Opinion issued July 30, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-14-00685-CR
                          ———————————
                      KANAVIUS DORSEY, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 262nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1408986



                         MEMORANDUM OPINION

      A jury convicted appellant, Kanavius Dorsey, of the first-degree felony

offense of aggravated robbery, and the trial court assessed punishment at twenty
years’ confinement.1 In two issues, appellant contends that (1) the State failed to

present sufficient evidence that he committed the robbery and (2) his trial counsel

rendered ineffective assistance by failing to move to suppress the complainant’s

pre-trial identification of him and by failing to challenge the complainant’s in-court

identification of him.

      We affirm.

                                    Background

      Around 4:00 o’clock on the afternoon of November 1, 2013, seventy-two-

year-old Alice Fusilier, the complainant, stopped by her bank in northeast Houston

and withdrew several hundred dollars to pay her utility bills. Fusilier next stopped

at a gas station to purchase some cigarettes from the convenience store. As

Fusilier got out of her car, she noticed a maroon or “reddish” colored “fairly new”

car with black-tinted windows pull into the gas station’s parking lot and stop. A

man got out of the passenger seat of the car, and Fusilier passed him on the

sidewalk as she walked to the convenience store. She stepped against the wall of

the store to let the man pass by, and after he passed her, the man hit her in the head

with his closed fist and snatched her purse. The man ran back to the car and

jumped into the passenger seat before the car drove away. Fusilier tried to see the


1
      See TEX. PENAL CODE ANN. § 29.03(a)(3) (Vernon 2011) (providing that person
      commits offense of aggravated robbery if he commits robbery and causes bodily
      injury to another person who is sixty-five years of age or older).
                                          2
license plate number of the car and then used the convenience store’s phone to call

9-1-1.

         Fusilier testified that she got a “good look” at the man both before he hit her

and as he ran back to the car. She also stated that the car had a black and white

license plate, that the license plate number started with either “BMW” or “BWM,”

and that the plate number ended with “25.” She told police officers that she was

not sure of the car’s make or model, but that it might have been a Mercury or a

Honda. Fusilier identified appellant in court as the man who robbed her. She also

testified that nearly three weeks after the offense Houston Police Department

(“HPD”) officers showed her two photo-arrays. She did not identify anyone in the

first photo array. She identified appellant in the second photo-array and stated that,

at the time, she “did not know for sure if that was the right person. But [she] had a

feeling that [she] had seen this person, but [she] didn’t know where [she] could

have seen him from unless he was the one that attacked [her].” She further

testified, “Now that I see [appellant] here in court, I strongly feel that he’s the one

that attacked me.” Defense counsel did not object to any of this testimony, nor did

he move to suppress Fusilier’s pre-trial identification or object to her in-court

identification of appellant.

         On cross-examination, Fusilier testified that, immediately after the robbery,

she gave a description of the suspect to HPD Officer L. Patterson. She described

                                            3
her assailant as a young black male who had a medium complexion and was

approximately 5’7” or 5’8” tall.2 She stated that when she saw appellant’s picture

in the photo-array, she “felt like [she] had seen this person or that this person

resembled the person that attacked [her].” She recalled that she definitively said to

the officer showing her the photo-arrays that appellant “was the one.” Fusilier also

had the following exchange with defense counsel:

      [Counsel]:          And you stated you met with the DA before this
                          case, correct?
      [Fusilier]:         Last week.
      [Counsel]:          All right. And did you talk about this case with
                          her?
      [Fusilier]:         Last week.
      [Counsel]:          Did you see any photographs of [appellant] that
                          day?
      [Fusilier]:         Yes.
      [Counsel]:          All right. How many photographs did you see?
      [Fusilier]:         Two, I think.
      [Counsel]:          Two different ones?
      [Fusilier]:         Yes.
      [Counsel]:          All right. Did you get to look at them for a while?
      [Fusilier]:         Just asked me if I identify him.
      [Counsel]:          Okay. And you had also seen photographs of
                          [appellant] before that, correct?
      [Fusilier]:         Yes.
2
      Fusilier agreed, on cross-examination, that appellant’s complexion is “dark.”
      Further, HPD Officer Rocchi testified that appellant is 6’1” tall.
                                          4
       [Counsel]:              And you would agree you’ve seen all those
                               photographs before making the identification of
                               him here in court today, right?
       [Fusilier]:             Yes.

