Luke Dwayne Latson v. State

Opinion issued October 28, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00802-CR

LUKE DWAYNE LATSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County,

Texas

Trial Court Cause No. 1205837

MEMORANDUM OPINION

A

jury convicted Luke Dwayne Latson of aggravated robbery and, after Latson

pleaded true to the allegations in two enhancement paragraphs, assessed

punishment at sixty years’ confinement. See Tex.

Penal Code Ann. § 29.03 ( a) (Vernon 2003). On appeal, Latson contends that he received

ineffective assistance of counsel. We

hold that Latson failed to meet his burden to demonstrate that he received

ineffective assistance of counsel and therefore affirm.

Background

In February 2009, Rick Dacus, a Metro

bus driver and the complainant, was driving his evening route when a man, the

sole passenger on the bus, ordered him to stop.

Dacus stopped the bus. Before the

man exited through the doors, he turned, pointed a gun at Dacus and demanded: “Give

me your wallet.” Dacus gave him his

wallet. Finding it empty, the man

demanded Dacus’s watch. The man took the

watch, threw the wallet down, and walked away from the bus. In court, Dacus identified Latson as his

assailant.

Several cameras installed on the bus

recorded the robbery. Metro Police

Department Sergeant Lynn reviewed the video of the robbery. He noticed that Dacus’s asssailant used a Q

Card, which is a prepaid card used to pay the bus fare. By noting the time the robber used his Q Card

to board the bus, Sergent Lynn located the associated Q Card from Metro’s

treasury department and the records of its use.

Sergeant Lynn ascertained that the robber frequently used the card at 5300

Coke Street. With still photographs of

the man who committed the robbery, he visited the leasing office of Crème Manor

Apartments, located at 5300 Coke Street.

He showed the photographs to an administrative assistant and a

maintenance man. Both identified the man

in the photographs as a trespasser on the property, whom they had last seen in

the courtyard.

Sergeant Lynn found Latson in the apartment

courtyard and arrested him. Latson had a

.38 caliber pistol when Sergeant Lynn detained him. At trial, Dacus testified that the gun looked

similar to the one used in the robbery. Metro

Police officer Ken Kuhlman interviewed Dacus after the police arrested

Latson. Dacus verified that Latson was

the man who had robbed him.

Before jury selection on the day of

trial, Latson complained to the trial court about his counsel’s

representation. Specifically, he

maintained that he had a witness whom he wanted counsel to call:

THE

COURT: Any other witnesses that you

have, sir?

THE

DEFENDANT: Yes, I have witnesses.

THE

COURT: Who are they?

THE DEFENDANT: I have told her [trial counsel]. Yes, I have

told her.

THE

COURT: Well I think she just said that

you didn’t.

THE DEFENDANT: No, but at that time I didn’t have the addresses.

THE

COURT: Okay.

THE DEFENDANT: I mean, I didn’t have the addresses or the name

but I - - because I knew them by

a street name, but I got his

first name now. His name is Chris, and

he stayed in the Coke

apartments. That’s where I was during

that whole time.

THE COURT: You got a street name for somebody named Chris - - and - - no,

you’ve got his street name and you say his real

first name is Chris - -

THE

DEFENDANT: Yes, Chris. First name is Chris.

THE

COURT: And he stays at a particular

apartment complex?

THE

DEFENDANT: Yes, Apartment 83.

THE

COURT: Have you given that to her yet?

THE DEFENDANT: I told her.

She said, Well I’m going to have to tell that to - -

THE COURT: Okay.

When did you find the name Chris? That’s

something that you haven’t told her yet?

THE DEFENDANT: I found that out about three or four days ago.

THE COURT: So three days ago, but you haven’t relayed

that to her until

now, correct?

THE

DEFENDANT: Yes. Yes, sir.

THE COURT: Okay.

Well if she wants to attempt service on somebody, first name Chris, at that

address, she can do that. There’s

a process server that can go attempt service.

You don’t have a

last name at all?

THE DEFENDANT: I don’t know his last name, but his first name is Chris.

THE

COURT: You know who he lives with?

THE

DEFENDANT: He lives with his wife.

THE

COURT: You know her name?

THE DEFENDANT: I can’t - - I can’t remember her name.

Later,

while the jury deliberated Latson’s punishment, trial counsel addressed

Latson’s complained-of missing witness.

TRIAL COUNSEL: I want to go on the record just to clear something

up. Prior to the trial starting, Mr.

Latson had stated that

he had a witness that he gave me that morning.

Is that correct,

Mr. Latson?

THE

DEFENDANT: Yes.

TRIAL COUNSEL: And what was the name of the witness that you gave me?

THE

DEFENDANT: Chris.

TRIAL COUNSEL: And how long had you known that this witness was available?

THE DEFENDANT: I have known he was available about three days before I come

notify you and the Court.

TRIAL COUNSEL: Okay.

So the first time you notified me about this witness was the day of

trial?

THE

DEFENDANT: The day of picking the jury.

