Johnson v. State

• Decision Date: 15 April 1981
• Docket Number: No. 2,No. 62258,62258,2
• Citation: 614 S.W.2d 148
• Parties: Vance Levell JOHNSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 148

614 S.W.2d 148

Vance Levell JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 62258.

Court of Criminal Appeals of Texas, Panel No. 2.

April 15, 1981.

James E. Davis, Texarkana, for appellant.

Louis J. Raffaelli, Dist. Atty., & Dennis P. Jones, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This appeal is taken from a conviction for the offense of aggravated robbery in which the jury assessed punishment at fifty years. In his sole ground of error appellant contends that the conviction should be reversed because he was denied the effective assistance of counsel in contravention of his rights secured by the Sixth and Fourteenth Amendments of the United States Constitution.

In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980) we determined that the effectiveness of retained and appointed counsel should be judged by the same standard, that of "reasonably effective assistance." Our decision conforms with the recent holding by the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Duffy, supra, at 514, we adopted the test used in McKenna v. Ellis, 280 F.2d 592 (5 CA 1961) and as quoted approvingly in Caraway v. State, 417 S.W.2d 159, 162 (Tex.Cr.App.1967) to be as follows:

"We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render, and rendering effective assistance."

Of necessity, each case must turn on its own particular facts and circumstances. See Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977). The adequacy of an attorney's services must be gauged by the totality of the representation. See Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976) and Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974). The allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974) and Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).

Accordingly we now turn to the facts of this case in order to ascertain if appellant's allegation of ineffective assistance may be sustained. The record reflects that appellant was represented at trial by retained counsel, and different counsel was appointed by the trial court after this Court granted an out of time appeal. There is no transcription of the court reporter's notes of the voir dire proceedings or the jury arguments contained in the record before us.

The evidence adduced at trial showed that appellant was arrested near McKinney three hours after the alleged robbery occurred in Texarkana. He and a passenger, Carl Brown, were stopped by two highway patrolmen because appellant's car had only one headlight burning. Both Officer Powell and Officer Dobecka testified that when asked for identification, appellant produced only an expired temporary driver's license. Officer Dobecka ran a record check on him and found a "similarity hit," ¹ so they arrested both men. ² Shortly Bowie County Deputy Sheriff Copeland contacted them, and the two men were transferred to the Bowie County Jail. At the time of the arrest the officers impounded the car and seized several items of clothes, a pearl handled revolver, and a quantity of small change and currency.

The State's evidence consisted largely of the testimony of Mr. Crow, the owner of Crow's Grocery Store in Texarkana, Mrs. Ruby Nichols, the assistant cashier at the grocery store, and Mrs. Louise Shemley, a customer present at the store during the robbery. They all variously testified that at approximately 6:00 p. m. two black men entered Crow's Grocery Store. One of them exhibited a gun and demanded the money from the cash register. ³ The two men then ran outside in a heavy rainstorm to a car. Additionally, Ms. Deborah Davids testified that she was driving by the grocery store when she heard what sounded like gun shots. She saw two men, whom she could not identify, get into a 1972 Cutlass. She followed the car and obtained the license number, which was later found to match that on the car of appellant.

Appellant defended that he was mistakenly identified. He claimed that he had come to Texarkana with Carl Brown from Lubbock, where they had been stationed in the Air Force, and they had stayed with the Brown family for several days. At the time of the robbery appellant and Carl Brown had gone to visit a brother, returned to the family house, eaten dinner, and were driving back to Lubbock. Both houses were shown to be located near the grocery store, which would be passed when driving a likely route from one house to the other.

Appellant contends that ineffective assistance of counsel was amply demonstrated during the trial, but for reasons about to be elucidated we disagree.

