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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-09-00802-CR

Decided: October 28, 2010

Panel consists of Justices Keyes, Higley, and Bland.


A jury convicted Luke Dwayne Latson of aggravated robbery and, after Latson pleaded true to the allegations in two enhancement paragraphs, assessed punishment at sixty years' confinement.   See Tex. Penal Code Ann. § 29.03(a) (Vernon 2003).   On appeal, Latson contends that he received ineffective assistance of counsel.   We hold that Latson failed to meet his burden to demonstrate that he received ineffective assistance of counsel and therefore affirm.


In February 2009, Rick Dacus, a Metro bus driver and the complainant, was driving his evening route when a man, the sole passenger on the bus, ordered him to stop.   Dacus stopped the bus.   Before the man exited through the doors, he turned, pointed a gun at Dacus and demanded:  “Give me your wallet.”   Dacus gave him his wallet.   Finding it empty, the man demanded Dacus's watch.   The man took the watch, threw the wallet down, and walked away from the bus.   In court, Dacus identified Latson as his assailant.

Several cameras installed on the bus recorded the robbery.   Metro Police Department Sergeant Lynn reviewed the video of the robbery.   He noticed that Dacus's asssailant used a Q Card, which is a prepaid card used to pay the bus fare.   By noting the time the robber used his Q Card to board the bus, Sergent Lynn located the associated Q Card from Metro's treasury department and the records of its use.   Sergeant Lynn ascertained that the robber frequently used the card at 5300 Coke Street.   With still photographs of the man who committed the robbery, he visited the leasing office of Crème Manor Apartments, located at 5300 Coke Street.   He showed the photographs to an administrative assistant and a maintenance man.   Both identified the man in the photographs as a trespasser on the property, whom they had last seen in the courtyard.

Sergeant Lynn found Latson in the apartment courtyard and arrested him.   Latson had a .38 caliber pistol when Sergeant Lynn detained him.   At trial, Dacus testified that the gun looked similar to the one used in the robbery.   Metro Police officer Ken Kuhlman interviewed Dacus after the police arrested Latson.   Dacus verified that Latson was the man who had robbed him.

Before jury selection on the day of trial, Latson complained to the trial court about his counsel's representation.   Specifically, he maintained that he had a witness whom he wanted counsel to call:

THE COURT:  Any other witnesses that you have, sir?

THE DEFENDANT:  Yes, I have witnesses.

THE COURT:  Who are they?

THE DEFENDANT:  I have told her [trial counsel].   Yes, I have told her.

THE COURT:  Well I think she just said that you didn't.

THE DEFENDANT:  No, but at that time I didn't have the addresses.


THE DEFENDANT:  I mean, I didn't have the addresses or the name but I--because I knew them by a street name, but I got his first name now.   His name is Chris, and he stayed in the Coke apartments.   That's where I was during that whole time.

THE COURT:  You got a street name for somebody named Chris-- and-- no, you've got his street name and you say his real first name is Chris--

THE DEFENDANT:  Yes, Chris.   First name is Chris.

THE COURT:  And he stays at a particular apartment complex?

THE DEFENDANT:  Yes, Apartment 83.

THE COURT:  Have you given that to her yet?

THE DEFENDANT:  I told her.   She said, Well I'm going to have to tell that to--

THE COURT:  Okay. When did you find the name Chris?   That's something that you haven't told her yet?

THE DEFENDANT:  I found that out about three or four days ago.

THE COURT:  So three days ago, but you haven't relayed that to her until now, correct?

THE DEFENDANT:  Yes. Yes, sir.

THE COURT:  Okay. Well if she wants to attempt service on somebody, first name Chris, at that address, she can do that.   There's a process server that can go attempt service.   You don't have a last name at all?

THE DEFENDANT:  I don't know his last name, but his first name is Chris.

THE COURT:  You know who he lives with?

THE DEFENDANT:  He lives with his wife.

THE COURT:  You know her name?

THE DEFENDANT:  I can't-- I can't remember her name.

Later, while the jury deliberated Latson's punishment, trial counsel addressed Latson's complained-of missing witness.

TRIAL COUNSEL:  I want to go on the record just to clear something up.   Prior to the trial starting, Mr. Latson had stated that he had a witness that he gave me that morning.   Is that correct, Mr. Latson?


TRIAL COUNSEL:  And what was the name of the witness that you gave me?


