Pinkston v. State

• Decision Date: 07 January 1988
• Docket Number: No. 01-86-00997-CR,01-86-00997-CR
• Citation: 744 S.W.2d 329
• Parties: Darrell Hobson PINKSTON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 329

744 S.W.2d 329

Darrell Hobson PINKSTON, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-00997-CR.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 7, 1988.

Robert A. Scardino, Jr., Houston, for appellant.

Calvin Hartmann, Asst. Dist. Atty., for appellee.

Before EVANS, C.J., and SAM BASS and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

A jury found appellant guilty of aggravated robbery with the use of a firearm. The trial court assessed punishment at 15 years and one day imprisonment. Appellant asserts five points of error.

At approximately 7:45 PM on July 6, 1984, the complainant, Reginald Brinkley, answered a knock on his garage door. He was confronted by two men, one of whom asked if "Amy was there?" Mr. Brinkley explained that no one by that name lived there. Brinkley testified that appellant, Darrell Pinkston, and his companion, David Wilson, burst through the doorway, knocking Brinkley to the floor.

Armed with guns, the two men forced Brinkley into the adjacent room where his wife was eating dinner. While Wilson held the couple at gunpoint, appellant went upstairs and returned with sheets, which he used to tie the Brinkleys' hands and feet. The couple was made to lie face down on the living room floor. Appellant then ransacked the upper living area while Wilson went through the downstairs.

At various intervals during the robbery, the Brinkleys observed appellant carrying items from the upstairs to the downstairs. At one point, appellant demanded that Mr. Brinkley tell him where his money was kept. When Brinkley stated that there was no more money, appellant threatened "to blow off" his head. After approximately 35 to 40 minutes, the two men loaded the stolen property into Brinkley's car and drove away. The stolen property included gold cufflinks, western belts, guns, watches, jewelry, and a fur coat.

In his first and second points of error, appellant contends that his trial counsel's failure to interview potential alibi witnesses, and his failure both to go to the jury for punishment and to request a jury instruction on probation, fell below the objective standard of reasonableness required of trial counsel and deprived him of his constitutional right to effective assistance of counsel.

The test for ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Effective counsel is to be judged by the sixth amendment standard of "reasonably effective assistance." Ex parte Duffy, 607 S.W.2d 507 (Tex.1980). Under this standard, the sufficiency of an attorney's assistance is gauged by the totality of the representation of the accused. Ferguson v. State, 639 S.W.2d 307 (Tex.Crim.App.1982); Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App.1981). The constitutional right to counsel does not mean errorless counsel or counsel whose competency is to be judged by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. Ex parte Duffy, 607 S.W.2d at 516-17. Each case must be considered on its own particular circumstances. Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App.1981).

First, appellant claims that his trial counsel failed to perform the investigation that would have uncovered the testimony of potential alibi witnesses. He contends that his counsel did not know the evidence existed and that due to his failure to investigate, the evidence was not placed before the jury.

An attorney has a duty to make an independent investigation of the facts of his client's case; counsel's failure to seek out and interview potential witnesses is ineffective where the result is that any viable defense available to the accused is not advanced. See Ex parte Ewing, 570 S.W.2d 941 (Tex.Crim.App.1978).

In the instant case, appellant's trial counsel presented an alibi defense. At trial, appellant testified that he was in Austin on July 6, 1984, the date of the offense. He claimed that he arrived in Austin on July 3, 1984, to stay with his friend, Jim Green, and other guests for the Fourth of July holidays. He stated that he played golf with a man named Victor Wallace and two Austin police officers on the afternoon of July 6, 1984, and then spent the evening in the company of his friend and the other guests.

Appellant's trial counsel called Green, Wallace, and one of the officers to testify. Green testified that appellant stayed with him from July 3rd through July 9th. He claimed that he spent every evening with appellant, including the evening of July 6, 1984. Wallace and the officer testified that they played golf with appellant over the holidays, although neither was sure of the exact date.

