No. 05-02-01700-CR
Opinion Filed December 17, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-75949-PM. Affirm.
Before Justices JAMES, FITZGERALD and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Appellant Harold Campbell waived a jury trial and, after a trial to the court, was convicted of robbery. The court found two enhancement paragraphs to be true and assessed punishment at thirty-five years in prison. Appellant complains on appeal about the admission of the victim's identification testimony and that the evidence is factually insufficient. We affirm the judgment of the trial court.
BACKGROUND
Appellant approached Tammie Cole at a gas station and asked her for a ride to his apartment complex. When they arrived at the apartments, appellant hit Cole in the face and stole her purse. The day after the robbery, Cole went to the apartment manager's office, explained what had happened and described her assailant and the items she was missing. The manager believed that the person she identified might be Harold Campbell. They called the police and the police brought appellant outside near the apartments to determine whether Cole could identify him as her assailant. Cole told the police that she could not identify him because he was too far away and she could not see his face. The police conducted a photo lineup and Cole identified appellant as her attacker. Cole also identified appellant as her attacker during the trial. Appellant argued that Cole's in-court identification of appellant was tainted by an unduly suggestive identification process. The court disagreed and allowed the testimony. Appellant was convicted of the second degree felony of robbery and this appeal followed. ADMISSIBILITY OF IDENTIFICATION TESTIMONY
In his first issue, appellant complains that the trial court erred when it allowed Cole's in-court identification of appellant because the circumstances surrounding Cole's out-of-court identification of appellant were improper, were impermissibly suggestive and tainted her in-court identification. An in-court identification is not admissible if it was tainted by an impermissibly suggestive pretrial photographic identification. See Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998). The admissibility of an identification is a mixed question of law and fact which the appellate court reviews de novo. Id. at 773. The appellate court employs a two-step analysis to determine whether the trial court was correct in admitting an in-court identification: (1) whether the pretrial procedure was impermissibly suggestive and, if so, (2) whether the suggestive pretrial procedure created a very substantial likelihood of irreparable misidentification at trial. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). To establish that the trial court erred, the appellant must prove both of these elements by clear and convincing evidence. Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App. 1990). Suggestiveness of Pretrial Lineups
Appellant asserts that the trial identification was impermissibly tainted by two suggestive pretrial lineups. Appellant's first complaint is that the police brought him outside to be identified by Cole. Appellant does not explain what about the event was impermissibly suggestive. Instead, he complains that Cole did not identify him. In fact, Cole testified that she was too far away to identify appellant because she could not see his face. There is nothing impermissibly suggestive about the attempted identification. Appellant also claims that the photo lineup was impermissibly suggestive for two reasons: (1) appellant's picture was the only one of the six photographs in the lineup that contained a background with the same type of brick used in the apartment building where Cole found her stolen property, and (2) appellant's photograph was the only photo depicting a person with "bugged eyes," which was Cole's description of her assailant's most prominent characteristic. Although appellant's photo is the only one that appears to show the brick from the apartment complex as its background, there are two others which also have brick backgrounds. One of the other brick backgrounds looks very similar to brick background in appellant's picture. The brick background in the pictures does not make them impermissibly suggestive. Additionally, although appellant's eyes are more "bugged" than the eyes of the men in the other pictures, several of the men do have somewhat distinctive eyes. All of the pictures in the photo array depict men with many similar features and characteristics. The photo lineup was not impermissibly suggestive. Since we find that the out-of-court identification procedure was not impermissibly suggestive, we do not reach the second element of the analysis. We overrule issue one. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant complains that the evidence is factually insufficient to support his conviction. Specifically, he asserts that the evidence of identity is not sufficient. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that is is clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or if the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. We conduct this review giving due deference to the fact finder's determinations. Id. at 8-9. We may find the evidence factually insufficient only where necessary to prevent manifest injustice. Id. at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Evidence Cole testified that she arrived at a Citgo gas station in her neighborhood at approximately 10:00 in the evening. She noticed a man standing by a potted plant as she got out of her car to go in the store. She went inside and got in line to pre-pay for her gas. She noticed the same man in line behind her as she was waiting her turn to pay. This time he was with two teenage girls. They seemed to be arguing, and the man appeared to be the one paying for the merchandise. Cole paid for her gas and went outside to fill her car with gas. When she was almost finished, the man approached her and