# Greene v. State

> Texas Court of Appeals, 1st District (Houston) · November 20, 2003 · 124 S.W.3d 789

URL: https://www.frixlaw.com/law-library/cases/9683310

## Case

- **Full name:** Jeanette Marie GREENE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** November 20, 2003
- **Citations:** 124 S.W.3d 789; 2003 Tex. App. LEXIS 9870; 2003 WL 22723462
- **Precedential status:** Published
- **Opinion:** Dissent by Jennings
- **Judges:** Sherry Radack
- **Cited by:** 86 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683310

## How later opinions describe it (automated extraction)

- holding that appellant failed to meet the first prong of the Strickland test when there was nothing in the record to show why counsel chose not to attempt to have appellant’s in-court identification suppressed when pre-trial “photo spread” consisted of a single photo
- holding that defendant’s threats recorded on victim’s answering machine, history between victim and defendant, testimony that defendant fled scene, and identification of defendant’s car supported finding defendant was perpetrator
- finding prejudice portion of Strickland not met where, even if in-court identification suppressed, following evidence remained: appellant’s voice identified making threats on voice mail, woman generally matching appellant’s description fled crime scene, and person seen fleeing…
- stating, in context of analyzing ineffective assistance of counsel complaint, that identity can be proved by direct or circumstantial evidence and “eyewitness identification is not necessary”
- holding appellant did not meet his burden to show prejudice when there was substantial evidence to allow jury rationally to conclude that appellant committed crime for which he was charged