TRIAL COUNSEL:  And how long had you known that this witness was available?

THE DEFENDANT:  I have known he was available about three days before I come notify you and the Court.

TRIAL COUNSEL:  Okay. So the first time you notified me about this witness was the day of trial?

THE DEFENDANT:  The day of picking the jury.

TRIAL COUNSEL:  That's correct?


TRIAL COUNSEL:  That's the first time you told me about this?


TRIAL COUNSEL:  Now isn't it true that when you and I started talking about this witness-- that you have known that this witness has lived in Apartment 83 of the Coke apartments since I began representing you, correct?


TRIAL COUNSEL:  Have you ever shared with me that you had a witness who lived in Apartment 83?

THE DEFENDANT:  No. I didn't know the apartment number, and his-- I didn't know his name because I knew him by his street name.

TRIAL COUNSEL:  Didn't you tell me, when you and I were discussing this witness, that you had known where he lived the whole time I've been representing you?

THE DEFENDANT:  I knew him by going to his apartment, but I didn't know his number.

TRIAL COUNSEL:  So how did you find out his number?

THE DEFENDANT:  I had talked to someone, and they knew his number.   And that's how I got his-- got his real name.

TRIAL COUNSEL:  So at no time during the six or seven months that I've been representing you have you ever told me that this witness existed until the jury was walking down the hall;  is that correct?



In his only issue on appeal, Latson contends that he received ineffective assistance of counsel because his counsel failed to request a continuance to secure the presence of a witness.

Standard of Review

To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists that, absent counsel's errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).   The first prong of Strickland requires the defendant to show that counsel's performance fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).   Thus, the defendant must prove objectively, by a preponderance of the evidence that his counsel's representation fell below professional standards.  Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002).   The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068;  Thompson, 9 S.W.3d at 812.   In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney's performance falls within the wide range of reasonable professional assistance or trial strategy.  Thompson, 9 S.W.3d at 813.   Furthermore, a claim of ineffective assistance must be firmly supported in the record.   Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)).   Where the record does not offer an explanation for trial counsel's actions, we presume that counsel made all significant decisions in the exercise of reasonable professional judgment.  Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994);  Broussard v. State, 68 S.W.3d 197, 199 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).

When the claim of ineffective assistance is based on counsel's failure to call witnesses, the appellant must show that such witnesses were available to testify and that appellant would have benefitted from their testimony.   Ex parte White, 160 S.W.3d 46, 52 (Tex.Crim.App.2004) (citing King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983));  see Pinkston v. State, 744 S.W.2d 329, 332 (Tex.App.-Houston [1st Dist.] 1988, no pet.).


Here, even if trial counsel had secured a continuance, nothing in the record indicates that Chris would have been available to testify and that his testimony would have benefited Latson.   Latson only knew Chris's first name, where he lived and that he lived with his wife.   He did not show that Chris was available to testify at his trial.   See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex.Crim.App.2004) (holding that trial counsel was not ineffective for failing to call witness because, even if he had written statement from witness, defendant did not establish that witness was available to testify at his trial);  see also Milburn v. State, 15 S.W.3d 267, 269-270 (Tex.App. - Houston [14th Dist.] 2000, pet. ref'd) (holding that trial counsel's failure to search out and present any mitigating character evidence at defendant's punishment stage actually and substantially prejudiced defendant, where parties in case had stipulated that twenty witnesses would have testified they were available to testify at punishment phase and would have asked jury to consider minimum punishment.)

The record is also completely silent on what Chris's testimony would have been.   Even if Chris was available to testify, Latson has not shown that his trial counsel was ineffective.   See Perez v. State, 310 S.W.3d 890, 895 (Tex.Crim.App.2010) (finding that uncalled alibi witness's testimony would not have benefitted defendant because, even according to witness's affidavit, it was still possible that defendant committed crime);  Starz v. State, 309 S.W.3d 110, 119-120 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd) (finding that counsel was not ineffective for failing to interview witness because, although witness was available, record did not indicate what information he possessed and whether it would be helpful to defendant).   Thus, Latson has not shown that his trial counsel was constitutionally ineffective in her failure to request a continuance to secure Chris's presence at trial.


We hold that Latson failed to meet his burden to demonstrate that he received ineffective assistance of counsel.   We therefore affirm the judgment of the trial court.

Jane Bland Justice

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