Howard v. State

Full title: DANIEL PATRICK HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 31, 2003

No. 05-02-01731-CR (Tex. App. Oct. 31, 2003)

Opinion

No. 05-02-01731-CR.

Opinion issued October 31, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.

Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-55310-I. AFFIRMED.

Before Justices WHITTINGTON, WRIGHT, and BRIDGES.

OPINION

Opinion By Justice WHITTINGTON.

Daniel Patrick Howard appeals his conviction for capital murder. After finding appellant guilty, the jury assessed punishment at life imprisonment. In two points of error, appellant contends the trial judge erred in admitting certain testimony and that the evidence is factually insufficient to support his conviction. We affirm.

Background

Raul Olivares was working at the M B grocery store on South Hampton Road when two men later identified as appellant and Michael Nimnick entered. The men, carrying semiautomatic pistols, approached Olivares and told him not to move. The men stole money and Olivares's .41 caliber handgun, then fled. Olivares ran outside and flagged down Dwight Bryant, Jr. who was riding by on a motorcycle. When Bryant followed appellant and Nimnick down an alley, appellant suddenly turned around and began shooting. Bryant's motorcycle fell over, pinning him underneath. Appellant continued firing at Bryant until his .45 caliber pistol was empty. Bryant died shortly thereafter. Appellant fled in a car driven by Nimnick's wife, Carla Campos. Appellant was subsequently arrested and charged with capital murder. After being found guilty and sentenced to life imprisonment, appellant brought this appeal.

In-Court Identifications

In his first point of error, appellant contends the trial judge erred in admitting in-court identifications of appellant by witnesses Gregory Flores, Robert Trevino, Olivares, and Jesus Rosalez because they were tainted by impermissibly suggestive pretrial procedures. Appellant claims the pretrial live lineup was unduly suggestive because Flores and Trevino were instructed to identify any person they had "previously seen." Appellant claims Olivares's in-court identification was improper because Olivares testified he saw appellant's photograph in the newspaper before trial. Finally, appellant claims Rosalez's in-court identification of appellant was improper because he did not pick appellant's photograph out of the pretrial photographic line-up. We set aside a conviction based on an in-court identification only when the in-court identification was the result of a pretrial identification procedure that was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001); Wilson v. State, 15 S.W.3d 544, 552 (Tex.App.-Dallas 1999, pet. ref'd). We evaluate whether the pretrial procedure fatally tainted the in-court identification by reviewing the totality of the surrounding circumstances. Conner, 67 S.W.3d at 200; Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App. 1983); Wilson, 15 S.W.3d at 552. The appellant bears the burden of establishing by clear and convincing evidence that the in- court identification was unreliable. Cooks v. State, 844 S.W.2d 697, 731 (Tex.Crim.App. 1992). Factors to consider in determining the reliability of an in-court identification include: (i) the witness's opportunity to observe the defendant; (ii) the witness's degree of attention; (iii) the accuracy of the witness's physical description, if any; (iv) the witness's degree of certainty; and (v) the amount of time between the offense and the identification of the accused. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim App. 1998) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)); Jackson, 657 S.W.2d at 129-30. When the record clearly reveals that a witness's ability to make an in-court identification has an origin independent of any allegedly improper pretrial identification procedure, any impermissible pretrial procedure would not create a substantial likelihood of misidentification and the in-court identification is admissible at trial. See Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985); Jackson, 657 S.W.2d at 130 ("[I]t is well established that, even where the pre-trial identification procedure is impermissibly suggestive, in-court testimony of an identification witness will still be admissible as long as the record clearly reveals that the witness' prior observation of the accused was sufficient to serve as an independent origin for the in-court identification."); Johnson v. State, 901 S.W.2d 525, 534 (Tex.App.-El Paso 1995, pet. ref'd). Appellant first complains of Flores's in-court identification. Flores was initially shown a photographic line-up containing a photograph of appellant, but he did not select or identify appellant's photograph as the man he saw at the scene. Later, when Flores viewed a live line-up, he identified appellant as the shooter. However, appellant claims the live line-up procedure was improper because the police instructed Flores to select any individual he had "previously seen." Appellant argues Flores's identification of him at the live line-up was made only because he had previously viewed appellant's photograph. In light of this procedure, appellant claims any in-court identification was necessarily unreliable, tainted, and inadmissible. After reviewing the record in this case, we conclude the trial judge did not err in ruling Flores's testimony was admissible. During a hearing outside the jury's presence, Flores testified that around 4:10 p.m. to 4:30 p.m. on July 31, 2001, he was at home by a window. He heard gunshots and looked out the window. He saw appellant shooting Bryant who was on a motorcycle. Appellant emptied his gun into Bryant, then ran toward a vehicle parked in the area. The following day, Flores went to the police station and viewed a photographic line-up. Each photograph depicted an individual from the shoulder up to the head. According to Flores, Detective Maudlin instructed him to take his time reviewing the photographs and let him know if Flores made a decision on any photograph. Flores testified that, after viewing the photos, he was "leaning toward one picture" but did not want to make a false identification. He asked for a live line-up. Five days later, Flores viewed a live line-up. Detective Maudlin again told him to take his time and indicate on the piece of paper the person he thought was "the correct person." The officer added that it was all right if he could not pick anyone out. Flores unequivocally identified appellant. Flores testified the photographic line-up and the live line-up did not influence his identification of appellant in the courtroom and that he could not forget appellant's face. On cross-examination, Flores admitted that, shortly after the murder, he gave police a statement in which he described the shooter as a "light-complected gentleman. . . [c]ould have been Hispanic." Appellant is a light-complected African American male. Flores stated that although he was fairly sure the shooter was appellant based on the photographic line-up, he wanted to view a live line-up "to make sure that the guy was the same height, the same build, the same weight." He stated he "wanted to be a hundred percent sure. [He] did not want to blame somebody who doesn't deserve the blame." When asked whether the detectives in any way may have led him toward a photograph or individual, he stated, "I was not influenced in any way by any detective there." Detective Maudlin testified he gave the photographic and live line-up instructions to Flores. With respect to the live line-up, Maudlin testified:

I told him the same thing I told him before, as far as that there's going to be six individuals in that group of persons to look and see if he recognized anyone who would be responsible for the crime. If you see the person, please let me know. If you don't, don't feel like you have to pick someone, just to pick someone. That's not what we want.

On cross-examination, Maudlin testified that it was not unusual for an individual to make a positive identification from a live line-up after being unable to identify anyone in a photographic line-up. The trial judge then ruled Flores's in-court identification testimony was admissible. Although appellant claims the live line-up procedure was improper because the written instructions given at the live line-up instructed Flores to select any individual he had "previously seen," the record shows Flores picked appellant because appellant was the individual Flores saw shooting Bryant. Thus, any incorrect written instructions did not influence Flores's identification. Moreover, even if the pretrial procedure was impermissibly suggestive, it did not give rise to a substantial likelihood of misidentification. During trial, Flores testified he was able to identify appellant as the shooter based on his observations at the time of the offense. Flores testified he saw appellant leaning over the motorcycle Bryant had been riding. Appellant "empt[ied] his gun into [Bryant.]" Flores testified that, after appellant finished shooting Bryant, "he turned around and faced directly at me. I will remember his face forever. It struck terror into me. I saw his face, and then he ran on the sidewalk for a couple of feet." Flores testified it was a clear day and that he saw appellant on that day at a range of twenty-five to thirty feet. We conclude, based on this evidence, that an independent origin was adequately shown for Flores's in-court identification. The trial judge did not err in admitting the in-court identification at trial. With respect to Trevino, Olivares, and Rosalez, appellant did not file a motion to suppress or otherwise object to the testimony of these men. Because he failed to object in the trial court, appellant may not challenge the admissibility of the witnesses' testimony for the first time on appeal. See Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App. 1995) ("To preserve error for appeal, appellant was required to make a timely, specific objection at the earliest possible opportunity."); In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (because appellant failed to complain or object in trial court about out-of-court identification procedure or in-court identifications, he waived any error). We overrule appellant's first point of error.

