Butler v. State

• Decision Date: 19 March 1986
• Docket Number: No. 741-84,741-84
• Parties: Dennis Roy BUTLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 48

716 S.W.2d 48

Dennis Roy BUTLER, Appellant, v. The STATE of Texas, Appellee.

No. 741-84.

Court of Criminal Appeals of Texas,

En Banc.

March 19, 1986.

Louis T. Rosenberg, Donald E. Barnhill, San Antonio, for appellant.

Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the first degree felony offense of aggravated robbery. V.T.C.A. Penal Code, § 29.03. The jury assessed his punishment at seven years confinement. In an unpublished opinion the Third Court of Appeals found that appellant had received ineffective assistance from his retained counsel and accordingly reversed the conviction. Butler v. State, No. 3-83-133-CR (Tex.App.--Austin, delivered May 9, 1984). Less than one week later, the United States Supreme Court delivered its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) [hereafter Strickland]. We granted review to determine whether the standard of effective assistance of counsel established by Strickland requires reversal of the court of appeals' opinion.

I.

The offense occurred at approximately 7:45 a.m. on a Saturday morning, May 8, 1982, in Killeen. The victim of the robbery was Ms. Wanda Vilhauer, the assistant manager of a convenience store, Mickey's. She was alone in the store that morning when a black man entered, walked around the store, asked a question or two, and then approached Vilhauer with what she took to be a gun, though there was later some question of that. After handing over approximately two hundred dollars in cash, Vilhauer was instructed to lie face down on the floor. She testified that she was in fear for her life. While she lay there the robber fled. Vilhauer testified that she tried calling the police, could not get an operator, and instead called Jane Goen, who managed the washateria adjacent to the convenience store. The police were called and arrived a few minutes later.

Officer Kenneth Olson of the Killeen Police Department arrived at the store at 8:03, by his estimation. He began interviewing potential witnesses, including Vilhauer, Goen, and Army Sgt. John Williams, who had been sitting outside the store at the time of the robbery and had seen a black man fleeing on foot afterwards.

Answering a radio call to serve as backup was Officer Kenneth Edmiston. After being given a description of the robber and the information that he had fled on foot toward a nearby residential area Officer Edmiston drove through that area but found no suspects. Giving up the search, he parked and began using a radar unit to clock the speed of passing vehicles. At approximately 8:20 he observed a car going 43 miles per hour in a 30 miles per hour zone, and followed the car into a McDonald's parking lot. Officer Edmiston observed that the driver was a black man who "fit the description somewhat" of the robbery suspect. The officer patted down the driver and found no weapons. The driver was very cooperative, according to the officer's testimony. He identified himself as Dennis Butler, a 22 year old Army officer stationed at nearby Fort Hood. After issuing a citation for speeding, the officer released Lt. Butler [hereafter appellant].

Subsequently the complainant identified appellant in a photo lineup as the man who had robbed her. Appellant was arrested. Some time later in a corporeal lineup the complainant again identified him.

Appellant raised defenses of misidentification and alibi. The main discrepancy between the complainant's description of the robber and appellant's appearance was height. The complainant had told the investigating officer that the robber had been approximately 5'7"' or 5'8"'. Appellant is 6'2"'. At trial, however, the complainant testified that appellant looked about 5'8"' to her.

Appellant testified in his own behalf. He said he did not rob the complainant, but was a frequent customer of the convenience store because it was the closest one to his home, and he had in fact gone in the store later the day of the robbery. The complaining witness had waited on him several times in the past. (Vilhauer had testified she remembered appellant as a customer of the store before the robbery but that he came in "very seldom... like once in a great while." Appellant testified he patronized the store at least four times a week.)

Appellant testified he was at home at the time of the robbery. He lived in an apartment near the scene of the robbery with another Army officer, Lt. Roger Sims, and Sims' wife. Appellant testified he had been up early that morning but had not left the apartment until 8:15 or so, half an hour after the approximate time of the robbery. He had been on his way to McDonald's for breakfast when he was given the speeding citation by Officer Edmiston. Appellant further testified that before leaving his apartment he had called his sister in Wichita Falls. This call took place a very few minutes after the time of the robbery.

