Greene, Jeanette v. State

Opinion issued November 20, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00485-CR

JEANETTE MARIE GREENE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 905,134

O P I N I O N

A jury convicted appellant, Jeannette Marie Greene, of arson. Appellant

stipulated to two prior felony convictions, and the trial court assessed punishment at

25 years’ confinement. We affirm.

Background

Darrell Greene was appellant’s former common-law husband, and Kathie

Ritchie was his girlfriend. On October 8, 2001, someone set Ritchie’s car on fire.

The State presented evidence that appellant had been involved in a physical

altercation and had argued with Darrell Greene the day before the arson. The State

also produced telephone messages to Ritchie, on which appellant’s voice was

positively identified, stating, “You know what Bitch, I may kill each one of ya’ll

slowly. You know what, you better go outside. Because you know, right there on the

side right there it’s a Corona bottle filled up with gasoline.” The evidence showed

that the car was burned after having been doused with an accelerant and that a Corona

bottle smelling of gasoline was found nearby.

The State also produced the eyewitness testimony of Reginald Guy, who told

the arson investigator at the scene of the crime that he had seen a short, dark-complexioned woman leaving the scene of the arson in a silver or grey Taurus with

newspaper over the license plate. Later that day, after having been shown a driver’s

license picture of appellant by police, Guy identified her as the woman whom he had

seen driving away. He also identified her in court.

There was evidence that, even though appellant did not own a Taurus, she was

driving a rented Taurus of the day on the arson.

Ineffective Assistance of Counsel

In point of error one, appellant contends that she received ineffective assistance

of counsel at trial. Specifically, appellant contends that her attorney should have filed

a motion to suppress Guy’s in-court identification of her as the person whom he had

seen fleeing the crime scene. She argues that Guy’s identification was tainted by an

impermissibly suggestive pretrial identification, which she alleged occurred when the

police showed Guy appellant’s driver’s license and asked if appellant was the woman

whom Guy had seen fleeing the scene of the arson.

The legal standard set out in Strickland v. Washington , 466 U.S. 668 104 S. Ct.

2052 (1984), applies to appellant’s claim. To prevail on her claims, appellant must

first show that her counsel’s performance was deficient. Bone v. State , 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). Specifically, appellant must prove, by a

preponderance of the evidence, that her counsel’s representation fell below the

objective standard of professional norms. Id. Second, appellant must show that this

deficient performance prejudiced her defense. Id. Appellate review of defense

counsel’s representation is highly deferential and presumes that counsel’s actions fell

within the wide range of reasonable and professional assistance. Id. Under normal

circumstances, the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic

decision-making as to overcome the presumption that counsel’s conduct was

reasonable and professional. Id. Rarely will the trial record contain sufficient

information to permit a reviewing court to fairly evaluate the merits of such a serious

allegation: “[i]n the majority of cases, the record on direct appeal is simply

undeveloped and cannot adequately reflect the failings of trial counsel.” Id. , quoting

Thompson v. State , 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).

We acknowledge that many Texas courts have held that showing a witness a

“photo spread” containing a single photograph is an impermissibly suggestive pretrial

identification procedure,

and we in no way endorse the use of such a pretrial

identification procedure. However, because there is nothing in the record to show

why counsel chose not to attempt to have Guy’s in-court identification suppressed in

this case, appellant cannot meet the first prong of the Strickland test. See Bone , 77

S.W.3d at 830 (“We are once again asked whether an appellate court may reverse a

conviction on ineffective assistance of counsel grounds when counsel’s actions or

omission may have based upon tactical decisions, but the record contains no specific

explanation for counsel’s decisions. Once again, we answer that question ‘no.’”).

