Long v. State

• Decision Date: 12 December 1973
• Docket Number: No. 47231,47231
• Citation: 502 S.W.2d 139
• Parties: Bruce Wayne LONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 139

502 S.W.2d 139

Bruce Wayne LONG, Appellant, v. The STATE of Texas, Appellee.

No. 47231.

Court of Criminal Appeals of Texas.

Dec. 12, 1973.

Tom A. Boardman, Lawrence B. Mitchell, Dallas (On motion for rehearing), James S. Moss, Mesquite (Court appointed on appeal only), for appellant.

Henry Wade, Dist. Atty., and William J. Teitelbaum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Presiding Judge.

Our prior opinion is withdrawn and the following is substituted in lieu thereof.

The appellant was convicted of robbery by assault and assessed a punishment of ten (10) years by the jury.

On original submission the court-appointed counsel, who had also represented the appellant at trial, filed a brief stating an examination of the record convinced him the appeal was wholly frivolous. Aware of his duties under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), appointed counsel performed the same, including filing a brief advancing arguable grounds to support the appeal. Our per curiam opinion answered such contentions and also concluded after an examination of the record that the appeal was frivolous and affirmed the conviction.

Appellant is now represented by retained counsel and the court has granted his motion for leave to file a motion for rehearing. In such later motion appellant urges that he was denied the effective assistance of counsel during his trial, as well as his appeal, in violation of his Sixth Amendment rights. We shall consider the contention under the provisions of Article 40.09, subd. 13, Vernon's Ann.C.C.P., as unassigned error 'in the interest of justice.'

An examination of the record reflects that trial counsel filed a motion for discovery which was partially granted whereby he obtained a list of witnesses, medical reports, psychiatric and laboratory reports, etc. He secured a bench warrant for a defense witness who was in the Department of Corrections, had his first motion for continuance granted in view of an absent witness who was later found and who testified. His motion in limine to prohibit the introduction of certain evidence was also granted. During the trial, he made numerous objections, cross-examined most of the State's witnesses, offered the defense of alibi, made jury arguments and offered objections to the argument of the State.

Appellant's present counsel has nevertheless selected a number of trial counsel's decisions and lack of action from the record and comes up with the assertion of incompetent and inadequate representation.

First, he claims that counsel was ineffective in failing to request a hearing on the pre-trial identification procedure used to determine if such procedures were so suggestive as to taint the reliability of any subsequent identification by the witness.

The record reflects that Ira Smith, a bartender at Frankie's Lounge at 1507 South Ervay in Dallas, and one lone customer were robbed there at gunpoint by two Negro men on September 7, 1971 at about 10 p.m.

When Smith was asked to identify, if he could identify, the man who held a pistol on him, appellant's counsel objected and asked for a bench conference. Such discussion was out of hearing of the court reporter. Subsequently, the witness made his in-court identification without objection.

Later, the witness testified on direct examination, without any objection, that the police had shown him some five or six pictures and that he had identified appellant's photograph. He denied any suggestion was made to him, and stated he just 'went through them and picked it out'; that his identification of the appellant's picture was based on his observations of the appellant during the course of the robbery at the lounge.

We are unable to determine what occurred at the unrecorded bench conference which caused counsel not to renew his objection to the in-court identification. Likewise, the record does not reflect whether counsel was aware prior to trial of the photographic identification. If he was and had learned that it was not suggestive, as the record reflects, then it would be ridiculous to require him to request a useless hearing on the same or face a claim of incompetency. Nevertheless, appellant's present counsel urges such a hearing was essential since the record supports the fact that counsel knew the complaining witness had stated at the examining trial that Negroes all looked alike to him. On cross-examination the witness denied having made such statement. Counsel later called the attorneys who had represented the appellant at the examining trial, who testified that the witness had made such a statement. Since it is undisputed that the witness identified the appellant at the examining trial and it is not clear just in what context the statement, if any was made, was used, we cannot agree that counsel's knowledge of such statement necessitated his request of a hearing regarding the photographic identification.

Next, appellant complains that his trial counsel did not object to the investigating officer's testimony that a confidential informant had told him that the appellant had committed the alleged robbery. Certainly a valid objection could have been made, but the failure to object may well have been a part of trial strategy, since counsel argued to the jury that such informer was perhaps the guilty party and was only trying to shield himself by giving such information, and called attention to the testimony supporting the...