In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-16-00090-CR 

SETH ROBERTS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 364th District Court 

Lubbock County, Texas 

Trial Court No. 2014-404,057, Honorable William R. Eichman II, Presiding 

 

October 11, 2016 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

Seth Roberts, appellant, appeals his conviction for aggravated robbery. Through 

two issues, he contends that 1) the evidence was insufficient to establish his identity as 

the robber, and 2) he received ineffective assistance of counsel. We affirm.

Background

On September 2, 2014, a white male entered a local Subway restaurant, entered 

and exited the bathroom, approached the sales-counter, drew a handgun, pointed the 

weapon at the cashier, and demanded money. The cashier (Williams) opened the 
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register, turned around, moved-away slightly, and watched the individual via the 

reflection off a glass door behind the counter. The individual, who was wearing 

sunglasses, gloves, and a Texas Rangers baseball cap, removed money from the 

register and left. 

Williams first saw the robber when he entered the store because he not only 

failed to remove his glasses but also wore gloves. The latter were not called for, in her 

view, given the nature of the weather. That the person also walked to the bathroom 

upon entering the store seemed odd to her.

The crime was captured on store video. It depicted a person 1) wearing a white 

T-shirt, jeans, a red cap, sunglasses and black gloves, 2) removing a handgun from his

pants, 3) walking to the cash register, and 4) ejecting a round from the side of the 

weapon during the incident. Video from a neighboring Domino's store depicted the 

same individual entering a green SUV and leave the scene after the robbery.

Despite investigation, the police had yet to arrest anyone for the crime when two 

people eventually came forth. One was appellant's roommate (Lara). The other was 

Lara's mother. The latter provided a tip to law enforcement personnel identifying 

appellant to be the robber. Lara had given the relevant information to his mother. 

Thereafter, the police contacted Lara, who was in jail at the time. They afforded him 

opportunity to view video of the robbery. After seeing it, Lara identified the robber as his 

roommate and did so based on a comparison between the assailant's walk and that of 

appellant. So too did he indicate that the vehicle in the video was like that owned by 

appellant’s girlfriend.
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Additionally, Williams eventually encountered a picture of appellant in the 

newspaper. She immediately recognized the person depicted as the one who robbed 

the Subway restaurant and informed the police of same. This and other information led 

to appellant's arrest. When arrested, appellant was driving a green SUV like that seen 

in the Domino's video. The police discovered a gray lock box in the vehicle. Written on 

the box was appellant's name, and in it were two handguns and a pair of gloves. At 

least one weapon matched the handgun used in the robbery. The gloves also matched 

those worn by the robber. 

 After trial, the jury convicted appellant of the aforementioned offense. Appellant 

then appealed.

Issue One – Insufficient Evidence Regarding Identification

In his first issue, appellant contends that the eyewitness identification by Williams 

and Lara were inherently unreliable. According to him, the “testimony from the victim

[employee] that she recognized Roberts from a picture she saw in the newspaper, after 

the robbery occurred, and Lara’s testimony that he recognized the Appellant by how he 

walked is intrinsically unreliable and should be viewed with skepticism by this Court.” 

We disagree and overrule the issue.

The pertinent standard of review is well-known. Rather than reiterate it, we cite 

the parties to recent authority on the matter. See e.g., Marshall v. State, 479 S.W.3d 

840, 845 (Tex. Crim. App. 2016); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010). 

As mentioned above, both Williams and Lara identified appellant as the robber. 

They did so before and during trial. But their testimony was not the only evidence tying 
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him to the crime. For instance, there is the evidence of 1) the similarities between the 

SUV appellant was arrested in and that was used in the robbery as depicted in on the 

Domino’s video, 2) the similarities between the items found in the SUV when appellant 

was arrested and the items exhibited by the robber, i.e. gun and gloves, 3) appellant’s

ownership of a ball cap similar to that worn by the robber, 4) the similarities between the 

facial hair of both the robber and appellant, 5) appellant’s knowledge of a fact involved 

in the robbery that only the police and the victim knew, i.e. small amount of cash taken,

and 6) the way the suspect handled the gun, which indicated to a witness that he had 

military or law enforcement experience and appellant had both. 

It may well be that the testimony of Lara and Williams was subject to legitimate 

criticism. Yet, it was admitted, and the jury was free to consider it. More importantly,

those jurors had the authority to assign it the level of credibility they thought appropriate. 

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (stating that the jury is the 

sole judge of the credibility and weight to be attached to the testimony of a witness and 

when the record supports conflicting inferences, we presume that the jury resolved the 

conflicts in favor of the verdict, and we defer to that determination). Therefore, viewing 

the record in the light most favorable to the verdict, we find evidence upon which a 

rational jury could have found, beyond reasonable doubt, that appellant committed the 

robbery. 

Issue Two – Ineffective Assistance of Counsel

In his second issue, appellant contends that his trial counsel was ineffective for 

failing to present expert testimony regarding the unreliability of eyewitness testimony 
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and for failing to request a jury instruction also on the unreliability of such evidence. We 

disagree and overrule the issue.

An appellant claiming ineffective assistance of counsel bears the burden of 

proving by a preponderance of the evidence that 1) counsel's representation fell below 

an objective standard of reasonableness and 2) the deficient performance prejudiced 

the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to 

make the required showing of either deficient performance or sufficient prejudice is fatal 

to a claim of ineffective assistance. Id. 

Regarding the first instance of allegedly deficient conduct, the failure to call an 

expert is irrelevant absent a showing that such a witness was available to testify on the 

issue in question and that the testimony would have benefitted appellant. See King v. 

State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Garza v. State, 298 S.W.3d 837, 842-

43 (Tex. App.—Amarillo 2009, no pet.). No such factual showing was made here. 

Furthermore, the record contains no evidence as to why trial counsel did not call such a 

witness. That too is problematic since we presume that counsel based his decisions 

and actions on sound trial strategy. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.

App. 2007). Generally, that presumption cannot be overcome absent evidence of those 

reasons and motives appearing in the record. Ex parte Niswanger, 335 S.W.3d 611,

615 (Tex. Crim. App. 2011). In other words, he may have had basis for why he did what 

he did, and without knowing what that basis was we cannot assess whether it could be 

viewed as sound trial strategy for purposes of analysis required by Lopez. See Ex parte 

Saenz, 491 S.W.3d 819, 829 (Tex. Crim. App. 2016) (noting the court’s responsibility to 

objectively scrutinize the claim of strategy). And this is especially so when counsel’s 
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action is not so outrageous that no competent counsel would have pursued it. 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (stating that absent 

an opportunity for counsel to explain his conduct, an appellate court should not find his 

performance deficient unless the challenged conduct is so outrageous that no 

competent attorney would have engaged in it). Counsel’s purported omission at bar 

does not fall within that realm given his vigorous cross-examination of State witnesses.

As for the missing jury instruction, the record again fails to disclose why trial 

counsel did not seek it. So, nothing appears of record rebutting the presumption that 

counsel's actions were based on sound trial strategy. Furthermore, appellant 

acknowledged in his brief that “. . . it is difficult to fault counsel for not requesting a jury 

instruction that currently does not exist in Texas . . . .” This observation seems 

especially pertinent since trial counsel is not obligated to urge frivolous or baseless 

matter to be effective. Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.—Houston 

[14th Dist.] 2002, pet. ref'd) (holding that counsel need not assert baseless objections to 

be effective). 

In sum, we do not find that appellant carried his burden of proving ineffective 

assistance. 

Having overruled both issues, we affirm the judgment. 

Brian Quinn

Chief Justice

Do not publish.