asked her for a ride to his apartment. He told her that his two nieces had left without him. Cole agreed, and she drove to the apartment complex approximately a half a mile away. On the way, the man told Cole his name was "Black." When they arrived, Cole parked the car and waited for Black to get out of the car. Although he initially appeared to be getting out of the car, he suddenly reached over and hit her in the face. She bent over the steering wheel and the man attempted to get her purse. She gave him her purse after he began beating her on the back. He jumped out of the car and ran through the complex. Cole tried to follow, but eventually lost him. She drove to her neighbor's house and called the police. She told Officer Bunte that the robber had been wearing red tennis shoes, black jean shorts and a black jacket. She also told him that the robber could have been the height of the officer, he had no facial hair, and he had a very close haircut. She conceded that in the police report, the officer indicated that she told him the robber was 6'1" and weighed 160 pounds. Cole further testified that to this day, she did not know how tall her assailant was because they were both sitting in the car for most of the time that she was with him. The morning after the robbery, Cole took her pit bull and returned to the apartment complex where she was robbed. She searched for her purse, and eventually found some of the contents strewn around the ground. Cole went to the manager's office and described what had happened to her the night before, described her assailant and told them that his name was "Black." One of the people in the office said that it was probably Harold Campbell. Cole called the police and gave them the information. When officers arrived at the apartment complex, Cole was told to sit in the squad car while they brought the suspect out for her to see. She saw that he had something on his head and that he was not wearing the same clothes as the night before. She said that she could not identify him as her assailant because he was approximately 40 to 50 feet away and she could not clearly see his facial features. She asked the police if she could move closer but they did not let her. When six photographs were presented to her a week later, she immediately identified appellant as the man who robbed her. Before even looking at the photos, she told Detective Smith that the one characteristic which would stand out the most was his bugged out eyes. Cole stated that she did not pay any attention to the brick background in the photo, and that she was not aware that the bricks matched those of the apartment complex until the defense pointed it out to her at trial. Cole made an in-court identification of appellant, but indicated that he now had more hair, more facial hair, and that his eyes were not so "bugged." Artie Robertson testified that he worked for the Kimball Square Apartments. The day after the robbery, Cole came into the apartment office and gave him some information about the person who had stolen her purse. After hearing the description, he believed that she was talking about appellant, who routinely called himself "Black." In court, Robertson identified appellant as being that person. Officer Alan Bunte testified that he was called to Cole's neighbor's house, where he took Cole's statement. He stated that at the time, Cole was having difficulty describing the height of her assailant. In order to assist her, Officer Bunte asked if the robber could have been approximately his height, which was 6'1". Cole said yes. Officer Bunte acknowledged that a reference to "bugged eyes" and the name "Black" were not in his report. Detective William Smith testified that he spoke with Cole once before conducting the photo lineup. She told him that the robber was a black male, thirty to thirty-five years old, 5'10" and between 170 and 180 pounds. Cole also told him "something about the robber's eyes," so he tried to include people with distinctive eyes in the lineup. On his second meeting with Cole, he showed her photos of six black males. He told her that the robber may or may not be in the group of photos, that complexions may change due to the flash of the camera, and that facial hair and hairstyles may change from day-to-day. Detective Smith also told Cole to concentrate on the facial features. Cole looked at the photos for a few seconds, then positively identified appellant's picture. Detective Smith was not at the one-man lineup, but Cole told him she had tentatively identified appellant one week earlier at the apartment complex. According to the police report regarding the one-man lineup, "complainant stated she believes this suspect was the same that robbed her on 10-15-01." Detective Smith also spoke with appellant, who gave him an alibi for that night. He stated that he was with his aunt, Rhonda Kelley. When the detective spoke to Kelley, she told him that appellant sometimes stayed with her, but that she did not know whether or not he stayed with her that night. Rhonda Kelley testified that she was appellant's sister. She stated that on the day of the robbery, appellant had come to her house at approximately noon. She knew that appellant was playing basketball with her son that evening, although she did not actually see him. Kelley became ill that afternoon and was taken to the hospital at approximately 6:00 p.m. Appellant was at her house when she returned at 10:00 p.m. He had just taken a shower and had put on some of Kelley's son's clothes. Kelley indicated that her house was about two and a half miles from the apartment complex where the robbery occurred, and that appellant did not have a vehicle. Although there were inconsistencies in the evidence, we cannot hold that the proof of identity is so obviously weak as to undermine confidence in the trial court's determination, or that the proof of identity, although adequate if taken alone, is greatly outweighed by contrary proof. We overrule issue two. We affirm the judgment of the trial court.