Opinion
No. 05-03-00920-CR
Opinion Filed July 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-52734-QU. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
Rodney B. Smith appeals his conviction for burglary of a building. After convicting appellant of the offense and finding two enhancement paragraphs true, the jury assessed punishment at fifteen years confinement. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant exercised his right to file a pro se response to counsel's brief. In three grounds, appellant contends there are arguable issues for appeal regarding the factual sufficiency of the evidence, whether the trial court denied him his right to counsel, and whether he received ineffective assistance of counsel. We affirm.
Background
Someone burglarized an office and engineering facility owned by the Northrop Grumman Corporation. After throwing a manhole cover through a window to enter the building, the burglar forced open several interior doors and stole a television, videocassette recorder, laptop computers, and military night vision equipment. Complainant Kevin Mobley, a Northrop Grumman manager, testified the stolen property was worth $30,000 and the burglar did $8,000 in damage to the building. Police technician Abe Daniel Santiago recovered a partial fingerprint from the glass door of a conference room cabinet where the television had been kept. The fingerprint was fresh because a cleaning crew wipes down the conference room's surfaces every week. Santiago ran the fingerprint through a computerized fingerprint comparison machine known as Automatic Fingerprint Identification System or AFIS. The AFIS compared the partial fingerprint to fingerprints of persons in the system. The AFIS was set to produce the twenty most likely fingerprint matches ranked in order of their likelihood. The AFIS selected appellant's fingerprint as the most likely match. Mobley testified appellant was never employed by Northrop Grumman nor had appellant ever worked on the building's cleaning crew to the best of Mobley's knowledge. Patrick Genovese testified he is an AFIS detective and fingerprint examiner with the Dallas Police Department. Genovese testified he had been employed as a fingerprint examiner for sixteen years, he had over 600 hours of training in fingerprint comparisons with several law enforcement organizations, and he had made thousands of fingerprint comparisons in his career. Genovese described the science of fingerprinting for the jury. Genovese then testified he had compared the latent fingerprint Santiago found at the crime scene to fingerprints he took from appellant. Genovese opined appellant's fingerprint positively matched the latent fingerprint to the exclusion of all others. A second fingerprint examiner, Shari Degan, testified that she provided a second verification on the fingerprint match. Degan, a detective assigned to the AFIS unit with fifteen years' experience in making fingerprint comparisons, also had no doubt the latent fingerprint matched appellant's fingerprint. After identifying appellant as the suspect, Dallas police searched the residence of Annette Benedetto, appellant's girlfriend, but did not find any stolen property. During the trial, Benedetto testified appellant spent the entire night of the burglary at her residence. Benedetto testified that shortly before his arrest, appellant had borrowed $500 or $600 from her. Benedetto testified that on the night before he was arrested, appellant had placed a black trash bag in the trunk of her car. On the following day, police officers arrested appellant and received Benedetto's permission to search her car. Inside the black trash bag, the officers discovered the night vision equipment stolen in the Northrop Grumman burglary.Factual Sufficiency of the Evidence
In his first ground, appellant contends the evidence is factually insufficient because his conviction is based almost entirely upon a fingerprint identification made from a partial fingerprint by unqualified expert witnesses. Appellant criticizes the trial court for not holding a rule 705(b) hearing outside the jury's presence to investigate Genovese's and Degan's qualifications, the reliability of their testimony, and the use of the AFIS. Appellant points out that the trial court had granted his pretrial motion to conduct a rule 705(b) hearing before allowing expert testimony. In reviewing the factual sufficiency of evidence to support a verdict, we review all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Cognizant of the jury's role and unique position, we must defer to the jury's determinations, particularly those determinations involving the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). Our authority to disagree with the jury's determinations is limited to situations "when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. In reviewing the sufficiency of the evidence, we consider all evidence admitted before the trial court, whether it was properly admitted or not. See Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App. 1991). Initially, we observe that appellant's factual sufficiency complaint is unfounded because Genovese's and Degan's testimony was admitted and the testimony supports the jury's verdict. See id. Moreover, appellant did not object to Genovese's expert testimony on the science of fingerprint comparison nor did he object when the trial court allowed the expert testimony without first conducting the anticipated rule 705(b) hearing. By failing to object, appellant has waived any complaint about the expert testimony. See Tex.R.App.P. 33.1(a); Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App. 2000); Goss v. State, 826 S.W.2d 162, 168 (Tex.Crim.App. 1992), abrogated in part on other grounds by Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App. 1994). Finally, had appellant objected, the trial court would not have abused its discretion in overruling the objection. The scientific validity of fingerprint identification has been long-established in the jurisprudence of this State. See, e.g., Grice v. State, 142 Tex. Crim. 4, 151 S.W.2d 211, 221 (Tex.Crim.App. 1941). In Grice, the court affirmed appellant's burglary conviction based upon a partial fingerprint lifted from a pane of glass. See id. A fingerprint examiner may establish his expertise to identify fingerprints through testimony regarding his experience and work history. See Epps v. State, 24 S.W.3d 872, 879 (Tex.App.-Corpus Christi 2000, pet. ref'd). In the present case, Genovese and Degan provided sufficient testimony about their experience to qualify as experts. In addition to the fingerprint evidence, the uncontroverted evidence shows appellant was in possession of the stolen property nine days after the burglary. The defense offered no evidence to explain why appellant possessed stolen property. Instead, during final argument, counsel suggested the jury draw an inference that appellant merely possessed stolen property and had acquired it with the money he borrowed from Benedetto. It was the jury's prerogative to reject counsel's suggested inference. See Adams v. State, 552 S.W.2d 812, 815 (Tex.Crim.App. 1977) (assigning to trier of fact the determination of whether an explanation for possession of stolen property is reasonable). In reaching its guilty verdict, the jury had before it both direct evidence in the form of appellant's fingerprint at the crime scene and circumstantial evidence in the form of appellant's possession of items stolen in the burglary. We conclude the evidence is factually sufficient to support the jury's verdict. See Zuniga, 144 S.W.3d at 484-85. Thus, we overrule appellant's first ground.Denial Of The Right To Counsel