Defense counsel did not challenge Fusilier’s in-court identification on the basis

that the State had shown her additional pictures of appellant which might have

tainted this identification.

       HPD Officer M. Rocchi testified that on November 6, 2013, he was

conducting surveillance in the parking lot of Fusilier’s bank when he saw a maroon

2008 Chevrolet Malibu with “limo tinted,” or “completely blacked out,” windows

pull into the parking lot. The license plate, which was black and white, read

BB2N125. Officer Rocchi followed the car as it left the bank, and he eventually

observed the driver, appellant, get out of the car. The car was registered to a man

named Prince Woods, who was the passenger in the car at the time of the stop.

When police conducted an inventory search of this car, they did not find any items

belonging to Fusilier.

       HPD Officer R. Gray, a robbery investigator, testified that when he spoke

with Fusilier after the incident she gave him two possible license plate numbers:

BW2225 and BW2M25. Officers discovered appellant in a car with the license

plate BB2N125, and Officer Gray testified that if someone quickly looked at the

license plate, the “N and the 1 could look like an ‘M.’” Officer Gray prepared two

                                             5
photo-arrays, the first of which contained a picture of Prince Woods, and the

second of which contained appellant’s picture. Officer Gray did not administer

these photo arrays to Fusilier himself, but he instead gave them to HPD Sergeant

D. Hartford, who did not know who the suspects were or where their pictures were

placed in the arrays.

      Officer Gray also testified concerning the different types of identifications

that witnesses can make when viewing photo-arrays: (1) a positive identification,

in which the witness is “positive” that the person in the array is the suspect; (2) a

strong-tentative identification, in which the witness essentially says, “[I]t really,

really looks like that person right there[,] but I don’t want to say I’m sure”; (3) a

weak-tentative identification, in which the witness says, “[I]t kind of looks like this

person, but I’m not sure”; and (4) a negative identification, in which the witness

says, “I don’t recognize anyone on this [array] or it’s none of these.” After

viewing the photo array that contained appellant’s picture, Fusilier made a “strong

tentative” identification of appellant.

      Sergeant Hartford testified that Fusilier did not identify anyone in the first

photo-array that he showed her. When she saw the second photograph in the

second photo-array, appellant’s photograph, Fusilier “kind of stiffened, her eyes

got wide and she put that photo to the side as opposed to the others when she went

through the first stack.” She told Sergeant Hartford that the second picture “really

                                          6
looked like the man that punched her in the head” and that “[t]he facial features

appeared to be the same as she remembered.”

      Appellant called his girlfriend, Chasity Smith, to testify on his behalf. Smith

testified that November 1, 2013, was her mother’s birthday and that she and

appellant arrived at her mother’s house around 3:30 or 4:00 p.m. and stayed there

for “most of the day” celebrating. She testified that appellant, who had driven

them to her mother’s house, did not leave at any point because he would have had

to drive her car and she does not let appellant drive her car if she is not there with

him. Smith at first testified that she does not know anyone named Prince Woods,

but she later admitted on cross-examination that she has heard the name as

someone who associates with appellant.

      The jury ultimately found appellant guilty of the offense of aggravated

robbery, and the trial court assessed punishment at twenty years’ confinement.

This appeal followed.

                            Sufficiency of the Evidence

      In his first issue, appellant contends that the State failed to present sufficient

evidence that he committed aggravated robbery.

      A. Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

                                           7
finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted).

      We may not re-evaluate the weight and credibility of the evidence or

substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the

jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.

Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the

verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the

                                        8
conflicts in favor of the prosecution and therefore defer to that determination.”).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,

343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at

778). “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). In reviewing the sufficiency of the evidence, we consider all of

the evidence in the record, “both direct and circumstantial, whether admissible or

inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

      B. Aggravated Robbery

      To establish that appellant committed the offense of aggravated robbery as

charged in the indictment, the State had to prove that appellant, while in the course

of committing a theft of property owned by Alice Fusilier, and with intent to obtain

and maintain control of the property, intentionally and knowingly caused bodily

injury to Fusilier, a person at least sixty-five years old, by striking her with his

hand. See TEX. PENAL CODE ANN. § 29.03(a)(3) (Vernon 2011). The State is

required to prove, beyond a reasonable doubt, that the defendant is the person who

committed the charged crime.       Roberson v. State, 16 S.W.3d 156, 167 (Tex.