## Opinion text

TERRY JENNINGS, Justice,
dissenting from denial of en banc consideration.
The panel opinion takes obiter dictum from the Texas Court of Criminal Appeals and erroneously utilizes it in resolving this case, resulting in a direct conflict with the well-established precedent of this Court and the Court of Criminal Appeals. The opinion’s implicit assumption that there could have been a “plausible trial strategy” in the decision of appellant’s trial counsel not to move to suppress the identification testimony of the sole eyewitness in this case is truly extraordinary. Moreover, the opinion erroneously concludes that the “remaining evidence” was “legally sufficient” to uphold appellant’s conviction and infers that “appellant is not able to show to a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached.” Accordingly, I respectfully dissent from the denial of en *795 banc consideration. See Tex.R.App. P. 41.2(c).
In her first point of error, appellant contends that her trial counsel was ineffective in failing to move to suppress the in-court identification testimony of Reginald Guy because “the pretrial identification procedure in which the only eyewitness identified the defendant by looking at only one photograph, her driver’s license, was impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification.”
Facts
A jury found appellant guilty of arson after she was charged with setting her ex-husband’s car on fire. In regard to the identification issue, the facts are simple. Reginald Guy, testified that, from the kitchen window of his apartment, he saw appellant as she was leaving the scene. Later that day, an arson investigator showed Guy appellant’s driver’s license, with photograph, and Guy then identified appellant as the person whom he saw leaving the scene of the arson.
Ineffective Assistance
The United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” U.S. Const, amend. VI. The panel opinion correctly sets out the appropriate standard of review for claims of ineffective assistance of counsel, as articulated in Strickland v. Washington, 466 U.S. 668, 688, 694 , 104 S.Ct. 2052, 2064-65 , 80 L.Ed.2d 674 (1984) and Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).
To prevail on her claims, appellant must first show that her counsel’s performance was deficient. Strickland, 466 U.S. at 687 , 104 S.Ct. at 2071 ; Bone, 77 S.W.3d at 833 . Specifically, appellant must prove, by a preponderance of the evidence, that her counsel’s representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833 . Second, appellant must show that this deficient performance prejudiced her defense. Id. This means that appellant “must show a reasonable probability that, but for [her] counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (emphasis added). A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id.
The panel, in its opinion, concludes that “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.” This is not the law.
In reaching its conclusion, the panel relies on the following obiter dictum from the Court of Criminal Appeals:
[Rjarely 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.”
Bone, 77 S.W.3d at 833 (quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999)). However, this simple statement does not end the required legal analysis.
Bone is substantively distinguishable from the instant case. In Bone , the defendant argued that his trial counsel performed deficiently in (1) failing to pursue prejudice among prospective jurors, (2) making offensive comments about drinking and driving, (3) failing to offer significant favorable evidence during the punishment phase of trial, (4) offering harmful evi *796 dence during the punishment phase of trial, (5) failing to object properly to the admission of a document into evidence, and (6) making statements that affirmatively prejudiced the defendant. Bone, 77 S.W.3d at 832 . In addressing these points, the Court noted that the defendant’s trial counsel could have had various strategic reasons for acting as she did, and it noted that, “[fjrom 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.” Id. at 836 . The Court emphasized that “[a] vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent.” Id. at 836 . The Court held that an appellate court may not reverse a conviction on ineffective-assistance-of-counsel grounds “when counsel’s actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel’s decisions.” Id. at 830 (emphasis added).
Here, in stark contrast, there could be no possible “tactical” strategy at all in the decision of appellant’s trial counsel not to move to suppress the identification testimony of the sole eyewitness in this case. It is patently unreasonable for a defense lawyer to allow the State a chance at convicting his client when he could have precluded the State from having a case at all by suppressing the testimony from its only eyewitness. It is also patently unreasonable for a defense lawyer to fail to move to suppress the identification testimony of the sole eyewitness when the suppression of that testimony would have substantially weakened the State’s case.
This Court has consistently recognized that “a single egregious error of omission or commission by counsel has been held to constitute ineffective assistance, even in the absence of a record setting forth counsel’s reasons for the challenged conduct.” McKinny v. State, 76 S.W.3d 463, 470-71 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (emphasis added); see also Alvarez v. State, 79 S.W.3d 679, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Valencia v. State, 966 S.W.2d 188, 190-91 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); C ooper v. State, 769 S.W.2d 301, 305 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd); Snow v. State, 697 S.W.2d 663, 667 (Tex.App.-Houston [1st Dist.] 1985), pet. dism’d, improvidently granted, 794 S.W.2d 371 (Tex.Crim.App.1987).
More importantly, the Court of Criminal Appeals has also recognized that there are indeed cases in which the trial record contains sufficient information to permit a reviewing court to fairly evaluate the merits of an allegation of ineffective assistance of counsel. See Thompson, 9 S.W.3d at 814 ; see Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992) (per curiam) (holding counsel ineffective for failing to request necessity instruction when raised by evidence).
The crucial point is that, in the rare case in which the record on direct appeal is sufficient to prove that counsel’s performance was deficient, “an appellate court should obviously address the claim.” Robinson v. State, 16 S.W.3d 808 , 813 n. 7 (Tex.Crim.App.2000); McKinny, 76 S.W.3d at 471 . Here, because the record of the jury trial, on direct appeal, sufficiently demonstrates that the performance of appellant’s trial counsel was deficient, this Court has an obligation to properly address appellant’s claim of ineffective assistance of counsel. In utilizing the above expressed obiter dictum of the Court of Criminal Appeals to resolve this case, the panel opinion, in direct conflict with well-established precedent of this Court and *797 the Court of Criminal Appeals, has failed to fulfill our obligation.
Defícient Performance
Appellant contends that the evidence in the record proves that her trial counsel was ineffective in failing to move to suppress Guy’s in-court “identification testimony that never should have been admitted.”
In this case, the question of whether the pretrial identification procedure was so im-permissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App.1998). Accordingly, the mixed question of law and fact presented here is subject to de novo review. Id.
A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. 1 Simmons v. United States, 390 U.S. 377, 384 , 88 S.Ct. 967, 971 , 19 L.Ed.2d 1247 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App.1995). We apply a two-step analysis to determine the admissibility of an in-court identification, asking (1) whether the pretrial identification procedure was im-permissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a very substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384 , 88 S.Ct. at 971 ; Barley, 906 S.W.2d at 33 . If a court finds that a pretrial identification procedure was impermissibly suggestive, the court must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidenti-fication. See id., 409 U.S. 188, 199-200 , 93 S.Ct. 375, 382 , 34 L.Ed.2d 401 (1972). These factors are (1) the witness’s opportunity to view the criminal, (2) the witness’s degree of attention, (3) the accuracy of the suspect’s description, (4) the level of certainty at the time of confrontation, and (5) the length of time between the crime and confrontation. Id., 409 U.S. at 199 , 93 S.Ct. at 382 .