Factual Sufficiency of the Evidence

Under his second point of error, appellant contends the evidence is factually insufficient to support his conviction. Appellant claims that, having shown the eyewitness testimony to be "the product of impermissibly suggestive pre-trial procedures," the remaining evidence is simply too "meager" to support his conviction. We disagree. In conducting a factual sufficiency review, we apply well-known standards. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). We do not judge the credibility of witnesses in determining factual sufficiency. Nolasco v. State, 970 S.W.2d 194, 196 (Tex.App.-Dallas 1998, no pet.); see Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.-Dallas 1996, pet. ref'd, untimely filed). Rather, we defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our review is only to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. A person commits capital murder if he intentionally or knowingly causes the death of an individual in the course of committing robbery. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003). Initially, we note that, in his brief, appellant includes a discussion of the standard regarding corroboration of accomplice witness testimony. Following this, appellant states that " all the inculpatory evidence adduced against [appellant] is simply insufficient with which to link him to the commission of the offense." Although appellant discusses the need for corroborating evidence, i.e., evidence which tends to link the accused with the commission of the offense, he does not separately challenge Campos's testimony nor does he establish how Campos's testimony fails to connect him to the crime. In fact, he fails to discuss any of Campos's testimony. Thus, we conclude appellant's point is simply a challenge to the factual sufficiency of the evidence.¹ At trial, Olivares testified two men entered the M B grocery store, carrying semiautomatic pistols and wearing ski masks. They told Olivares not to move. The men then stole money and Olivares's .41 caliber handgun. After the men fled, Olivares ran outside and flagged down Bryant who was driving by on his motorcycle. Because Bryant was wearing a uniform, Olivares thought he was a police officer.² Bryant followed the two men. Olivares called 911. Olivares testified he could not identify the men who robbed him. Jesus Rosalez testified, through a translator, that he saw a man running down an alley and another man hiding behind a garbage dumpster. A third man on a motorcycle followed. Rosalez thought the third man was a police officer because he was wearing a uniform. Rosalez testified he thought appellant was the man who was running that day. Shortly after the man on foot and man on the motorcycle went by, Rosalez heard nine to twelve gunshots. On cross-examination, Rosalez testified he saw a ski mask on the ground but did not see who dropped it. Flores testified, as detailed above, that he saw appellant lean over and shoot Bryant, "executing him." When asked to clarify, Flores testified appellant "unloaded his whole gun into [Bryant]." Flores then testified that, after appellant finished shooting Bryant, "he turned around and faced directly at me. I will remember his face forever. It struck terror into me. I saw his face, and then he ran on the sidewalk for a couple of feet." Campos testified she is Nimnick's wife. Appellant and Nimnick attended school together. On the day before Bryant's murder, appellant and Nimnick were discussing robbing the M B grocery store. The store had a Western Union office and the two men thought there would be a large amount of cash. Appellant suggested Campos drive the getaway car, and she agreed. Campos dropped the two men at the corner near the grocery store, then drove to a nearby school on Gladstone to wait. Both men had face masks and guns (appellant had a black handgun; Nimnick had a silver one). Appellant had latex gloves. Later, she saw appellant being chased by a man on a motorcycle. The man told appellant to "stop running, that he wasn't going to get away." Appellant stopped, took off his shirt, and pulled out his gun. He began firing the gun at the man. After four or five shots, the man and the motorcycle fell over. Appellant continued firing at the man, then took off running. Campos drove a short distance and stopped. Appellant got in the backseat of the car, and they drove off. He told Campos "not to worry about [Nimnick] . . . to just drive." Campos drove to her mother's house and went in the bedroom. When Nimnick arrived shortly thereafter, appellant told him he needed to get rid of the gun. Campos showed the men a crawl space under a bedroom closet. Later that evening, Campos overheard appellant explain to Nimnick "how he shot him, how he just let his clip go." When several detectives and police officers came to her mother's house later that night, she told them about appellant and Nimnick and showed them where the gun was hidden. She initially denied she was involved but later admitted her participation. This evidence shows appellant and Nimnick robbed the M B grocery store. While fleeing, appellant shot and killed Bryant. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case, that a rational jury could conclude sufficient evidence existed to show appellant intentionally or knowingly murdered Bryant while in the course of committing robbery. We therefore conclude the jury's verdict was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust and that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue. We affirm the trial court's judgment.