COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-480-CR
TONY
EDWARD BARBEE APPELLANT
A/K/A
TONY E. BARBEE
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 213TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
A
jury found appellant Tony Edward Barbee a/k/a Tony E. Barbee guilty of burglary,
enhanced by two prior burglary convictions, and assessed punishment at ten
years’ confinement. The trial court’s judgment imposed this sentence and
ordered Appellant to pay, as a condition of parole, $5,000 in reparations for
appointed counsel fees. Because the trial court improperly ordered Appellant to
pay appointed counsel fees, we will delete the invalid portions of the judgment
and affirm the judgment as modified.
II. BACKGROUND
At
trial, a security guard testified that around six a.m. on the morning of the
burglary, he stepped outside his building in downtown Fort Worth for a cigarette
break and watched a man wearing dark clothing and a ball cap for about five
minutes as the man peered into the window of a store across the street. The
security guard saw the man break the window, remove an item from one of the
store’s display shelves, and put it in a white sack that he was carrying. The
security guard called the police and described the burglar as a stocky man about
five feet nine inches tall, wearing dark-colored pants and shirt, and a ball
cap. When the police arrived, the security guard told them the direction in
which the burglar had left the scene.
Soon
thereafter, the police brought a suspect to the scene, but the security guard
told them that the suspect was not the man he saw burglarizing the store. Next,
the police brought Appellant to the scene, and the security guard identified him
as the burglar; police officer Monte Tucker testified that the security guard
made this identification without hesitation. According to the security guard,
about fifteen to twenty minutes passed between the burglary and the police’s
bringing Appellant to the scene. The security guard also made an in-court
identification of Appellant as the man whom he saw breaking into the store.
Police
officer Scott McClain testified that soon after the burglary, he saw a man
matching the description given by the security guard walking through the Water
Gardens on the south side of downtown. Officer McClain attempted to pursue the
man but lost sight of him. He then heard that another officer had stopped a man
walking away from the Water Gardens, but when he saw the man in the back of a
police patrol car, the man was not wearing a baseball cap or carrying a white
bag. He noticed, however, that the man’s Afro hairstyle had a ring around it
where a hat had been. Officer McClain identified Appellant as the man he saw in
the Water Gardens and in the back of the patrol car. Furthermore, Officer Don
Christiansen testified that he found a dark-colored baseball cap and white bag
containing a religious figurine in a trash can near the Water Gardens.
Appellant
was charged and convicted by a jury of the offense of burglary of a building.
After Appellant pleaded true to the indictment’s enhancement notice charging
two prior burglary convictions, the jury assessed his punishment at ten years’
confinement. The trial court’s judgment imposed this sentence and ordered
Appellant to pay, as a condition of parole, $5,000 in reparations for appointed
counsel fees. Appellant now brings this appeal.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Failure
to Suppress Out-of-Court Identification
In
his first point, Appellant argues that his trial counsel was ineffective in
failing to file a motion to suppress or object at trial to the security
guard’s identification of Appellant at the scene as the burglar. To succeed on
an ineffective assistance claim, the defendant must show that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). To show deficient performance, the defendant must prove by a
preponderance of the evidence that his counsel’s representation fell below the
standard of professional norms. Id. at 688, 104 S. Ct. at 2064. To
demonstrate prejudice, the defendant must show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Id. at 694, 104 S. Ct. at 2068.
Appellant
claims that there can be no strategic explanation that would justify a decision
to refrain from attacking the security guard’s on-scene identification of
Appellant. However, failure to file a motion to suppress or to object to the
admission of evidence does not demonstrate a deficiency of counsel per se. See
Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied,
538 U.S. 998 (2003); Hammond v. State, 942 S.W.2d 703, 710 (Tex.
App.—Houston [14th Dist.] 1997, no pet.). To show that counsel’s performance
was deficient, Appellant was obliged to prove that the motion would have been
granted or that the objection would have been sustained. See Ortiz, 93
S.W.3d at 93 (stating that a claim of ineffective assistance based on failure to
object to the admission of evidence must establish that the evidence was
inadmissible); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998) (holding that, to prevail on a claim of ineffective assistance, appellant
is “obliged to prove that a motion to suppress would have been granted”); Roberson
v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993) (holding that
without a showing that a pretrial motion had merit and that a ruling on the
motion would have changed the outcome of the case, counsel is not ineffective
for failing to assert the motion).
