No. 13-05-469-CR
Memorandum Opinion Delivered and Filed July 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court of Harris County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Daniel Guidry, was charged with the felony offense of aggravated robbery. See TEX. PEN. CODE ANN. 29.03 (Vernon 2005). The jury found appellant guilty and assessed punishment at ninety-nine years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. By nine points of error, appellant complains that out-of-court and in-court identifications of appellant admitted into evidence were tainted and that the evidence was insufficient to support his conviction. We affirm.
The jury was authorized to convict appellant for aggravated robbery, acting either as a principal or under the law of parties.
I. Background
Willie Williams, assistant manager of EZ Pawn, and Tomesha Moon, an employee, opened the store on May 14, 2004. Just before 10:00 a.m. appellant came into the store carrying a microwave. He set the microwave on the counter and, a short time later, pulled a gun out of the microwave and pointed it at everyone. Someone told them to get on the floor. Appellant wore no bandana or mask to hide his face. As many as three others participated in the robbery. Cash in the amount of $2,321.00 was taken from two registers and the safe, and jewelry valued at $295,072.00 was taken from the store. EZ Pawn's surveillance video of the time in question was admitted as State's exhibit number 10. Three out-of-court pretrial identifications of appellant were made, two from a videotaped lineup and one from a live lineup. The videotape was admitted as State's exhibit 40. At trial, four witnesses, including those who had identified appellant pre-trial, testified that appellant was one of the persons who participated in the robbery. II. Out-of-Court and In-Court Identifications
By points of error one through seven, appellant contends that the out-of-court identifications of appellant were tainted by an unduly suggestive and constitutionally defective identification procedure. Appellant further asserts that the in-court identifications of appellant should not have been admitted because they were tainted by the suggestive pretrial lineup. Appellant's argument is premised on the testimony of Officer John Bonnette of the Houston Police Department. At a hearing on appellant's pretrial motion to suppress the State's witnesses' identifications of appellant held outside the presence of the jury, Officer Bonnette testified that "[o]n that day we were hard pressed to find people with similar features to that of [appellant]." More specifically, while testifying that he thought the lineup was fair and impartial, Officer Bonnette agreed that appellant was the thinnest person in the lineup. A. Standard of Review
When we review a trial court's denial of a motion to suppress regarding identification testimony, as in this case, we are presented with a mixed question of law and fact, and therefore our review is de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Crim.App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. 1997)). When reviewing a trial court's ruling on the admissibility of an identification which has been attacked as the product of an impermissibly suggestive pretrial identification procedure, the test is whether, considering the totality of circumstances, "the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 772; Palma v. State, 76 S.W.3d 638, 643 (Tex.App.-Corpus Christi 2002, pet. ref'd). The goal of the review is to determine the reliability of the identification procedure. See Loserth, 963 S.W.2d at 772. The following five non-exclusive factors should be "weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of circumstances": (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at confrontation; and (5) the length of time between the crime and the confrontation. Palma, 76 S.W.3d at 643 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). The application of the factors, and thus, the "ultimate conclusions as to whether the facts as found state a constitutional violation, is a mixed question of law and fact." Id. at 773. Therefore, we review the trial court's application of the factors de novo. Id. at 773-74; Burkett v. State, 127 S.W.3d 83, 86 (Tex.App.-Houston [1st Dist.] 2003, no pet.). When a trial court does not make express findings of historical facts, the facts are viewed in a light favorable to the court's ruling. Loserth, 963 S.W.2d at 774. However, it is only after a reviewing court has determined that the procedures were impermissibly suggestive that it need consider the factors enumerated in Biggers to determine whether the reliability of the identification was affected. Burkett, 127 S.W.3d at 86-87. B. Analysis
Appellant's challenge to the pretrial lineup is based on discrepancies in the weight of appellant and the other individuals in the lineup. During the lineup, appellant stated his weight to be 140 pounds. The weights of the other individuals in the lineup were stated as 160, 195, 184, and 200 pounds. Although appellant was the thinnest man in the lineup, the weight of all individuals in the lineup was within a sixty pound range. Review of the videotaped lineup reflects that all men were dressed in civilian clothes, had similar physical characteristics and were around the same age. Additionally, all men had a similar complexion, similar dark hair color, and wore their hair in a similar fashion. See Tell v. State, 908 S.W.2d 535, 539 (Tex.App.-Fort Worth 1995, no pet.) (providing that despite "some differences in weight, height and complexion," none of the men pictured differed unreasonably from the description of the suspect, and the defendant did not stand out as "distinctively different" from the other men). The weight of appellant and the other members of the lineup were not so distinctly different as to make the identification procedure impermissibly suggestive. See Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985) (describing a lineup that included men of various heights, weights, and skin colors, the court concluded that "[w]hile the better practice may be to get as many individuals as possible who fit the defendant's description, it is not essential that all the individuals be identical"); Miller v. State, 846 S.W.2d 365, 367 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (describing a lineup that was not impermissibly suggestive where weight of suspects ranged from 150 pounds to 300 pounds). "`Neither due process nor common sense' requires such exactitude." Buxton, 699 S.W.2d at 216 (quoting Herrera v. State, 682 S.W.2d 313, 319 (Tex.Crim.App. 1984)). "Although the individuals need not be identical in appearance to the defendant, their similarities in appearance should provide a reasonable test for the witness's capacity to reliably identify the perpetrator." Cienfegos v. State, 113 S.W.3d 481, 492 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); see Ford v. State, 794 S.W.2d 863, 866 (Tex.App.