Because the court [of appeals] itself did not discern any particular

strategy or tactical purpose in counsel’s trial presentation, it therefore

assumed that there was none. This inverts the analysis. Under

Strickland , the defendant must prove, by a preponderance of the

evidence, that there is, in fact, no plausible professional reason for a

specific act or omission. From this trial record, one could conclude that

there were legitimate and professionally sound reasons for counsel’s

conduct or one could speculate that there were not. Under our system

of justice, the criminal defendant is entitled to an opportunity to explain

himself and present evidence on his behalf. His counsel should

ordinarily be accorded an opportunity to explain her actions before

being condemned as unprofessional and incompetent.

Id. at 836. We do not believe that appellant has met her burden of showing that

counsel had no plausible trial strategy in failing to object to Guy’s in-court

identification, and we will not speculate about the lack of trial strategy simply

because we do “not discern any particular strategy or tactical purpose.” Id.

Therefore, we conclude that appellant has failed to meet the first prong of the

Strickland test.

Furthermore, we believe that appellant also fails to meet the second prong of

Strickland . Even if appellant had successfully challenged Guy’s in-court

identification, the remaining evidence would have been legally sufficient to tie

appellant to the arson. Evidence that Guy told the arson investigator that he saw a

short, dark-complexioned woman fleeing the scene of the crime in a Taurus with

newspaper on the license plate would have been admissible because it occurred

before the allegedly suggestive pretrial procedure, i.e. , before police showed Guy

appellant’s driver’s license. There was other evidence, from which the jury could

have rationally concluded that appellant was, in fact, the unidentified woman whom

Guy had seen. The jury was able to see appellant and to determine whether she was

short and dark-complexioned, as Guy had described the woman to the arson

investigator. The jury also heard appellant’s voice on the audiotaped telephone

messages, in which she had threatened to burn the victim using gas from a Corona

bottle; a Corona bottle smelling of gasoline was recovered from the scene. There was

also Guy’s untainted testimony that he had seen a silver Taurus leaving the scene of

the arson. One of appellant’s own witnesses testified that appellant was driving a

rented Taurus on the day of the arson, although he believed that it was brown or tan.

Identity of a perpetrator can be proved by direct or circumstantial evidence;

eyewitness identification is not necessary. See Earls v. State , 707 S.W.2d 82, 85

(Tex. Crim. App. 1986). We believe that there is sufficient circumstantial evidence

to identify appellant as the perpetrator in this case. First, there was evidence that

appellant’s voice was identified on the victim’s answering machine, on which she

made very specific threats against the victim. The arson committed was very similar

to the threats made by appellant. Second, there was evidence of the acrimonious

history between the two women. Third, there was evidence that Guy saw a woman

generally matching appellant’s description fleeing the scene of the crime. Fourth,

there was evidence that the woman whom Guy saw was driving a Taurus, as well as

evidence that appellant was driving a rented Taurus on the day of the offense. Thus,

even if Guy’s identification of appellant had been suppressed, the remaining evidence

would have been legally sufficient for the jury rationally to conclude that appellant

committed the arson.

Because appellant is not able to show to a reasonable probability that, but for

the alleged deficiency, a different verdict would have been reached, she fails to meet

the second prong of the Strickland test. See Herron v. State , 86 S.W. 3d 621, 634

(Tex. Crim. App. 2002).

Accordingly, we overrule point of error one.

Motion to Substitute Counsel and Motion for Continuance

1. Relevant Facts

Appellant was originally indicted in this case under cause no. 890309 and was

represented by retained counsel, Douglas Haynes, as early as October 10, 2001. The

prior indictment was apparently dismissed, and the case was reindicted under the

present cause number on March 11, 2002. Douglas Haynes continued as retained

counsel under the new indictment, and the case was set for a pretrial conference on

March 28, 2002.

On that date, appellant filed a motion to substitute counsel and a motion for

continuance of the trial date, which were set for the following week. Appellant

wanted to have Kenneth David Cager represent her, rather than Douglas Haynes.