In his second ground, appellant contends the trial court denied him his Sixth Amendment right to counsel when it refused to allow him to retain new counsel on the eve of trial. Appellant contends the trial court did not make an adequate inquiry to determine whether his retention of new counsel would delay the trial. Finally, appellant contends the trial court and the prosecutor conspired to force him to proceed to trial with his appointed counsel. An accused may not manipulate his right to select counsel so as to obstruct the orderly procedure of the courts or to interfere with the fair administration of justice. Robles v. State, 577 S.W.2d 699, 704 (Tex.Crim.App. [Panel Op.] 1979). Accordingly, an accused may not wait until the day of trial to demand other counsel or to request appointed counsel's dismissal so he can retain counsel. Id. The trial court's docket sheet shows trial counsel was appointed to represent appellant on September 10, 2002. Appellant came before the trial court for a February 28, 2003 bond hearing and a May 23, 2003 pretrial hearing. Appellant did not express dissatisfaction with appointed counsel or request permission to hire his own attorney at either hearing. On June 10, 2003, the trial court conducted a second, short pretrial hearing. Trial counsel moved for a continuance on the ground he was unprepared for trial due to his work on a separate case that had just been resolved during jury selection. The trial court denied counsel's motion on the grounds that a jury was on its way to the trial court for this case, counsel had announced ready during the previous week, and the trial court had already held the case over from the previous week because of trial counsel's conflicting trial. After the trial court denied the motion for continuance, appellant informed the trial court that he wanted to replace appointed trial counsel with retained counsel in the following exchange with the trial court:[Appellant]: I want to hire my own attorney.
[The trial court]: I know you do. But —
[Appellant]: I want to hire my own attorney.
[The trial court]: I suggest that you shut your mouth.
[Appellant]: My family members —
[The trial court]: I suggest that you shut your mouth.
[Appellant]: My family members —
[The trial court]: Get him out. Get him out.
[Appellant]: I want to hire my own attorney on the record.After a brief recess, the pretrial hearing resumed without appellant's presence. On the following day, before the trial commenced, the trial court inquired if counsel was ready. Counsel replied, "We're ready. I appreciate the continuance from yesterday to get me ready today." We conclude appellant's request to retain new counsel was untimely. See id. Having just denied counsel's motion for continuance because it would delay the imminent jury trial, the trial court was under no obligation to hold an unnecessary hearing on appellant's untimely request to delay the trial further so he could retain new counsel. Appellant's conspiracy claims, unsupported by the record, will not be considered on appeal. See Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App. 1996). We overrule appellant's second ground.
Ineffective Assistance of Counsel
In his third ground, appellant contends he received ineffective assistance of counsel. Specifically, appellant contends counsel failed to request the appointment of a defense fingerprint expert, relied upon a non-expert attorney's advice about the authentication of the fingerprint, failed to request a rule 705(b) hearing regarding the fingerprint evidence even though the trial court had already agreed to conduct such a hearing, and made a damaging concession during jury argument. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Undisputed evidence in the record shows counsel did, in fact, engage an expert and, as a matter of legitimate trial strategy, chose not to call the expert to testify. In a hearing outside the jury's presence, held after the State rested its case, counsel informed the trial court that appellant would not testify and that:I explained to him — I talked to him about the fingerprint expert that we had hired to look at his fingerprint and explained to him that he could testify only that it was his fingerprint and he couldn't allude to any other things, what PES should have done with the fingerprint but — and that his testimony could be cumulative, I think would be detrimental to Mr. Smith and he understands that as well. Appellant did not respond to counsel's assertion. Nothing in the record supports appellant's allegation that the defense fingerprint expert was merely an attorney and thus unqualified to examine the latent fingerprint. Without support in the record, appellant's allegation cannot be considered on appeal. See Bell, 938 S.W.2d at 53. We conclude appellant cannot meet either prong of the Strickland standard regarding the employment and use of a fingerprint expert.The record does not show why counsel did not request a rule 705(b) hearing outside the jury's presence. As with the use of an expert, counsel may have had sound strategic reasons for not requesting a hearing. In the absence of counsel's explanation, we cannot determine that counsel rendered ineffective assistance. See Strickland, 466 U.S. at 687-88; Bone, 77 S.W.3d at 833. Finally, appellant contends counsel should not have conceded during jury argument that the partial fingerprint was appellant's "without a doubt." Again, the record does not reveal counsel's explanation for the remark. Given that the record contains the testimony of two expert witnesses that the fingerprint belonged to appellant, and given counsel's statement to the trial court that his own independent expert had also verified the fingerprint belonged to appellant, the concession could have been in furtherance of a strategy of candor and honesty with the jury about the state of the evidence. Cf. Thomas v. State, 886 S.W.2d 388, 392 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (not objecting to hearsay fostered plausible trial strategy of openness and honesty before the jury). Moreover, given the state of the evidence, we cannot conclude that but for trial counsel's remark, the result would have been different. See Strickland, 466 U.S. at 694. We overrule appellant's third ground.