No. 14-05-00438-CR
Opinion filed July 20, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 985,565. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Appellant, Marshall Edward Lewis, was convicted of aggravated robbery in a second trial after the first jury was unable to reach a verdict. After finding appellant guilty, the jury assessed punishment at twenty-five years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant challenges his conviction alleging (1) the trial court erred in allowing an in-court identification, and (2) the evidence was factually insufficient to sustain his conviction. We affirm.
Factual and Procedural Background
On April 23, 2004, appellant purchased a drink at Nick's Shell gas station from the cashier, Catrena Young. Young testified that appellant was wearing a red shirt and a red wave cap. Additionally, she testified that she noticed a tattoo of lines" underneath his eyes. Appellant left the store after purchasing a drink. Appellant returned to the store approximately twenty minutes later. Young testified that appellant acted nervously in that he kept looking around the store. Appellant brought another drink to the counter and, as Young opened the cash register, appellant pointed a gun at her and demanded that she tender the money while not making a scene. He then reached over the counter and began pulling the money out himself. Young testified that when she saw the gun, she was afraid. As appellant left the store, Young apprised her co-worker, Alex Salekeen, of the robbery. Salekeen ran after appellant, demanding that he stop. The owner of the convenience store, Nick Boulos, picked up Salekeen in his car. Boulos and Salekeen continued to pursue appellant in Boulos's car as Young, who remained at the convenience store, called the police. Boulos and Salekeen followed appellant until he jumped a fence. They then returned to the gas station where they gave a description of appellant to Officer Johnston. Boulos and Salekeen told police appellant was wearing gray shorts, white shoes, a red shirt, and a wave cap. Officer Johnston and Officer Leeson saw a male matching the physical description of appellant, although he was not wearing a red shirt or a wave cap. Appellant began to run as the officers approached him. While pursuing appellant, Officer Johnston saw the suspect reach into his waistband and throw something black into the grass, which he surmised was a gun. The gun was subsequently retrieved during a canine search. After discarding the gun, appellant continued running until he was ultimately apprehended and taken back to the convenience store, where he was identified by Young as the man who robbed the store. At the convenience store, the police conducted a "show-up" identification whereby Young identified appellant as the man who robbed the store. When Young identified appellant, she was standing inside the convenience store. Appellant was outside of the store, approximately twenty feet away from Young, with no other suspects. After Young identified appellant, the police returned to the police station where they searched appellant's pockets and found the same amount of cash on appellant as was taken from the convenience store. The officers were unable to locate the red shirt or the wave cap. However, the search was limited because the officers decided not to search the railroad yard, to which appellant had run in the pursuit. The officers reasoned that, although there were no moving trains at the time the search was conducted, the railroad yard posed a danger to the officers in that the train conductors could not see the officers searching amongst the trains. Appellant was indicted for the felony offense of aggravated robbery. Appellant went to trial twice on this indictment. The jury was unable to reach a unanimous verdict in the first trial. On April 21, 2005, he was retried. The jury convicted him and subsequently sentenced him to twenty-five years' confinement in Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed notice of appeal. Appellant challenges his conviction with two issues: (1) the evidence was factually insufficient to sustain his conviction; and (2) the trial court erred in allowing the in-court identification of the defendant when the pre-trial identification was impermissibly suggestive. We affirm. Analysis
I. The Evidence is Factually Sufficient A. Standard of Review Factual sufficiency challenges require the reviewing court to consider and balance all the evidence in a neutral manner. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In reviewing the evidence, an appellate court will determine the evidence is factually insufficient if: (1) the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) in the event that there is evidence both supporting and contradicting the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. An appellate court cannot, in light of deference given to the jury, substitute its own conclusions for that of the jury. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 133. "The jury . . . is the exclusive judge of the facts proved, and of the weight to be given to the testimony." TEX. CODE CRIM. PROC. art. 38.04. B. Application of Law to Facts
Appellant challenges the factual sufficiency of the evidence in his first issue. Specifically, appellant contends that material evidence — usable fingerprints, the red shirt, and wave cap — was never found and, therefore, the evidence presented was insufficient to render a guilty finding. Further, appellant contends that the inability of the witnesses to describe fully appellant's earrings or the tattoos on his face and neck amounted to incredible identification. Viewing the evidence in a neutral light, the jury was rationally justified in its decision. In terms of appellant's first contention — the lack of material evidence found — the State provided witnesses' explanations as to why the red shirt and wave cap were never recovered. The State's witnesses testified that the search for the red shirt and wave cap was limited because the switching trains at the railroad yard, to which appellant had run in the pursuit, posed a danger. Additionally, the State's witnesses reasoned that appellant disposed of the clothing in a railcar; therefore, the red shirt and the wave cap could not be recovered. However, appellant was wearing shoes and a shirt matching Young's description. Additional evidence presented also provides ample support for the jury's finding regardless