TRIAL

COUNSEL: That’s correct?

THE

DEFENDANT: Yes.

TRIAL COUNSEL: That’s the first time you told me about this?

THE

DEFENDANT: Yes.

TRIAL COUNSEL: Now isn’t it true that when you and I started talking about this

witness - - that you have known

that this witness

has lived in Apartment 83 of the Coke apartments

since I began representing you, correct?

THE

DEFENDANT: Yes.

TRIAL COUNSEL: Have you ever shared with me that you had a witness who lived in Apartment 83?

THE DEFENDANT: No. I

didn’t know the apartment number, and

his - - I didn’t know his name because I knew him by his street name.

TRIAL COUNSEL: Didn’t you tell me, when you and I were discussing this witness, that you had known where he lived

the whole time

I’ve been representing you?

THE DEFENDANT: I knew him by going to his apartment, but I didn’t know

his number.

TRIAL

COUNSEL: So how did you find out his

number?

THE DEFENDANT: I had talked to someone, and they knew his number. And that’s how I got his - - got his real

name.

TRIAL COUNSEL: So at no time during the six or seven months that I’ve been

representing you have you ever told me that

this witness existed until the jury was walking down the hall; is that

correct?

THE

DEFENDANT: Yes.

Discussion

In

his only issue on appeal, Latson contends that he received ineffective

assistance of counsel because his counsel failed to request a continuance to

secure the presence of a witness.

Standard of Review

To prevail on a claim of ineffective assistance of

counsel, the defendant must show that (1) his counsel’s performance was

deficient and (2) a reasonable probability exists that, absent counsel’s

errors, the result of the proceeding would have been different. Strickland v. Washington ,

466 U.S. 668, 687 , 104 S. Ct. 2052, 2064 (1984).

The first prong of Strickland requires the defendant

to show that counsel’s performance fell below an objective standard of

reasonableness. Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by

a preponderance of the evidence that his counsel’s representation fell below

professional standards. Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim. App.

2002). The second prong requires the

defendant to show a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. See Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Thompson , 9 S.W.3d at 812 .

In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that the attorney’s performance falls within the wide range of

reasonable professional assistance or trial strategy. Thompson ,

9 S.W.3d at 813 . Furthermore, a claim of

ineffective assistance must be firmly supported in the record. Id. (citing McFarland v. State , 928 S.W.2d 482, 500

(Tex. Crim. App. 1996)). Where the

record does not offer an explanation for trial counsel’s actions, we presume

that counsel made all significant decisions in the exercise of reasonable

professional judgment. Jackson v. State , 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994); Broussard v. State ,

68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d).

When the claim of

ineffective assistance is based on counsel's failure to call witnesses, the

appellant must show that such witnesses were available to testify and that

appellant would have benefitted from their testimony. Ex parte White,

160 S.W.3d 46, 52 (Tex. Crim. App. 2004) (citing King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983)); see

Pinkston v. State , 744 S.W.2d 329, 332 (Tex. App.--Houston [1st Dist.]

1988, no pet.).

Analysis

Here,

even if trial counsel had secured a continuance, nothing in the record

indicates that Chris would have been available to testify and that his

testimony would have benefited Latson. Latson

only knew Chris’s first name, where he lived and that he lived with his wife. He did not show that Chris was available to

testify at his trial. See Ex parte Ramirez , 280 S.W. 3d 848,

853 (Tex. Crim. App. 2004) (holding that trial counsel was not ineffective for

failing to call witness because, even if he had written statement from witness,

defendant did not establish that witness was available to testify at his

trial); see also Milburn v. State , 15 S.W.3d 267 , 269–270 (Tex. App. —Houston [14th

Dist.] 2000, pet. ref’d) (holding that trial counsel’s failure to search out

and present any mitigating character evidence at defendant’s punishment stage

actually and substantially prejudiced defendant, where parties in case had

stipulated that twenty witnesses would have testified they were available to

testify at punishment phase and would have asked jury to consider minimum

punishment.)

The

record is also completely silent on what Chris’s testimony would have been. Even if Chris was available to testify, Latson

has not shown that his trial counsel was ineffective. See

Perez v. State , 310 S.W.3d 890, 895 (Tex. Crim. App. 2010) (finding that

uncalled alibi witness’s testimony would not have benefitted defendant because,

even according to witness’s affidavit, it was still possible that defendant

committed crime); Starz v. State , 309

S.W.3d 110 , 119–120 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (finding

that counsel was not ineffective for failing to interview witness because,

although witness was available, record did not indicate what information he

possessed and whether it would be helpful to defendant). Thus, Latson has not shown that his trial

counsel was constitutionally ineffective in her failure to request a

continuance to secure Chris’s presence at trial.

Conclusion

We hold that Latson failed to meet

his burden to demonstrate that he received ineffective assistance of counsel. We therefore affirm the judgment of the trial

court.

Jane Bland

Justice

Panel consists of Justices Keyes,

Higley, and Bland.

Do not publish. Tex.

R. App. P. 47.2( b ).