### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00012- CR

Br e e on Le on P r ic e , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF BELL CO UNTY, 27TH JUDICIAL DISTRICT NO. 56538 , HO NORAB LE MARTH A J. TRUDO, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N A jury found appe llant Bre eon L eon Price g uilty of ag g ravated robbe ry

and asse ssed punishment at te n y ear s’ imprisonment. See Tex. Pen. Code Ann. § 29.03 (West 2003). Appe llant’s
on ly c on te nti on on a

pp e a l is that he did

no t r e c e ive e ff

e c tiv e a ssi sta

nc e of c ouns e l. F ind ingno me ri t to this contention, we aff

irm the judg ment of convic tion. On the morning of May

12, 2004, two men forc ed their way into the home of B rent
a nd Shi rl e y

A a l s m a i nS a l a d o . O n e o f

t h e m e np o i n t e d

a p i s t o l a tB r e n tA a l s m a

an d r e pe a te dly demande d, “Where ’s the dope? Where’s the money ? ” Aalsma pleaded with the man that he did not have a ny drug s, and that all of his money was in his wallet. The second man, who was not armed, was with Shirley

Aalsma a nd her two young children. He, too, demande d to know the location of the drug s and money . Eventually , the men re alized that they wer e in the wr ong house. They order ed2

the Aalsmas into a closet and left afte r taking two $100 bills and a few$1 bills from Bre nt Aalsma’s wallet, and two cell phones. After the m en lef t the house, B rent Aa lsma went to a window a nd saw the m dr ivi ngawa

y in a g old fo ur -d oor car. He wa s a ble to g e t th e fi rs t f

our d ig its of

the lic e ns e p l at e: G3 5 Z. B re nt A a lsm a de sc ri be d th e su sp e c t c ar t o th e of fi c e r who re sp on de d to the ir c a ll, adding that he thoug ht the car was a Pontiac Sunfire. The Aalsmas desc ribed the a rmed intruder

as black, a bout 5 fee t, 8 inches tall, wea ring a blue baseba ll cap and a dark long-sle eved cre w nec k shirt wi th t he wo rd s “ Ol d N a vy” and the numbe r “ 94 ." Th e se c on d man wa s als o bla c k, a bo ut 6 fe e t ta ll, and wor e a re d baseba ll cap and a basketba ll jersey

with the word “ I ndiana” and the number “30" or “34.” About thirty minutes a fter the robber y , Deputy J ose Nava

rro, J r., who was patrolling in Killeen, spotted a c ar matching the ra dioed desc ription of the suspect ve hicle (e x cept that it turned out to be a Mitsubishi Mi rag e). B efor e he c ould stop the car, it pull ed int o the drivew ay of a fourp l ex and the dr iver, who w as appe llant, got out. Navarr o detained a ppellant, friske d him, and handcuf fed him. A s econd deputy arr ived and appellant was told to sit in his patrol car . Appellant was not dre ssed as e ither intruder had been descr ibed, but lookinginto appellant’s ca r, the off icer s
saw a c e ll p ho ne , a

blu e ba se ba ll c a

p, and a da rk sh ir t. Ten minutes af

ter a ppellant was de tained, B rent Aa lsma was brought to the sce ne. Appellant wa s taken fr om the patrol ca r and w alked, in h an d cu ff s , in front of the c ar in whic h Aalsma wa s sitti ng . Aalsma told Deputy Aar on I ng ram that he was 90 perc ent sure that appellant3

was one of the intrud er s . After a deputy put the blue base ball cap f ound in appellant’s c ar on appellant’ s head, A alsma said that he w as 100 per cent c erta in of his identification.

During the detention, the of fi cers lear ned that ther e we re outstandingwar rants for appellant’ s arr est. Duringa sea rch of appellant’ s car , the office rs discovere d that the dar k shirt they had see n ear lier had the words “Old Navy” and the num ber “94.” Appellant had a se cond ce ll phone and two $100 bills in his pockets. No wea pon was found in the c ar or on appellant’ s person. Appellant conte nds that his trial counsel was ineffe ctive in two re spects: by failing to obje ct to the one-on- one identification at the scene of the de tention and by failing to object to the
sear ch of his car . Appellant must show that by failingto make these objections, his attorney was not functioning eff

