Opinion
No. 05-04-00646-CR
Opinion issued August 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 5, Dallas County, Texas, Trial Court Cause No. MA03-60048-F. Affirmed.
OPINION
Appellant Foster Martinez appeals his conviction of the Class A misdemeanor offense of burglary of a vehicle with intent to commit theft. See Tex. Pen. Code Ann. § 30.04(a), (b), (d) (Vernon 2003). After a jury found appellant guilty, the trial court assessed his punishment at 120 days' confinement in the county jail. On appeal, appellant raises only one issue: that the trial court reversibly erred in not permitting appellant to cross-examine the arresting officer about a Department of Justice (DOJ) Eyewitness Evidence Guide. Concluding no reversible error has been shown, we affirm. Background Although appellant does not challenge the sufficiency of the evidence, he claims he "was harmed because the identification by the state's only eyewitness was likely tainted by the one-person lineup." Therefore, we will set out the facts. Jason McPeak, the complainant, was in his second-floor apartment between 6:00 and 7:00 a.m. on September 18, 2003 when he heard his van's horn go off in the parking lot below. Although it was not yet daylight, there were parking lot lights on just above the van. When the complainant looked outside, he saw the driver's side door of his van open and a broken window on the van. He ran downstairs and saw a man getting out of the van. The complainant got a good look at the man, who he identified as appellant. While running away, appellant passed within about three feet of the complainant and the complainant "looked at him right in the face." The complainant chased appellant to a fence that was about twenty to twenty-five feet away. The complainant did not try to stop appellant because the complainant did not know whether appellant was armed. The complainant returned to his vehicle and saw that his radio had been pulled out and there was a screwdriver on the floor. He then went inside, called the police, and waited for them to arrive. Some one-and-a-half to two hours later when the police arrived, the complainant gave them a description of the suspect. The complainant described appellant to the police as an Hispanic male who was about the complainant's height, approximately thirty-five years old, and was wearing a plain black shirt, plain black shorts and plain black shoes. The complainant then left the police writing their reports, and drove the van to McDonald's for breakfast. The complainant was accompanied by his girlfriend's brother. Enroute to McDonald's, the complainant saw a man fitting the suspect's description walking down the sidewalk in the opposite direction from the complainant's apartment. The complainant's attention was drawn to the man because of his clothes and a "distinctive walk." The complainant slowed down and, from about fifteen feet away, got a second "good look" at the man's face. There was no doubt in the complainant's mind the man, whom he identified as appellant, was the same person he had just seen in his van. The complainant was sure because of appellant's face. When appellant saw the complainant in the van with the broken window, appellant reached into his pockets and said, "what's up?" The complainant then stopped, turned around, and returned to his apartment. The police were still there writing their reports. The complainant told the police he had just seen appellant and gave them the location. The police immediately left in pursuit of appellant. The complainant followed to make sure "they got the right man," but he remained about three blocks behind the police. The complainant was certain it was the same man. When the police stopped to talk to appellant, he again ran. After circling the block and not seeing appellant, the complainant and his girlfriend's brother went on to McDonald's, stayed there about fifteen minutes, then returned home. The police chased and ultimately caught appellant, handcuffed him, put him in the back seat of the squad car with one of the officers, and took him back to the scene of the crime. The complainant identified appellant as the burglar. The complainant had been at home about two hours before the police brought the suspect back there. By then it was daylight. The complainant was within three to four feet of appellant when he saw him the fourth time and was "100%" certain appellant was the man he had seen earlier in his van. Appellant denied he was the one the complainant had seen in his van. After the complainant told the police he was sure they had the right person, the police left. Nothing was missing from the complainant's van and, although his van was damaged, he never had the van repaired. The van was stolen about three weeks later. The complainant had never seen the appellant before the day of the offense and never saw him again until trial. At trial, both police officers testified. During defense counsel's cross-examination of Officer Eric Roman, the following exchange occurred:
[Defense Counsel]: When you took him — when you arrested him, isn't it a fact that he asked you to take him back to the location where this happened or to take you to the person who said that he had done this?
[Roman]: We drove over there.
[Counsel]: Okay. He didn't ask you to do that?
