Description: One evening around 11:30 p.m., the complainant, pseudonymously referred
to as John Schmidt, ended his work shift and drove his car, a black Chevrolet
Camaro, to a self-service carwash at 20th Street and Shepherd in the Houston
Heights. The carwash was dimly lit, and Schmidt was the only one there.
While Schmidt was washing his car, a man approached him from his left,
holding a gun, and said, “I’m jacking you. It’s a robbery, I’m jacking you. Give me
your stuff.” Schmidt “hesitated for a minute” and then a second man approached
him from his right, holding a gun, and said, “Give me your wallet, your phone
[and] your stuff.” Schmidt gave them his wallet, phone, and keys, and they drove
off in his car.
Schmidt ran across the street to a Jack in the Box, where he called 911.
Schmidt told the call-taker that he had just been robbed by two Hispanic males. He
said that the robbery had occurred about five minutes earlier and that both
assailants had guns. He said that they had taken his wallet, phone, and car and fled
east on 20th Street. The call-taker told Schmidt that an officer was being
dispatched to the scene.
While he waited for an officer to arrive, Schmidt called 911 two more times.
In his second call, Schmidt was told that the police either had found his vehicle or
were in pursuit of it and would pick him up once the scene was secured. In his
third call, Schmidt provided the call-taker a more detailed description of the
assailants. He again said that they were two Hispanic males with guns. He also said
that they both appeared to be in their twenties. Schmidt described the first assailant
as being about six feet tall and skinny with “reddish-black” Nikes and a black
jacket. He described the second assailant as being about five-foot-seven and
medium built with “all black” Nikes, a black jacket, and black baseball cap.
The police chase and apprehend a man driving the Camaro
Houston Police Department Officer R. Worsham was dispatched to the scene
of the robbery. The call slip stated that the suspects had stolen a black Camaro and
were last seen driving east on 20th Street, which was in Worsham’s direction.
While en route, Worsham saw a black Camaro turning southbound from
20th Street. Worsham began to follow it. The Camaro drove off at a high rate of
speed, and a brief chase ensued. The Camaro eventually crashed into a building
and stopped on a residential street, and the driver and passenger exited the car and
fled on foot in opposite directions. Worsham testified that the passenger appeared
to be wearing a black jacket and jeans, but he could not recall whether the
passenger was wearing anything on his head. Worsham further testified that the
driver was wearing a red sweatshirt and pants with red shoes and was not wearing
anything on his head.
Worsham saw the driver run into the neighborhood, which the police then
searched with K-9 and helicopter units. The police eventually found the driver
hiding under a moped cover in a resident’s backyard. Worsham testified that when
the police found the driver, he was no longer wearing a red sweatshirt but was still
wearing red shoes.
Schmidt identifies the driver as one of the men who robbed him
Once the driver had been apprehended, an officer drove to the carwash,
picked up Schmidt, and drove him to the scene of crash. The officer explained to
Schmidt that the police had caught one of the men who had run from his car but
that the other man had gotten away. The officer told Schmidt that the police now
wanted him to attempt to identify the man in custody.
When Schmidt arrived at the scene of the crash, he saw Ortega handcuffed
in the back of a squad car with the windows rolled down. Schmidt identified
Ortega as the first assailant who had pointed a gun at him and robbed him.
The police recovered various items of property from the scene. From
Schmidt’s Camaro, the police recovered Schmidt’s wallet, as well as a blue and red
Patriots beanie, a black welder’s cap, and a knife, none of which belonged to
Schmidt. The police found a black jacket in a yard in the direction that the
Camaro’s passenger had fled. Schmidt’s cell phone was inside one of the jacket’s
pockets. Finally, the police found two guns in the Camaro’s travel path, one of
which had an uncommon design and appeared to be “foreign.”
Ortega was indicted for aggravated robbery, enhanced by one prior felony
conviction. His trial counsel did not attempt to suppress evidence of Schmidt’s pre
trial identification of Ortega and did not object to Schmidt’s identification-related
testimony at trial.