To
prevail on a motion to suppress, Appellant would have had to produce evidence
that defeated the presumption of proper police conduct. See Jackson, 973
S.W.2d at 957. Appellant claims that the identification was improper because it
was “a one person show-up, not multi person line-up.” However, the admission
of evidence of a one-man showup, without more, does not violate due process. Neil
v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 382 (1972). The standard for
admissibility of testimony concerning an out-of-court identification is whether
the identification procedure created a substantial likelihood of
misidentification. Id. at 198, 93 S. Ct. at 381. Even a suggestive
identification procedure is admissible if the identification was reliable under
a totality of the circumstances, considering (1) the opportunity of the witness
to view the criminal at the time of the crime, (2) the witness’s degree of
attention, (3) the accuracy of the witness’s prior description of the suspect,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation. Id. at
199-200, 93 S. Ct. at 382. Here, given the security guard’s observation and
accurate, detailed description of the burglar, the certainty of his
identification, and the short amount of time between the burglary and his
identification of Appellant as the burglar, we cannot conclude that the
identification procedure created a substantial likelihood of misidentification
and was unreliable under the totality of the circumstances. Because Appellant
has not shown that the identification would have been inadmissible and thus
would have been excluded either by a motion to suppress or an objection at
trial, we overrule Appellant’s first point.
B. Failure
to Secure an Expert Witness
In
his second point, Appellant argues that his trial counsel was ineffective for
failing to seek the appointment of an expert witness in the field of eyewitness
identification because the issue of the reliability of eyewitness identification
was “the primary issue at trial.” However, the record before us is silent as
to why Appellant’s trial counsel did not request the appointment of an expert
witness. Therefore, Appellant has failed to rebut the presumption that these
actions were part of trial counsel’s sound trial strategy. To find that trial
counsel was ineffective based on the asserted grounds would call for
speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994); Pieringer v. State, 139 S.W.3d 713, 719-20
(Tex. App.—Fort Worth 2004, no pet.).
Furthermore,
Appellant does not argue that an expert witness would have testified favorably
for the defense or that the result of trial would have been different had trial
counsel secured an expert witness. Instead, he merely suggests that “perhaps
more could have been done for Appellant” beyond trial counsel’s closing
argument to the jury that the identification procedure was tainted. [Emphasis
added.] Accordingly, Appellant has failed to meet his burden under Strickland
of proving that trial counsel’s representation was ineffective. See 466
U.S. at 687, 104 S. Ct. at 2064. We overrule Appellant’s second point.
C. Failure
to Record Voir Dire
Appellant
argues in his third point that his trial counsel rendered ineffective assistance
by not requesting a record of the voir dire examination of the venire. Appellant
claims that a record was necessary because of the potential for error in
questioning the venire about enhanced ranges of punishment and in striking
venire members. Appellant does not argue, however, that anything actually
occurred during voir dire that even arguably would have constituted error.
To
prevail on an ineffective assistance claim, Appellant must show some specific
injury resulting from the failure to request a transcription of the proceeding. See
Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th Dist.] 1998,
no pet.). In this appeal, the record contains nothing to show that Appellant was
harmed by the failure to request a record or what the record would have shown
that would have affected the outcome of his appeal. Accordingly, we overrule
Appellant’s third point.
D. Cumulative
Error
Finally,
Appellant claims in his fourth point that the cumulative effect of trial
counsel’s errors rendered his representation of Appellant ineffective. Because
we have concluded that Appellant has not shown any error by his trial counsel
that meets the Strickland standard for ineffective assistance, we
overrule Appellant’s fourth point as well. See Chamberlain v. State,
998 S.W.2d 230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082
(2000) (holding that non-errors cannot cumulatively cause error).
