Kanavius Dorsey v. State ( 2015 )


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  •                                                                                     ACCEPTED
    01-14-00685-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    4/17/2015 12:00:39 PM
    CHRISTOPHER PRINE
    CLERK
    No. 01-14-00685-CR
    In the
    Court of Appeals                      FILED IN
    1st COURT OF APPEALS
    For the                      HOUSTON, TEXAS
    First District of Texas          4/17/2015 12:00:39 PM
    At Houston                 CHRISTOPHER A. PRINE
    Clerk
    
    No. 1408986
    In the 262nd District Court
    Of Harris County, Texas
    
    KANAVIOUS DORSEY
    Appellant
    V.
    THE STATE OF TEXAS
    Appellee
    
    STATE’S APPELLATE BRIEF
    
    DEVON ANDERSON
    District Attorney
    Harris County, Texas
    JAMIE BURRO
    Assistant District Attorney
    Harris County, Texas
    KIMBERLY APERAUCH STELTER
    Assistant District Attorney
    1201 Franklin, Suite 600
    Houston, Texas 77002
    Telephone: 713.755.5826
    stelter_kimberly@dao.hctx.net
    State Bar Number: 19141400
    ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
    Appellate Procedure 39.1, the State requests oral argument only if appellant
    requests oral argument.
    IDENTIFICATION OF THE PARTIES
    Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
    of the names of all interested parties is provided below.
    Counsel for the State:
    Devon Anderson  District Attorney of Harris County
    Kimberly Aperauch Stelter  Assistant District Attorney on appeal
    Jamie Burro  Assistant District Attorney at trial
    Appellant or criminal defendant:
    Kanavious Dorsey
    Counsel for Appellant:
    Maverick Ray, Gilberto Villarreal  Defense Counsel on appeal
    Mandy Miller  Defense Counsel at trial
    Trial Judge:
    Honorable Denise Bradley  Judge Presiding
    i
    TABLE OF CONTENTS
    STATEMENT REGARDING ORAL ARGUMENT ................................................i
    IDENTIFICATION OF THE PARTIES ....................................................................i
    TABLE OF CONTENTS .......................................................................................... ii
    INDEX OF AUTHORITIES.................................................................................... iii
    STATEMENT OF THE CASE .................................................................................. 1
    STATEMENT OF FACTS ........................................................................................ 1
    SUMMARY OF THE ARGUMENT ........................................................................ 4
    REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 5
    REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................... 8
    PRAYER .................................................................................................................. 18
    CERTIFICATE OF SERVICE ................................................................................ 19
    CERTIFICATE OF COMPLIANCE ....................................................................... 20
    ii
    INDEX OF AUTHORITIES
    CASES
    Aguilar v. State,
    
    468 S.W.2d 75
    (Tex. Crim. App. 1971) .......................................................................... 6
    Bone v. State,
    
    77 S.W.3d 828
    (Tex. Crim. App. 2002) .................................................................... 9, 10
    Bradley v. State,
    
    359 S.W.3d 912
    (Tex. App. –
    Houston [14th Dist.],2012, pet. ref’d) ............................................................................. 6
    Brooks v. State,
    
    323 S.W.3d 893
    (Tex. Crim. App. 2010) ........................................................................ 5
    Chambers v. State,
    
    805 S.W.2d 459
    (Tex. Crim. App. 1991) ........................................................................ 6
    Clayton v. State,
    
    235 S.W.3d 772
    (Tex. Crim. App. 2007) ........................................................................ 6
    Davis v. State,
    
    930 S.W.2d 765
    (Tex. App. –
    Houston [1st Dist.], pet. ref’d)........................................................................................ 11
    Ex Parte Imoudu,
    
    284 S.W.3d 886
    (Tex. Crim. App. 2009) ........................................................................ 9
    Ford v. State,
    
    794 S.W.2d 863
    (Tex. App.
    –El Paso 1990, pet. ref’d) ............................................................................................... 7
    Gamboa v. State,
    
    296 S.W.3d 574
    (Tex. Crim. App. 2009) ...................................................................... 15
    Goodspeed v. State,
    
    187 S.W.3d 390
    (Tex. Crim. App. 2005) ...................................................................... 
    10 Greene v
    . State,
    
    124 S.W.3d 789
    (Tex. App. –
    Houston [1st Dist.],2003, pet. ref’d).............................................................................. 11
    Harris v. State,
    
