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Click here for the full text of this decision FACTS: A jury convicted appellant, Jeannette Marie Greene, of arson. Appellant stipulated to two prior felony convictions, and the trial court assessed punishment at 25 years’ confinement. HOLDING: Affirmed. The appellant contends that her attorney should have filed a motion to suppress Reginald Guy’s in-court identification of her as the person whom he had seen fleeing the crime scene. She argues that Guy’s identification was tainted by an impermissibly suggestive pretrial identification, which she alleged occurred when the police showed Guy appellant’s driver’s license and asked if appellant was the woman whom Guy had seen fleeing the scene of the arson. Many Texas courts have held that showing a witness a “photo spread” containing a single photograph is an impermissibly suggestive pretrial identification procedure. The court does not endorse the use of such a pretrial identification procedure. However, because there is nothing in the record to show why counsel chose not to attempt to have Guy’s in-court identification suppressed in this case, the appellant cannot meet the first prong of the Strickland v. Washington, 466 U.S. 668 (1984), test. The court does not believe that appellant has met her burden of showing that counsel had no plausible trial strategy in failing to object to Guy’s in-court identification, and will not speculate about the lack of trial strategy simply because the court does not not discern any particular strategy or tactical purpose. Furthermore, appellant also fails to meet the second prong of Strickland. Even if appellant had successfully challenged Guy’s in-court identification, the remaining evidence would have been legally sufficient to tie appellant to the arson. Evidence that Guy told the arson investigator that he saw a short, dark-complexioned woman fleeing the scene of the crime in a Taurus with newspaper on the license plate would have been admissible because it occurred before the allegedly suggestive pretrial procedure, i.e., before police showed Guy appellant’s driver’s license. There was other evidence, from which the jury could have rationally concluded that appellant was, in fact, the unidentified woman whom Guy had seen. The jury was able to see appellant and to determine whether she was short and dark-complexioned, as Guy had described the woman to the arson investigator. The jury also heard appellant’s voice on the audiotaped telephone messages, in which she had threatened to burn the victim using gas from a Corona bottle; a Corona bottle smelling of gasoline was recovered from the scene. There was also Guy’s untainted testimony that he had seen a silver Taurus leaving the scene of the arson. One of appellant’s own witnesses testified that appellant was driving a rented Taurus on the day of the arson, although he believed that it was brown or tan. Identity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary. See Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986). The court believes that there is sufficient circumstantial evidence to identify appellant as the perpetrator in this case. First, there was evidence that appellant’s voice was identified on the victim’s answering machine, on which she made very specific threats against the victim. The arson committed was very similar to the threats made by appellant. Second, there was evidence of the acrimonious history between the two women. Third, there was evidence that Guy saw a woman generally matching appellant’s description fleeing the scene of the crime. Fourth, there was evidence that the woman whom Guy saw was driving a Taurus, as well as evidence that appellant was driving a rented Taurus on the day of the offense. Thus, even if Guy’s identification of appellant had been suppressed, the remaining evidence would have been legally sufficient for the jury rationally to conclude that appellant committed the arson. Because the appellant is not able to show to a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached, she fails to meet the second prong of the Strickland test. OPINION: Radack, C.J. A majority of the Court voted against en banc consideration. DISSENT: Jennings, J., dissenting from the denial of en banc consideration. “The panel opinion takes obiter dictum from the Texas Court of Criminal Appeals and erroneously utilizes it in resolving this case, resulting in a direct conflict with the well-established precedent of this Court and the Court of Criminal Appeals. The opinion’s implicit assumption that there could have been a ‘plausible trial strategy’ in the decision of appellant’s trial counsel not to move to suppress the identification testimony of the sole eyewitness in this case is truly extraordinary. Moreover, the opinion erroneously concludes that the ‘remaining evidence’ was ‘legally sufficient’ to uphold appellant’s conviction and infers that ‘appellant is not able to show to a reasonable probability that, but for the alleged deficiency, a different verdict would have been reached.’ Accordingly, I respectfully dissent from the denial of en banc consideration.”

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