                                                                                    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
Williams 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