Lt. Sims testified for the defense. He remembered the day in question as a Sunday rather than a Saturday, and said he had been up early because he was the duty officer that day. He had talked to appellant shortly before he left the apartment at 8:15. Lt. Sims was sure he would have heard appellant leave the apartment before that time if he had. The witness also remembered appellant calling his sister that morning.

Lt. Sims testified further that appellant had no need of extra money, that he had recently made a loan to Lt. Sims and that a tax refund check of almost five hundred dollars had come in the mail for appellant the day before the robbery.

Mrs. Sims did not testify. On crossexamination appellant was asked by the prosecutor if Mrs. Sims had been in the apartment that morning and appellant responded that she had been.

In closing argument defense counsel pointed out that appellant was on the phone very near the time of the robbery. He told the jury, "I don't think there's any dispute that he made a phone call to his sister that day." While it may not have been disputed in the evidence, neither was it corroborated. Cognizant of this, the State in its argument pointed out the evidence appellant had not presented:

"You didn't hear from Lt. Sim's [sic] wife who could have said that's right, Dennis Butler was there all that morning until he left to go play basketball. You didn't hear from Dennis Butler's sister who could have come down here from Wichita Falls and very easily said, I talked to him that morning at 7:45 and he didn't hang up until 8:05. You didn't hear that. You didn't hear somebody come in and say I work for the telephone company and these are our long distance toll records and we show a call from Lt. Sims [sic] number to somebody in Wichita Falls at such and such time on the morning of the 8th of May... And you didn't hear somebody from the bank, wherever it is, that Mr. Butler had $240 in it come in and say we checked our bank records and that's right, that's what he had in the bank. So every bit of the alibi comes not from Sims, not from Sims' wife, not from Butler's sister, but from the Defendant himself."

Appellant was convicted by the jury.

The court of appeals relied on decisions of this Court to find that appellant's trial counsel had been ineffective and thus to reverse appellant's conviction. The evidence concerning the effectiveness of trial counsel's representation was developed at a motion for new trial hearing held the month following appellant's trial.

Appellant complained that his counsel had not (1) sought out and interviewed potential witnesses; (2) called Mrs. Sims in support of appellant's alibi defense; or (3) introduced available evidence of appellant's bank balance and phone call to his sister.

Two witnesses testified at the motion for new trial hearing that appellant was not the man who robbed the complainant. The first was John Williams, the Army sergeant who testified that he had bought a magazine in the store and then had waited outside to meet his girl friend. He testified that a black man had walked past and spoken to him, gone into the store for a few minutes, and then again walked past Williams. A minute later Vilhauer had come out shouting that she had been robbed. Williams testified that appellant was not the man he had seen. He identified the man as one Willie Williams (no relation), whose name he had not known at the time of the robbery but had subsequently learned.

Jane Goen, the manager of the washateria adjacent to the convenience store, also testified at the hearing that she had seen the man who had robbed the complainant. She had come running from the washateria in time to see him walking away, she said. Goen testified that appellant was not the man. She identified the same Willie Williams, a customer of her washateria, as the robber.

Goen had witnessed the same lineup at which Vilhauer, the complaining witness, had identified appellant, though the two witnesses had separate viewings. Goen failed to identify appellant as the robber and had said in fact that the man she had seen was perhaps not in the lineup. She had scrutinized appellant and one other man in the lineup more closely, but had concluded that she couldn't pick the robber out of that group.

Goen did not remember appellant's trial counsel talking to her the day of the lineup. He only talked to her briefly in the hallway of the courtroom the day of appellant's trial more than six months after the lineup. According to the witness, she told counsel at that time that appellant was not the robber. Goen was not, however, called as a witness by either the State or defense.

Mrs. Sims, the third occupant of the apartment where appellant lived at the time of the offense, also testified at the hearing. She was more certain than her husband that appellant had been in the...