Greene v. State

124 S.W.3d 789, 2003 Tex. App. LEXIS 9870, 2003 WL 22723462
CourtCourt of Appeals of Texas
DecidedNovember 20, 2003
Docket01-02-00485-CR
StatusPublished
Cited by88 cases

This text of 124 S.W.3d 789 (Greene v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greene v. State, 124 S.W.3d 789, 2003 Tex. App. LEXIS 9870, 2003 WL 22723462 (Tex. Ct. App. 2003).

Opinions

OPINION

SHERRY RADACK Chief Justice.

A jury convicted appellant, Jeannette Marie Greene, of arson. Appellant stipulated to two prior felony convictions, and the trial court assessed punishment at 25 years’ confinement. We affirm.

Background

Darrell Greene was appellant’s former common-law husband, and Kathie Ritchie was his girlfriend. On October 8, 2001, someone set Ritchie’s car on fire. The State presented evidence that appellant had been involved in a physical altercation and had argued with Darrell Greene the day before the arson. The State also produced telephone messages to Ritchie, on which appellant’s voice was positively identified, stating, “You know what Bitch, I may kill each one of ya’ll slowly. You know what, you better go outside. Because you know, right there on the side [791]*791right there it’s a Corona bottle filled up with gasoline.” The evidence showed that the car was burned after having been doused with an accelerant and that a Corona bottle smelling of gasoline was found nearby.

The State also produced the eyewitness testimony of Reginald Guy, who told the arson investigator at the scene of the crime that he had seen a short, dark-complexioned woman leaving the scene of the arson in a silver or grey Taurus with newspaper over the license plate. Later that day, after having been shown a driver’s license picture of appellant by police, Guy identified her as the woman whom he had seen driving away. He also identified her in court.

There was evidence that, even though appellant did not own a Taurus, she was driving a rented Taurus of the day on the arson.

Ineffective Assistance of Counsel

In point of error one, appellant contends that she received ineffective assistance of counsel at trial. Specifically, appellant contends that her attorney should have filed a motion to suppress Guy’s in-court identification of her as the person whom he had seen fleeing the crime scene. She argues that Guy’s identification was tainted by an impermissibly suggestive pretrial identification, which she alleged occurred when the police showed Guy appellant’s driver’s license and asked if appellant was the woman whom Guy had seen fleeing the scene of the arson.

The legal standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to appellant’s claim. To prevail on her claims, appellant must first show that her counsel’s performance was deficient. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Specifically, appellant must prove, by a preponderance of the evidence, that her counsel’s representation fell below the objective standard of professional norms. Id. Second, appellant must show that this deficient performance prejudiced her defense. Id. Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Id. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Id. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id., quoting Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999).

We acknowledge that many Texas courts have held that showing a witness a “photo spread” containing a single photograph is an impermissibly suggestive pretrial identification procedure,1 and we in no way endorse the use of such a pretrial identification procedure. However, because there is nothing in the record to show why counsel chose not to attempt to have Guy’s in-court identification suppressed in this case, appellant cannot meet the first prong of the Strickland test. See Bone, 77 S.W.3d at 830 (“We are once [792]*792again asked whether an appellate court may reverse a conviction on ineffective assistance of counsel grounds when counsel’s actions or omission may have based upon tactical decisions, but the record contains no specific explanation for counsel’s decisions. Once again, we answer that question ‘no.’ ”).

Because the court [of appeals] itself did not discern any particular strategy or tactical purpose in counsel’s trial presentation, it therefore assumed that there was none. This inverts the analysis. Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. From this trial record, one could conclude that there were legitimate and professionally sound reasons for counsel’s conduct or one could speculate that there were not. Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.

Id. at 886. We do not believe that appellant has met her burden of showing that counsel had no plausible trial strategy in failing to object to Guy’s in-court identification, and we will not speculate about the lack of trial strategy simply because we do “not discern any particular strategy or tactical purpose.” Id. Therefore, we conclude that appellant has failed to meet the first prong of the Strickland test.

Furthermore, we believe that appellant also fails to meet the second prong of Strickland. Even if appellant had successfully challenged Guy’s in-court identification, the remaining evidence would have been legally sufficient to tie appellant to the arson. Evidence that Guy told the arson investigator that he saw a short, dark-complexioned woman fleeing the scene of the crime in a Taurus with newspaper on the license plate would have been admissible because it occurred before the allegedly suggestive pretrial procedure, ie., before police showed Guy appellant’s driver’s license. There was other evidence, from which the jury could have rationally concluded that appellant was, in fact, the unidentified woman whom Guy had seen. The jury was able to see appellant and to determine whether she was short and dark-complexioned, as Guy had described the woman to the arson investigator. The jury also heard appellant’s voice on the audiotaped telephone messages, in which she had threatened to burn the victim using gas from a Corona bottle; a Corona bottle smelling of gasoline was recovered from the scene. There was also Guy’s untainted testimony that he had seen a silver Taurus leaving the scene of the arson. One of appellant’s own witnesses testified that appellant was driving a rented Taurus on the day of the arson, although he believed that it was brown or tan.

Identity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App.1986).

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Cite This Page — Counsel Stack

Bluebook (online)
124 S.W.3d 789, 2003 Tex. App. LEXIS 9870, 2003 WL 22723462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-state-texapp-2003.