of whether police found the shirt or wave cap. A gun consistent with Young's description was later located in the area appellant was seen discarding something resembling a gun. Young also identified the gun at trial. Therefore, the jury could have determined the gun was tangible evidence linking appellant to the robbery. Also, appellant was carrying the amount of cash stolen from the convenience store. Although appellant gave an explanation for the money — that he had been selling drugs earlier that day — the jury could easily reject appellant's version of events. Additionally, Young identified appellant as the robber. Of course, appellant also argues the identification was not credible. In terms of identification, the lack of description regarding appellant's earrings and face and neck tattoos is, again, a matter of credibility for the jury. Ms. Young testified that she saw appellant's tattoos. While she was not able to remember what side of the face the tattoos were on, she was able to provide a description of the tattoos. Additionally, Ms. Young was able to identify appellant in the "show-up" on the day of the robbery and in the courtroom during the trial. According to Young, her identification was not based upon appellant's identifying tattoos, but rather his facial features. Salekeen also positively identified appellant during the "show-up" and in court as the robber whom he saw fleeing the convenience store. Finally, the jury viewed videotape footage and still photographs of the robber during the trial such that they could determine for themselves if appellant was indeed the person in the video and photographs robbing the convenience store. Given the cumulative testimony of all the witnesses present during the robbery and the physical evidence, the evidence was not so weak that the standard of proof could not be met. We must now determine if the contrary evidence was so strong that guilt could not be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. Appellant testified in his own defense. He was the only witness provided in his defense, and he offered no evidence other than his testimony. Appellant contends the reason he ran from police was because he was on parole and in possession of marijuana. Further, appellant testified that he had a large amount of money in his pocket because, on the day he was arrested, he had engaged in drug transactions. In addition, appellant testified that the gun recovered was not his and that, given it was found in overgrown grass, it could have been there for some time. Lastly, appellant testified that he was not near the convenience store at the time of the robbery. Certainly, if believed, appellant was not guilty. However, it is not for us to determine if appellant or the State's witnesses were more credible. In deference to the jury, its determination of witness credibility prevails. To each of appellant's assertions, the State provided witnesses to either refute appellant's versions of events or to provide additional explanations. While it is true, as appellant suggests, usable fingerprints or additional clothing linking appellant to the robbery would be helpful, such an assertion does not make the evidence insufficient. Rather, appellant merely explains in what ways the State's case may have been made stronger. Here, the State provided ample evidence to prove appellant was the robber. Even though appellant believes the State could have made its case stronger with additional evidence, the State met its burden. We overrule appellant's first issue. II. In-Court Identification
A. Standard of Review and Appellant's Argument Appellant's next issue pertains to Young's identification of him as the robber. Appellant contends the trial court erred in allowing Young to identify him in court because her identification was based on a pretrial identification procedure that was impermissibly suggestive and because the jury was not informed that Young had an opportunity to observe appellant at the previous trial. Specifically, he argues the police should not have conducted a "show-up" identification, in which the police bring only one suspect and ask a witness if the suspect is the person who committed the crime. Further, appellant argues Young was able to so resolutely identify appellant at the second trial because of her observations at the first trial. According to appellant, Young was equivocal in her identification at the first trial and overcame the flaws in her testimony based upon viewing appellant during that trial. As a result, Young was able to give a persuasive in-court identification at the second trial, causing appellant's conviction. Appellant contends the jury should have been privy to the circumstances surrounding Young's identification, in addition to his argument Young never should have identified appellant in court. A pretrial identification procedure may be so unnecessarily suggestive and conducive to mistaken identification that to use that identification would deny the accused due process of law. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988) (citing Stovall v. Denno, 388 U.S. 293, 301B02 (1967)). Yet, even if the pretrial procedure is impermissibly suggestive, the subsequent identification testimony will be deemed reliable if the totality of the circumstances reveals no substantial likelihood of misidentification. "[R]eliability [is] the linchpin in determining the admissibility of identification testimony." Id. (citing Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977)). Thus, we engage a two-step analysis in determining whether the trial court erroneously admitted in-court identification testimony evaluating: (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. See Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). It is appellant's burden to prove the in-court identification's unreliability by proving both of these elements by clear and convincing evidence. See id. If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the identification testimony is admissible. Id. When reviewing a trial court's ruling on a motion to suppress an in-court identification, we afford almost total deference to the trial court's determination of historical facts that the record supports. Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). That is especially true when the trial court's findings are based upon an evaluation of witness credibility and demeanor. Id. We afford the same amount of deference to mixed questions of law and fact when the ultimate resolution of those questions turns on an evaluation of credibility and demeanor. Id. All other determinations of mixed questions — those not falling in the above category — we review de novo. Id. We review this mixed question of law and fact de novo. See id. at 773. B. There was no Error