Schmidt testified that the man police had in custody at the scene was the
same man who pointed a gun at him and robbed him. And Officer Worsham and
K-9 handler Officer D. Neck identified Ortega as the Camaro driver who fled from
Worsham and was later found under the moped cover.
The jury found Ortega guilty, and the trial court sentenced him to thirty
years’ confinement. Ortega appeals.
Ineffective Assistance of Counsel
In his sole issue, Ortega argues that he received ineffective assistance of
counsel because trial counsel “did nothing to suppress” Schmidt’s pre-trial and in
court identifications of him. Ortega argues that this evidence was inadmissible
because the “showup” at which Schmidt initially identified Ortega was
impermissibly suggestive and conducive to mistaken identification. According to
Ortega, in light of “the longstanding judicial scrutiny of eyewitness identification
procedures, no reasonable defense attorney would fail to even try to suppress
identification evidence” under these circumstances.
The State responds that Ortega has failed to show trial counsel performed
deficiently because he has failed to show that an attempt to suppress Schmidt’s
pre-trial and in-court identifications would have succeeded.
A. Standard of review
To prevail on a claim for ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687–90, 104 S. Ct. 2052, 2064–66 (1984).
Under the first prong, “the defendant must show deficient performance—that the
attorney’s error was ‘so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.’” Weaver v. Massachusetts,
No. 16-240, 2017 WL 2674153, at *10 (U.S. June 22, 2017) (quoting Strickland,
466 U.S. at 687, 104 S. Ct. at 2064). This requires the defendant to prove “that
counsel’s performance fell below an objective standard of reasonableness,
considering the facts of the particular case and judged at the time of counsel’s
conduct.” Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006). Under
the second prong, “the defendant must show that the attorney’s error ‘prejudiced
the defense.’” Weaver, 2017 WL 2674153, at *10 (quoting Strickland, 466 U.S. at
687, 104 S. Ct. at 2064). This requires the defendant to prove that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Weaver, 2017 WL 2674153, at *10
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
In reviewing a claim for ineffective assistance of counsel, we are “highly
deferential” to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). We indulge a “strong presumption” that trial
counsel’s performance “fell within the wide range of reasonable professional
assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To
prove that counsel’s performance was deficient, “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d).
“Any allegation of ineffectiveness must be firmly founded in the record,
which must demonstrate affirmatively the alleged ineffectiveness.” Id. And “trial
counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex.
Crim. App. 2003). Thus, if the record does not contain affirmative evidence of
counsel’s reasoning or strategy, we normally presume that counsel’s performance
was not deficient. Blackwell, 193 S.W.3d at 21. “In rare cases, however, the record
can be sufficient to prove that counsel’s performance was deficient, despite the
absence of affirmative evidence of counsel’s reasoning or strategy.” Id.
Ortega argues that he received ineffective assistance of counsel because his
trial counsel failed to attempt to suppress the pre-trial and in-court identification
evidence. “A trial counsel’s failure to file a motion to suppress is not per se
ineffective assistance of counsel.” Wert v. State, 383 S.W.3d 747, 753 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). To prevail on a claim for ineffective
assistance of counsel premised on counsel’s failure to file a motion to suppress, the
defendant “must show by a preponderance of the evidence that the motion to
suppress would have been granted and that the remaining evidence would have
been insufficient to support his conviction.” Id. (citing Jackson v. State, 973
S.W.2d 954, 956–57 (Tex. Crim. App. 1998)).
B. Applicable law
A “showup” is “[a] police procedure in which a suspect is shown singly to a
witness for identification, rather than as part of a lineup.” Showup, BLACK’S LAW
DICTIONARY (10th ed. 2014). Typically, the “witness is brought to the scene and
asked whether a detained or arrested suspect is the perpetrator.” Id.