App.—Austin 2000, pet. ref’d). “[T]he identity of the alleged perpetrator may be

                                          9
proven by circumstantial evidence.” Orellana v. State, 381 S.W.3d 645, 653 (Tex.

App.—San Antonio 2012, pet. ref’d) (citing Welch v. State, 993 S.W.2d 690, 693

(Tex. App.—San Antonio 1999, no pet.)). The State may also establish identity by

inferences. Roberson, 16 S.W.3d at 167. “For the purposes of proving guilt

beyond a reasonable doubt, direct and circumstantial evidence are equally

probative.” Id. (citing McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App.

1989)).    “[A] direct in-court identification is the preferred procedure” for

establishing the identity element of an offense. Wiggins v. State, 255 S.W.3d 766,

771 (Tex. App.—Texarkana 2008, no pet.).

      Here, the robbery occurred outside a convenience store around 4:00 in the

afternoon when it was still light outside and visibility was good. Fusilier testified

that she got a “good look” at the man who robbed her, both as the perpetrator

walked toward her before the robbery occurred and as the perpetrator ran back to

the car after the robbery. Although Fusilier’s initial description of the robber to

police—that he was approximately 5’7” or 5’8” tall and was a black male with a

“medium” complexion—did not accurately describe appellant, who is 6’1” tall and

who has a “dark” complexion, Fusilier identified appellant as the robber both in a

pre-trial photo-array and in court. Upon viewing the photo-array, Fusilier gave a

“strong tentative” identification of appellant as the robber, stating that she “did not

know for sure” if appellant was the robber but that she “felt like [she] had seen this

                                          10
person or that this person resembled the person that attacked [her].” Fusilier stated

that she did not know where she could have seen the person she identified “unless

he was the one that attacked [her].” Fusilier also identified appellant in court as

the man who robbed her, testifying, “Now that I see him here in court, I strongly

feel that he’s the one that attacked me.”

      On appeal, appellant argues that Fusilier’s pre-trial identification was

tentative and her in-court identification unreliable. However, defense counsel did

not object to the admission of Fusilier’s pre-trial identification or to Fusilier’s in-

court identification. Furthermore, even if appellant had objected to this testimony,

we may consider this evidence when conducting our sufficiency review. See

Dewberry, 4 S.W.3d at 740 (noting that, in sufficiency of evidence review, we

consider all evidence in record, both direct and circumstantial, whether admissible

or inadmissible).

      The State also presented evidence that, after the robbery, Fusilier spoke with

police officers and informed them that the robber jumped in the passenger seat of a

red or maroon four-door, newer model sedan with dark tinted windows. She told

the officers that she was not sure of the make or model of the car, but that it might

have been a Mercury or a Honda. She also told the officers that she saw a black

and white license plate on the car and that the license plate number began with

either “BMW” or “BWM” and ended with “25.” Officer Rocchi testified that

                                            11
several days after the robbery, he was conducting surveillance at Fusilier’s bank

when he saw a 2008 maroon Chevrolet Malibu pull into the parking lot. This car

had extremely dark “limo” tinting on the windows and a black and white license

plate with a number that read BB2N125. Officer Gray testified that if someone

quickly looked at the license plate, the “N and the 1 could look like an ‘M.’”

Officer Rocchi followed the car as it left the bank’s parking lot and eventually

made contact with its occupants, including appellant, who was driving. All of this

evidence points to appellant as being the individual who robbed Fusilier.

      Having viewed all of the evidence in the light most favorable to the verdict,

as we must when reviewing the sufficiency of the evidence, we conclude that the

State presented sufficient evidence that appellant committed the charged robbery.

      We overrule appellant’s first issue.

                         Ineffective Assistance of Counsel

      In his second issue, appellant contends that his trial counsel rendered

constitutionally ineffective assistance by (1) failing to file a motion to suppress

Fusilier’s pre-trial identification of him, and (2) failing to challenge Fusilier’s in-

court identification of him.

