No. 14-02-00730-CR
Opinion filed July 31, 2003. Do Not Publish — Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 912,806.
Panel consists of Chief Justice BRISTER, and Justices FOWLER and EDELMAN.
RICHARD H. EDELMAN, Justice.
Herman Lee Joshua appeals a conviction for aggravated robbery on the grounds that: (1) the evidence is factually insufficient to support his conviction and (2) the trial court erred in denying his motion to suppress an in-court identification by the complainant. We affirm.
The court found appellant guilty and sentenced him to 25 years confinement.
Sufficiency of the Evidence
Appellant's first issue argues that the evidence is factually insufficient to prove that he was the person who committed the offense because the complainant's descriptions of appellant to the police and at trial were varied and because the complainant's boyfriend, who was a second eyewitness to the robbery, was never located. In assessing factual sufficiency, we consider all of the evidence in a neutral light to determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). The complainant testified at trial that she was robbed at gunpoint while walking home with her boyfriend, Hugo Garcia, from the Fiesta store where she worked as a cashier. She testified that the robber was "old," "black," "not too big, not too small, just medium," a "little bit taller" than her at five feet three inches, and wearing a trench coat. The complainant also testified that, during the robbery, appellant was very close to her, nothing was covering his face, she could see his face, and "there is no way you can forget somebody like that." She also testified that the robbery scene was well lit by street lamps and lighting from nearby houses so that "you could see very well" at night. After the robbery, the police were called. The responding officer testified that the complainant described the robber as a skinny black male, six feet tall, with a dark brown complexion and peppery gray hair. The complainant also told the officer that she recognized the robber from a previous incident where he had been caught shoplifting at her Fiesta store. The day after the robbery, the complainant went to the Fiesta store's security office to identify the robber from photographs of its past shoplifters. After the complainant described the robber to the store's loss prevention manager, he showed the complainant the only five photos he had resembling her description for the preceding year. After the complainant identified appellant in the third photograph, the loss prevention manager showed her two more photos. After looking at them, the complainant still insisted that the person in the third photograph was the robber. Later, the complainant identified appellant as her robber in a police photo spread shown to her by the investigating officer. Appellant testified at trial that he did not commit the robbery and that, during the robbery, he was outside a different store where he has been every night for the last two years. However, the police could not verify this alibi. Appellant also claims that the police should have searched for the other eyewitness to the crime, Garcia, so that he might testify that appellant was not the robber. However, the investigating officer testified that he did not search for Garcia because the complainant told him that Garcia had gone to Mexico, he would not be returning, and there was no way to contact him. Appellant also contends that it is easy for a person of one race to confuse people of a different race who resemble each other. Furthermore, appellant claims that the description given to the police by the complainant was that of a man with peppery gray hair, but that he has black hair. Finally, the complainant described appellant as "old", whereas appellant claims in his brief that his age at the time of the robbery (59 years) does not qualify as "old." Considering all of the evidence in a neutral light, the proof of appellant's identification is not so obviously weak as to undermine confidence in the trial court's determination or greatly outweighed by contrary proof. Accordingly, we overrule appellant's first issue. Motion to Suppress
Appellant's second issue contends that the trial court erred in denying his motion to suppress the complainant's in-court identification of appellant because it was tainted by the impermissibly suggestive pretrial identification by the complainant at the Fiesta store's security office. Appellant argues that this identification was impermissibly suggestive in that the people in the photographs were dissimilar in appearance to him and the photographs were shown to the complainant one at a time rather than all at once in a "spread." A ruling on a motion to suppress an in-court identification due to an impermissibly suggestive pretrial identification procedure is reviewed under the Guzman standard. Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App. 1998); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Unless the ruling is based on conflicting evidence which requires an evaluation of credibility and demeanor, the ruling is a mixed question of law and fact that is reviewed de novo. See Loserth, 963 S.W.3d at 773. Due process requires that an in-court identification not be admitted into evidence when it has been tainted by an out-of-court identification that, considering the totality of the circumstances, is impermissibly suggestive and gives rise to a substantial likelihood of irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001). A defendant must prove by clear and convincing evidence both that the identification procedure was impermissibly suggestive and that the suggestiveness gave rise to a substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). However, even if both these elements are established, the in-court identification will still be admissible if the State can show that the ability of the witness to identify the defendant has origin independent from the pretrial procedure. McFarland v. State, 928 S.W.2d 482, 508 (Tex.Crim.App. 1996). Although not easy to definitively summarize, impermissible suggestiveness refers to an aspect of the identification procedure that not only places emphasis on the defendant's likeness relative to the others being viewed, but does so more than the circumstances reasonably require. In this case, the complained of photo viewing was not conducted by or at the behest of government officials (or even the Fiesta loss prevention manager). Of the five photos shown to the complainant, all were of African American males, four were of heights between five feet, nine inches, and five feet, eleven inches, and three of those, including appellant's, were of weights between 150 and 160 pounds. The ages of three of the other men in the photos were within 13 years of appellant's age. Moreover, there is no evidence that the store had any other photos that resembled appellant more closely than these and that might have been used in their place. The record would thus suggest that the only alternatives at the Fiesta store to showing the complainant these five photos would have been to show her fewer of them or none at all. Under these circumstances, to the extent the photo spread was suggestive due to dissimilarity, it was not more suggestive than the circumstances reasonably required and thus was not impermissibly suggestive. With regard to appellant's complaint that the photos were impermissibly suggestive for being shown to appellant one at a time rather than all at once in a spread, appellant's photo was the third one presented to the complainant and two more were shown to her after appellant's. Apart from the dissimilarity of the photos, addressed above, appellant has provided no authority or rationale to support the proposition that viewing photos one at a time creates any additional suggestiveness, particularly with regard to the third photo viewed. Therefore, appellant has failed to demonstrate that the challenged out-of-court identification was impermissibly suggestive. Nevertheless, because the out-of-court identification was somewhat suggestive, we will also address the likelihood for irreparable misidentification. In determining whether such a likelihood existed, the following factors are considered: (1) the witness's opportunity to view the criminal act; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the time between the crime and confrontation. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). These five factors are reviewed deferentially in a light most favorable to the trial court's ruling and then weighed de novo against the corrupting effect of the suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189, 195-96 (Tex.Crim.App. 1999). Applying these factors in this case, the evidence shows that: (1) the witness had a close, unobstructed, and well-lit view of the criminal act; (2) the witness had a high degree of attention; (3) the witness's prior description of the criminal to the police was accurate in all major respects; (4) the witness demonstrated a high degree of certainty at the identification; and (5) the time between the crime and identification was less than 24 hours. These five factors suggest no lack of reliability of the identification in this case and thus no likelihood for irreparable misidentification. Accordingly, we overrule appellant's second issue and affirm the judgment of the trial court.