“The practice of showing suspects singly to persons for the purpose of
identification, and not as part of a lineup, has been widely condemned.” Stovall v.
Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972 (1967). And it is well-established
that a showup “may be so suggestive and conducive to mistaken identification that
subsequent use of that identification at trial would deny the accused due process of
law.” Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). But, “the
admission of evidence of a one man showup without more does not violate due
process.” Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.] 1981)
(citing Neil v. Biggers, 409 U.S. 188, 198, 935 S. Ct. 375, 382 (1972)). Rather, the
admission of such evidence violates due process only if (1) the out-of-court
identification procedure was impermissibly suggestive, and (2) the suggestive
procedure gave rise to a substantial likelihood of irreparable misidentification.
Proctor v. State, 319 S.W.3d 175, 185 (Tex. App.—Houston [1st Dist.] 2010, no
To determine whether a showup was impermissibly suggestive, “we review
the procedure to determine whether suggestiveness was created by the manner in
which the pretrial identification procedure was conducted.” Id.
To determine whether a showup created a substantial likelihood of
irreparable identification, we consider all relevant reliability factors,
including (1) the witness’s opportunity to view the assailant at the time of the
crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior
description of the assailant, (4) the witness’s level of certainty at the time of
confrontation, and (5) the length of time between the crime and confrontation.
Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008); Barley, 906 S.W.2d at
34–35. We then weigh these factors “against the corrupting effect of any
suggestive identification procedures.” Barley, 906 S.W.2d at 35.
“An analysis under these steps requires an examination of the ‘totality of the
circumstances’ surrounding the particular case and a determination of the
reliability of the identification.” Id. at 33. “Ultimately, ‘reliability is the linchpin in
determining the admissibility of identification testimony.’” Proctor, 319 S.W.3d at
185 (quoting Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999)). “If
indicia of reliability outweigh suggestiveness then an identification is admissible.”
Barley, 906 S.W.2d at 34.
C. Ortega fails to show that motion to suppress would have been granted
Ortega, citing Barley, 906 S.W.2d at 33, argues that a motion to suppress
would have been granted because the showup at which Schmidt made the initial
identification was impermissibly suggestive and gave rise to a substantial
likelihood of irreparable misidentification. As a result, Ortega contends, the
identification evidence was “irreparably tainted[,]” and its use at trial denied him
“due process of law.” Id. at 32–34. The State responds that the identification
evidence was admissible because the “indicia of reliability outweigh” the
“suggestiveness” of the procedure. Id. at 34.
Assuming without deciding that the showup was impermissibly suggestive,
our review of the reliability factors leads us to conclude that the procedure did not
give rise to a substantial likelihood of irreparable misidentification.
1. Opportunity to view assailant at time of crime
Schmidt testified that, although it was dark outside, he got a “pretty good”
look at the first assailant and saw his face “clearly.” Schmidt said that he was
standing only a few feet away from him during the robbery. See Barley, 906
S.W.2d at 35 (viewing defendant from close distance at time of crime indicates that
pretrial identification is sufficiently reliable). And he said that neither assailant was
wearing a mask. See id. (“unobstructed” view of defendant at time of crime
indicates pretrial identification is sufficiently reliable); Hollins v. State, No. 01-13
00129-CR, 2014 WL 768327, at *6 (Tex. App.—Houston [1st Dist.] Feb. 25,
2014, pet. ref’d) (mem. op., not designated for publication) (holding that
complainant’s testimony “that he stood face-to-face with appellant during the
robbery and looked directly at him” weighed in favor of reliability of pre-trial
2. Degree of attention
Schmidt was not a “casual” observer but rather the target of the crime and
therefore had “more reason to be attentive.” Barley, 906 S.W.2d at 35. And
Schmidt’s account of the robbery indicates that he was in fact attentive, as he was
able to describe the order in which the assailants approached him, what they said to
him, what they were wearing, what weapons they possessed, and in what direction
they drove off in his car.2 Schmidt also testified that he noticed differences in
Ortega’s appearance at trial from his appearance the night of the robbery, including
that Ortega no longer had a shaved head and had grown out his facial hair, which
further indicates that Schmidt was paying close attention at the time of the robbery.
