Affirmed and Memorandum Opinion filed May 14, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00278-CR

                 CHADRICK CANARD JOHNSON, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 178th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1243451

                       MEMORANDUM OPINION

      In this appeal from a conviction for murder, the only question is whether
appellant was denied the effective assistance of trial counsel. Appellant contends
that counsel’s performance was constitutionally deficient because counsel never
obtained expert testimony on the reliability of eyewitness identifications. Because
the record is silent regarding counsel’s omissions and motivations, we must apply
the traditional presumption that counsel performed reasonably. Therefore, we
overrule appellant’s sole issue and affirm the judgment of the trial court.
                                   BACKGROUND

       The complainant in this case was gunned down late at night in the courtyard
of an apartment complex. Two eyewitnesses identified appellant as the shooter,
and they both testified at his trial.

       Lakenya Wiser was one of the eyewitnesses. She testified that, on the day
before the shooting, she overheard appellant saying that he was going to kill the
complainant. The animosity appeared to be rooted in feelings over a woman.
Lakenya explained that appellant had a good friend, Kevin Hardy, who was dating
the mother of the complainant’s children. The complainant had been having
arguments with this other woman, and Kevin and appellant wanted the arguments
to stop.

       On the night of the shooting, Lakenya was standing outside on the balcony
of a second-floor apartment. She saw appellant exit a vehicle and then chase the
complainant through an alleyway, shooting at the complainant as he ran. Lakenya
testified that appellant was joined by Kevin, Kevin’s brother, and one other man.

       On cross-examination, Lakenya admitted that she did not actually see the
shooter’s face. However, she claimed that she had encountered appellant many
times before, and she knew that the shooter was appellant based on his side or back
profile.

       Arthur Larkin was the other eyewitness. He testified that he was standing by
a laundromat when he saw appellant chasing the complainant through the
apartment complex with a gun in hand. Arthur heard gunfire, which he followed
into the apartment’s courtyard. There, he saw appellant standing over the
complainant, who was lying on his back. Arthur claimed that he turned around and
left, out of fear of being shot himself. He heard gunfire as he fled.


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      Arthur gave a recorded statement to police the morning after the shooting,
but he did not identify appellant as the shooter, even though he was well-familiar
with appellant. A few days later, Arthur contacted police, claiming that he saw the
people responsible for the shooting at a nearby restaurant. Police responded to the
scene, where they found Kevin, Kevin’s brother, and two other men. Appellant
was not among the group, nor was the other person identified by Lakenya.

      Two days after his call to police, Arthur was given a six-person photo array.
Arthur circled one of the men in the array, and he wrote, “This is the person I know
as [appellant] and I saw [him] running with the gun when [the complainant] was
shot.” The person identified by Arthur was not, in fact, appellant, but it was a
person whom Arthur had witnessed at the restaurant. Appellant was not included in
the array.

      A week later, Arthur was given another six-person photo array. This array
included pictures of appellant and the person whom Arthur originally mistook to
be appellant. Arthur circled appellant’s picture and identified him as the shooter.
At trial, Arthur explained that the other person had an “uncanny” resemblance to
appellant.

      After his conviction, appellant filed a motion for new trial, alleging that his
trial counsel was ineffective in six different ways. Appellant alleged that
(1) counsel was made aware of a witness who could impeach Lakenya, but counsel
failed to subpoena that witness; (2) counsel was made aware of exculpatory
statements from two other men who were alleged to be involved in the shooting,
but counsel failed to subpoena those witnesses; (3) counsel failed to obtain expert
testimony on DNA evidence; (4) counsel failed to obtain expert testimony on
ballistics evidence; (5) counsel failed to obtain expert testimony on medical
evidence; and (6) counsel failed to file pretrial motions seeking discovery of the

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State’s evidence. Appellant did not specifically allege that counsel failed to obtain
expert testimony on the reliability of eyewitness identifications.

      Appellant’s trial counsel responded to each of the allegations in an affidavit.
Upon consideration of that affidavit, the trial court denied the motion for new trial.
This appeal followed.

                                    ANALYSIS

      We examine claims of ineffective assistance of counsel under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the
defendant must prove that his trial counsel’s representation was deficient, and that
the deficient performance was so serious that it deprived him of a fair trial. Id. at
687. Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. A deficient performance will only deprive the defendant
of a fair trial if it prejudices the defense. Id. at 691–92. To demonstrate prejudice,
there must be a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 694. Failure to make
the required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that counsel’s actions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to counsel’s
strategy, we will not conclude that the defendant received ineffective assistance
unless the challenged conduct was “so outrageous that no competent attorney
would have engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
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Crim. App. 2005). Rarely will the trial record contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the defendant is unable to meet the first prong of the Strickland test because
the record on direct appeal is underdeveloped and does not adequately reflect the
alleged failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.
See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled
on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).
Moreover, it is not sufficient that the defendant show, with the benefit of hindsight,
that his counsel’s actions or omissions during trial were merely of questionable
competence. See Mata, 226 S.W.3d at 430. Rather, to establish that counsel’s acts
or omissions were outside the range of professionally competent assistance, the
defendant must show that counsel’s errors were so serious that he was not
functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      Appellant argues that counsel was ineffective because he never called an
expert to testify that eyewitness identifications can be unreliable. Even if we
assumed that there were studies supporting appellant’s reliability conclusion, the
record does not affirmatively reveal counsel’s reasons for the challenged omission.

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Appellant never raised the omission in his motion for new trial, and thus, counsel
did not explain his strategy in his affidavit. Because the record is silent on this
issue, we have no way of knowing whether counsel actually reached out to an
expert. Nor do we know whether an expert was even available and willing to
testify. In the absence of such evidence, counsel cannot be deemed ineffective. Cf.
Brown v. State, 334 S.W.3d 789, 803 (Tex. App.—Tyler 2010, pet. ref’d) (refusing
to hold that counsel was ineffective for failing to obtain testimony from a
handwriting expert when there was no evidence that an expert was available,
willing to testify, and capable of adding to the defense in a beneficial way).

      Furthermore, counsel could have reasonably determined that expert
testimony was unnecessary because the reliability of the identifications could be
disputed in other ways. For instance, on cross-examination, counsel elicited
testimony that Lakenya failed to see the shooter’s face. He pointed out that Arthur
misidentified appellant as the shooter in the photo array. He also pointed out that
Arthur never mentioned to police in his first recorded statement that appellant was
involved in the murder. All of these points exploited weaknesses in the
eyewitnesses’ stories, showing that their testimony may not be reliable. Counsel,
who was responsible for the efficient management of appellant’s case, could have
concluded that it was better to cross-examine the actual eyewitnesses, than to
spend valuable resources obtaining and preparing an expert witness who did not
even see the shooting as it unfolded. See Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001) (holding that counsel should not be deemed ineffective if any
strategic motivation can be imagined for counsel’s challenged conduct).




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                                CONCLUSION

      Because appellant has not shown that counsel’s performance was
constitutionally deficient, we need not reach the question of prejudice. The trial
court’s judgment is affirmed.




                                     /s/       Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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