Houston, Texas, was robbed. During the robbery, Mr. Chau Phung, an employee, was shot once, although not fatally. Also present were Mr. Phung's wife, their two-year-old child, and a customer. Sergeant William Henry Lawrence of the Houston Police Department's Robbery Division, during investigation of the crime, showed two photo arrays to Mr. Phung, who positively identified Appellant from the second but not from the first. Mrs. Phung positively identified Appellant from a lineup and tentatively identified Appellant from the second photo array. She was not shown the first array. The customer, Betty Delarosa, gave two tentative identifications, one from the second photo array and one from a lineup. During a pre-trial hearing to suppress these identifications, the Phungs' identifications were found to be admissible while Delarosa's were not.

In the first of Appellant's two points of error, he maintains that he received ineffective assistance of counsel at trial and offers the following six instances as proof. First, counsel failed to offer any evidence or make any argument on punishment to the court. Second, counsel used only six of his ten peremptory challenges during jury selection. Third, counsel apparently waived any objection to admission of all identification testimony by saying, immediately following the trial court's ruling on his motion to suppress the identifications by Mrs. Phung and Delarosa, "I can't argue with the Court's rulings." Fourth, counsel failed to object to improper admission of evidence. Fifth, counsel offered into evidence a photo array containing a "mug shot" of Appellant. And sixth, counsel permitted a lineup to be held without his presence, despite notification of it.

We will not consider the first three instances of alleged ineffective assistance of counsel because Appellant's brief cites no supporting authority. Failure to cite authority leaves nothing for courts of appeal to review. See Tex. R. App. P. 74(f)(2); Cureton v. State, 800 S.W.2d 259, 261-262 (Tex. App. - Houston [14th Dist.] 1990, no pet.).

Criminal defendants have a right to the reasonably effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 1449, n. 14, 25 L. Ed. 2d 763 (1970). The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), enunciated a two-prong test, which has been adopted by the State of Texas, to determine whether defense counsel's assistance was ineffective. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the defendant must show that counsel's performance was deficient. For counsel's assistance to be considered deficient, his performance must fall below an objective standard of reasonableness under prevailing professional norms. Strickland, 104 S. Ct. at 2064-2065. Second, the defendant must show that there is a reasonable probability that the deficient performance prejudiced the defense. Id. at 2068. For ineffective assistance to be prejudicial, the defendant must show that, but for counsel's performance, the result of the proceedings would have been different. Id.

In his fourth instance of alleged ineffective assistance of counsel, Appellant claims his trial attorney failed to object to inadmissible hearsay. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Crim. Evid. 801(d). Hearsay is generally inadmissible and has no probative value. Denby v. State, 654 S.W.2d 457, 460 (Tex. Crim. App. 1983).

The statement at issue is the one made by Sergeant Lawrence describing Delarosa's identifications of Appellant as "tentative." However, her statement was found to be inadmissible during a pretrial hearing to suppress her identification. Unfortunately, the record does not indicate the reason for disallowing her statement: the record only states that her statement was inadmissible.

Parties are not allowed to question witnesses about statements made by declarants not present at trial. See Tex. R. Crim. Evid. 801 comment 1. The State, in an attempt to introduce Delarosa's otherwise inadmissible testimony, questioned Sergeant Lawrence about Delarosa's identifications, to which the Sergeant replied that they were tentative. This is a clear example of an attempt to introduce hearsay. Id.

However, defense counsel never objected to the State's questioning of Sergeant Lawrence, evidencing deficient assistance of counsel. But, his failure to object did not affect the result in the case. The second prong of the Strickland test requires that a reasonable probability of prejudice be shown. Here, there is no reasonable probability that, but for the admission of Delarosa's hearsay identification, the result of the trial would have been different. On the contrary, there is sufficient evidence to believe that the jury would have concluded that Appellant was Mr. Phung's assailant, regardless of Delarosa's tentative identification. The identifications made by Mr. and Mrs. Phung, in court and from the second photo array, were convincing. Mr. Duke, an acquaintance of Appellant, testified that he saw Appellant at the scene of the crime, immediately prior to the incident, wearing the same clothes Mr. and Mrs. Phung described their assailant as wearing. Therefore, we find that defense counsel's failure to object to the admission of Delarosa's statements did not harm Appellant's case.