      A. Standard of Review

      To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

                                          12
performance was deficient and (2) there is a reasonable probability that the result

of the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984); Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Cannon v.

State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure to

make either of the required showings of deficient performance and sufficient

prejudice defeats the claim of ineffective assistance.       Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003); see also 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.”).

      The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires the appellant to demonstrate

prejudice—“a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068.




                                          13
      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (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, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness).

      In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65

S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct.

1690, 1694 (2003) (“If the alleged error is one of commission, the record may

reflect the action taken by counsel but not the reasons for it. The appellate court

may have no way of knowing whether a seemingly unusual or misguided action by

counsel had a sound strategic motive or was taken because the counsel’s

alternatives were even worse. The trial record may contain no evidence of alleged

errors of omission, much less the reason underlying them.”) (internal citations

                                        14
omitted). 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, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.

      B. Failure to Challenge Pre-trial and In-Court Identifications

      Trial counsel’s failure to file a motion to suppress is not per se ineffective

assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384, 106

S. Ct. 2574, 2587 (1986)). Counsel is not required to perform a useless or futile

act. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“But a

reasonably competent counsel need not perform a useless or futile act.”); Mooney

v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (“Counsel is not required to

engage in the filing of futile motions.”). Rather, to satisfy Strickland and prevail

on an ineffective assistance claim based on defense counsel’s failure to file a

motion to suppress, the 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. See Wert, 383

S.W.3d at 753 (citing Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App.

1998)). Likewise, to succeed on an ineffective assistance claim based on a failure

                                        15
to object, appellant must demonstrate that if trial counsel had objected, the trial

court would have erred in overruling the objection. Oliva v. State, 942 S.W.2d

727, 732 (Tex. App.—Houston [14th Dist.] 1997, pet. dism’d). Trial counsel’s

failure to object to admissible evidence does not constitute ineffective assistance of

counsel. Id.

      “An in-court identification is inadmissible when it has been tainted by an

impermissibly suggestive pretrial photographic identification.” Gamboa v. State,

296 S.W.3d 574, 581 (Tex. Crim. App. 2009) (quoting Loserth v. State, 963

S.W.2d 770, 772 (Tex. Crim. App. 1998)). Courts use a two-step analysis to

determine the admissibility of an in-court identification: (1) whether the out-of-

court identification procedure was impermissibly suggestive; and, if so,

(2) whether that suggestive procedure gave rise to a substantial likelihood of

irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.

App. 2001). In determining whether the pretrial identification procedure was so

impermissibly suggestive “as to give rise to a very substantial likelihood of

irreparable misidentification,” we consider the totality of the circumstances.

Gamboa, 296 S.W.3d at 581–82; Mendoza v. State, 443 S.W.3d 360, 363 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (“If the pretrial procedure is found to be

impermissibly suggestive, identification testimony would nevertheless be

admissible where the totality of the circumstances shows no substantial likelihood

                                         16
of misidentification.”); Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.—Houston

[1st Dist.] 2003, no pet.) (“If sufficient indicia of reliability outweigh

suggestiveness, then an identification is admissible.”). Factors that we consider

when making this determination are: (1) the witness’s opportunity to view the

defendant at the time of the crime; (2) the witness’s degree of attention; (3) the

accuracy of the witness’s prior description of the defendant; (4) the witness’s level

of certainty at the time of the confrontation; and (5) the length of time between the

offense and the confrontation. Gamboa, 296 S.W.3d at 582.

      “[I]t is well established that, even where the pre-trial identification

procedure is impermissibly suggestive, in-court testimony of an identification

witness will still be admissible as long as the record clearly reveals that the

witness’ prior observation of the accused was sufficient to serve as an independent

origin for the in-court identification.” Lesso v. State, 295 S.W.3d 16, 25 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (stating such in context of overruling

claim of ineffective assistance based on failure to move to suppress in-court

identification of defendant); Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (“[W]hen an in-court identification is based

upon knowledge independent from the allegedly improper pre-trial procedure, it is

admissible.”). An appellant must show by clear and convincing evidence that the




                                         17
in-court identification has been irreparably tainted to obtain reversal. Mendoza,

443 S.W.3d at 363.

      Here, appellant concedes that “[t]here is nothing in the record to suggest that

the [pre-trial] photo array was suggestive,” but he argues that a motion to suppress

Fusilier’s pre-trial identification “would have been successful due to [Fusilier’s]

uncertainty and her inaccurate description of her attacker. The trial court could not

have been assured that her pre-trial identification was reliable.” Fusilier described

her attacker to Officer Patterson as a young black male who had a medium

complexion and was approximately 5’7” or 5’8” tall. The record contains evidence

that appellant has a “dark” complexion and that he is 6’1” tall. Appellant also

points to the fact that Fusilier’s pre-trial identification of him was “tentative” as a

basis for rendering this evidence inadmissible.