    2014 WL 1912539
    (Tex. App.—
    Houston [1st Dist.] 2014) (mem. opin., not designated for publication) ...................... 11
    Jackson v. State,
    
    657 S.W.2d 123
    (Tex. Crim. App.1983) ................................................................. 13, 15
    iii
    Jackson v. State,
    
    973 S.W.2d 954
    (Tex. Crim. App. 1998) .......................................................... 12, 14, 16
    Jackson v. Virginia,
    
    443 U.S. 307319
    (1979) .................................................................................................. 5
    Johnson v. State,
    
    871 S.W.2d 183
    (Tex. Crim. App. 1993) ........................................................................ 6
    King v. State,
    
    29 S.W.3d 556
    (Tex. Crim. App. 2000) .......................................................................... 6
    Lopez v. State,
    
    343 S.W.3d 137
    (Tex. Crim. App. 2011) ...................................................................... 11
    Loserth v. State,
    
    963 S.W.2d 770
    (Tex. Crim. App. 1998) ...................................................................... 15
    Mallett v. State
    
    65 S.W.3d 59
    (Tex. Crim. App. 2001) ............................................................................ 9
    Mata v. State,
    
    226 S.W.3d 425
    (Tex. Crim. App. 2007) ...................................................................... 11
    Mitchell v. State,
    
    68 S.W.3d 640
    (Tex. Crim. App. 2002) ........................................................................ 10
    Neil v. Biggers,
    
    409 U.S. 188
    (1972) ...................................................................................................... 13
    Ortiz v. State,
    
    93 S.W.3d 79
    (Tex. Crim. App. 2002) .......................................................................... 12
    Rylander v. State,
    
    101 S.W.3d 107
    (Tex. Crim. App. 2003) ...................................................................... 10
    Santos v. State,
    
    116 S.W.3d 447
    (Tex. App.—
    Houston [14th Dist.] 2003, pet. ref’d) ........................................................................... 13
    Strickland v. Washington,
    
    466 U.S. 668
    (1984) ........................................................................................................ 9
    Thompson v. 
    State, 9 S.W.3d at 808
    , 813 (Tex. Crim. App. 1999) ................................................................ 
    9 Will. v
    . State,
    
    301 S.W.3d 675
    (Tex. Crim. App. 2009) ........................................................................ 9
    iv
    STATUTES
    TEX. PENAL CODE § 29.03(a)(3)(A) (West 2011) ............................................................... 5
    TEX. PENAL CODE § 38.04 (West 2010) .............................................................................. 5
    RULES
    TEX. R. APP. P. 38.2(a)(1)(A) ............................................................................................... i
    TEX. R. APP. P. 39.1 .............................................................................................................. i
    TEX. R. APP. P. 9.4(g) ........................................................................................................... i
    v
    TO THE HONORABLE COURT OF APPEALS:
    STATEMENT OF THE CASE
    The State charged appellant by indictment with the felony offense of
    aggravated robbery (CR-17).1 After a trial, the jury found appellant guilty of the
    offense as charged, and the trial court assessed punishment at 20 years in the
    Institutional Division of the Texas Department of Criminal Justice (CR-141).
    Appellant filed timely written notice of appeal (CR-145).
    
