No. 04-07-00271-CR
Delivered and Filed April 16, 2008. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-8108 Honorable Philip A. Kazen, Jr., Judge Presiding.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice. Affirmed.
Opinion by: REBECCA SIMMONS, Justice.
Appellant Lord Harlech Osby was found guilty by a jury of the felony offense of robbery. Osby's sole issue on appeal is that the trial court erred when it denied Osby's motion to suppress a suggestive out-of-court identification. We affirm the judgment of the trial court.
FACTUAL BACKGROUND
On August 29, 2005, Leyla Campano was driving a 2001 Honda CRV when a man approached her, knocked her hand from the car door and crouched over her with what Campano thought was a gun. The man ultimately took her keys, shoved her out of the way and took her car. She screamed for help and witnesses Christy Crouch and Larry Mares came to her aid. Both Campano and Crouch described the assailant as a black male, approximately six feet tall, around 180 pounds, with braided hair and a hat. On September 14, 2005, Temple Police Officer Marvin Elliot stopped a Honda CRV for a traffic violation. After identifying the vehicle as stolen, Officer Elliot arrested the driver of the vehicle, Osby. Shortly thereafter, Campano was asked by San Antonio Police Officer Kevin Potts to look at a photo array. Campano immediately identified Osby. Crouch was also asked to view the photo array, but did not identify Osby. At a hearing on Osby's motion to suppress, Campano admitted that she was very upset the night of the incident and that the officer had told her an arrest had been made prior to her viewing the photo array. During his testimony, Officer Potts was asked about his preparation of the photo array. He admitted that Osby did not have braids as previously described by Campano, but explained that none of the individuals in the array had braids or dreadlocks. IDENTIFICATION PROCEDURE
Osby contends the trial court erred in admitting Campano's pre-trial identification because: (1) by telling Campano that someone had been arrested, the officer impermissibly suggested to her that the suspect's picture was present within the array; and (2) the photo arrays did not match the identifications provided by both Campano and Crouch on the evening of the robbery. A. Standard of review
Deciding whether a pre-trial identification procedure was impermissibly suggestive is a mixed question of fact and law. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App. 1998). We apply a de novo standard of review for mixed questions of law and fact that do not turn on an evaluation of credibility or demeanor. Id. at 773. To challenge the admissibility of a pretrial identification, Osby had the burden to show, by clear and convincing evidence, based on the totality of the circumstances, that: (1) the pretrial identification procedure was impermissibly suggestive and (2) it created a substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). B. Analysis
Suggestiveness can generally take two different forms. First, the content of the array may be suggestive, as when the suspect is the only person closely resembling the description, or the subjects of the photographs are grossly dissimilar in appearance to the suspect. United States v. Wade, 388 U.S. 218, 233 (1967); Barley, 906 S.W.2d at 33. Second, the identification procedure used in a photo array may render it suggestive as when an officer points out or otherwise indicates to the witness that the suspect is included in the array. Barley, 906 S.W.2d at 33. In this case, Osby does not contend that the array's layout was suggestive. Instead, Osby asserts that the manner in which the array was presented to Campano was suggestive. The mere fact that an individual knows that a suspect has been arrested does not render the lineup impermissibly suggestive because a complaining witness normally assumes that a lineup includes a suspect. Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim.App. 1992); Webb v. State, 760 S.W.2d 263, 272 (Tex.Crim.App. 1988); Abney v. State, 1 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). In this case, Officer Potts merely confirmed that a suspect had been arrested. Campano testified that she knew someone was arrested when her Honda was recovered and that no one made any suggestion as to who the suspect was or whether he was in the photo array. The array was of six black men with similar hair color, all of similar size and build and all with facial hair. Campano further explained that she identified Osby because he was the individual who robbed her that night. Viewing the totality of the circumstances of this case, Osby has not met his burden to show by clear and convincing evidence that the identification was impermissibly suggestive. Accordingly, we hold that the trial court did not err in admitting the photo array into evidence. Barley, 906 S.W.2d at 333-34; Hicks v. State, 901 S.W.2d 614, 620 (Tex.App.-San Antonio 1995, pet. ref'd). As a result, we do not reach the issue of whether the allegedly suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See Neil v. Biggers, 409 U.S. 188, 199 (1972). Furthermore, "an error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). More specifically, an in-court identification, based upon knowledge independent from the allegedly improper pre-trial procedure, is admissible. See Santos v. State, 116 S.W.3d 447, 454 (Tex.App.-Houston [14th Dist.] 2003, writ ref'd.). Campano testified, without objection, that her identification of Osby during the trial was based on her observations of him at the time of the offense and that she would have recognized him even without having seen him in the photo array. Burkett v. State, 127 S.W.3d 83, 89 (Tex.App.-Houston [1st Dist.] 2003 no pet.). Thus, because Campano stated that she was able to make her in-court identification, independently from the photographic line-up, and based solely on her recollection of seeing Osby at the scene, the in-court identification is admissible. CONCLUSION
The manner in which the pretrial identification procedure was conducted was not impermissibly suggestive with regard to Campano's pretrial identification. While it is true that Officer Potts told the complainant that he had identified a suspect and that Crouch was unable to identify Osby, neither of these facts are dispositive in this case. Campano identified Osby in the photo array within three seconds. Her identification was immediate and without hesitation. We, therefore, conclude the out-of-court identification procedure was not impermissibly suggestive, that the in-court identification was made independent of the pre-trial identification, and there is no substantial likelihood of misidentification. Accordingly, we overrule Osby's sole issue on appeal.