MOLLY FRANCIS

AFFIRM; Opinion issued January 18, 2012

On Appeal from the 204^th Judicial District Court

Dallas County, Texas

Trial Court Cause No. F09-72628-Q

MEMORANDUM OPINION

Before Justices Morris, Francis, and Lang-Miers

Opinion By Justice Francis

A jury convicted Ronnie Robinson of aggravated robbery with a deadly weapon and assessed punishment at fifteen years in prison. In four issues, appellant complains the trial court erred in admitting certain evidence. We affirm the trial court's judgment.

On August 28, 2009, the bartender at The Tin Room, a Dallas nightclub, was robbed at gunpoint. Evidence showed that appellant, Reginald Robinson, and Tyrone Cuington arrived at the club near midnight. At first, the doorman denied entry to Cuington because he did not have proper state identification, only a TDC card. Ultimately, the men were allowed into the club. At about 1:30 a.m., appellant went behind the bar, put a gun to the bartender's head, ordered him to the ground, and told him to “shut up” and “don't move.” Appellant opened the register and removed the money. Cuington stood nearby and acted as a “lookout.” While the robbery was occurring, the doorman walked into the bar, saw what was happening and went back outside and called the police. Appellant and Cuington ran out of the bar, and appellant fired shots. Shortly after, Reginald Robinson exited the bar and asked where his “kinfolk” had gone.

On the way to the scene, the police saw a suspicious vehicle coming from the direction of the club and stopped the vehicle after it ran a stop sign. The vehicle was occupied by appellant and his two companions. When the police asked for their identification, appellant and Reginald Robinson produced driver's licenses and Cuington produced a TDC card. Because the police did not have probable cause to hold the men, they released them and continued to the robbery scene. There, they learned that one of the men involved in the robbery had obtained entrance to the club on a TDC card.

Also, during their investigation, police talked to one of the nightclub's customers, Bavarian Allison. Allison said he was at the club that night when he was approached by Cuington. Allison talked to Cuington several times that night, and Cuington introduced his two companions to Allison as his cousins. Allison took pictures of Cuington with his cell phone and gave Cuington his phone number. When Allison was leaving the nightclub about 1:30 a.m., he saw Cuington's companion, identified as appellant, standing behind the bar; Cuington was standing nearby. After Allison walked outside, he heard a couple of shots and when he turned around, he saw Cuington and appellant fleeing the nightclub. Appellant had a gun.

The police showed Allison a photo lineup that included appellant's photograph. From the lineup, Allison identified appellant as the person who had the gun behind the bar. He told police he had pictures of Cuington on his cell phone and e-mailed the photos to them. Appellant ultimately was charged with aggravated robbery with a deadly weapon.

In his first issue, appellant contends the photo array shown to Allison was impermissibly suggestive because he was the only person depicted in clothing that matched the description of the robber and the trial court erred in denying his motion to suppress the in-court identification. Appellant did not, however, object to Allison's in-court identification of him as being tainted by an impermissibly suggestive photo array. Failure to complain about or object to the in-court identification constitutes procedural default and waiver of any complaint on appeal. Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.-Texarkana 2002), aff'd on other grounds, 106 S.W.3d 103 (Tex. Crim. App. 2003). But even assuming appellant's complaint is preserved, his contention would be without merit because the photo array was not impermissibly suggestive.

To establish error by the trial court in admitting Allison's identifications, appellant first had to prove by clear and convincing evidence and based on the totality of the circumstances that the photo array procedure used was impermissibly suggestive. See Barley v. State, 906 S.W.2d 27, 33- 34 (Tex. Crim. App. 1995). A pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so. Id. at 34. Suggestiveness may be implicated by the manner a pretrial identification procedure is conducted, as in suggesting a suspect is included in the array, or by the content of the photo array itself, such as, when the suspect is the only individual who closely resembles the pre-procedure description. See id. at 33.

Our record contains the original trial exhibit. The photo array is comprised of six pictures of young, black men, all with similar facial features and skin tones and all having some facial hair and short haircuts. Appellant contends he is the only one wearing “a blue collared, polo shirt matching the description of the robber.” Two witnesses at trial described the robber's clothing; the doorman testified the robber was wearing a blue shirt, and the bartender said the robber was wearing a collared polo shirt. Allison, however, did not testify what the robber was wearing. Moreover, as noted by the trial court, it is not all that clear from the photograph that appellant is wearing a collared shirt. Regardless, the fact that appellant is wearing apparel similar to the suspect is not impermissibly suggestive. See Hopkins v. State, No. 14-07-00531-CR, 2009 WL 508379, at *4 (Tex. App.-Houston [14^th Dist.] Mar. 3, 2009, pet. ref'd) (mem. op., not designated for publication) (concluding photo array not impermissibly suggestive when it depicted defendant wearing white muscle shirt like one suspect was described wearing); Hudson v. State, No. 14-07-00888-CR, 2009 WL 196060, at *5 (Tex. App.-Houston [14^th Dist.] Jan. 29, 2009, pet. ref'd) (mem. op., not designated for publication) (concluding photo array not impermissibly suggestive when it depicted defendant wearing dark-colored hooded sweatshirt similar to those worn by robbers); Smith v. State, 930 S.W.2d 227, 228-29 (Tex. App.-Beaumont 1996, pet. ref'd) (photo spread not impermissibly suggestive when defendant was only person pictured wearing street clothes similar to those robber was described wearing). We overrule the first issue.