In regard to the first step, as noted by the Fourteenth Court of Appeals, “Texas Courts have uniformly condemned the practice of showing a single photograph to a prosecuting witness ... finding this practice to be impermissibly suggestive.” Bond v. State, 29 S.W.3d 169, 172 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (emphasis added); see also Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.1993). As noted by the United States Supreme Court:
Th[e] danger [that a witness will make an incorrect identification] will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw.... Regardless of how the original misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.
Simmons, 390 U.S. at 383-84 , 88 S.Ct. at 971 . Because the pretrial identification procedure in this case was impermissibly suggestive, we must consider the Neil factors.
Here, the record reveals that Guy saw appellant for seconds from 20 feet away as she was getting into a car and leaving the scene. He was standing at the kitchen sink in his apartment and getting a glass *798 of water when he saw appellant through “partially open” mini-blinds. In regard to Guy’s level of certainty at the time of the pretrial identification, on the same day that Guy saw appellant, the investigator handed Guy appellant’s driver’s license and asked him if she was the person whom he saw. As noted above, this procedure was inherently suspect and impermissibly suggestive.
The most important Neil factor is the witnesses’s “inability to describe” a suspect “before the impermissibly suggestive act.” Loserth v. State, 985 S.W.2d 536, 546 (Tex.App.-San Antonio 1998, pet. ref'd) (citing Dispensa v. Lynaugh, 847 F.2d 211, 220 (5th Cir.1988)). Here, Guy testified that he did not believe that he described appellant well to the investigating police officer and that the officer “didn’t really ask much.” Moreover, in regard to Guy’s credibility, the State conceded in its closing argument that “[t]here was no doubt [Guy] was weird.”
Thus, appellant has shown by clear and convincing evidence, firmly founded in the record, that the application of the Neil factors compels a finding that the suggestive procedure in this case gave rise to a substantial likelihood of irreparable mis-identification. Had appellant’s trial counsel moved to suppress Guy’s pretrial and in-court identification of appellant, the trial court, based on the facts as firmly founded in the record, would have been compelled to suppress the identifications.
Accordingly, appellant has demonstrated by a preponderance of the evidence that her trial counsel’s representation fell below an objective standard of professional norms. An objective review of the record demonstrates that the panel’s conclusion that the record does not support appellant’s claim that no sound trial strategy could have justified her counsel’s decision not to move to suppress the identification testimony of the sole eyewitness in this case is truly extraordinary, in that it is logically precluded.
Prejudice
The panel also concludes that appellant has failed to meet the second prong of Strickland because “[e]ven if appellant had successfully challenged Guy’s in-court identification, the remaining evidence would have been legally sufficient to tie appellant to the arson.” (Emphasis added.) In support of its conclusion, the panel relies on the following “circumstantial” evidence:
1. There was evidence that appellant left “very specific threats against” the complainant on his answering machine and that the arson committed was “very similar to the threats” made by appellant;
2. There was an “acrimonious history between” appellant and the complainant’s new girlfriend;
3. There was evidence that Guy saw “a woman generally matching” appellant’s description fleeing the scene of the crime; and
4. There was evidence that the woman whom Guy saw was driving a silver or grey Ford Taurus and that appellant was seen by another witness driving a rented brown or tan Ford Taurus on the day of the arson.
Thus, the panel infers that “appellant is not able to show a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached.” (Emphasis added.)
The panel’s analysis confuses the legal sufficiency standard of review with the second prong of Strickland , which requires an appellant to “demonstrate a reasonable probability that, but for [the] deficiency, the outcome would have been different.” Herron v. State, 86 S.W.3d 621, 634 (Tex. *799 Crim.App.2002) (emphasis added). As noted above, a “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome of the proceedings.” Id. In conducting an analysis under the second prong of Strickland , the question for a reviewing court is not whether there was legally sufficient evidence to support a conviction. Rather, the pertinent question is whether the reviewing court’s confidence in the conviction is sufficiently “undermined” to convince the court “that the result of the trial might have been different.” Vasquez, 830 S.W.2d at 951 .
By contrast, we review the legal sufficiency of the evidence by a much lower standard: viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). “Circumstantial evidence” is defined as “direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984) (emphasis added). Here, it must be emphasized that it does not necessarily follow, as “direct proof of a secondary fact,” that, because an accused had a motive, had made threats, matched a “general” description of a suspect, and drove the same make of car as a suspect on the day of a crime, that, as “the ultimate fact to be proven,” the accused is the one guilty of the crime.
More importantly, even if, viewing the remaining evidence “in the light most favorable to the verdict,” a “rational fact finder could have found the essential elements of the crime beyond a reasonable doubt,” it does not logically follow that such a fact finder would have found appellant guilty.
The evidence, as outlined in the panel opinion, shows just how critical Guy’s testimony was in this case. Without Guy’s testimony, the State would have been left with very little to support its case against appellant. At the very least, the weakness of this “remaining evidence” very seriously calls into question whether the jury would have convicted appellant in the absence of Guy’s identification testimony. This is sufficient to “undermine confidence” in the outcome of appellant’s trial.
Conclusion
In reaching its decision, the panel disregards the well-established precedent of the Court of Criminal Appeals and of this Court that “a single egregious error of omission or commission by counsel [may] constitute ineffective assistance, even in the absence of a record setting forth counsel’s reasons for the challenged conduct.” McKinny, 76 S.W.3d at 470-71 (emphasis added). The panel opinion also erroneously concludes that the “remaining evidence” was “legally sufficient” to uphold appellant’s conviction and holds that “appellant is not able to show to a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached.”
The record demonstrates that the pretrial identification procedure used here created a very substantial likelihood of irreparable misidentification. Because appellant’s trial counsel failed to move to suppress Guy’s identifications of appellant, the trial court was not presented with the issue. Given the weakness of the remaining evidence, this omission should, in the words of the Court of Criminal Appeals, “undermine[ ] our confidence in the conviction sufficiently to convince us that the result of the trial might have been different” had the motion been properly raised. Vasquez, 830 S.W.2d at 951 .
*800 Accordingly, I respectfully dissent from the denial of en banc consideration of this case. See Tex.R.App. P. 41.2(c).
. See U.S. Const. amend. XIV.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683310. Public record. Not legal advice.