Sylvester Earl Lofton v. State

• Court: Court of Appeals of Texas
• Decided: March 6, 2008
• Docket: 14-06-01104-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 6, 2008

Affirmed and Memorandum Opinion filed March 6, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-01104-CR

SYLVESTER EARL LOFTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1022750

M E M O R A N D U M   O P I N I O N

A jury convicted Sylvester Earl Lofton of aggravated robbery with a deadly weapon and the trial court assessed his punishment at 60 years confinement.  Appellant raises three issues contending that: (1) the trial court erred by admitting county jail disciplinary records because they were inadmissible under the Confrontation Clause of the Sixth Amendment of the Untied States Constitution; (2) his trial counsel was ineffective because he failed to object to the introduction of appellant=s jail disciplinary records; and (3) his trial counsel was ineffective because he failed to file a pretrial motion to suppress the witnesses= identification of appellant.   We affirm.

Background

At about 10:30 p.m. on March 12, 2005, Delia Rodriguez and her daughter, Azalea Flores, had just returned to their apartment complex.  While Flores was retrieving packages from the car, Rodriguez exited her car and began to walk to a nearby vehicle where her friend, Rene Sanchez, was waiting for her.  Appellant passed within 15 feet of Flores and looked straight at her, then approached Rodriguez from the rear.  Rodriguez, sensing someone following her, turned to face appellant.  Appellant pointed a gun at Rodriguez=s face and demanded her purse.

Sanchez, observing the robbery as he exited his vehicle, approached the scene of the robbery.  Appellant then pointed the gun at Sanchez.  Appellant ran to a nearby SUV and fled the scene.  Sanchez returned to his vehicle and followed appellant, writing down the SUV=s licence plate number.  After appellant fired two shots at Sanchez=s vehicle as it followed the SUV, Sanchez returned to Rodriguez=s apartment complex and gave the police the license plate number.

In her initial report, Rodriguez described appellant as a black male, about 19 to 20 years of age, 180 pounds, and wearing a black cap that covered the top of his head but did not cover his face.  An investigation of the license plate number determined that the vehicle was registered to appellant=s grandmother and had been reported as stolen.  Rodriguez and Flores could not definitively identify appellant in a photo spread, but claimed they could positively identify him if they saw him in person.  Appellant was placed in a lineup and both Rodriguez and Flores identified appellant in the lineup and again at trial as the individual who had robbed Rodriguez at gun-point.

Analysis

1.         Confrontation Clause

In his first issue, appellant argues that the trial court erred in admitting his county jail disciplinary records at the punishment phase of the trial because this admission violated his Sixth Amendment right to confront the witnesses against him. 

To preserve error in admitting evidence, a party must make a timely objection and obtain a ruling on that objection.  Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).  Appellant=s counsel failed to object to the admission of his disciplinary records at trial.  When the State offered the records into evidence, appellant=s counsel stated that he had no objection to their admission.  No complaint has been preserved

for our review.  Appellant=s first issue is overruled.

2.         Ineffective Assistance of Counsel

In his second and third issues, appellant contends he was denied effective assistance of counsel because his trial counsel failed to (1) object to the admission of his jail disciplinary records during the punishment phase of trial, and (2) file a pretrial motion to suppress Rodriguez=s and Flores=s identification of appellant.

Standard of Review 

To prevail on an ineffective assistance claim, appellant must show that (1) his trial counsel=s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the error, the result of the proceeding would have been different.  Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment phase of non‑capital trial).  Appellate review of trial counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance.  Garza, 213 S.W.3d at 348.

If counsel=s reasons for his conduct do not appear in the record and there is at least a possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal.  Id.  To warrant reversal where trial counsel has not been afforded an opportunity to explain those reasons, the challenged conduct must be so outrageous that no competent attorney would have engaged in it.  Roberts v. State, 220 S.W.3d 521, 533‑34 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007).

Failure to Object to Admission of Jail Disciplinary Records at Punishment Phase

In his second issue, appellant argues that he was denied effective assistance of counsel because his trial counsel failed to object to the admission of his jail disciplinary records during the punishment phase of trial.