    STATEMENT OF FACTS
    On the afternoon of November 1, 2013, Alice Fusilier had just withdrawn
    $450 from her bank to pay her utility bills (RR3-44,45,46). On the way home the
    72-year-old retiree stopped at a convenience store to buy some cigarettes (RR3-47,
    58). As she got out of her vehicle, she noticed a red car pulling into the
    convenience store parking lot (RR3-48). The vehicle stopped and a man got out
    (RR3-49). He turned and came toward Fusilier (RR3-49). Fusilier thought the man
    was going to the car parked next to her, so she moved up against the wall to let him
    pass (RR3-49). The man stepped towards the car as if that were his destination, but
    1
    CR refers to the Clerk’s Record, and the number following refers to the page in the Clerk’s
    Record. RR refers to the Reporter’s Record. The number following RR is the volume number,
    and the number following the dash is the page within that volume.
    as Fusilier passed he jumped back out behind her and hit her in the back of the
    head with his closed fist (RR3-49, 51). Fusilier raised her arm, and the man
    snatched her purse off her shoulder (RR3-49). He then ran back to the passenger
    side of the car and got in (RR3-49). Fusilier chased after him so that she could see
    the license plate of the vehicle (RR3-49). After she looked at the plate, she ran into
    the store and asked to call the police (RR3-49).
    Fusilier described the car as a maroon, reddish color, fairly new model sedan
    with black tinted windows (RR3-52, 71). She described the license plate as being
    black and white (RR3-54). Fusilier was not sure of all the numbers and letters on
    the plate, but she told the police that she thought it was either BW2225 or
    BW2M25 (RR3-53, 129).
    A few days later Officer Rochi was on surveillance in the parking lot of
    Fusilier’s bank when he viewed a maroon colored four door Chevrolet Malibu
    sedan with a black and white license plate reading BB2N125 (RR3-107). 2                The
    windows were “limo tinted,” meaning tinted so dark that one could not see inside
    (RR3-108). Officer Rochi followed the car and watched as appellant exited from
    2
    Officer Rochi noted that the “N” and “1” next to each could look like an “M”, making the
    second plate number given by Fusilier just one off from that of the vehicle spotted by Rochi
    (RR3-129).
    2
    the driver’s side of the vehicle (RR3-109). The passenger was Prince Woods, who
    was also the registered owner of the car (RR3-109).
    The police made two photo arrays, one including a picture of Prince Woods
    and one with a photo of appellant (RR3-132). Officer Hartford showed the photo
    arrays to Fusilier (RR3-159). He did not know which individuals were the
    suspects; he explained that HPD administers the photo arrays in a double-blind
    manner so that the person administering the presentation does not know who the
    suspect is (RR3-159).
    When Fusilier came across appellant’s photo Hartford noticed that she
    stiffened, her eyes got wide, and she put the photo aside (RR3-161). Fusilier was
    very deliberate in her actions, and after looking at all the photographs she
    identified appellant’s photo as looking like the man that had hit her in the head
    (RR5-162).
    Fusilier’s identification of appellant in the photo array was classified by
    Hartford as a “strong tentative ID,” meaning that it “really looks like the person,
    but I’m not sure.” (RR3-148). Seeing appellant in court and in person, however,
    Fusilier testified that she was confident that appellant was the one who had robbed
    her (RR3-99-100).
    In his defense, appellant’s girlfriend, Chastity Smith, testified that appellant
    was with her all day on the day of the robbery (RR3-170-71). She claimed to
    3
    remember the day because it was her mother’s birthday, and she had posted a
    picture on Instagram of herself and appellant together before going over to her
    mother’s home for a small celebration (RR3-173). No one else testified verifying
    appellant’s presence at the gathering, although several of Smith’s relatives were
    also present (RR3-181). Smith also initially said she had never heard of Prince
    Woods, although she later admitted to having heard of the name (RR3-177, 182-
    83, 193-94).
    
    SUMMARY OF THE ARGUMENT
    The evidence is sufficient to find that appellant was the individual who
    committed aggravated robbery. Fusilier identified appellant in a photo array and in
    court as the person who hit and robbed her, and appellant was found a few days
    later in the same location driving the vehicle and bearing plates which substantially
    matched the description given by Fusilier.
    Appellant has not provided a sufficient record to establish that his counsel
    was ineffective for failing to file a motion to suppress or to object to the pre-trial
    and in-court identifications by the complainant. The pre-trial identification was
    not impermissibly suggestive. Even if the pre-trial identification had been
    impermissibly suggestive it did not taint the in-court identification of appellant by
    the complainant. Accordingly, appellant has failed to show that his counsel was
    4
    ineffective, as he has not established the trial court would have granted a motion to
    suppress or objection to the pre-trial and in-court identifications.
    
