KANAVIOUS DORSEY v. THE STATE OF TEXAS
No. 01-14-00685-CR
Court of Appeals For the First District of Texas At Houston
April 17, 2015
Nо. 1408986 In the 262nd District Court Of Harris County, Texas
District Attorney
Harris County, Texas
JAMIE BURRO
Assistant District Attorney
Harris County, Texas
KIMBERLY APERAUCH STELTER
Assistant District Attorney
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.755.5826
stelter_kimberly@dao.hctx.net
State Bar Number: 19141400
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
Pursuant to
IDENTIFICATION OF THE PARTIES
Pursuant to
Counsel for the State:
Devon Anderson — District Attorney of Harris County
Kimberly Aperauch Stelter — Assistant District Attorney on appeal
Jamie Burro — Assistant District Attorney at trial
Appellant or criminal defendant:
Kanavious Dorsey
Counsel for Appellant:
Maverick Ray, Gilberto Villarreal — Defense Counsel on appeal
Mandy Miller — Defense Counsel at trial
Trial Judge:
Honorable Denise Bradley — Judge Presiding
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS.......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE..................................................................................1
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................4
REPLY TO APPELLANT’S FIRST POINT OF ERROR........................................5
REPLY TO APPELLANT’S SECOND POINT OF ERROR...................................8
PRAYER..................................................................................................................18
CERTIFICATE OF SERVICE ................................................................................19
CERTIFICATE OF COMPLIANCE.......................................................................20
CASES
Aguilar v. State, 468 S.W.2d 75 (Tex. Crim. App. 1971).......................................................................... 6
Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002)....................................................................9, 10
Bradley v. State, 359 S.W.3d 912 (Tex. App. – Houston [14th Dist.], 2012, pet. ref’d)............................................................................. 6
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)........................................................................ 5
Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991)........................................................................ 6
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)........................................................................ 6
Davis v. State, 930 S.W.2d 765 (Tex. App. – Houston [1st Dist.], pet. ref’d)........................................................................................ 11
Ex Parte Imoudu, 284 S.W.3d 886 (Tex. Crim. App. 2009)........................................................................ 9
Ford v. State, 794 S.W.2d 863 (Tex. App. – El Paso 1990, pet. ref’d)............................................................................................... 7
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009)...................................................................... 15
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005)...................................................................... 10
Greene v. State, 124 S.W.3d 789 (Tex. App. – Houston [1st Dist.], 2003, pet. ref’d).............................................................................. 11
Harris v. State, 2014 WL 1912539 (Tex. App.— Houston [1st Dist.] 2014) (mem. opin., not designated for publication) ...................... 11
Jackson v. State, 657 S.W.2d 123 (Tex. Crim. App. 1983)................................................................13, 15
Jackson v. Virginia, 443 U.S. 307, 319 (1979) .................................................................................................. 5
Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993)........................................................................ 6
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000).......................................................................... 6
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)...................................................................... 11
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998)...................................................................... 15
Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001)............................................................................ 9
Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007)...................................................................... 11
Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002)........................................................................ 10
Neil v. Biggers, 409 U.S. 188 (1972) ...................................................................................................... 13
Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002).......................................................................... 12
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003)...................................................................... 10
Santos v. State, 116 S.W.3d 447 (Tex. App.— Houston [14th Dist.] 2003, pet. ref’d)........................................................................... 13
Strickland v. Washington, 466 U.S. 668 (1984) ........................................................................................ 9
Thompson v. State, 9 S.W.3d at 808, 813 (Tex. Crim. App. 1999) ................................................................ 9
Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009)........................................................................ 9
RULES
STATEMENT OF THE CASE
The State charged appellant by indictment with the felony offеnse of aggravated robbery (CR-17).1 After a trial, the jury found appellant guilty of the offense as charged, and the trial court assessed punishment at 20 years in the Institutional Division of the Texas Department of Criminal Justice (CR-141). Appellant filed timely written notice of appeal (CR-145).
STATEMENT OF FACTS
On the afternoon of November 1, 2013, Alice Fusilier had just withdrawn $450 from her bank to pay her utility bills (RR3-44,45,46). On the way home the 72-year-old retiree stopped at a convenience store to buy some cigarettes (RR3-47, 58). As she got out of her vehicle, she noticed a red car pulling into the convenience store parking lot (RR3-48). The vehicle stopped and a man got out (RR3-49). He turned and came toward Fusilier (RR3-49). Fusilier thought the man was going to the car parked next to her, so she moved up against the wall to let him pass (RR3-49). The man stepped towards the car as if that were his destination, but
Fusilier described the car as a maroon, reddish color, fаirly new model sedan with black tinted windows (RR3-52, 71). She described the license plate as being black and white (RR3-54). Fusilier was not sure of all the numbers and letters on the plate, but she told the police that she thought it was either BW2225 or BW2M25 (RR3-53, 129).
