No. 04-06-00886-CR
Delivered and Filed: April 30, 2008. DO NOT PUBLISH.
Appeal From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-3602-A, Honorable Juanita A. Vasquez-Gardner, Judge Presiding.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
SANDEE BRYAN MARION, Justice.
A jury found defendant, Bobby Hamilton, guilty of aggravated robbery, and the trial court assessed punishment at twenty-two years' confinement, plus a $2,000 fine. In one issue on appeal, defendant asserts the trial court erred in denying his motion to suppress evidence of an out-of-court "show-up" identification. Finding no error, we affirm.
BACKGROUND
At approximately 11:00 p.m. on May 19, 2005, the complainant, Ms. Christopher Hodge, was walking from a Wal-Mart store to her car. Ms. Hodge was using a walking cane with her left hand, while carrying her purchase and her wallet in her right hand. As she was walking, she heard a screeching noise and saw a white minivan coming toward her. She noticed the van's driver was an African-American woman, wearing a pink hat, and the passenger was a young African-American male. The man got out of the van and tried to grab Ms. Hodge's cane, causing her to fall. The man took Ms. Hodge's wallet and got back into the minivan, which then drove away. San Antonio Police Officer John McGibbons was dispatched to the Wal-Mart, where he spoke with Ms. Hodge. McGibbons then took Ms. Hodge to the parking lot of an elementary school where a white minivan was located. While Ms. Hodges remained seated in the patrol car, police officers brought a woman to a lighted area for Ms. Hodge to view. Ms. Hodge identified the woman as the driver of the minivan. McGibbons then drove Ms. Hodge to a house where numerous suspects were located. Again, while seated in the patrol car, police officers put a spotlight on two of the suspects, one man at a time. Ms. Hodge positively identified one of the two men as the man who robbed her at the Wal-Mart, and, at trial, she again identified defendant as this man. On appeal, defendant challenges the trial court's refusal to suppress evidence of this "show-up" identification. DISCUSSION
We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). We will afford almost total deference to a trial court's determination of historical facts. Id. When, as here, the trial court does not make explicit findings of historical facts, we will review the evidence in a light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact as supported by the record. Id. Suggestive out-of-court identifications are disapproved because they risk violating a defendant's due-process rights by increasing the likelihood that the defendant will be misidentified. Neil v. Biggers, 409 U.S. 188, 198 (1972). An out-of-court identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of the identification at trial would deny the accused due process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001). To determine whether evidence of an out-of-court identification is admissible, this court must go through a two-step analysis. First, we determine whether the out-of-court identification procedure was impermissibly suggestive. Id. Second, if we determine the procedure was impermissibly suggestive, we next determine whether the procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. "An analysis under these steps requires an examination of the `totality of the circumstances' surrounding the particular case and a determination of the reliability of the identification." Id. Defendant must prove these two elements by clear and convincing evidence. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995). On appeal, defendant asserts the show-up procedure used by the police was impermissibly suggestive because (1) McGibbons made contact with Ms. Hodge soon after the incident and transported her to a location for the purpose of identifying suspects; (2) during the ride to the location, McGibbons told Ms. Hodge he was taking her to a location where "[he] might have suspects involved in the crime," and he "wanted her to make a positive I.D. whether or not these people were involved"; and (3) Ms. Hodge testified McGibbons told her they were going "to the area where [they] located the individuals." According to defendant, McGibbons' statements that he "might have suspects involved in the crime," and they were going "to the area where [they] located the individuals" suggested the individuals in custody were in fact the same individuals who robbed Ms. Hodge. Defendant also points to the fact that, when defendant was shown to Ms. Hodge, he was removed from a patrol car, only partially clothed and handcuffed. Defendant argues these circumstances "clearly suggested that [defendant] had been arrested as the person who had robbed Ms. Hodge." Finally, defendant contends the officers informed Ms. Hodge that they had a suspect at the house and that her wallet had been recovered from the same house outside of which defendant's identification occurred. Here, the record does not support defendant's contentions. Ms. Hodge was asked by defense counsel whether McGibbons told her, "`We found some individuals,' or, `We found the individuals who robbed you'?" [Emphasis added.] Ms. Hodge stated, "I'm pretty sure he said ` some individuals.'" [Emphasis added.] McGibbons testified he explained to Ms. Hodge that he was "taking her to a location where we might have suspects involved in the crime and we wanted her to make a positive I.D. whether or not these people were involved." [Emphasis added.] Ms. Hodge denied the police suggested to her that they had the people who robbed her. She stated, "I remember them saying something to the effect, `We are going to be bringing you people to look at, and if you can identify them, please,' you know, like that." As for the manner in which defendant was presented to her, Ms. Hodge said she saw "the various males together [outside the house], and I was able to see who attacked me, you know. That's all I was focused on." She thought she was shown three men, while McGibbons stated she was shown only two. The two men who were shown to her were rotated so she could see each side of their face. She did not recognize one of the men, but immediately recognized the other man as her attacker. When asked about defendant being handcuffed, Ms. Hodge stated she did not remember handcuffs. She said she "wasn't focused on that. I was sitting in the car. I'm looking at the individual that attacked me right after — shortly after this person attacked me. I'm not focused on who has got handcuffs on or not." When asked what it was about defendant that caused her to identify him, Ms. Hodge responded, Because we were struggling. I'm staring in this young man's eyes thinking how young he is. I have young — well, my sons are not real young, but I remember my sons getting in trouble when they were young, and I could see the fear in his eyes. I could see him still struggling for the cane, and I'm struggling because I don't want to fall, and I think that shocked him that I was not letting go of that cane. Based on our review of the record, we conclude the trial court did not abuse its discretion in holding that the out-of-court identification procedure used here was not impermissibly suggestive. CONCLUSION
We conclude defendant did not prove, by clear and convincing evidence, that the out-of-court show-up identification procedure used here was impermissibly suggestive. Therefore, we do not address whether the procedure gave rise to a very substantial likelihood of irreparable misidentification. Accordingly, we overrule defendant's issue on appeal and affirm the trial court's judgment.