No. 14-08-00770-CR
Opinion filed December 17, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 1149919.
Panel consists of Justices YATES, FROST, and BROWN.
KEM THOMPSON FROST, Justice.
Appellant George Oliver McKnight challenges his conviction for robbery. In two issues, appellant claims the trial court erred in denying his motions to suppress a pretrial line-up identification and in allowing an in-court identification because the complainant viewed photos of appellant before identifying him in a line-up. In a third issue, appellant argues the trial court erred in admitting extraneous-offense evidence in violation of Texas Rules of Evidence 403 and 404(b). We reform the judgment as requested in the State's sole cross-point to reflect the jury's affirmative finding of appellant's use of a deadly weapon in the commission of the robbery, and we affirm the judgment as reformed.
I. FACTUAL AND PROCEDURAL BACKGROUND
A police officer arrived at a gas station in response to a call about a robbery. At the scene, the officer spoke with complainant Keith Piatkowski. Piatkowski explained to the officer that he had stopped at the gas station that morning to fuel his truck. Piatkowski was standing behind the truck when he first noticed a man at a nearby bus stop. Piatkowski saw the man slowly walk towards his truck. The man was wearing a white t-shirt and blue jeans. Piatkowski described the man as a person of mixed Hispanic-Caucasian descent, who was 25 to 30 years of age with an average build, and a height of 5'6" to 5'7". Piatkowski guessed that the man weighed between 150 and 160 pounds. According to Piatkowski's description, the man was clean shaven, had dark brown to black hair, wore his hair short on the sides and one to two inches long on top, and that his hair was a "little wavy." Piatkowski gave this description of the man to a responding officer and later to an investigator. According to Piatkowski, the man made a "dash" to open the truck's door on the driver's side. Piatkowski attempted to meet the man at the door. The man brushed shoulders with Piatkowski, and the man elbowed Piatkowski to keep him away. Although the truck's doors were closed, the door was unlocked and the keys were inside. Once inside the truck, the man locked the doors. Piatkowski stared at the man through the window and then walked in front of the truck. The man started the ignition and drove forward, hitting Piatkowski. Piatkowski rolled across the hood of the truck and grabbed the mirror and then the side railing of the truck in an attempt to get into the truck bed. The man the driving the truck dragged Piatkowski for an undisclosed distance before Piatkowski released his grip, and the man drove the truck from the scene. In Piatkowski's mind, the ordeal lasted approximately three minutes. Several weeks later, the abandoned truck was located. Piatkoski went to retrieve the vehicle and met police officers at the location. The truck had sustained heavy damage with dents and graffiti. Officers took fingerprints from the truck before it was towed to a body shop and ultimately released to Piatkowski. In January 2008, an investigator contacted Piatkowski about the case. Piatkowski gave the investigator a description of the man who stole the truck. Investigators had matched a fingerprint taken from the truck to a woman named Kathy Respress. The investigator determined that Piatkowski's description of the man at the gas station resembled appellant's description. Investigators knew that appellant was a friend of Respress's. The investigator indicated that she wanted to conduct a live line-up based on this information. In their conversation, the investigator learned that Piatkowski had cleaned out the truck and found a notebook, a letter, and a disposable camera inside. Piatkowski had offered to develop the film from the camera; Piatkowski's girlfriend had the film processed the next day. When Piatkowski met with the investigator to view the line-up, he gave the photos and other items taken from the truck to the investigator. Piatkowski acknowledged that he viewed the photos before he arrived at the police station. Several of the photos depicted appellant inside the stolen truck; one of the photos depicted Respress inside the stolen truck. Piatkowski recognized the man in the photo as the person who stole the truck. The investigator conducted the line-up about one hour later. According to the investigator, appellant was permitted to select some of the participants in the line-up and he determined the participants' placement in the line-up. From the line-up, Piatkowski identified appellant as the person who stole the truck. Piatkowski immediately recognized appellant in the line-up and remained confident in his identification of appellant. Appellant was charged with robbery, to which he pleaded "not guilty." He filed two motions. In the first motion, appellant challenged the identification procedure before the line-up, alleging that the Houston Police Department exhibited a set of photographs to Piatkowski for the purpose of identifying appellant. In the second motion, appellant objected to the admission of Piatkowski's in-court identification of him, claiming that the State had insufficient means to identify him and that any identification of him was based on hearsay and an improper, suggestive "photographic line-up." The trial court denied both motions. Following a trial on the merits, a jury found appellant guilty as charged. The jury also found that appellant used a deadly weapon, a motor vehicle, in committing the offense. After finding two enhancement paragraphs to be true, the jury assessed appellant's punishment at thirty-two years' confinement. II. ISSUES AND ANALYSIS