See id. (prior description indicates identification was reliable when witness is “able
2 Notably, Schmidt also testified that the first assailant’s gun looked like an old “Russian” or “Soviet” gun, and one of the responding officers, Officer F. Jerz, testified that a distinctive, foreign-looking gun was later found in the Camaro’s travel path.
to identify cosmetic differences in appellant’s appearance at the hearing and trial
from his appearance at the scene”).
3. Accuracy of prior description of assailant
In his calls to 911, Schmidt generally described the first assailant as a
Hispanic male in his twenties who was about six feet tall and skinny, and Ortega
generally matched this description. See Barley, 906 S.W.2d at 35 (prior description
indicates identification was reliable when defendant “fits within” description).
Schmidt also described the first assailant as wearing “reddish-black” shoes, and
Worsham testified that Ortega was wearing red shoes when he was caught.
However, there were several discrepancies between Schmidt’s prior
description of his first assailant and his testimony at trial. For example, Schmidt
did not tell the 911 call-taker that the first assailant was wearing a blue and red or
blue and orange beanie, but he later testified at trial that the first assailant was
wearing such a beanie when he robbed him. Also, Schmidt told the 911 call-taker
that the first assailant was wearing a black jacket, but he later testified at trial that
he was wearing a brown jacket. Although Worsham testified that the driver
appeared to be wearing a red sweatshirt when he exited the Camaro and that the
red sweatshirt was consistent with the clothing description given to him by
Schmidt, Schmidt did not tell the 911 call-taker that either of his assailants was
wearing a red sweatshirt and did not provide any such testimony at trial.
4. Level of certainty at time of confrontation
When Schmidt arrived at the scene of the crash and was shown Ortega in the
back of the police car, he immediately recognized Ortega as the first assailant and
was confident of his identification. See Nunez-Marquez v. State, 501 S.W.3d 226,
237–38 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (holding that showup did
not give rise to substantial likelihood of irreparable misidentification when
complainants immediately identified defendant and their identifications occurred
while robbery was still fresh in their memories); Hollins, 2014 WL 768327, at *6
(holding that complainant’s pre-trial identification was reliable when complainant
“immediately recognized appellant and was confident of his identification”). And
Schmidt testified multiple times at trial that he believed the person the officers had
in custody was the same person who had pointed a gun at him and robbed him.
5. Length of time between crime and confrontation
Less than two hours passed between the crime and confrontation. Schmidt
was robbed at around 12:15 a.m., and he made the showup identification of Ortega
between 1:45 and 2:00 a.m., while the robbery was still fresh in his memory. See
Nunez-Marquez, 501 S.W.3d at 237–38 (holding that showup did not give rise to
substantial likelihood of irreparable misidentification when identifications occurred
while robbery was still fresh in complainants’ memories); Hollins, 2014 WL
768327, at *6 (holding that complainant’s pre-trial identification was reliable when
it occurred “approximately twenty to thirty minutes after the robbery had
Weighing these factors, we hold that the indicia of reliability of the pre-trial
identification outweigh the corrupting effect of the showup procedure. Schmidt
saw Ortega’s face “clearly” at the time of the robbery and identified Ortega less
than two hours later when the event was still fresh in his mind. Also, there were
several identification details that were specific to Ortega’s dress and the weapon
used that were consistent at the time of the 911 calls and two hours later at the
showup and Schmidt’s identification of Ortega as his assailant. Under these
circumstances, the showup did not create a substantial likelihood of irreparable
We hold that Ortega’s trial counsel’s failure to attempt to suppress the
identification evidence was not ineffective assistance. Therefore, we overrule
Ortega’s sole issue.