-El Paso 1990, pet. ref'd). Furthermore, the record shows that none of the witnesses were told that a suspect was included in the lineup. Manager Williams, employee Moon, and Annabelle Garcia were present in the store at the time of the robbery and were able to identify appellant before trial, independent of suggestions from law enforcement. See, e.g., Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995) (en banc) (setting out that suggestiveness of pretrial identification procedure may be created by police suggesting that the suspect is included in a photo array). Considering the totality of circumstances, we conclude that the out-of-court identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Loserth, 963 S.W.2d at 772; Palma, 76 S.W.3d at 643. Thus, the trial court did not err in admitting the in-court identification testimony. Having concluded that the pretrial procedure was not impermissibly suggestive, we need not consider the factors enumerated in Biggers to determine whether the reliability of the identification was affected. See Burkett, 127 S.W.3d at 86-87. We overrule appellant's points of error one through seven. III. Sufficiency of the Evidence
By his eighth and ninth points of error, appellant challenges the legal and factual sufficiency of the evidence to support appellant's conviction for aggravated robbery. Specifically, appellant argues that the testimony of the State's witnesses was not credible because the pretrial identification procedure tainted the in-court identifications. He also asserts that the evidence is insufficient because there is a discrepancy in the testimony of Brenda Garza who was present at EZ Pawn on the day of the robbery. A. Standard of Review
When we review a legal sufficiency of the evidence point of error, we view all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rosillo v. State, 953 S.W.2d 808, 811 (Tex.App.-Corpus Christi 1997, pet. ref'd). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Beckham v. State, 29 S.W.3d 148, 152 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Therefore, the jury may believe all or part of any witness's testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (en banc). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Id. In conducting this review, the Court does not engage in a second evaluation of the weight and credibility of the evidence, but only ensures that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993) (en banc). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, the appellate court does not sit as a thirteenth juror in re-assessing the evidence. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988) (en banc). "There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was the jury rationally justified in finding guilt beyond a reasonable doubt?" Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). In determining whether the evidence is factually sufficient to support a conviction, we must review all the evidence without the traditional prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Reconciliation of conflicts and contradictions in the evidence is again within the province of the jury, and such conflicts will not call for reversal if there is enough credible testimony to support the conviction. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982). We also apply a hypothetically correct jury charge analytical construct in the context of a factual-sufficiency review. Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd). B. Analysis
Appellant was convicted of the felony offense of aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2005). At trial, the State called four witnesses, Williams, Moon, Garza and Garcia. All identified appellant as one of the men who committed the robbery at EZ Pawn on May 14, 2004. Their testimony is corroborated by EZ Pawn's surveillance video taken on May 14, 2004. The video footage from camera six displays appellant placing the microwave on a counter at EZ Pawn. The footage shows appellant opening the microwave and taking something out. Fingerprint evidence taken from the microwave was found to be a positive match for appellant's right middle finger. Appellant is seen carrying a gun and guarding the front door of EZ Pawn in the video footage and in still photos taken from the video. Other segments of the video show how customers were forced to the ground, how the robbers emptied the cash registers, and how Williams was forced to open and empty the safe in the back office. We have already concluded that the pre-trial lineup was not suggestive and did not lead to misidentification at trial. Thus, appellant's contention that the testimony of the State's witnesses was not credible because the pretrial identification procedure tainted the in-court identifications fails. Moreover, even if the identifications were admitted in error, this fact does not impact the sufficiency analysis. See Bobo v. State, 843 S.W.2d 572, 575-76 (Tex.Crim.App. 1992) (en banc) (providing that when evaluating the sufficiency of the evidence, the reviewing court must look at all the evidence, whether properly or improperly admitted). Appellant also suggests the evidence is insufficient because there was a discrepancy in Garza's testimony. At the identification hearing, Garza testified that she had identified appellant at the pre-trial lineup. During trial, she testified that she was unable to identify him at the lineup, but she positively identified appellant in court. The jury was not present during the identification hearing, thus, it did not hear the testimony about which appellant complains. See Sledge v. State, 903 S.W.2d 105, 108 Tex. App.-Fort Worth 1995) aff'd, 953 S.W.2d 253 (1997) (en banc) (explaining that the sufficiency of the evidence is measured, not against statements in response to pretrial motion, but against the allegations contained in the indictment and the jury charge in a jury trial); see also Miller v. State, No. 01-87-0173-CR, 1988 Tex. App. LEXIS 1558, at *2 (Tex.App.-Houston [1st Dist.] June 30, 1988, pet. ref'd) (not designated for publication) (concluding that evidence was sufficient where victim identified defendant at trial but expressed uncertainty about identifying defendant at pre-trial hearing). Moreover, even if there were conflicting evidence regarding Garza's identification of appellant, it was the jury's duty to reconcile any such conflicts. See Margraves, 34 S.W.3d at 919. We conclude that the testimony summarized above, viewed in the light most favorable to the verdict, is sufficient to support a finding beyond a reasonable doubt that appellant committed aggravated robbery. Further, the proof of guilt is not so obviously weak as to undermine confidence in the verdict, nor is it greatly outweighed by contrary proof. Therefore, giving due deference to the fact finder's determinations, we conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated robbery. We overruled appellant's eighth and ninth points of error. IV. Conclusion
Accordingly, we affirm the judgment of the trial court.