
Opinion Issued October 9, 2003














     





In The
Court of Appeals
For The
First District of Texas




NO. 01-02-00751-CR




TACUMA SHAREEF, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 912237




O P I N I O N

          Appellant, Tacuma Shareef, pleaded not guilty to aggravated robbery,
 enhanced
with two prior felony convictions. The jury found appellant guilty as charged and
assessed his punishment at life imprisonment.  In four points of error, appellant
challenges the admission of evidence, at the punishment stage, of two previous offenses
and contends that he was denied effective assistance of counsel. We affirm.
Background
          In September 1999, Jennifer Dunn and Jennifer Nichols opened the Blockbuster
store where they worked.  About an hour after the store opened, appellant came into
the store wearing sunglasses and a baseball cap.  He walked up behind Dunn and said,
“This is a hold-up.”  Appellant ordered Dunn to the front of the store and followed her. 
Dunn told Nichols they needed to go into the office.  Nichols unlocked and opened the
office door as appellant followed close behind them, carrying a gun.  Inside the office,
appellant instructed Dunn to stare at the wall and the filing cabinet and told Nichols to
open the safe and give him the money.  Nichols handed appellant pouches containing
money, but appellant kept asking for the previous night’s deposit.  Nichols told
appellant she had already taken the deposit to the bank, which made him agitated. 
Nichols opened the safe completely so that appellant could see for himself that it was
empty.  Dunn testified that, because appellant knew that the deposit should have been
in the safe, it was apparent he knew how the store operated.
          Appellant then ordered Dunn and Nichols to empty the cash registers.  They
removed the cash from each register and placed it in a bag that appellant held. 
Appellant then forced them back into the office, still holding the gun.  He pulled the
telephone out of the wall and made the women kneel with their faces to the wall.  He
instructed them to stay there, and then he left the store.
          In July 2001, after appellant had been arrested for aggravated robbery pursuant
to a warrant from Washington County, the Houston Police Department brought
appellant to Harris County to participate in a lineup for a series of unsolved local
aggravated robberies.  When appellant refused to cooperate, the police handcuffed him
to proceed with the lineup.  Each of the other four participants in the lineup resembled
appellant.  None of the other participants were handcuffed, but they were instructed to
keep their hands behind their backs.  Police put a baseball cap and a pair of sunglasses
on each of the men, and instructed each man to say, “This is a robbery.”  The men were
also told to turn in a circle while keeping their hands behind their backs.
          Betsy Quinn and Alejandro Diaz, victims in two separate other robberies, were
present at the lineup.
  They positively identified appellant in the live lineup as the
robber.  Ultimately, the police chose not to charge appellant with these aggravated
robberies because of the possibility of a tainted live lineup, since Quinn and Diaz could
have seen appellant’s hands in handcuffs.
          An officer videotaped the lineup.  On tape, the men were visible only from mid-torso to their heads, and the handcuffs were not visible.  Police showed the tape to
Dunn and Nichols and to other victims of extraneous Blockbuster or Hollywood Video
robberies that took place from 1999 to 2001.  Each person who viewed the videotape,
including Dunn and Nichols, positively identified the defendant as their robber.
          During the guilt/innocence phase of the trial, appellant’s attorney filed a motion
to suppress all identifications made based on the videotaped lineup.  After the State
concluded its case, the trial judge denied the motion to suppress, stating:
The motion to suppress the video will be denied.  The [trial court’s] ruling is
restricted to the video lineup as it was seen and viewed by Jennifer Nichols and
Jennifer Dunn and does not speak to any other complaining witnesses or cases
that may be an issue for another day.  But don’t misread and expand the Court’s
ruling.  It’s just to the video lineup and those two complaining witnesses.
          In the punishment phase, the State called three witnesses from the extraneous
Blockbuster and Hollywood Video robberies.  These witnesses all made in-court
identifications of appellant.  Quinn and Diaz, the two witnesses who had viewed the
live lineup, also testified.  Both identified appellant in court as the man who had robbed
them, and both testified that they had an independent basis for their in-court
identification of the appellant—their memory of the robberies.  Quinn testified that he
did not see the handcuffs during the lineup and Diaz testified that seeing the handcuffs
had not influenced his identification.  Appellant’s attorney did not renew his motion to
suppress Quinn’s and Diaz’s identification testimony.Identification 
          In points of error three and four, appellant argues that he was denied a fair trial
under the Fifth and Fourteenth Amendments of the United States Constitution and
under Article 38.23 of the Code of Criminal Procedure, because the jury was allowed
to hear evidence in the punishment phase of trial of a tainted in-court and out-of-court
identification of appellant as the perpetrator of an extraneous armed robbery.  
          Appellant has waived these points of error.  To preserve the issue, appellant was
required to object to this identification testimony.  Tex. R. App. P. 33.1(a); Waller v.
State, 581 S.W.2d 483, 484 (Tex. Crim. App. 1979).  The record reflects that appellant
did not seek a ruling as to whether the live lineup viewed by Quinn and Diaz was
impermissibly suggestive; nor did he object to Quinn’s or Diaz’s in-court identification
of appellant as the person who robbed them.   
          We overrule appellant’s third and fourth points of error.
Ineffective Assistance of Counsel
          In his first and second points of error, appellant contends that he was denied
effective assistance of counsel under the Sixth and Fourteenth Amendments of the
United States Constitution and under Article 1, Section 10, of the Texas Constitution
because his attorney failed to object to Diaz’s and Quinn’s in-court identification of
appellant in the punishment phase of the trial. 
          To show ineffective assistance of counsel, an appellant must demonstrate (1) that
counsel’s representation fell below an objective standard of reasonableness based on
prevailing professional norms and (2) that, but for counsel’s errors, there is a
reasonable probability the result of the proceeding would have been different. 
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064-65, 2068
(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).The Court of Criminal Appeals has determined that, even when a pretrial
identification procedure is impermissibly suggestive, a witness’s in court testimony will
nevertheless be admissible if the record reveals that the witness’s prior observation of
the accused was sufficient to serve as an independent origin for the in court
identification. See Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983). 
Here, both witnesses testified that the handcuffs did not influence their identification of
appellant.  The witnesses testified that their in court identifications of appellant came
from their memory of appellant during the robberies.   Thus, counsel did not err by
failing to object to the in court identifications which the evidence established were not
tainted by the out-of-court identification procedure.  Because appellant has not
established that he would have prevailed in a motion to suppress the in court
identification, he has not established that counsel was ineffective for failing to assert the
motions. See Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993). 
Accordingly, appellant cannot satisfy the first Strickland prong.
          We overrule appellant’s first and second points of error.
Conclusion
          We affirm the judgment. 
Evelyn V. Keyes
                                                             Justice
 
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Publish. Tex. R. App. P. 47.2(b). 