A. Did the trial court err in denying appellant's challenges to the pre-trial identification and the in-court identification? In two issues, appellant complains the trial court erred in denying his challenges to Piatkowski's pretrial identification and the in-court identification. According to appellant, the photographs Piatkowski saw before the live line-up created an impermissibly suggestive identification procedure and tainted his subsequent identification of appellant in the live line-up. According to appellant, the other participants in the line-up did not match the general description of the robbery suspect, and Piatkowski did not view photos of these other participants before identifying appellant in the line-up. Appellant also challenges his in-court identification, which he claims stemmed from Piatkowski's viewing the photographs before the live line-up and that Piatkowski did not have sufficient means to identify the person who stole the truck. We review a trial court's ruling on a motion to suppress evidence under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). We view the evidence adduced at a suppression hearing in the light most favorable to the trial court's ruling. Champion v. State, 919 S.W.2d 816, 818 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A pretrial identification procedure may be suggestive, but that does not necessarily mean it is impermissibly so. Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995). Suggestiveness may be implicated by the manner a pretrial identification procedure is conducted, as in suggesting a suspect is included in the array, or when the suspect is the only individual who closely resembles the pre-procedure description. See id. at 33. A line-up is considered unduly suggestive if the appearance of other participants is greatly dissimilar from the suspect. Withers v. State, 902 S.W.2d 122, 125 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd). A suspect may be greatly dissimilar in appearance from the other participants based on a distinctly different appearance, race, hair color, height, or age. See id. However, minor discrepancies among line-up participants will not render a line-up impermissibly suggestive. See Partin v. State, 635 S.W.2d 923, 926 (Tex. App.-Fort Worth 1982, pet. ref'd). The participants in a line-up do not have to be identical to satisfy the requirements of due process. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Testimony from neither Piatkowski nor the investigator who conducted the line-up supports an unduly suggestive procedure. According to the investigator who conducted the live line-up, the line-up was comprised of five men wearing orange jumpsuits with similar hair color, age, height, weight, and ethnicity. According to the investigator, appellant selected the men to participate in the live line-up and determined the participants' positions. The investigator advised Piatkowski that he should not feel obligated to select a person from the line-up because the person who robbed him may or may not be in the line-up. A video of the live line-up, which was shown at trial, confirms that the men were of similar age and build with dark hair and the appearance of mixed ethnicity. The video shows the men were of the same approximate height, which varied only by one to two inches, and similar weight. Piatkowski similarly testified that the men in the line-up looked similar and that each of the men in the line-up appeared to be of mixed ethnicity. The investigator testified that appellant was neither the tallest nor shortest of the men in the line-up and that appellant's weight similarly fell in the middle of the participants' weight range. Although appellant claims that Piatkowski's pretrial identification was based upon his viewing of photographs of appellant in the stolen truck, Piatkowski testified that his pretrial identification of appellant was based solely upon the encounter with appellant at the gas station and not on the photographs. See Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). We conclude the pretrial line-up procedure was not impermissibly suggestive. See Withers, 902 S.W.2d at 125 (providing that minor discrepancies among the appearance of participants in a line-up will not render a pretrial identification procedure unduly suggestive). Even assuming arguendo that the pretrial identification procedure was suggestive, the in-court identification of appellant was still admissible. An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). We consider, under the totality of circumstances, whether the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). Because admissibility of identification testimony hinges on reliability, to warrant exclusion of the in-court identification, appellant must have established by clear and convincing evidence that the in-court identification was unreliable. See id.; Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451, 455 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd). If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, in-court identification testimony is admissible. See Luna, 268 S.W.3d at 608; Delk, 855 S.W.2d at 706. In assessing reliability under the totality of the circumstances, we weigh the following five factors against the corrupting effect of any suggestive pretrial identification procedure: (1) the witness's opportunity to view the criminal act, (2) the witness's degree of attention, (3) the accuracy of the suspect's description, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and confrontation. Luna, 268 S.W.3d at 605; Ibarra, 11 S.W.3d at 195. The record reflects that Piatkowski had sufficient opportunity to view the man who stole the truck. See Rojas, 171 S.W.3d at 449 (deeming a witness's opportunity to view the criminal act as sufficient). He stared at the perpetrator for a couple of minutes during the day-time encounter at the gas station; the men were separated, at times, by only the window of the truck. See id. Piatkowski testified that he had a good opportunity to view the perpetrator during the encounter. His description to responding officers at the scene and to investigators nearly one month later accurately matched appellant's appearance. See id. Piatkowski recognized appellant immediately in the line-up, six weeks after the encounter, and maintained his confidence in the identification. See Brown v. State, 29 S.W.3d 251, 256 (Tex. App.