A few days later Officer Rochi was on surveillance in the parking lot of Fusilier’s bank when he viewed a maroon colored four door Chevrolet Malibu sedan with a black and white license plate reading BB2N125 (RR3-107).2 The windows were “limo tinted,” meaning tinted so dark that one could not see inside (RR3-108). Officer Rochi followed the car and watched as appellant exited from
The police made two photo arrays, one including a picture of Prince Woods and one with a photo of appellant (RR3-132). Officer Hartford showed the photo arrays to Fusilier (RR3-159). He did not know which individuals were the suspects; he explained that HPD administers the photo arrays in a double-blind manner so that the person administering the presentation does not know who the suspect is (RR3-159).
When Fusilier came across appellant’s photo Hartford noticed that she stiffened, her eyes got wide, and she put the photo aside (RR3-161). Fusilier was very deliberate in her actions, and after looking at all the photographs she identified appellant’s photo as looking like the man that had hit her in the head (RR5-162).
Fusilier’s identification of appellant in the photo array was classified by Hartford as a “strong tentative ID,” meaning that it “really looks like the person, but I’m not sure.” (RR3-148). Seeing appellant in court and in person, however, Fusilier testified that she was confident that appellant was the one who had robbed her (RR3-99-100).
In his defense, appellant’s girlfriend, Chastity Smith, testified that appellant was with her all day on the day of the robbery (RR3-170-71). She claimed to
SUMMARY OF THE ARGUMENT
The evidence is sufficient to find that appellant was the individual who committed aggravated robbery. Fusilier identified appellant in a photo array and in court as the person who hit and robbed her, and appellant was found a few days later in the same location driving the vehicle and bearing plates which substantiаlly matched the description given by Fusilier.
Appellant has not provided a sufficient record to establish that his counsel was ineffective for failing to file a motion to suppress or to object to the pre-trial and in-court identifications by the complainant. The pre-trial identification was not impermissibly suggestive. Even if the pre-trial identification had been impermissibly suggestive it did not taint the in-court identification of appellant by the сomplainant. Accordingly, appellant has failed to show that his counsel was
REPLY TO APPELLANT’S FIRST POINT OF ERROR
In his first point of error, appellant contends that the evidence in this case is legally insufficient. Appellant was charged with aggravated robbery of an elderly person.
A. Standard of Review
The standard of review for a legal sufficiency analysis is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The jury is the sole judge of the
Evidence can be legally sufficient for a conviction even if it is entirely circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The standard of review for circumstantial and direct evidence is the same. Id. It is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and сumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
B. Application to the Facts
In the instant case, Fusilier identified appellant both in a photo array and at trial as the person who hit her on the head and stole her purse. The testimony of a single eyewitness can be enough to support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Bradley v. State, 359 S.W.3d 912, 917-18 (Tex. App. –Houston [14th Dist.], 2012, pet. ref’d)
Appellant contends the pretrial identification of him in a photo array was not positive, and that Fusilier’s in-cоurt identification of appellant was tainted by the
Furthermore, Fusilier’s identification of appellant was not the only evidence tying appellant to the crime. Appellant was observed just a few days after the robbеry in the same bank parking lot driving a vehicle matching the color, style, and window tinting described by Fusilier. While the make of the car was not identical to that written in the offense report, Fusilier stated that she was not familiar with model years and did not remember reading a brand or name on the
Accordingly, аppellant’s first point of error is without merit and should be overruled.
REPLY TO APPELLANT’S SECOND POINT OF ERROR
In his second point of error, appellant contends that his counsel was ineffective for failing to file a motion to suppress Fusilier’s pre-trial and in-court identifications of appellant.
A. Standard of Review on Ineffective Assistance of Counsel
To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonаbleness and (2) that there is a reasonable probability that, but for counsel’s
Courts indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance; therefore, appellant must overcome the presumption that the challenged action constituted “sound trial strategy.” Williams, 301 S.W.3d at 687. This review is highly deferential to counsel, and courts do not speculate regarding counsel’s trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel’s performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001);see Thompson v. State, 9 S.W.3d at 808, 813 (Tex. Crim. App. 1999) (holding that record must affirmatively demonstrate alleged ineffectiveness); Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) (holding that record on appeal must demonstrate that counsel’s performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel’s acts or оmissions,
B. Counsel was not ineffective for failing to file a motion to suppress the pre-trial identification.
1) The record on direct appeal is insufficient to establish appellant’s claim of ineffective assistance of counsel.
Appellant’s contention is that defense counsel was ineffective for failing to suppress Fusilier’s pre-trial and in-court identifications of appellant. But appellant chose not to file a motion for new trial, and nothing in the record indicates that his counsel had an opportunity to explain his trial strategy. Because the record is silent as to trial counsel’s reasons for not filing a motion to suppress or objecting to the pre-trial and in-court identifications, appellant has not overcome the strong
More specifically, this Court has declined to find trial counsel ineffective withоut a record allowing counsel an opportunity to explain his reasoning for failing to object to or move to suppress an in-court identification. Greene v. State, 124 S.W.3d 789, 791-92 (Tex. App. –Houston [1st Dist.], 2003, pet. ref’d) (holding that appellant failed to meet the first prong of the Strickland test when there was nothing in the record to show why counsel chose not to attempt to have appellant’s in-court identification suppressed when pre-trial “photo spread” consisted of a single photo). Harris v. State, No. 01–11–00415–CR, 2014 WL 1912539, at *6 (Tex. App.—Houston [1st Dist.] 2014) (mem. opin., not designated for publication) (finding defendant failed to overcome the strong presumption that
2) Counsel was not ineffective since appellant сannot establish by clear and convincing evidence that a motion for new trial or objection to the evidence would have been successful.