In his second, third, and fourth issues, appellant complains the trial court abused its discretion in admitting evidence (i) he associated with a man carrying a TDC card, (ii) of an email and attached photos over hearsay objections, and (iii) of a statement he made that he claims was not against his penal interest.

We will not reverse a trial court's decision to admit evidence absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Id.

We begin with the complaint regarding the TDC card. During the testimony of Officer Brendan Gadomski, who was dispatched to the scene, the State sought to offer evidence that Cuington used a TDC card for identification when police stopped the suspects' vehicle immediately after the robbery. In a hearing outside the jury's presence, Gadomski said during the subsequent investigation at the robbery scene, the officers learned that one of the robbery suspects used a TDC card for identification to enter the club. Thus, Gadomski said the information about the TDC card linked the suspects in the traffic stop with the aggravated robbery. Appellant objected the prejudicial effect of the evidence outweighed its probative value. The trial court overruled the objection and the evidence was presented to the jury. On appeal, appellant contends, as he did below, that the evidence was “highly prejudicial compared with its probative value” because even though appellant was not carrying the TDC card, the jury knew he “spent time with a convicted criminal.” Texas Rule of Evidence 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. All testimony will be prejudicial to one party or the other. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). It is only when a clear disparity exists between the degree of prejudice of the offered evidence and its probative value that rule 403 is applicable. Id. Unfair prejudice does not mean the evidence injures the opponent's case-the central point to offering evidence. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). “Rather it refers to 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'” Id.

No evidence in the record establishes what a TDC card is or shows that jurors would know what a TDC card is. Further, even if jurors could infer that Cuington was a convicted felon by possessing such a card, we note, as did the trial court, there was no evidence appellant was aware of that fact. The evidence explained how police connected the suspects in the traffic stop to the robbery at the nightclub. Nothing in the record suggests the jury based its verdict on an improper basis. We overrule the second issue.

In his third issue, appellant contends the trial court abused its discretion in admitting, over a hearsay objection, Allison's email forwarding photographs from his cell phone of Cuington to the police. The email read, “these are the pictures i have.. im not sure if they are good enough pics but this is tyrone.” Two photographs were attached to the email.

We need not decide whether the evidence was inadmissible hearsay, because even if it was, any error is harmless. The admission of inadmissible hearsay is nonconstitutional error and will be considered harmless, if after examining the record as a whole, we are reasonably assured the error did not affect appellant's substantial rights, that is, did not have a substantial and injurious effect or influence in determining the jury's verdict. See Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

Two eyewitnesses, Allison and the doorman, both positively identified appellant in court as the man with the gun who committed the robbery at the nightclub. The photographs were of Tyrone Cuington and directly implicated him, not appellant. Finally, Cuington was not jointly tried with appellant. So even if the exhibit constituted inadmissible hearsay, we are reasonably assured the evidence did not have a substantial and injurious effect on the jury's verdict. We overrule the third issue.

In his fourth issue, appellant contends the trial court abused its discretion by allowing the State to read to the jury an audio-recorded statement he made in a telephone call to his wife while he was in jail.

During the cross-examination of appellant's wife, Tammera Robinson, the prosecutor asked if she remembered a three-way call between her, appellant, and appellant's brother while appellant was in jail. Mrs. Robinson, who said she understood jail phone calls could be recorded, said she did not remember the call. A recording of the call was played for Mrs. Robinson outside the jury's presence, and she said the recording refreshed her recollection. Then, before the jury, Mrs. Robinson acknowledged that during the call, appellant said, “The people who got robbed can't identify me; the only witness who can identify me hasn't been showing up.”

On appeal, appellant makes two arguments: (1) the State was not entitled to read the statement once Mrs. Robinson's memory was refreshed and (2) the statement was inadmissible hearsay because the statement did not expose appellant to criminal liability under Texas Rule of Evidence 803(24). Neither is meritorious.

The first complaint is waived because appellant did not object on this basis below. See Tex. R. App. P. 33.1(a). As for the second argument, a criminal defendant's own statements, when being offered against him, are not hearsay. See Tex. R. Evid. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). A party's own statements “are admissible on the logic that a party is estopped from challenging the fundamental reliability or trustworthiness of his own statements.” Id. Additionally, “party admissions, unlike statements against interest, need not be against the interests of the party when made; in order to be admissible, the admission need only be offered as evidence against the party.” Id. Because the statement was not hearsay, the trial court did not abuse its discretion in overruling appellant's objection on that basis. We overrule the fourth issue.

We affirm the trial court's judgment.

MOLLY FRANCIS

JUSTICE

Do Not Publish

Tex. R. App. P. 47

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