Appellant did not file a motion for new trial, and there is nothing in the record to indicate trial counsel=s reasons for not objecting to the admission of appellant=s jail disciplinary records.  Because appellant has not developed a record of trial counsel=s reasons for his actions, appellant has failed to rebut the presumption of sound trial strategy.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  Appellant also makes no attempt to show or explain how there is a reasonable probability that, but for counsel=s allegedly deficient conduct, the result of the proceeding would have been different, i.e. the assessment of punishment would have been less severe.  Milburn v. State, 15 S.W.3d 267, 270 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); see also Ex parte Gonzalez, 204 S.W.3d 391, 393-94 (Tex. Crim. App. 2006).

Additionally, the trial court stated the following reasons for sentencing appellant:

Most disturbing to the Court, of course, is the nature of these allegations and the crime for which you=ve now been found guilty.  This aggravated robbery is particularly violent.   . . .  [A] gun was pointed at least at two people, maybe three.  And, of course, there=s the whole issue of the firing the shots, another aggravated assault.  But then you make bond on this very serious offense and you pick up two new charges.  So, it is instructive, I think, that on a very serious aggravated assault in juvenile court you were sent to T.Y.C. with the hope that you would get the kind of help that you needed and redirect your life.  And that didn=t happen.  . . .  That tells me a lot about where you are.  And it=s not just trespasses or small drug cases, you know, like a possession of marijuana that you=re picking up.  You=re picking up felonies.

The trial court never mentioned appellant=s jail disciplinary records as one of the considerations for assessing appellant=s punishment at 60 years confinement.  In light of the record before us, including evidence of five prior convictions, it is unlikely that the disciplinary records significantly increased appellant=s sentence.  We overrule appellant=s second issue.

Pretrial Motion to Suppress Identification

In his third issue, appellant asserts that he was denied effective assistance of counsel because his trial counsel failed to file a pretrial motion to suppress Rodriguez=s and Flores=s pretrial identification of appellant.

Again, the record is undeveloped and does not reflect trial counsel=s motives for not filing a pretrial motion to suppress appellant=s identification.  Additionally, a trial counsel=s failure to file a motion to suppress is not per se ineffective assistance of counsel. Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.CAustin 2007, no pet.); Huynh v. State, 833 S.W.2d 636, 638 (Tex. App.CHouston [14th Dist.] 1992, no pet.).  To prevail on an ineffective assistance claim premised on counsel=s failure to file a motion to suppress,  appellant must show by a preponderance of the evidence that the motion to suppress would have been granted.  Jackson v. State, 973 S.W.2d 954, 956‑57 (Tex. Crim. App. 1998). 

However, the record does not reflect that the pretrial identification was impermissibly suggestive to warrant suppression; nor does appellant make any attempt to show that a pretrial attempt to exclude Rodriguez=s and Flores=s identification would have been successful.  Finally, a review of the record reveals that trial counsel attempted to discredit the witnesses= identification of appellant by cross-examining Rodriguez and Flores extensively.  Trial counsel emphasized that neither Rodriguez nor Flores was able to identify appellant in a photo spread and only later identified him in a lineup.  Trial counsel also elicited that appellant was the only man who had  been placed in both the photo spread and the lineup.  In his closing argument, trial counsel tried to discredit witnesses by pointing to inconsistencies in their respective testimony and tried again to emphasize Rodriguez=s and Flores=s inability to identify appellant after viewing a photo spread shortly after the robbery when their memory Ashould have been sharp and crisp.@  Trial counsel pointed out that the witnesses could  identify appellant only after they saw him in the lineup, and that appellant had been the only man who had both been placed in the photo spread and in the lineup.

Appellant=s claim of ineffective assistance of counsel cannot be sustained on this record.  Accordingly, appellant=s third issue is overruled and the judgment of the trial court is affirmed.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed March 6, 2008.

Panel consists of Chief Justice Hedges, Justices Anderson, and Boyce.

Do not publish C Tex. R. App. P. 47.2(b).