Appellant’s point of error fails on an additional ground: the filing of a motion to suppress or objection to the pre-trial and in-court identifications would have been unsuccessful. A trial counsel’s failure to file a motion to suppress or object to the admission of evidenсe is not per se ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] no pet.). Counsel is not required to engage in the filing of futile motions. Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Rather, to satisfy the Strickland test and prevail on an ineffective assistance claim premised on counsel’s failure to file a motion to suppress, an appellant must show by a preponderance of the evidence that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).
Appellant admits in his brief that “there is nothing in the record to suggest that the photo array was suggestive.” (appellant’s brief, p. 15). Appellant is correct; Fusilier viewed the photo array after having been given proper warnings, the array was presented by an officer who did not even know which photos were of suspects, and the photos were of individuals who looked much like аppellant (RR3-133, State’s Exhibit 5-7). Appellant, however, suggests that a motion to suppress the pre-trial identification would have been successful because Fusilier made only a “strong tentative” identification and gave an inaccurate description of her attacker (appellant’s brief, p 15). These circumstances go only to the weight of the evidence, not its admissibility. See Jackson v. State, 657 S.W.2d 123 (Tex. Crim. App. 1983) (holding fact that witness had identified six of ten photographs as being that of individual who had taken motorcycle when only one of the six
Similarly, appellant has not shown that Fusilier’s in-court identification of appellant was based on suggestive pre-trial identification procedures. Defense counsel questioned Fusilier at length about her pre-trial identification of appellant from the phоto array (RR3-86-91, 96-97). At the conclusion of his examination he asked if she had met or talked with the prosecutor about the case (RR3-100). Fusilier said they had met a week ago (RR3-101). The defense then asked if Fusilier had seen any photographs of appellant that day (RR3-101). Fusilier replied that she had seen two (RR3-101). She also agreed that she had seen photographs of appellant before that (presumably when viewing the photo array) and that she had seen all these photos before making her in-court identification (RR3-101).
This testimony, without more, does not indicate that Fusilier’s in-court identification of appellant was influenced by an impermissibly suggestive pretrial identification. There is no testimony as to whether the prosecutor simply showed Fusilier the original photo array at their meeting, whether the photos of appellant were mixed in with photos of others for a second identification, or whether Fusilier even identified appellant from these photos. See Jackson v. State, 973 S.W.2d at 957 (holding that to prevail on a claim of ineffective assistance of counsel the
Finally, even if the pre-trial identification procedure was suggestive in this case, Fusilier’s in-court identification would still be admissible, as appellant did not establish that any pretrial identification gave rise to a substantial likelihood of irreparable misidentification. If the court finds that the pretrial procedure was impermissibly suggestive, then the defendant must show by clear and convincing evidence that the impermissibly suggestive pretrial procedure tainted the in-court identification. Gamboa v. State, 296 S.W.3d 574, 582 (Tex. Crim. App. 2009); Jackson, 657 S.W.2d at 127. Factors to be considered when making this review are: 1) the witness’s oрportunity to view appellant at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior description of the criminal; 4) the witness’s level of certainty at the time of confrontation; and 5) the length of time between the offense and the confrontation. Id.; Loserth v. State, 963 S.W.2d 770, 771–72 (Tex. Crim. App. 1998).
It was broad daylight when appellant walked towards Fusilier, and he passed within a mere two feet of her (RR3-49-50) Fusilier testified that she got a good lоok at appellant before he hit her (RR3-52). While appellant alleges that the description given by Fusilier did not match appellant’s appearance, the record is unclear. Fusilier’s description as given to the police was never introduced, nor do
Appellant has not shown that the trial court would have granted any motion to exclude his pre-trial or in-court identification. Jackson, 973 S.W.2d at 957 (holding that to prevail on a claim of ineffective assistance, appellant is “obliged to prove that a motion to suppress would have been granted“). He has thus failed to еstablish that he received ineffective assistance of counsel. Id.
For all the above reasons, appellant’s second point of error is without merit and should be overruled.
The State respectfully requests that this Court affirm the judgment of the trial court.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Kimberly Stelter
KIMBERLY APERAUCH STELTER
Assistant District Attorney
Harris County, Texas
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Mandy Miller
Attorney at Law
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Katy, Texas 77494
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/s/ Kimberly Aperauch Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas
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/s/ Kimberly Aperuach Stelter
KIMBERLY STELTER
Assistant District Attorney
Harris County, Texas