Jonathan Shane Ross Peake v. State ( 2004 )

NO. 07-03-0216-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 22, 2004
______________________________
JONATHAN SHANE ROSS PEAKE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;
NO. 01-08-05233-CR; HON. JAMES KEESHAN, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant Jonathan Shane Ross Peake appeals his conviction for aggravated
robbery. Through two issues, he contends that 1) the trial court abused its discretion when
it admitted into evidence expert fingerprint testimony in violation of Daubert v. Merrill Dow
Pharmaceutical, Inc.1 and its progeny, and 2) he received ineffective assistance of counsel.
We affirm the judgment of the trial court.
1
509 U .S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (19 93).
Background
On May 10, 2002, a black man (Tywon Lang) knocked on the door of the home of
Richard Blackmoore who recognized the man as someone who had come to his door
several days before with a white man (later identified as appellant). Lang asked to mow
Blackmoore’s lawn. Blackmoore denied the request. When Lang departed, he failed to
shut the gate to the yard. Fearing that his dog would escape, Blackmoore went out the
front door several minutes later to rectify Lang’s default. At that point, he was confronted
by both Lang and appellant. The latter was wearing a ski mask and had a gun which he
used to force his way into the residence. The men tied up Blackmoore with a dog leash
and took a Rolex watch and some cash. During the robbery, Blackmoore’s dog bit Lang
on his leg.
Lang and appellant attempted to leave the scene in a red pickup, later identified to
be owned by appellant’s mother, but the engine would not start. In attempting to start the
vehicle, Lang pushed the pickup and appellant steered. While doing so, they were
observed by a neighbor, Myra Nash. Lang subsequently left the vehicle, was stopped by
police on foot, admitted his involvement in the robbery, and showed police where to find
the watch. So too did he testify at appellant’s trial and expressly inculpate himself and
appellant.
Issue One - Expert Testimony
In his first issue, appellant complains about the admission into evidence of
testimony regarding fingerprint analysis conducted by a purported expert. It was allegedly
inadmissible because it was “hard to square with Daubert.” We overrule the issue for it
was waived.
2
During trial, appellant complained of the reliability of the expert testimony with
respect to palm print analysis, while on appeal, he complains of the testimony with respect
to fingerprint analysis. Furthermore, counsel for appellant took care to distinguish between
the two subjects below. Thus, given that the objection uttered below does not comport with
the issue asserted on appeal, the purported error was and is waived. Massey v. State,
933 S.W.2d 141, 157 (Tex. Crim. App. 1996).
Issue Two - Ineffective Assistance
In his second issue, appellant contends his trial counsel was ineffective since he
failed to object to the identification of him as one of the robbers by Blackmoore and Nash.
We overrule the issue.
The standard by which we review ineffective assistance of counsel claims is well
established. Thus, we will not repeat it, but cite the parties to Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Tong v. State, 25 S.W.3d 707
(Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 121 S. Ct. 2196, 149 L. Ed. 2d 1027
(2001), and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) for an
explanation of same. Further, claims of ineffective assistance must be firmly founded in
the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.–Amarillo 1999, no pet.).
With regard to the in-court identification by Blackmoore, appellant fails to explain
why the testimony was inadmissible. He simply states that it “was so objectionable the . . .
Court felt it necessary to attempt to clarify” it. Furthermore, the specific objection that
counsel was purportedly required to make goes unmentioned, as does any authority
supporting the conclusion that the evidence was inadmissible. Thus, we are left to guess
at the reasoning underlying appellant’s claim and at the legitimacy of that reasoning, if any.
3
And, because of that, the complaint was waived due to insufficient briefing. See Garcia
v. State, 887 S.W.2d 862, 880-81 (Tex. Crim. App. 1994), overruled in part on other
grounds by Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (overruling the claim
that counsel was ineffective due to his failure to object since the appellant failed to explain
“how counsel might have kept the statement out”); Melonson v. State, 942 S.W.2d 777,
782 (Tex. App.–Beaumont 1997, no pet.) (holding that an appellant must not only
specifically identify the deficiencies in counsel’s performance but also identify the specific
objection that should have been made and provide authority in support of his argument that
the objection would have been meritorious).
As to the out-of-court identification by Nash, we also find it to be insufficiently
briefed. Appellant had the burden to prove not only that counsel’s performance was
deficient but also that the deficiency prejudiced him. Tong v. State, 25 S.W.3d at 712.
While the former element is addressed at bar, the latter is not. Nowhere does appellant
endeavor to explain how trial counsel’s perceived failure to attempt to suppress Nash’s
testimony created a reasonable probability that but for the supposed error the result would
have been different. This is of dire import in view of Lang’s testimony and the other
evidence directly inculpating appellant. And, given that the burden lies with “[a]ppellant . . .
[to] prove both prongs of [the test] by a preponderance of the evidence in order to prevail,”
id. (emphasis added), we have no duty to unilaterally fill the void appellant left.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
4