Carr v. State

• Decision Date: 09 May 1985
• Docket Number: No. C14-84-494CR,C14-84-494CR
• Citation: 694 S.W.2d 123
• Parties: Robert Anthony CARR, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 123

694 S.W.2d 123

Robert Anthony CARR, Appellant, v. The STATE of Texas, Appellee.

No. C14-84-494CR.

Court of Appeals of Texas Houston (14th Dist.).

May 9, 1985.

Rehearing Denied July 11, 1985.

Michael Allen Peters, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., William J. Delmore, III, Houston, for appellee.

Before JUNELL, ROBERTSON and CANNON, JJ.

OPINION

CANNON, Justice.

Robert Anthony Carr was charged by an indictment with the offense of burglary of a habitation and theft. He waived trial by jury, entered a plea of not guilty, and was adjudged guilty of burglary of a habitation by the trial court. The trial court assessed punishment at seven years' confinement. Appellant urges seven grounds for reversal. We affirm.

Appellant asserts in his first ground of error that his trial attorney, Neil Lane, provided ineffective assistance of counsel. As a basis for this contention, appellant has complied a list of certain events that occurred in the proceedings below and the actions taken by his counsel in response thereto. He cites numerous examples of alleged ineffectiveness: the trial lasted only one hour; Mr. Lane did not contact the state's witness, Joyce Glass, to obtain a description of the burglar or do any investigation relating to her; the defense attorney knew of the existence of Judy Katz, an alleged corroborating witness, but did not acquire her testimony or request a continuance to obtain her testimony; the trial attorney did not submit to the court the physical characteristics of the appellant prior to or at the time of offense; the trial attorney did nothing to disclose a different description given previously by the only witness to the offense but only asked her if she had described the appellant differently; his attorney did not file any motions to discover a photo spread or lineup, nor did he challenge the propriety of the in-court identification; the trial attorney did not subpoena the fingerprint analyst to show that no prints belonging to the appellant were found at the scene; and the trial attorney had over one year to prepare for trial, so the ineffectiveness could not be attributed to lack of preparation time.

The United States Supreme Court recently promulgated a two-pronged test for use in the analysis of claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

As the Court of Criminal Appeals did in Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984) (en banc), we need not analyze this case in light of the second prong of the Strickland test because we do not find that appellant's counsel was deficient as our prior decisions construe that term or that he was not "reasonably effective" as the Supreme Court construes that term.

The right to effective assistance of counsel merely ensures the right to reasonably effective assistance. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). The constitutional right to counsel does not mean errorless counsel whose competency or accuracy of representation is to be judged by hindsight. Prior v. State, 540 S.W.2d 723 (Tex.Cr.App.1976). Indeed, judicial scrutiny of counsel's performance must be highly deferential, and every effort made to eliminate the distorting effects of hindsight. Strickland, supra, 466 U.S. 668, 104 S.Ct. at 2065. An isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel. Weathersby v. State, 627 S.W.2d 729 (Tex.Cr.App.1982); Cude v. State, 588 S.W.2d 895 (Tex.Cr.App.1979).

Ingham v. State, 679 S.W.2d at 509. The right to counsel, whether appointed or retained, does not mean errorless counsel. Williams v. State, 549 S.W.2d 183, 189 (Tex.Crim.App.1977). Trial strategy will be reviewed by appellate courts only if the record demonstrates that the action was without any plausible basis. Ex Parte Ewing, 570 S.W.2d 941, 945 (Tex.Crim.App.1978). The adequacy of an attorney's services must be gauged by the totality of the representation afforded the accused. Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App.1981). Thus, the determination of such a question turns upon the particular circumstances of each individual case, and the fact that another attorney might have pursued a different course of action will not support a finding of ineffective assistance of counsel. Passmore v. State, 617 S.W.2d 682, 686 (Tex.Crim.App.1981). In light of the above-quoted Strickland test and relevant case law, we review the record and address the contentions propounded by the appellant.

First, the length of a trial is not a determining factor in assessing ineffective assistance of counsel. A bench trial is better adapted for a concise presentation of evidence. It is not unusual for a bench trial to be relatively short because there are many procedures that are omitted or shortened because of the absence of a jury. While trial counsel did not interview the state's eyewitness prior to trial, he was aware of her anticipated testimony because the state's file was made available to him. He was adamant in his cross-examination of the witness regarding her identification of the accused. Also, the record is void of any evidence that would show that this eyewitness would have consented to an interview or that any pretrial interview would have benefited counsel.

In regard to the appellant's complaint that a corroborating witness, Judy Katz, was not present at trial, the trial attorney testified he spoke with Ms. Katz over the telephone and it was his impression she would testify to the appellant's presence at his jewelry store on the day the offense was committed. The appellant indicated that he would stop and pick her up on his way to court; however, he failed to do this. She was scheduled to appear at trial but did not appear. After consulting with his attorney, the appellant made the decision to proceed to trial without her. There is no evidence that Ms. Katz's testimony would have been any different from the testimony of the other two alibi witnesses. We find no evidence of ineffective assistance of counsel in these actions.

Next, the appellant complains of his attorney's failure to impeach the eyewitness's testimony concerning her prior description of the burglar. There is no evidence to show that her trial testimony was not accurate or that impeachment evidence would have been admissible. Neil Lane cross-examined her extensively regarding the lighting in the room where she first observed the burglar, how the burglar was dressed, the manner in which he covered his face and what facial features she remembered. He also questioned her about the physical description she gave the police, what type of haircut he possessed, if he had an accent, how long she observed the burglar and whether she was emotional during the burglary. He also brought out evidence that on various occasions she observed guests in the complainant's house while she was cleaning and whether or not any of the guests fit the description of the burglar. Additionally, he questioned her about the photo spread and whether or not she was absolutely sure Robert Carr was the person in the house that day. Mr. Lane thoroughly cross-examined the eyewitness with respect to her identification of the appellant and the accuracy of her previous description of the burglar. The successful nature of the cross-examination is reflected by appellant's fourth ground of error in which he claims there was insufficient proof that the appellant was the person in the complainant's apartment.

The decision relating to the calling of witnesses to testify concerning the appellant's appearance at the time of the offense and the lack of fingerprint evidence placing him at the scene of the crime were matters of trial strategy and will not be second-guessed by appellate hindsight. See Rockwood v. State, 524 S.W.2d 292, 293 (Tex.Crim.App.1975). Furthermore, it should have been obvious to the trial judge from the lack of fingerprint evidence that the appellant's fingerprints were not found at the scene.

The record indicates extensive cross-examination of Joyce Glass with respect to her identification of the appellant. She testified that her in-court identification was of independent origin and was based upon her initial observations, rather than the identification procedures. See Jackson v. State, 657 S.W.2d 123, 130 (Tex.Crim.App.1983) (en banc). Furthermore, failure to object to an in-court identification does not, in itself, constitute ineffective assistance of counsel, viewed in light of counsel's total representation. Archie v. State, 615 S.W.2d 762, 765 (Tex.Crim.App.1981).

There is further evidence that the trial attorney discussed the case with the appellant on numerous occasions and discussed the case with the investigating detectives. The state made their file available to the defense attorney in lieu of formal discovery, and he interviewed defense witnesses, noting their anticipated testimony.

The trial attorney also sent his client to see a well-known and respected polygraph examiner. He called the examiner as a witness and questioned him in such a manner as to leave the court with the impression that Mr. Carr had passed the polygraph examination. Mr. Lane also called two alibi witnesses to...