Phat Van Bui v. State, 01-00-00507-CR.
| Citation | 68 S.W.3d 830 |
| Decision Date | 24 January 2002 |
| Docket Number | No. 01-00-00507-CR.,01-00-00507-CR. |
| Parties | PHAT VAN BUI, Appellant, v. STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Jerry Guerinot, Houston, for Appellant.
Carol M. Cameron, Assistant District Attorney, Houston, for the State.
Panel consists of Chief Justice SCHNEIDER and Justices WILSON and JENNINGS.
EN BANC OPINION
A jury found appellant, Phat Van Bui, guilty of aggravated robbery and assessed punishment at 15 years in prison with a $10,000 fine. Appellant brings five points of error and challenges the effectiveness of his trial counsel, the factual sufficiency of the evidence to support the jury's verdict, and the admission of an extraneous offense over his objection. He further challenges the constitutionality of the parole charge to the jury, required by article 37.07 section 4(a) of the Texas Code of Criminal Procedure, as applied to criminal defendants whose actual time in prison is affected by section 508.149(a) of the Texas Government Code.
This Court has previously held that the article 37.07 section 4(a) reference to good conduct time violates state due course of law and federal due process protections when applied to defendants, like appellant, "who are not eligible for it." Bradley v. State, 45 S.W.3d 221 (Tex.App.-Houston [1st Dist.] 2001, pet. filed); Jimenez v. State, 992 S.W.2d 633 (Tex.App.-Houston [1st Dist.] 1999) ("Jimenez I"), aff'd on other grounds, 32 S.W.3d 233 (Tex.Crim. App.2000) ("Jimenez II") ().
En banc consideration was requested and granted to address the above holding in Bradley and Jimenez I. Today, for the reasons discussed below, the En Banc Court, after careful and deliberate consideration, overrules that holding. We hold that the article 37.07 section 4(a) reference to good conduct time does not violate state due course of law and federal due process protections when applied to defendants, like appellant, whose actual time in prison is affected by section 508.149(a) of the Texas Government Code. We affirm.
Su Ngo testified that he owned the Thien Thanh Vietnamese restaurant at the 11,200 block of Bellaire in Houston. On August 12, 1999, an unidentified Asian male, small in stature and between 16 and 19 years of age, entered the restaurant. The young man asked Ngo for a menu and a soybean order to go. Ngo told him he did not provide menus or orders to go, and the young man left.
The young man, accompanied by appellant, returned quickly. Both armed, they entered the restaurant and "racked" their guns. Ngo described appellant to police as having crew-cut style black hair with red dye on top and appearing older and taller than the other gunman. Appellant, shaking and staying near the door, pointed his gun at Ngo, who told appellant to put the gun away and take whatever he wanted. Appellant's accomplice approached Ngo and told him to open the register. Ngo complied, and the accomplice took between $200 and $300. The accomplice demanded Ngo's wallet, which Ngo gave him. During this time, appellant continued to point his gun at Ngo. Appellant and his accomplice then left the restaurant and drove away. Ngo followed them to the parking lot, trying to get their license plate number.
Officer James Begeal, of the Houston Police Department's Westside Division Gang Unit/Asian squad, testified he was assigned to the investigation of the robbery. After appellant became a suspect, Officer Begeal created a photo-spread containing a photograph of appellant and five other Asian males with similar physical features. Officer Begeal showed the photo-spread to Ngo, who immediately identified appellant as one of the gunmen. After obtaining an arrest warrant, Officer Begeal arrested appellant and seized a semi-automatic nine millimeter Beretta handgun in appellant's possession. The Berretta was similar to the weapon, as described by Ngo, used by appellant in the robbery.
At trial, Ngo made an in-court identification of appellant as one of the gunmen in the robbery. Ngo noted that appellant's appearance in court differed from his appearance on the day of the robbery. In court, appellant was wearing glasses and a suit jacket, and had his hair combed back without any red dye in it.
In his first point of error, appellant claims he received ineffective assistance of counsel because his attorney failed to object to Ngo's in-court identification of appellant. During his testimony on direct examination, Ngo identified appellant without objection. During cross-examination, Ngo admitted that, prior to trial, he sat next to appellant in the courtroom for about twenty minutes without recognizing him. Ngo also admitted that, prior to his testimony, the prosecutor showed him appellant's driver's license photograph.
A claim of ineffective assistance of counsel is reviewed under the two-pronged standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Appellant must first show that his lawyer's conduct was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Id. Second, assuming he has demonstrated such deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Whether this standard has been met is judged by the totality of the representation rather than by isolated acts or omissions by trial counsel. Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App.1986); Brown v. State, 866 S.W.2d 675, 677 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd). We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994).
Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
Here, appellant filed a motion for new trial, but no hearing was held. The motion for new trial was overruled by operation of law. Thus, the record is silent as to why appellant's trial counsel did not object to Ngo's in-court identification. The record does reveal Ngo admitted on cross-examination that he did not recognize appellant on the day of the trial before being shown appellant's driver's license photograph. However, the record also demonstrates Ngo positively identified appellant prior to trial in a photo-spread. It further reflects that appellant's appearance in court differed from the day of the robbery, in that appellant was wearing a suit and glasses in court and did not have part of his hair dyed red. In addition, as discussed below, the State presented evidence of appellant's involvement in a similar extraneous aggravated robbery as further proof of appellant's identity in the instant case.
Based on the record presented, we simply cannot say appellant's trial counsel's performance was deficient. Appellant has not overcome the presumption that not objecting to the in-court identification under these circumstances might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93; Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. Given Ngo's pretrial identification of appellant in the photo-spread, the change in appellant's appearance since the date of the robbery, and the admission of the extraneous offense, showing that the result of the proceeding would have been different would be virtually impossible. An objection to Ngo's in-court identification of appellant would arguably have been futile.
To find trial counsel ineffective based on the asserted ground would call for speculation in which we will not engage. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant has not rebutted the presumption that trial counsel made all significant decisions in the exercise of reasonable professional judgment, and appellant has not demonstrated in the record that counsel rendered ineffective assistance. See Thompson, 9 S.W.3d at 814.
We overrule appellant's first point of error.
In his second point of error, appellant argues the evidence is factually insufficient to support the jury's finding that he committed aggravated robbery. Specifically, appellant claims that evidence of Ngo's misidentification of him was established by the defense witness, Anna Luu.
Under the factual sufficiency standard, we ask, "whether a neutral review of all of the evidence both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must also avoid substituting our judgment for that of the fact finder. Id.
We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe...
To continue reading
Request your trial
- Luquis v. State
- Hooper v. State
-
Werner Enterprises, Inc. v. Blake
... ... , 599 ... S.W.3d 79 (Tex. App.-Houston [14th Dist.] 2020, pet. denied); ... State v. Baldwin , 614 S.W.3d 411 (Tex. App.-Houston ... [14th Dist.] 2020, pet. granted). But the ... ...
- Rios v. State, 01-04-00795-CR.