      As the State points out, however, the fact that Fusilier gave a “strong

tentative” identification as opposed to a “positive” identification of appellant after

viewing the pre-trial photo-array and the fact that her initial description of her

attacker to Officer Patterson differed in two ways from appellant’s actual physical

appearance are relevant to the weight that the jury should give to Fusilier’s pre-trial

identification, not to its admissibility. See Jackson v. State, 657 S.W.2d 123, 128

(Tex. Crim. App. 1983) (holding such when defense counsel showed witness ten

photographs and she identified six photographs as being of defendant when only

                                          18
one photograph was of defendant and when, at trial, witness could not recall

clothes perpetrator wore at time of offense).

      Furthermore, to the extent appellant argues that the prosecutor’s showing

Fusilier two pictures of appellant a week before the trial renders Fusilier’s pre-trial

identification of him inadmissible, we note that Fusilier’s pre-trial identification of

appellant occurred in November 2013 and appellant did not go to trial until eight

months later in July 2014. Thus, the prosecutor’s showing of two pictures of

appellant to Fusilier could have had no effect on her selection of appellant in the

pre-trial photo array. See id. (“What the court overlooked was that what occurred

at the instigation of defense counsel [showing the witness ten photographs] almost

three months after the station house confrontation could not affect the

suggestiveness of the confrontation at the time it occurred.”). We conclude that

appellant has not demonstrated, by a preponderance of the evidence, that Fusilier’s

pre-trial identification of him was inadmissible and that, therefore, the trial court

would have granted a motion to suppress the pre-trial identification. See Wert, 383

S.W.3d at 753.

      Appellant also argues that “[a] motion to suppress the in-court identification

would have also been successful because it was tainted by the unreliable pre-trial

photo array and the prosecutor’s actions shortly before trial.”            On cross-

examination, defense counsel asked Fusilier whether she had spoken with the

                                          19
prosecutor before the trial. Fusilier responded that she had, “last week.” The

following exchange occurred:

      [Counsel]:         Did you see any photographs of [appellant] that
                         day?
      [Fusilier]:        Yes.
      [Counsel]:         All right. How many photographs did you see?
      [Fusilier]:        Two, I think.
      [Counsel]:         Two different ones?
      [Fusilier]:        Yes.
      [Counsel]:         All right. Did you get to look at them for a while?
      [Fusilier]:        Just asked me if I identify him.
      [Counsel]:         Okay. And you had also seen photographs of
                         [appellant] before that, correct?
      [Fusilier]:        Yes.
      [Counsel]:         And you would agree you’ve seen all those
                         photographs before making the identification of
                         him here in court today, right?
      [Fusilier]:        Yes.

The record contains no further information concerning the photographs that

Fusilier viewed when she met with the prosecutor one week before the trial.

      Even if the prosecutor’s showing of two photographs to Fusilier the week

before trial was impermissibly suggestive, a matter we need not decide, to establish

that defense counsel rendered ineffective assistance by failing to object to

Fusilier’s in-court identification of him, appellant must demonstrate that the trial


                                         20
court would have erred in overruling an objection to the in-court identification,

which requires a showing that the prosecutor’s pre-trial actions gave “rise to a very

substantial likelihood of irreparable misidentification.” See Gamboa, 296 S.W.3d

at 582.

