Kelley v. State

525 S.W.3d 275, 2017 WL 1103547, 2017 Tex. App. LEXIS 2487
CourtCourt of Appeals of Texas
DecidedMarch 23, 2017
DocketNO. 14-15-00979-CR
StatusPublished
Cited by2 cases

This text of 525 S.W.3d 275 (Kelley 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
Kelley v. State, 525 S.W.3d 275, 2017 WL 1103547, 2017 Tex. App. LEXIS 2487 (Tex. Ct. App. 2017).

Opinion

OPINION

Kem Thompson Frost, Chief Justice

Appellant Yancy Kelley challenges his conviction for robbery, asserting (1) ineffective assistance of counsel for failing to object to evidence, and (2) trial-court error in admitting evidence of the complainant’s pretrial identification of appellant. We affirm.

I. Factual and Procedural Background

The complainant, Junie Treminio, was walking to a bus stop when she encountered a man who grabbed her necklace and attempted to take her purse. A struggle ensued, and the assailant threw the complainant to the ground. When the complainant’s purse flew off of her arm, the assailant took the complainant’s wallet and fled.

A neighborhood resident heard the complainant screaming and ran out of his home in time to see a man running away from the bus stop. When the resident saw the man get into a blue car, he wrote down the license plate number. The complainant [277]*277told 911 operators that her attacker was a black male wearing a black t-shirt and gray shorts. She stated that a witness saw the attacker leave the scene in a blue Nissan Altima with license plate FJP8227.

About a week later, Eric Garza, a police officer on patrol, was randomly running license plates of vehicles to see whether any of the plates returned “hits” in the police computer system. Officer Garza entered the plate of a blue Nissan Altima with license-plate number FJP8227. Officer Garza then stopped the car and arrested appellant, who was seated on the passenger side.

Detective John Bedingfield interviewed appellant at the police station. In the videotaped interview, appellant denied responsibility for the robbery. Appellant then invoked his right to counsel.

Detective Bedingfield created a photo spread that contained a photo of appellant. He showed the photo spread to the complainant, and she identified appellant as the man who attacked her.

Appellant was charged with robbery and an enhancement based on a prior felony conviction for burglary of a habitation. A jury found appellant guilty as charged and found the alleged enhancement to be true. The trial court assessed punishment at ten years’ confinement. Appellant now challenges his conviction, raising two issues.

II. Issues ano Analysis

A. Was trial counsel ineffective in failing to object to appellant’s videotaped statement?

In his first issue, appellant asserts that trial counsel provided ineffective assistance because trial counsel did not object at trial to the State playing appellant’s videotaped statement to Detective Beding-field. Appellant contends that the statement was inadmissible because it was a custodial statement in which appellant invoked his right to remain silent. and to have an attorney to represent him.

To prevail on an ineffective-assistance-of-counsel claim, an appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the first prong, an appellant must prove by a preponderance of the evidence that trial counsel’s performance fell below an objective standard of reasonableness under the prevailing professional norms. Id. An appellant must overcome the presumption that trial counsel’s actions fell within the wide range of reasonable and professional assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). To satisfy the second prong, the appellant must show a reasonable probability that,, but for counsel’s unprofessional error, the result of-the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). 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). The appellant must do more than show, with the benefit of hindsight, that his counsel’s actions or omissions during the trial were merely of questionable competence. Huerta v. State, 359 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

On the morning of trial, trial counsel asked to make a record to document his difficulty communicating with appellant in connection with counsel’s efforts to prepare for trial. The trial court had ordered appellant to meet with trial counsel to prepare for trial and had made meeting with trial counsel a condition of appellant’s [278]*278bond. Appellant attended that meeting, but then communication stopped. Trial counsel could not make contact with appellant for a period of six to eight weeks. Trial counsel asked an investigator to attempt to get in touch with appellant or appellant’s girlfriend. Neither the investigator nor trial counsel were successful in their efforts to make contact with appellant. That meant trial counsel had to prepare for trial without appellant’s assistance or input.

At trial, when the State offered into evidence the video of appellant’s statement (State’s Exhibit 11), trial counsel stated on the record that trial counsel chose not to object because the video did not contain any inculpating statements and showed appellant denying involvement in the robbery. The video — a recording of Detective Bedingfield questioning appellant after appellant’s arrest — runs about seven minutes. In the video, appellant states that his daughter’s mother owns a dark blue Nissan Altima. Detective Bedingfield responds that a week earlier, someone saw appellant get into that car. Appellant denies it. Appellant then states that he needs an attorney because he does not know what is going on. He states that he thought he had been pulled over and arrested because he had outstanding traffic tickets and states that he is confused by Detective Beding-field’s line of questioning about another crime involving an Altima. Appellant tells Detective Bedingfield, “I’m just being straight with you, if I’d actually done something, sir, I got four kids, if I did something, there’s no reason for me to be here playing with you.” Detective Beding-field then states that someone used the lady’s credit card and he has video. Appellant says the person could not have been him. Appellant then invokes his right to an attorney, ending the interview.

Trial counsel stated on the record that he did not expect appellant to testify based on trial counsel’s advice that testifying would subject appellant to cross-examination about prior convictions, which trial counsel advised could lead to appellant’s conviction. Because trial counsel expected appellant not to testify, trial counsel wanted the jury to hear appellant deny his involvement in the robbery and so, for strategic reasons, chose not to object to appellant’s videotaped statement. Appellant later decided to testify, against counsel’s advice.

Appellant argues that there is no reasonable trial strategy supporting trial counsel’s decision not to object to the video statement.

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Cite This Page — Counsel Stack

Bluebook (online)
525 S.W.3d 275, 2017 WL 1103547, 2017 Tex. App. LEXIS 2487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-state-texapp-2017.