    REPLY TO APPELLANT’S FIRST POINT OF ERROR
    In his first point of error, appellant contends that the evidence in this case is
    legally insufficient. Appellant was charged with aggravated robbery of an elderly
    person. TEX. PENAL CODE § 29.03(a)(3)(A) (West 2011). More specifically, the
    State was required to prove that appellant (1) in the course of committing theft of
    property owned by Fusilier, with intent to obtain and maintain control of the
    property, (2) intentionally or knowingly caused bodily injury to Fusilier by striking
    her with his hand, and (3) at the time Fusilier was at least 65 years of age (CR-17).
    Appellant does not argue with the fact that an aggravated robbery was committed
    in this case; his sole contention is that the evidence was insufficient to prove that
    he was the individual who committed it.
    A. Standard of Review
    The standard of review for a legal sufficiency analysis is whether, after
    viewing the evidence in the light most favorable to the prosecution, any rational
    trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); Brooks v. State,
    
    323 S.W.3d 893
    , 902 (Tex. Crim. App. 2010). The jury is the sole judge of the
    5
    weight of the evidence under this review and can choose to believe all, some, or
    none of it. Chambers v. State, 
    805 S.W.2d 459
    , 461 (Tex. Crim. App. 1991). The
    presumption is that the jury resolved conflicting inferences in favor of the verdict,
    and a reviewing court should defer to that determination. Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App. 2007).
    Evidence can be legally sufficient for a conviction even if it is entirely
    circumstantial. King v. State, 
    29 S.W.3d 556
    , 565 (Tex. Crim. App. 2000). The
    standard of review for circumstantial and direct evidence is the same. 
    Id. It is
    not
    necessary that every fact point directly and independently to the defendant’s guilt;
    it is enough if the conclusion is warranted by the combined and cumulative force
    of all the incriminating circumstances. Johnson v. State, 
    871 S.W.2d 183
    , 186
    (Tex. Crim. App. 1993).
    B. Application to the Facts
    In the instant case, Fusilier identified appellant both in a photo array and at
    trial as the person who hit her on the head and stole her purse. The testimony of a
    single eyewitness can be enough to support a conviction. Aguilar v. State, 
    468 S.W.2d 75
    , 77 (Tex. Crim. App. 1971); Bradley v. State, 
    359 S.W.3d 912
    , 917-18
    (Tex. App. –Houston [14th Dist.],2012, pet. ref’d)
    Appellant contends the pretrial identification of him in a photo array was not
    positive, and that Fusilier’s in-court identification of appellant was tainted by the
    6
    prosecutor showing her two photos of appellant a week prior to trial. (appellant’s
    brief, p. 10). After looking at two photo arrays, Fusilier identified appellant and
    only appellant as the person who robbed her, but she said she did not know for sure
    (RR3-56). However, she testified that after seeing him in person, she strongly
    believed that he was the person who attacked her (RR3-56). As the prosecutor
    pointed out, there is a difference between seeing a photo in a photo-spread and
    seeing an individual in person, with the latter being a far more accurate way to size
    up a suspect (RR3-56). While Fusilier’s interaction with appellant was not long, it
    was up close and in broad daylight; Fusilier testified she got a good look at
    appellant as he approached her and as he passed by on the walkway about two feet
    away (RR3-49, 51). Fusilier’s in-court identification was admissible and sufficient
    for the jury to conclude that Appellant was the perpetrator. Ford v. State, 
    794 S.W.2d 863
    , 867 (Tex. App. –El Paso 1990, pet. ref’d) (holding in-court
    identification alone enough to convict appellant of aggravated robbery).
    Furthermore, Fusilier’s identification of appellant was not the only evidence
    tying appellant to the crime. Appellant was observed just a few days after the
    robbery in the same bank parking lot driving a vehicle matching the color, style,
    and window tinting described by Fusilier. While the make of the car was not
    identical to that written in the offense report, Fusilier stated that she was not
    familiar with model years and did not remember reading a brand or name on the
    7
    vehicle (RR3-73). Similarly, her memory of the license plate sequence was not
    complete, but all the numbers and letters she was sure of were identical to the
    numbers and letters on the vehicle appellant was found driving (RR3-129).
    Fusilier’s identification of appellant, when combined with the evidence of
    appellant being in the same bank parking lot driving a vehicle substantially
    matching the description given by Fusilier and bearing a license plate substantially
    similar to what she reported to the police, was more than sufficient for the jury to
    have found appellant guilty of aggravated robbery.
    Accordingly, appellant’s first point of error is without merit and should be
    overruled.
    