1. Trial Court did not Err in Admitting the Show-Up Identification Appellant asks us to reverse the trial court's ruling on his motion to suppress. In part, appellant contends the show-up identification was impermissibly suggestive so as to render an in-court identification improper. The trial court at the first and second trial appears to have carried the motions to suppress with the trial and ruled at the time of the in-court identification. The State argues the issue is waived due to an inadequate record. We disagree and address appellant's arguments on the merits. First, we must determine if the pretrial procedure was impermissibly suggestive. While a show-up identification has some degree of suggestiveness, in many situations its use is necessary. Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1982) (op. on reh'g). By viewing the alleged criminal immediately after the commission of the offense, the witness is allowed to test her recollection while her memory is still fresh and accurate. Id. The quick confirmation or denial of identification also expedites the release of innocent suspects, and enables police to release innocent suspects and continue their search for the criminal while he is still within the area and before the criminal can substantially alter his looks and dispose of evidence of the crime. Id. Finally, any possible prejudice resulting from such a confrontation can be exposed by rigorous cross-examination of the witness. Id. Here, the procedure was likely necessary. Appellant was arrested approximately twenty-five minutes after police were called; officers returned with appellant and conducted a show-up identification. Young identified appellant while she was inside the store and appellant was standing next to a patrol car. Had Young told police that appellant was not the robber, they could have released him and continued searching for the criminal while he was still in the area. As occurred below, appellant had already attempted to alter his appearance and flee police. However, Young was able to identify him based upon his physical appearance and features, regardless of the fact that he had shed some of the clothing he was wearing earlier. See Louis v. State, 825 S.W.2d 752, 756 (Tex.App.CHouston [14th Dist.] 1992, pet. ref'd) (on-scene identification was not impermissibly suggestive when confrontation occurred an hour after offense, defendant was immediately identified, and any possible prejudice resulting from the confrontation could have been exposed from the cross-examination of the witnesses). Regardless, as we explain below, there was not a substantial likelihood of irreparable misidentification at trial because the jury was able to view video and photographs depicting appellant committing the offense, and Young was certain in her identification. 2. Young was not Equivocal at the First Trial
The remainder of appellant's argument centers on his contention that Young had difficulty identifying him at his first trial — causing the deadlocked jury — but gave a persuasive identification at the second trial — leading to appellant's conviction. Appellant believes the jury needed to hear testimony regarding the two trials and identifications. See Garza v. State, 633 S.W.2d 508, 514 (Tex.Crim.App. 1982) (op. on reh'g) (holding that because the jury had before it all of the relevant information, it was able to determine the credibility of the witnesses). However, the record before us does not bear out appellant's theory. Young's testimony at both trials was largely the same. She identified appellant's tattoos and his physical appearance, and was certain of her identification. Although Young was not able to describe every one of appellant's tattoos or his earrings with precision, that goes to weight and credibility, not admissibility. The jury was able to observe appellant, hear testimony about his actual tattoos and earrings, and compare that with Young's testimony, which was substantially similar to her prior testimony. Finally, Young testified that she identified appellant based upon his facial features, not his tattoos. Therefore, the tattoos do not play as strong a part in her identification as appellant argues. Young observed appellant for several minutes each time he entered the convenience store and studied him closely, causing her identification at the "show-up" identification and both trials to be certain and unequivocal. Additionally, the record does not demonstrate any ruling from the trial court refusing to allow appellant to cross-examine Young regarding her prior testimony. Appellant evidently was approaching that subject during the second trial, but the trial court called the attorneys to the bench and held an off-the-record bench discussion. Following that discussion, appellant simply asked Young if she had testified before — and she answered she had — and then moved to other subjects. If the trial court refused appellant an opportunity to present "all of the relevant information," it is not borne out in our record. Without a record containing a discussion between the judge and the lawyers on this issue, that the judge did not allow the jury to hear all relevant information, the record does not bear out appellant's claim. 3. No Harm In Any Event
The jury heard ample testimony and viewed physical evidence linking appellant to this robbery. Appellant cannot demonstrate harm. The jury viewed photographs and video footage with the robber's face, uncovered. The video and photographs depicted the robber wielding a gun and taking cash from the register. Additionally, appellant was apprehended carrying the same amount of money as was stolen from the convenience store. A gun that appellant discarded was recovered, which Young identified as the weapon used during the robbery. Finally, testimony from Salekeen also linked appellant to the robbery. This simply was not a case in which the in-court identification was the sole piece of evidence. Numerous other pieces of evidence linked appellant to this robbery. We overrule appellant's second issue. Conclusion
Having overruled both of appellant's issues, we affirm the judgment of the trial court.