IV. REIMBURSEMENT OF COURT-APPOINTED COUNSEL FEES
In
his fifth point, Appellant argues that the trial court erred when it ordered him
to pay court-appointed counsel fees as a condition of parole. The trial
court’s judgment ordered Appellant to pay, as a condition of parole,
reparations of $5,000 for appointed counsel fees. The judgment also ordered
Appellant to pay $5,000 in appointed counsel fees to the district clerk under
article 26.05 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.05
(Vernon Supp. 2004-05). The State concedes that the trial court was without
statutory authority to order payment of attorney’s fees as a condition of
parole. See Tex. Gov’t Code Ann.
§ 508.221 (Vernon 2004) (authorizing parole panel to impose as a
condition of parole any condition that a court may impose on a defendant placed
on community supervision).2 The trial court
may determine the dollar amount of that reimbursement, state that amount in the
judgment, and recommend that Appellant pay that amount to the county as a
condition of parole, but it does not have the authority to require reimbursement
as a condition of parole. See Slaughter v. State, Nos. 2-04-050-CR,
2-04-051-CR, 2005 WL 183142, at *1 (Tex. App.—Fort Worth Jan. 27, 2005, no
pet.) (not designated for publication); cf. Campbell v. State, 5 S.W.3d
693, 696 (Tex. Crim. App. 1999) (stating that the trial court may fix the amount
of restitution that is just, and the parole panel may use this amount in
ordering restitution as a condition of parole).
Furthermore,
the record does not contain the statutorily-required finding of the trial court
judge that Appellant has any financial resources or is able to pay the $5,000 in
appointed counsel fees. See Tex.
Code Crim. Proc. Ann. art. 26.05(g). The record does, however,
contain Appellant’s request for appointed counsel both at trial and on appeal,
a notice from the Tarrant County Office of Attorney Appointments notifying
Appellant’s trial counsel of his appointment to represent Appellant, an
“indigent defendant,” and the trial court’s order appointing Appellant
counsel on appeal and granting Appellant a free reporter’s record.
Therefore, the record does not reflect that the trial court had any evidence
before it that Appellant was reasonably able to repay his appointed counsel
fees. Rather, the record indicates the opposite—that Appellant was
appointed counsel at trial and on appeal because he was indigent and unable to
pay for legal representation on his own. Therefore, we conclude that the trial
court erred by ordering reimbursement of appointed counsel fees and sustain
Appellant’s fifth point.
When
the trial court imposes an invalid condition in its judgment, the proper remedy
is to modify the judgment by deleting the invalid condition. See Belt v.
State, 127 S.W.3d 277, 281 (Tex. App.—Fort Worth 2004, no pet.).
Accordingly, we modify the judgment to delete the $5,000 reparations amount as
well as the following paragraphs:
APPOINTED COUNSEL FEES IN THE AMOUNT OF $5,000.00 TO BE PAID AS A CONDITION OF
PAROLE.
IT
IS FURTHER ORDERED THAT APPOINTED COUNSEL FEES FOR PURPOSES OF TEX. CODE CRIM.
PROC., ANN., ARTICLE 26.05 BE SET AT $5,000.00 AND MADE PAYABLE TO AND THROUGH
THE CRIMINAL DISTRICT CLERK’S OFFICE OF TARRANT COUNTY, TEXAS
V. CONCLUSION
Having
sustained Appellant’s point regarding repayment of appointed counsel’s fees
and overruled Appellant’s remaining points, we affirm the trial court's
judgment as modified.
PER
CURIAM
PANEL
F: MCCOY, HOLMAN, and GARDNER, JJ.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
May 12, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
See Tex. Code Crim. Proc. Ann.
art. 42.12, § 11(a)(11) (Vernon Supp. 2004-05) (authorizing trial court judge
to require reimbursement for compensation paid to appointed counsel as a
condition of community supervision).