    REPLY TO APPELLANT’S SECOND POINT OF ERROR
    In his second point of error, appellant contends that his counsel was
    ineffective for failing to file a motion to suppress Fusilier’s pre-trial and in-court
    identifications of appellant.
    A. Standard of Review on Ineffective Assistance of Counsel
    To show ineffective assistance of counsel, a defendant must demonstrate
    both (1) that his counsel’s performance fell below an objective standard of
    reasonableness and (2) that there is a reasonable probability that, but for counsel’s
    8
    unprofessional errors, the result of the proceeding would have been different.
    Strickland v. Washington, 
    466 U.S. 668
    (1984); Ex Parte Imoudu, 
    284 S.W.3d 886
    ,
    869 (Tex. Crim. App. 2009). Failure to make either one of these required showings
    defeats an ineffectiveness claim. See Williams v. State, 
    301 S.W.3d 675
    , 687 (Tex.
    Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland
    test negates a court’s need to consider the other prong.”).
    Courts indulge a strong presumption that counsel’s conduct fell within the
    wide range of reasonable professional assistance; therefore, appellant must
    overcome the presumption that the challenged action constituted “sound trial
    strategy.” 
    Williams, 301 S.W.3d at 687
    . This review is highly deferential to
    counsel, and courts do not speculate regarding counsel’s trial strategy. Bone v.
    State, 
    77 S.W.3d 828
    , 833 (Tex. Crim. App. 2002). To prevail on an ineffective
    assistance claim, the appellant must provide an appellate record that affirmatively
    demonstrates that counsel’s performance was not based on sound strategy. Mallett
    v. State, 
    65 S.W.3d 59
    , 63 (Tex. Crim. App. 2001);see Thompson v. 
    State, 9 S.W.3d at 808
    , 813 (Tex. Crim. App. 1999) (holding that record must affirmatively
    demonstrate alleged ineffectiveness); Lopez v. State, 
    343 S.W.3d 137
    , 143 (Tex.
    Crim. App. 2011) (holding that record on appeal must demonstrate that counsel’s
    performance fell below an objective standard of reasonableness as a matter of law,
    and that no reasonable trial strategy could justify trial counsel’s acts or omissions,
    9
    regardless of his or her subjective reasoning). Because the reasonableness of trial
    counsel’s choices often involves facts that do not appear in the appellate record,
    the Court of Criminal Appeals has stated that trial counsel should ordinarily be
    given an opportunity to explain his actions before a court reviews the record and
    concludes that counsel was ineffective. See Rylander v. State, 
    101 S.W.3d 107
    , 111
    (Tex. Crim. App. 2003); 
    Bone, 77 S.W.3d at 836
    ; Mitchell v. State, 
    68 S.W.3d 640
    ,
    642 (Tex. Crim. App. 2002). If counsel’s strategic reasons for the challenged
    conduct are not reflected in the record, appellate courts should not assume a
    strategic reason did not exist and find counsel’s performance deficient unless there
    is no plausible professional reason for the challenged conduct. 
    Bone, 77 S.W.3d at 836
    ; Goodspeed v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005).
    B. Counsel was not ineffective for failing to file a motion to suppress the
    pre-trial identification.
    1) The record on direct appeal is insufficient to establish appellant’s claim
    of ineffective assistance of counsel.
    Appellant’s contention is that defense counsel was ineffective for failing to
    suppress Fusilier’s pre-trial and in-court identifications of appellant. But appellant
    chose not to file a motion for new trial, and nothing in the record indicates that his
    counsel had an opportunity to explain his trial strategy. Because the record is
    silent as to trial counsel’s reasons for not filing a motion to suppress or objecting to
    the pre-trial and in-court identifications, appellant has not overcome the strong
    10
    presumption that counsel’s decisions were based on trial strategy. Lopez v. State,
    
    343 S.W.3d 137
    , 142 (Tex. Crim. App. 2011); Davis v. State, 
    930 S.W.2d 765
    , 769
    (Tex. App. –Houston [1st Dist.], pet. ref’d) (finding defendant failed to satisfy the
    first prong of Strickland because, without testimony by trial counsel, the court
    could not meaningfully address his reasons for not filing a motion to suppress); see
    also Mata v. State, 
    226 S.W.3d 425
    , 431 (Tex. Crim. App. 2007) (rejecting lower
    appellate court’s conclusion that there was “no conceivable reason” for trial
    counsel’s actions and stating that because record was silent on this point, defendant
    “failed to rebut the presumption that trial counsel’s decision was in some way—be
    it conceivable or not—reasonable”).
    More specifically, this Court has declined to find trial counsel ineffective
    without a record allowing counsel an opportunity to explain his reasoning for
    failing to object to or move to suppress an in-court identification. Greene v. State,
    