ectively as counse l and pre

judiced the appellant’s defense to such a deg ree that he wa s deprive d of a f

air trial. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); He rn an de z v . S tate , 726 S.W. 2 d 5 3 , 5 7 ( T e x. Cr im
. A p p . 1 9 8 6 )
. We mu s t in d u lg e a s tr o n g p r e s u mp ti o n th a t c ounsel’s conduct f ell within the wide ra

ng e of r easona

ble profes s i o n al assi stance
. J ac k so n v . S tat e , 877 S.W. 2d 76 8, 77 1 ( Te x. Cr im. Ap p. 19 94 ). To ov erco me thi s p re su mpt ion , th e re c or d mu st aff irmatively

demonstrate the alleg ed inef fec tiveness. M

a lle tt v . S tat e , 6 5 S. W.3 d 5 9, 63 (T e x. Cr im. App. 2001). In most cases, the r ecor d on direc t a ppeal is undeveloped a

nd cannot a dequate ly

ref lect the motives behind trial counse l’s actions. Id
.

As su min g wi tho ut de c idi ng that the on e -o n- on e ide nti fi c a tio n p ro c e dure in t his c a se was impermissibly

sug g estive, we are satisfied that the proce dure did not g ive rise to a substantial likelihood of irrepa

rable misidentification under the c ircumstance s shown here
. Se e Br own v . S tat e , 64 S.W .3d 94, 99 (Tex. A pp.—Austin 2001, no pet.). Reliability is the linchpin in determining the4

admissibili ty of identification testim ony . Ma ns on v . B ra thw ait e , 4 32 U. S. 9 8, 11 4 ( 19 77 ); Mo or e
v . S tat e , 140 S.W .3d 720, 731 (Tex. App.—Austin 2004, pet. ref ’d). To a ssess the reliability of an identification in l i gh t o f a sug g estive identification procedur e, we consider ( 1) the witness’s opportunity to vie w the criminal at the time of the crime, ( 2) the witness’s de g ree of attention, (3) the ac cura cy

of the witness’s prior descr iption of the criminal, (4) the level of cer tainty demonstrated by the witness at the c onfrontation, and (5) the time be tween the crime a nd the conf

rontation. Ne il

v . B igge rs , 40 9 U .S. 18 8, 19 9- 20 0 ( 19 72 ); Mo or e , 1 4 0 S
. W
. 3 d at 7 3 1
. Al l o f t h es e f

ac t o rs we i gh in favor of

a finding t hat Brent Aa lsma’s in-cour t identification of appe llant was re liable despite a ny sug g esti v eness in the e arlier identification. The r ecor d shows that Aalsma wa s within an arm’s leng th of the arme d intruder for sever al minutes dur ing the home invasion and the re is no evide nce that the intruder was attempti ng to hide hi s fac e. Clearly , Aalsma had an ample oppor tunity to view the cr iminal with a high de g ree of attention. Aalsma’s descr iption of the intruder wa s g ener al, but there is no evidence that it was inacc urate in any si gn ificant wa

y . The que stionable one-on- one i d en t i fi ca t i o np ro ce d

u re t o o k p l ac e w i t h i n a ha l f- h o u r of t h e cr i m e, an d Aa l s m a d em o n s t ra t eda h i gh deg ree of conf

idence —90 to 100 perc ent—at that time. Under these c ircumstance s, appellant’s tria l
c o u n s e l c an n o tb e f

a u l t e d f o r h a v i n g f a i l e d t o o b j e c tt o t h e i d e n t i f

i c a t i o nt e s t i m o n y. Appellant also complains of his attorney ’s fa ilure to object to the sea rche s of his car that le d to the se izur e of the blu e ba se ba ll ca p an d, la te r, the Ol d Navy sh ir t. B ut a pp e lla nt s ta te s in his brief, a

nd we will accept it as t rue for t he purpose of this opinion, that he had bee n arr ested be fore these sea rche s took place, a

nd he does not c ontend that the arr est was unlawful. As an incide nt of t h e a rr es t , t h e p o l i ce we re au t h o ri z edt o s ea rc h t h e i n t er i o r o f th e car ap p el l an th adj u s tb ee ndri v i n g.5

New Y ork v. Be lton , 453 U.S. 454, 460 (1981). Onc e ag ain, appe llant’s counsel c annot be f aulted for ha ving f ailed to make a

basele ss objection. The points of er

ror a re ove rruled a

nd the judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: May

19, 2006 Do No t Pu

bli sh