Nos. 05-03-01012-CR, 05-03-01013-CR
Opinion Filed July 21, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-20633-Ws and F02-20634-WS. Affirmed.
Before Justices MOSELEY, O'NEILL, and RICHTER.
MOSELEY, Justice.
The trial court convicted Scott Ransom Houchins for the murder of Jane Doe and of aggravated assault with a deadly weapon of Anthony Wilson. Houchins pled true to enhancement allegations on both counts. The trial court assessed punishment at life imprisonment for murder and sixty years' confinement for aggravated assault with a deadly weapon. Houchins appeals both convictions, contending in two points of error that the trial court erred in overruling his objections to the State's identification procedures as being improperly suggestive. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments.
Background
There is evidence in the record that Jane Doe approached Houchins late at night in the DFW airport terminal. Doe incorrectly called Houchins "ma'am," sparking an argument. During the argument Doe went to call 911. Houchins hit Doe over the head with a bottle, but did not knock her unconscious. Houchins retrieved a knife out of his backpack and cut the phone cord. A witness at the scene, Anthony Wilson, tried to intervene, but Houchins chased Wilson out the door with the knife. Houchins returned to Doe and stabbed her, causing her death. Wilson saw the entire altercation and described Houchins's appearance to police at the scene. Within thirty minutes after the murder, the police brought Wilson to a police car and asked him if he recognized the man in the backseat. Wilson responded that the man in the car (Houchins) was the man who had chased him out of the terminal with the knife. Wilson also identified Houchins at trial. Dennis Swindell also saw the entire altercation. The police took Swindell to the police station, directed him to look into a small room, and asked him if a man sitting alone in the room (Houchins) was the man from the terminal. Swindell indicated it was the same man. Houchins pled not guilty to murder and to aggravated assault with a deadly weapon. During the trial, Wilson and Swindell identified Houchins as Doe's killer. Houchins filed a pre-trial motion to suppress the identification evidence and objected to the in-court identification on same grounds. The trial court overruled the motion and objections. Identification of Houchins
In his two points of error, Houchins asserts the trial court erred in overruling his motion to suppress and objections to the in-court identification testimony because of the impermissibly suggestive one man show-up procedure used with two eyewitnesses-Wilson and Swindell. 1. Standard of Review
We set aside a conviction based on eyewitness's in-court identification only if the in-court identification was the result of a pretrial identification procedure that was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Foster v. California, 394 U.S. 440, 442 (1969); see Turner v. State, 614 S.W.2d 144, 145-46 (Tex.Crim.App. [Panel Op.] 1981). A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. See Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001) (citing Simmons v. United States, 390 U.S. 377 (1968)). We apply a de novo standard of review for such mixed questions of law and fact that do not turn on an evaluation of credibility or demeanor. See Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App. 1998). We conduct a two-step analysis to determine the admissibility of the in — court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. Houchins has the burden to show by clear and convincing evidence that the in-court identification was irreparably tainted. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995). Factors we consider in determining the reliability of an in-court identification include: (1) the witness's opportunity to observe the defendant; (2) the witness's degree of attention; (3) the accuracy of the witness's physical description, if any; (4) the witness's degree of certainty; and (5) the amount of time between the offense and the identification of the accused. See Jackson, 657 S.W.2d 123, 129-30 (Tex.Crim.App. 1983). One man show-ups are generally considered a suggestive identification procedure; however, their suggestiveness does not necessarily render an in-court identification inadmissible. See Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1982) (op. on reh'g). A one man show-up, without more, is not unnecessarily suggestive and does not violate due process. Neil v. Biggers, 409 U.S. 188, 198 (1972); Garza, 633 S.W.2d at 512. When, as here, the record clearly reveals that a witness's ability to make an in-court identification has an origin independent of any allegedly improper pretrial identification procedure, the in-court identification is admissible at trial. See Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985); Jackson, 657 S.W.2d at 130; Thomas v. State, 605 S.W.2d 290, 292 (Tex.Crim.App. 1980) (op. on reh'g). In this case, Houchins claims Wilson's description was too vague and lacking in detail. Houchins contends the identification in the police car was unduly suggestive because "who would not pick him out?" since he was the only person in the car. Houchins also argues Wilson's excited state and weapon focus undermine the reliability of the identification. However, Wilson testified he was two to three feet away from Houchins in the terminal and had an unobstructed view of Houchins during the altercation. Wilson's description of Houchins matched that of the other witnesses and was adequate. Nothing in the record shows that the detaining officers encouraged Wilson by word or action to identify Houchins as the suspect. Further, the record reflects the show-up occurred within thirty minutes of the crime and Wilson's identification was immediate and certain. Similarly, Houchins contends Swindell's description lacked detail and was too vague. Houchins claims Swindell's excited state and his focus on the weapon skewed his ability to accurately describe Houchins. Further, Houchins argues Swindell's identification at the police station was suggestive as Houchins was the only person inside the room. However, Swindell testified he had an unobstructed view of the crime. Swindell was able to describe with accuracy a bottle Houchins used to hit Doe, as well as the knife used to threaten Wilson. There is nothing in the record to suggest the show-up was unnecessarily suggestive or gave rise to a substantial likelihood of irreparable misidentification. Garza, 633 S.W.2d at 512. After reviewing the totality of the surrounding circumstances, there is nothing to indicate the one man show-ups were unnecessarily suggestive. Moreover, Wilson's and Swindell's recollections of Houchins's appearance sufficiently served as independent origins of the in-court identifications regardless of the propriety of the pretrial identifications. We conclude, based on this evidence, the trial judge did not err in overruling Houchins's objections. We overrule Houchins's two points of error. We affirm the trial court's judgments.