    124 S.W.3d 789
    , 791-92 (Tex. App.             –Houston [1st Dist.],2003, pet. ref’d)
    (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). Harris v. State, No. 01–11–00415–CR, 
    2014 WL 1912539
    , at *6 (Tex. App.—Houston [1st Dist.] 2014) (mem. opin., not designated
    for publication) (finding defendant failed to overcome the strong presumption that
    11
    counsel’s decision was based on trial strategy when the record was silent as to
    counsel’s reasons for not filing a motion to suppress or object to in-court
    identification of appellant).
    2) Counsel was not ineffective since appellant cannot establish by clear
    and convincing evidence that a motion for new trial or objection to the
    evidence would have been successful.
    Appellant’s point of error fails on an additional ground: the filing of a
    motion to suppress or objection to the pre-trial and in-court identifications would
    have been unsuccessful. A trial counsel’s failure to file a motion to suppress or
    object to the admission of evidence is not per se ineffective assistance of counsel.
    See Ingham v. State, 
    679 S.W.2d 503
    , 509 (Tex. Crim. App. 1984); Wert v. State,
    
    383 S.W.3d 747
    , 753 (Tex. App.—Houston [14th Dist.] no pet.). Counsel is not
    required to engage in the filing of futile motions. Mooney v. State, 
    817 S.W.2d 693
    , 698 (Tex.Crim.App.1991). Rather, to satisfy the Strickland test and prevail on
    an ineffective assistance claim premised on counsel’s failure to file a motion to
    suppress, an appellant must show by a preponderance of the evidence that the
    motion to suppress would have been granted and that the remaining evidence
    would have been insufficient to support his conviction. Ortiz v. State, 
    93 S.W.3d 79
    , 93 (Tex. Crim. App. 2002); Jackson v. State, 
    973 S.W.2d 954
    , 957 (Tex. Crim.
    App. 1998).
    12
    A defendant challenging the admissibility of a pre-trial or in-court
    identification has the burden to prove by clear and convincing evidence that (1) the
    out-of-court identification procedure was impermissibly suggestive and, if so, (2)
    the improperly suggestive pre-trial identification procedure created a very
    substantial likelihood of irreparable misidentification of the defendant. Neil v.
    Biggers, 
    409 U.S. 188
    , 198 (1972); Santos v. State, 
    116 S.W.3d 447
    , 455 (Tex.
    App.—Houston [14th Dist.] 2003, pet. ref’d).
    Appellant admits in his brief that “there is nothing in the record to suggest
    that the photo array was suggestive.”     (appellant’s brief, p. 15). Appellant is
    correct; Fusilier viewed the photo array after having been given proper warnings,
    the array was presented by an officer who did not even know which photos were of
    suspects, and the photos were of individuals who looked much like appellant
    (RR3-133, State’s Exhibit 5-7). Appellant, however, suggests that a motion to
    suppress the pre-trial identification would have been successful because Fusilier
    made only a “strong tentative” identification and gave an inaccurate description of
    her attacker (appellant’s brief, p 15). These circumstances go only to the weight of
    the evidence, not its admissibility. See Jackson v. State, 
    657 S.W.2d 123
    (Tex.
    Crim. App.1983) (holding fact that witness had identified six of ten photographs as
    being that of individual who had taken motorcycle when only one of the six
    13
    photographs was that of defendant went to weight and not admissibility of her
    identification testimony).
    Similarly, appellant has not shown that Fusilier’s in-court identification of
    appellant was based on suggestive pre-trial identification procedures. Defense
    counsel questioned Fusilier at length about her pre-trial identification of appellant
    from the photo array (RR3-86-91, 96-97). At the conclusion of his examination he
    asked if she had met or talked with the prosecutor about the case (RR3-100).
    Fusilier said they had met a week ago (RR3-101). The defense then asked if
    Fusilier had seen any photographs of appellant that day (RR3-101).           Fusilier
    replied that she had seen two (RR3-101). She also agreed that she had seen
    photographs of appellant before that (presumably when viewing the photo array)
    and that she had seen all these photos before making her in-court identification
    (RR3-101).
    This testimony, without more, does not indicate that Fusilier’s in-court
    identification of appellant was influenced by an impermissibly suggestive pretrial
    identification. There is no testimony as to whether the prosecutor simply showed
    Fusilier the original photo array at their meeting, whether the photos of appellant
    were mixed in with photos of others for a second identification, or whether Fusilier
    even identified appellant from these photos. See Jackson v. 
    State, 973 S.W.2d at 957
    (holding that to prevail on a claim of ineffective assistance of counsel the
    14
    appellant had the burden to develop facts and details sufficient to conclude
    evidence should have been suppressed).
    Finally, even if the pre-trial identification procedure was suggestive in this
    case, Fusilier’s in-court identification would still be admissible, as appellant did
    not establish that any pretrial identification gave rise to a substantial likelihood of
    irreparable misidentification. If the court finds that the pretrial procedure was
    impermissibly suggestive, then the defendant must show by clear and convincing
    evidence that the impermissibly suggestive pretrial procedure tainted the in-court
    identification. Gamboa v. State, 
    296 S.W.3d 574
    , 582 (Tex. Crim. App. 2009);
    