[Roman]: I wasn't driving.
[Counsel]: He didn't ask whoever was driving, he didn't say, take him back over there and let the guy look at me?
[Roman]: I don't recall.
[Counsel]: It's possible he said that, correct?
[Roman]: It's possible. I can't recall.After this exchange, during defense counsel's cross-examination of Roman about a one-person lineup, he sought to question Roman about a book referred to as "Department of Justice Eyewitness Evidence Guide" and its opinion about the accuracy of eyewitness identification. The following occurred:
[Defense Counsel]: Officer, are you familiar with a document entitled eyewitness evidence guide for law enforcement that was produced by the U.S. Department of Justice?
[Roman]: No.
[Counsel]: Are you aware that the U.S. Department of Justice produces training manuals, guidebooks that dictate policy behind and the manner and means under which identification should be conducted?
[Roman]: Am I aware of that publication?
[Counsel]: Yes.
[Roman]: No, I'm not.
[Counsel]: Are you aware that United States Department of Justice produces those types of documents?
[Roman]: No, I am not.
[Counsel]: Would you recognize the Department of Justice and the U.S. Attorney's Office —
[Prosecutor]: Objection. Relevance.
[The Court]: At this point I'm going to sustain.
[Defense Counsel]: Judge, if I may respond briefly?
[The Court]: Uh-huh.
[Counsel]: I have right here the United States Department of Justice guide to eyewitness evidence, a guide for law enforcement. And I'd ask the Court to ask him if he recognizes it as a learning tool for the department, as to whether or not he's seen it. Our evidence is right here.
[Prosecutor]: Your Honor, the witness has testified that he has no familiarity whatsoever about this.
[The Court]: I was gonna say, that isn't his training I mean, in a different type of case it might come up. But I'm gonna sustain in this case.
[Counsel]: Judge, if I may ask the Court to look at it and determine or not whether it is produced by the federal government.Defense counsel then questioned Roman about his training at the police academy concerning eyewitness identification and the effect of a one-person lineup on such identification. Contending the DOJ document contained "guidelines that apply to or that are suggested for the state and it goes to his [the officer's] training," counsel again sought to question Roman about the document. After the trial court again disallowed questions to Roman about the document, the following exchange occurred:
[Defense Counsel]:Well, Officer, were you told that there is a substantial risk of prejudice in these types of show-ups, were you told that at the academy?
[Prosecutor]: Objection. This is prejudicial and argumentative.
[The Court]: Well, I'll let him answer that question.
[Roman]: WWould you repeat the question please?
[Counsel]: Were you told in your training at the academy that single person show-ups, like the one you conducted, have inherit [sic] risk of being more suggestive, of it being impermissible, improperly suggestive, were you told that at the academy?
[Roman]: Possibly. Somewhere. I can't recall specifically saying that.
[Counsel] Okay. But it's possible you were told that?
[Roman]: It's possible. I don't know if in this instance it would have applied. He was the only one on the street matching the description. Standard of Review and Applicable Law We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). An abuse of discretion will be found only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Resendiz v. State, 112 S.W.3d 541, 544 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 1032 (2004). We will uphold the trial court's legal ruling if it is correct on any theory of law applicable to the case even if the court enunciates the wrong reason. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Moreover, any error in an evidentiary ruling would be subject to a non-constitutional error harm analysis. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001).The Supreme Court has said: The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, "means more than being allowed to confront the witness physically." Indeed, "[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (internal citations omitted). However, the Court went on to say: It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Id. at 679. A pretrial confrontation could be "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it would deny an accused due process of law. See Stovall v. Denno, 388 U.S. 293, 302 (1967). However, whether a violation has occurred depends on "the totality of the circumstances surrounding it." See id. Moreover, the admission of evidence of a one man show-up without more does not violate due process. See Neil v. Biggers, 409 U.S. 188, 198 (1972). Although a pretrial identification procedure may be suggestive and unnecessary, admission of identification evidence at trial does not violate due process so long as the identification possesses sufficient aspects of reliability. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Various factors should be considered in determining reliability, including: the opportunity to view, the degree of attention, the accuracy of the description, the witness's level of certainty, and the time between the crime and the confrontation. See id. at 114-16; Garza v. State, 633 S.W.2d 508, 513 (Tex.Crim.App. 1982) (op. on reh'g) (en banc). Analysis Appellant complains about the exclusion of the above testimony, contending that "any question . . . which might have a tendency to affect the witness' credibility, is always a proper question." Appellant cites "Harris v. State, supra," as authority. However, appellant's brief contains no other citation to Harris, nor does the State's brief. Citing Blair v. State, 511 S.W.2d 277, 279 (Tex.Crim.App. 1974), and Koehler v. State, 679 S.W.2d 6, 10 (Tex.Crim.App. 1984), appellant also argues that "[g]reat latitude should be allowed the accused in showing any fact which would tend to establish ill-feeling, bias, motive and animus upon the part of any witness testifying against him." Finally, appellant contends he was harmed by the exclusion of such testimony "because the state's only eyewitness's identification was likely tainted by the one-person lineup." Therefore, his conviction must be overturned. Appellant correctly recognizes that a trial court has wide latitude to impose reasonable limits on cross-examination and its determination of admissibility will not be reversed on appeal unless a clear abuse of discretion is shown. Nevertheless, appellant contends the trial court abused its discretion in disallowing defense counsel's cross-examination of Roman about the DOJ Eyewitness Evidence Guide's opinion on the accuracy of an identification after a one-person lineup. The State contends appellant's challenge fails for two reasons: first, Roman was not testifying as an expert witness, and even if he were, appellant waived any error by not requesting a hearing on the issue outside the jury's presence. Second, the exclusion was proper because it was irrelevant cross-examination on the contents of a document with which Roman was not familiar and which appellant had not established as authoritative in a particular field. We agree with the State. Within some fifty pages of cross-examination by defense counsel of Roman, the complained-of evidence was excluded on the basis it was irrelevant. Relevant evidence is evidence tending to establish an issue of material fact. See Tex. R. Evid. 401. A trial court is within its discretion in excluding only marginally relevant evidence. Van Arsdall, 475 U.S. at 679. Defense counsel was apparently trying to make the point that eyewitness identification following a one-person show-up is potentially prejudicial and unreliable and the Department of Justice's guidelines recognize that. We fail to see how cross-examination about the DOJ document with which Roman was not familiar was relevant under the facts in this case. Moreover, to the extent counsel was attempting to introduce the contents of the document, no proper predicate had been laid. Finally, the complainant unequivocally identified appellant in court as the person he saw in his van on the date in question. The complainant saw appellant on four occasions, three of which were before appellant was arrested: (1) when appellant was getting out of complainant's van; (2) a few hours later when appellant was walking down the sidewalk away from the complainant's apartment; (3) when the complainant observed appellant flee from the police after they confronted him on the sidewalk; and (4) after the police arrested appellant and brought him back to the complainant's apartment in the back seat of the squad car, possibly at appellant's request. The complainant saw appellant from a few feet away under well-lighted conditions, and was able to get a good look at him. Moreover, there was no suggestion by the police appellant was the burglar-to the contrary, the complainant pointed appellant out to the police and then followed them to be sure they got the right man. Appellant ran from both the scene of the offense and the police. Flight indicates guilt. See Martin v. State, 151 S.W.3d 236, 245 n. 8 (Tex.App.-Texarkana 2004, pet. ref'd) (consciousness of guilt is shown by flight from the scene; no distinction made between flight from the immediate scene of the crime and flight from peace officers). And the complainant was "100 %" certain of his identification. Appellant has not shown a violation of his constitutional right to cross-examine the witness against him, an abuse of discretion by the trial court in excluding the complained-of evidence, nor that the one-person show-up created a substantial likelihood of misidentification by the complainant. We resolve appellant's issue against him. We affirm the trial court's judgment.
The complainant testified he is 5'9" to 5'10" and weighs 270 pounds. He testified the suspect weighed less than he did.
Defense counsel suggested during his cross-examination of Roman, that appellant, himself, had requested to be taken to the scene to be viewed by the complainant. Roman agreed that was possible.