      The first two factors that we consider in determining whether a pre-trial

identification procedure gave rise to a “very substantial likelihood of irreparable

misidentification” are the witness’s opportunity to view the defendant at the time

of the crime and the witness’s degree of attention. See id. Here, the robbery

occurred outside around 4:00 in the afternoon, when it was still daylight. Fusilier

testified that she saw a car pull into the gas station and a man climb out of the

passenger seat of the car. The man walked towards her and passed directly by her

before turning around, hitting her on the back of her head, grabbing her purse, and

running back to the car. She stated that she got a “good look” at the man both as

he walked toward her and as he ran back to the car. Fusilier thus had a good

opportunity to view appellant at the time of the crime, and the fact that she was the

victim of the offense indicates that her degree of attention paid to appellant was

likely higher than if she had been a mere bystander. See id. at 582; Barley v. State,

906 S.W.2d 27, 35 (Tex. Crim. App. 1995) (“[T]he witnesses were more than just

casual observers of the crime. Therefore, they had more reason to be attentive.”).




                                         21
      The third factor to consider is the accuracy of the witness’s prior description

of the criminal. See Gamboa, 296 S.W.3d at 582. As we have already discussed,

the initial description of the robber that Fusilier gave to Officer Patterson differed

from appellant’s physical appearance in two respects—appellant’s complexion is

“dark” instead of “medium,” and he is 6’1” tall instead of 5’7” or 5’8” tall. This

factor, therefore, weighs against a finding that the allegedly improper pre-trial

procedure did not give rise to a very substantial likelihood of irreparable

misidentification. See id.

      The fourth factor is the witness’s level of certainty at the time of the

confrontation. See id. Although Fusilier gave a “strong tentative” identification of

appellant at the time that she viewed the photo-array, stating that she “did not

know for sure if that was the right person” but that she “had a feeling that [she] had

seen this person, but [she] didn’t know where [she] could have seen [appellant]

from unless he was the one that attacked [her],” at trial, she testified, “Now that I

see [appellant] here in court, I strongly feel that he’s the one that attacked me.”

Thus, at the time of her in-court identification, Fusilier had a high level of certainty

that appellant was the one who robbed her.

      The fifth factor is the length of time between the offense and the

confrontation. See id. The robbery occurred on November 1, 2013. Fusilier

viewed the photo-arrays and identified appellant on November 18, 2013, seventeen

                                          22
days later. The trial, during which Fusilier identified appellant in court as the

robber, occurred in July 2014, eight months after the offense. The eight-month

interval does not detract from Fusilier’s identification because she consistently

identified appellant as the robber and was able to recall details of the offense. See

Delk v. State, 855 S.W.2d 700, 707 (Tex. Crim. App. 1993) (holding that eighteen-

month delay between offense and trial did “not detract from the identification

given the details the [witness] was able to recall and the consistency in her

testimony”); Burkett, 127 S.W.3d at 89 (holding that six-month delay “did not

detract from the complainant’s identification in this case because of her consistent

testimony and ability to recall details”).

      Thus, the only factor that weighs against a finding that the prosecutor’s

showing of two photographs of appellant to Fusilier the week before trial did not

give rise to a very substantial likelihood of irreparable misidentification is the

accuracy of Fusilier’s initial description of the robber. When we consider the

totality of the circumstances and weigh them against the allegedly improper pre-

trial procedure, the trial court could have reasonably found that the procedure did

not give rise to a “very substantial likelihood of irreparable misidentification” and

could have permissibly denied a challenge to Fusilier’s in-court identification. See

Gamboa, 296 S.W.3d at 582.            To establish that defense counsel rendered

ineffective assistance by failing to move to suppress Fusilier’s pre-trial

                                             23
identification, appellant needed to establish that had defense counsel filed the

motion or made the challenge the trial court would have granted the motion to

suppress.   See Wert, 383 S.W.3d at 753.          To establish that defense counsel

rendered ineffective assistance by failing to object to Fusilier’s in-court

identification, appellant needed to establish that, had defense counsel objected, the

trial court would have erred in overruling the objection. Oliva, 942 S.W.2d at 732.

      Because appellant did not establish that the trial court would have granted a

motion to suppress Fusilier’s pre-trial identification or would have erred in

overruling an objection to Fusilier’s in-court identification, appellant has not

demonstrated that defense counsel’s failure to move to suppress the pre-trial

identification or object to the in-court identification fell below an objective

standard of reasonableness. See Wert, 383 S.W.3d at 753. Appellant, therefore,

cannot establish that defense counsel’s failure to move to suppress and failure to

object constituted ineffective assistance.

      We overrule appellant’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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