In the fifth instance, Appellant accuses his trial attorney of ineffective counsel for introducing a photo array containing a mug shot of Appellant, conveying to the jurors the idea that Appellant had been handled previously by the police.

This contention is unfounded for two reasons. First, the State also offered the evidence, and there is no reason to believe that the trial court would have found any reason to suppress the evidence, even if defense counsel would have objected. Second, defense counsel admitted the evidence to advance his strategy in the case.

Sergeant Lawrence showed two different photo arrays to Mr. Phung to obtain an identification of Appellant. The only common element between the two arrays was that Appellant, although in two different photographs, appeared in both. Mr. Phung, upon viewing the first photo array, was unable to identify Appellant from the six photographs; however, he did identify Appellant from the second. Defense counsel's strategy was to propose that the only reason why Mr. Phung made the identification from the second photo array was because he had previously seen Appellant's photograph in the first.

We cannot say that counsel's strategy was unreasonable. Judicial scrutiny of counsel's performance must be highly deferential. Strickland, 104 S. Ct. at 2065. Perhaps defense counsel could have formulated a better strategy; however, our concern is solely whether his performance fell below an objective standard of reasonableness, not in speculation upon the probable effectiveness of different available strategies. Therefore, because our scrutiny of counsel's performance is highly deferential and because defense counsel was attempting to advance a certain strategy, we conclude that his strategy was not unreasonable.

In his sixth instance, Appellant claims his case was harmed by defense counsel's absence at the lineup where Mrs. Phung made a positive identification of him. According to the record, counsel was twenty-five minutes late for a lineup Sergeant Lawrence had arranged. Sergeant Lawrence called counsel to find out why he had not yet arrived. Counsel told Sergeant Lawrence that it would be another 35 to 45 minutes before he could be there. Oddly, counsel's office, which was the location where counsel talked to Sergeant Lawrence on the telephone, lies adjacent to the Harris County Jail; so, there is some uncertainty as to why he should have taken so long to go to the county jail for the lineup. Sergeant Lawrence suggested that counsel arrange for substitute counsel to protect his client; however, counsel declined, telling Sergeant Lawrence to proceed with the lineup without him.

Appellant's attorney has made no showing that the result of the proceedings would have been different but for his counsel's failure to appear at the lineup. To be more accurate, Appellant's appellate counsel even admits that she cannot show that his case was prejudiced by the lineup: "Whether [defense counsel's failure to appear at the lineup] caused damage at the trial is questionable because all we have is a copy of a photograph of the lineup, from which it is impossible to discern anything of note." Without a definite showing that, but for defense counsel's ineffective assistance, the result of the proceedings would have been different, Appellant has not met the second prong of Strickland. See id. at 2068. Appellant's first point of error is overruled.

Appellant, in his second point of error, contends that the trial court erred in overruling his objection to the admission of a photographic identification. Appellant alleges the procedure used by Sergeant Lawrence was so impermissibly suggestive that it compelled Mr. Phung to make a misidentification.

Mr. Phung was offered two photo arrays to examine. After being unable to identify Appellant from the first array, Mr. Phung did identify him from the second. Appellant claims this was because the first array "set the image" of Appellant's likeness in Mr. Phung's mind, thus causing him to choose his photograph from the second array by association.

The chance for misidentification from a photograph is substantially increased when the witness is shown pictures of the same suspect repeatedly. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). But, photo identifications of this sort are useful and effective in helping police officers identify a possible assailant. Id. Therefore, "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id.

We do not find that Sergeant Lawrence's procedure was so impermissibly suggestive that it resulted in an irreparable misidentification. Sergeant Lawrence made no attempt to coerce Mr. Phung into an identification; he never suggested to Mr. Phung that one of the photos was of Appellant or that he had any evidence incriminating any of the persons in the photo array. Further, Mr. Phung had ample opportunity to view his assailant: he was face-to-face with him for five minutes in a small, well-lit convenience store while the robbery was being committed. The court could have reasonably found that Mr. Phung identified Appellant not because his likeness had been subconsciously imprinted in his mind but because he recognized Appellant as the man who had tried to rob him. Based upon these facts, we conclude that Sergeant Lawrence's photo array was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.

Appellant's second point of error is overruled, and we affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and file August 15, 1991

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