    Jackson, 657 S.W.2d at 127
    . Factors to be considered when making this review
    are: 1) the witness’s opportunity to view appellant at the time of the crime; 2) the
    witness’s degree of attention; 3) the accuracy of the witness’s prior description of
    the criminal; 4) the witness’s level of certainty at the time of confrontation; and 5)
    the length of time between the offense and the confrontation. Id.; Loserth v. State,
    
    963 S.W.2d 770
    , 771–72 (Tex. Crim. App. 1998).
    It was broad daylight when appellant walked towards Fusilier, and he passed
    within a mere two feet of her (RR3-49-50) Fusilier testified that she got a good
    look at appellant before he hit her (RR3-52). While appellant alleges that the
    description given by Fusilier did not match appellant’s appearance, the record is
    unclear. Fusilier’s description as given to the police was never introduced, nor do
    15
    we have a picture of appellant as he appeared in court. The offense occurred
    November 1, 2013, while the trial took place on July 30, 2014, making the length
    of time between the offense and the confrontation less than nine months (RR3-1,
    18). As for Fusilier’s level of certainty (perhaps the most important factor), she
    stated that after seeing appellant in person, she “strongly” believed that he was a
    person who had attacked her (RR3-56). Weighing these factors against the
    corrupting effect of the hypothetically suggestive pretrial identification, the trial
    court could have concluded that no substantial risk of irreparable misidentification
    was created and that the in-court identification was admissible.
    Appellant has not shown that the trial court would have granted any motion
    to exclude his pre-trial or in-court identification. 
    Jackson, 973 S.W.2d at 957
    (holding that to prevail on a claim of ineffective assistance, appellant is “obliged to
    prove that a motion to suppress would have been granted”). He has thus failed to
    establish that he received ineffective assistance of counsel. 
    Id. For all
    the above reasons, appellant’s second point of error is without merit
    and should be overruled.
    
    16
    17
    PRAYER
    The State respectfully requests that this Court affirm the judgment of the
    trial court.
    DEVON ANDERSON
    District Attorney
    Harris County, Texas
    /s/ Kimberly   Stelter
    KIMBERLY APERAUCH STELTER
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, Suite 600
    Houston, Texas 77002
    (713) 755-5826
    State Bar Number:19141400
    stelter_kimberly@dao.hctx.net
    18
    CERTIFICATE OF SERVICE
    This is to certify that a copy of the foregoing instrument is being served by
    EFileTXCourts.Gov e-filer to the following email address
    Mandy Miller
    Attorney at Law
    2910 Commercial Ctr.Blvd. Ste 103-201
    Katy, Texas 77494
    mandy@mandymillerlegal.com
    /s/ Kimberly   Aperauch Stelter
    KIMBERLY STELTER
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, Suite 600
    Houston, Texas 77002
    (713) 755-5826
    State Bar Number: 19141400
    stelter_kimberly@dao.hctx.net
    19
    CERTIFICATE OF COMPLIANCE
    The undersigned attorney certifies that this computer-generated document
    has a word count of 4,530 words, based upon the representation provided by the
    word processing program that was used to create the document.
    /s/ Kimberly   Aperuach Stelter
    KIMBERLY STELTER
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin, Suite 600
    Houston, Texas 77002-1923
    (713) 755-5826
    TBC No. 19141400
    stelter_kimberly@dao.hctx.net
    20