Pretrial, well in advance of trial, the lawyer filed "Defense Motions" in the nature of discovery by which he sought to learn practically everything germane to the offense, including identity of witnesses to it, results of any identification procedure, as well as Brady material. ⁴ While the record fails to reveal what action the trial court took with respect to the motions, testimony of appellant himself on cross examination and developments at trial indicate that his attorney did investigate the facts. ⁵

The items taken from appellant's car were introduced at trial. He now complains that not only was there no pretrial motion to suppress the evidence filed, but the clothes, which were State's evidence, were introduced by appellant's attorney at the instance of the prosecutor. ⁶ In this particular appellant asserts "inadequacy of counsel is highlighted" for, as he sees it, "(w)ithout regard to the illegality of the search" which produced the evidence "its authenticity cannot be proven because of lack of proof of a proper chain of custody." He then criticizes his erstwhile trial attorney for also failing to move to suppress or to object to admission of other fruits of the search, a pistol and a bank bag of coins.

It is clear enough to us, however, that the overall strategy formulated by trial counsel, from his investigation of the facts susceptible of being proved, dictated the tactical decisions to call for the clothing and to withhold objection to the pistol and money bags. We will not "second guess" his decisions in the sense of determining whether they were wisely made, but are permitted to express our perception that, regardless of the chain of custody of the clothing and validity of the search and seizure, the strategy was to get them before the jury to make several defensive points to demonstrate that they were not necessarily incriminating evidence. ⁷

Identification was a sharply contested issue in this trial. Mr. Crow, who had a tunnel vision problem and was nearly blind, was unable to identify either of the participants in the robbery. ⁸ Mrs. Nichols and Mrs. Shemley both selected appellant and incorrectly picked out different individuals from the pretrial lineup. ⁹ A rebuttal witness for the State testified: ¹⁰

"Q (DEFENSE ATTORNEY): Detective Clingan, you say Mrs. Ruby Nichols positively identified (the defendant), is that correct?

A: Yes, Sir, she did.

Q: Did she positively identify someone else?

A: Yes, Sir, she did.

Q: Who was that?

A: Jesse Gates.

Q: Do you of your own knowledge know that Jesse Gates was in jail at the time?

A: Yes, Sir.

Q: That's where you got him from, upstairs in jail to bring him down to the line-up.

Q: In fact, Jesse Gates gets as many votes as anybody else, doesn't he?

A: Yes, sir, he did. He got tentatively identified one time by Mr. Crow, and positively one time by Mrs. Nichols.

Q: Would you read the description of James Walls?

A: Yes, Sir. He's a colored male, twenty-one years of age, height, five foot six inches, weight, one hundred sixty pounds.

Q: Okay. This is five-six. Would you look at Carl Brown's and Vance Johnson's height and see what their height is?

A: Jesse Gates...

Q: No, Carl Brown and Vance Johnson.

A: Okay. Carl Brown is five foot eleven inches, and Vance Johnson is that the other one you asked for?

Q: That's right.

A: Okay, he's five foot eleven inches.

Q: That's five inches difference there. On a half a foot, that's quite a bit of difference between the two, is there not?

A: Yes, Sir."

Appellant's attorney made no request for a Martinez pretrial identification hearing, ¹¹ and none was held; and no objection made during the incourt identification. Perceiving these omissions as failings of counsel, appellant now says they are a mark of ineffectiveness.

We note that the United States Supreme Court in Watkins v. Sowders, --- U.S. ----, 101 S.Ct. 654, 655, 66 L.Ed.2d 549 (1981), while declining to adopt a per se rule compelling the trial court to hold an identification hearing out of the presence of the jury, stated:

"A judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable. In some circumstances, not presented here, such a determination may be constitutionally necessary."

Still, the purpose of such a hearing is to decide if an incourt identification made or about to be made is the product of or tainted by a prior identification procedure so suggestive that it created a very substantial likelihood of misidentification. Martinez v. State, supra; see Turner v. State, 600 S.W.2d 927, 932 (Tex.Cr.App.1980).

Since trial counsel had no criticism of the lineup itself and even now appellant does not suggest that it tainted the incourt identification made by the two witnesses, we are at a loss to comprehend what a Martinez hearing might accomplish. See Boykin v. State, 487 S.W.2d 128, 131 (Tex.Cr.App.1972). Again, it seems to us that, well aware of the prospective identification of appellant the two witnesses would make in co...