The trial court held a hearing on the motion to substitute, at which Cager

represented to the court that he could not be prepared in time for the trial setting the

following week. Rather than delay the trial setting, the trial court denied the motions

to substitute and for continuance, but stated that she would reconsider the motion to

substitute in the event that the court did not reach the case the following week.

2. Law and Analysis

In point of error two, appellant contends that the trial court violated her Sixth

Amendment right to counsel of her choice by denying the motion to substitute

counsel and motion for continuance. See U.S. Const. amend. VI.

The Texas Rules of Criminal Procedure provide that “[a] criminal action may

be continued on the written motion . . . of the defendant, upon sufficient cause

shown.” Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Granting or

denying a motion for continuance is within the discretion of the trial court and will

not be reversed on appeal unless it is shown that the court abused its discretion.

Janecka v. State , 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).

“The right to counsel of one’s choice is not absolute, and may under some

circumstances be forced to bow to ‘the general interest in the prompt and efficient

administration of justice.’” Rosales v. State , 841 S.W.2d 368, 374 (Tex. Crim. App.

1992) (quoting Gandy v. Alabama , 569 F.2d 1318, 1323 (5th Cir.1978)). In deciding

whether to grant a continuance because of the absence of the defendant’s choice of

counsel, the trial court should weigh the following factors: (1) the length of delay

requested; (2) whether other continuances were requested and whether they were

denied or granted; (3) the length of time in which the accused’s counsel had to

prepare for trial; (4) whether another competent attorney was prepared to try the case;

(5) the balanced convenience or inconvenience to the witnesses, the opposing

counsel, and the trial court; (6) whether the delay is for legitimate or contrived

reasons; (7) whether the case was complex or simple; (8) whether the denial of the

motion resulted in some identifiable harm to the defendant; and (9) the quality of

legal representation actually provided. Ex parte Windham , 634 S.W.2d 718, 720

(Tex. Crim. App. 1982).

Considering some of those factors in this case, we observe that: (1) the motion

for continuance did not specify the length of the delay requested, but Cager stated that

he would not be ready to proceed with the trial setting the following week; (2) the

record does not reflect any prior motions for continuance, but does show that there

had been some prior conflicts between appellant and Haynes regarding the filing of

a motion to reduce bond; (3) the record shows that Haynes had represented appellant

from at least October 10, 2001 through March 28, 2002; and (4) despite the apparent

conflicts between appellant and Haynes over the motion to reduce bond, appellant did

not seek to replace Haynes as counsel of record until one week before trial, even

though the case had been pending for over 170 days; (5) Cager, appellant’s proposed

new attorney, was not prepared to try the case; (6) the State was ready for trial, but

the record does not otherwise indicate how the State, the trial court, or the witnesses

would be prejudiced; (7) the trial was a serious matter, but not especially complex;

(8) no particular prejudice to appellant, other than the fact that she never had her

motion to reduce bond addressed before trial, is evident from the record; and (9)

despite appellant’s allegations of ineffective assistance of counsel, which we

addressed earlier, Haynes had adequate time to prepare for trial and presented and

cross-examined witnesses on appellant’s behalf.

Although some of the Windham factors may favor the granting of the requested

continuance, under an abuse-of-discretion standard, it is not our role to reweigh the

factors, but to determine whether the trial court could reasonably have balanced them

and concluded that the fair and efficient administration of justice weighed more

heavily than appellant’s right to counsel of his choice. See Rosales , 841 S.W.2d at

375 (applying Windham factors and determining that trial court did not abuse

discretion in denying motion for continuance); Daniels v. State , 921 S.W.2d 377, 381

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (same). Under the circumstances

of this case, we hold that the trial court did not abuse its discretion.

We overrule point of error two.

We affirm the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.

En banc consideration was requested by a justice of the Court. See Tex. R. App. P.

41.2(c).

A majority of the Court voted against en banc consideration.

Justice Jennings, dissenting from the denial of en banc consideration. See Tex. R.

App. P. 47.5.

Publish. Tex. R. App. P. 47.2(b).