An attorney's failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is shown that the witnesses would have been available and that the presentation of the evidence would have benefitted appellant. See Coble v. State, 501 S.W.2d 344 (Tex.Crim.App.1973). In the instant case, the record does not indicate that the other officer or the guests were available for interviews or that their testimony would have benefitted appellant. There is no showing that the other officer would have been able to be more exact about the date on which he played golf with appellant two years earlier, nor is there any showing that the other guests would have known or remembered where appellant was at the time of the offense.

Appellant also claims that his trial counsel failed to interview Gerald Howell, who would have established that he, not appellant, along with Wilson robbed the Brinkleys. However, in his fourth point of error, appellant claims that Howell refused to be interviewed or to testify about the Brinkley robbery, thus undermining any argument that his counsel was ineffective in failing to conduct an interview.

Next, appellant contends that his trial counsel failed to go to the jury for punishment and failed to request a jury instruction on probation at the punishment phase of the trial. Appellant notes that the record shows that he was clearly eligible for probation because he had no prior felony convictions; therefore, the jury could have recommended probation, if it had assessed punishment of less than 10 years. Tex.Code Crim.P.Ann. art. 42.12, sec. 3a (Vernon Supp.1988).

An examination of the record reveals that appellant entered a plea of not guilty and requested that the trial court assess punishment. No application for probation was made. Appellant argues that his attorney should have told him that he was eligible for probation and that the trial court could not grant him probation if the jury found him guilty of aggravated robbery. Tex.Code Crim.P.Ann. art. 42.12, sec. 3g(a)(1)(D) (Vernon Supp.1988).

However, appellant has failed to prove that his counsel did not inform him of such matters. The record before us does not reveal what advice appellant was given by his attorney, nor does it explain the defense counsel's strategy. Without conclusive support in the record, we cannot presume that the decisions originated with the attorney and were not the result of acquiescence to the client's wishes. Shepherd v. State, 673 S.W.2d 263, 267 (Tex.App.--Houston [1st Dist.] 1984, no pet.). An assertion of ineffective assistance of counsel will be sustained only if the record affirmatively supports such a claim. Ex parte Ewing, 570 S.W.2d at 943.

Moreover, matters of trial strategy will be reviewed only if an attorney's actions are without a plausible basis. Ex parte Burns, 601 S.W.2d 370 (Tex.Crim.App.1980). In the instant case, appellant was being tried for aggravated robbery of an elderly couple with the use of a firearm in their home. It was reasonable to believe that the trial court might be more lenient than the jury in such a case. As it was, the trial court assessed punishment at 15 years and one day, a relatively light sentence considering that the maximum punishment is life or any term of not less than five years or more than 99 years. Tex.Penal Code Ann. secs. 12.32 and 29.03 (Vernon Supp.1988). Therefore, under the facts of the instant case and based on a totality of the representation, appellant was not denied effective assistance of counsel at his trial. Appellant's first and second points of error are overruled.

In his third point of error, appellant asserts that the trial court erred in overruling his motion to suppress Mr. and Mrs. Brinkley's in-court identifications. Appellant claims that the in-court identifications were tainted by the suggestive nature of the out-of-court identifications.

At the hearing on the motion to suppress, Officer Davis of the Houston Police Department testified that on July 17, 1984, Mrs. Brinkley told one of the investigating officers that she could not identify anyone involved in the robbery.

Officer Davis also testified that on August 13, 1984, 38 days after the offense, he showed a photo spread to Mr. and Mrs. Brinkley at their residence. The spread consisted of six black and white photos from the driver's license division of the Department of Public Safety. Davis testified that the persons depicted in the photos were similar in race, age, and facial hair.

Mrs. Brinkley was shown the photo spread before Mr. Brinkley arrived home. She was unable to identify anyone. At that time, she indicated that she did not think that she had seen the appellant well enough to identify him because he was upstairs most of the time.

When Mr. Brinkley arrived home that day, he was shown the same photo spread while his wife was in another room. He was not told that she had been unable to identify anyone. He positively identified appellant as one of the men who robbed him.

On October 22, 1984, Mr. and Mrs. Brinkley attended a line-up at the Harris County jail, in which...