-Houston [1st Dist.] 2000, no pet.) (providing that a two-month period between offense and identification did not create a substantial likelihood of misidentification). Under the totality of the circumstances, there is nothing to suggest a substantial likelihood of misidentification could have resulted from the pretrial line-up. See Rojas, 171 S.W.3d at 449. Appellant claims that the photographs Piatkowski saw before the live line-up subsequently induced Piatkowski's mistaken identification of appellant in the live line-up. When identification is based upon knowledge independent from the allegedly improper pretrial procedure, it is admissible. See id.; Brown, 29 S.W.3d at 256. The record reflects that Piatkowski denied that his identification of appellant resulted from his viewing of the photos, and indicated that he identified appellant from his encounter with appellant at the gas station. Because Piatkowski's identification was made independent of the photographs and instead was based on his recollection of seeing appellant during the offense, the in-court identification was admissible. See Rojas, 171 S.W.3d at 449. Weighing this reliability against any suggestiveness of the pretrial identification procedure leads us to conclude that there was no substantial likelihood of irreparable misidentification. See Luna, 268 S.W.3d at 608. Therefore, the in-court identification was not inadmissible. We conclude the pretrial identification procedure was not impermissibly suggestive, the in-court identification was made independently, and there is no substantial likelihood of misidentification. See Rojas, 171 S.W.3d at 449. Therefore, the trial court did not err in denying appellant's motions to suppress. We overrule appellant's first and second issues. B. Did the trial court err in admitting extraneous-offense evidence in violation of Texas Rules of Evidence 403 and 404(b)?
In his third issue, appellant claims that the trial court erred in admitting evidence of the photographs and a letter found inside the truck, Respress's name, Respress's fingerprint, and testimony regarding this evidence. According to appellant, this evidence is extraneous-offense evidence that was highly prejudicial and may have caused his conviction even without the identification. We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Under this standard, we reverse only if the ruling is outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. At a pretrial hearing, the trial court granted appellant's motion in limine to limit trial testimony regarding certain photographs and conduct that could be considered extraneous-offense conduct. According to this discussion, witnesses at the suppression hearing alluded to some photographs and conduct that could have been considered extraneous-offense conduct. The State acknowledged that the investigator knew not to refer to appellant's prior arrest and that any of the photos mentioned during the hearing that implicated extraneous-offense conduct would not be admitted into evidence at trial. Later, during the trial, the State sought to offer several exhibits into evidence. Exhibits 7 though 10 were photographs developed from the camera found in the stolen truck. These photos showed both appellant and Respress inside the stolen truck. Appellant objected to these photos, asserting there had been a break in the chain of custody. Appellant did not challenge these photos on Rule 404(b) or Rule 403 grounds. The trial court admitted these exhibits. Appellant does not show that any other photos were presented at trial to which appellant asserted an objection under Rule 403 or Rule 404(b). Therefore, appellant has failed to preserve this complaint for review as to the photographs because his contention on appeal does not comport with the objection he lodged at trial. See TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection grounded on one legal basis in the trial court may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Exhibit 11 was the letter found in the stolen truck. Appellant challenged admission of this exhibit into evidence because it allegedly referred to extraneous-offense conduct. The trial court withheld ruling on the admissibility of the letter. The letter was not admitted into evidence at trial, and appellant has not shown that he obtained an adverse ruling on his request to exclude this exhibit. To preserve error for appellant review, the complaining part must make a timely, specific objection and obtain an adverse ruling on the objection. See TEX. R. APP. P. 33.1(a). The record reflects that outside of the jury's presence the parties discussed admitting testimony regarding fingerprints. According to this discussion, appellant's fingerprints were not found in the stolen truck, but Respress's fingerprints were traced to the stolen truck. Respress and appellant were co-defendants in a case for auto theft in November 2007; the facts alleged in that case are similar to the events in this case, which occurred in December 2007. The State agreed to exclude reference to the extraneous offense and mention only that the fingerprint recovered from the truck belonged to Respress, who was friends with appellant. Appellant preserved this complaint under Rules 403 and 404. The trial court ruled that the probative value of evidence of Respress's fingerprint was not prejudicial and outweighed any prejudicial effect. Rule 404(b) permits extraneous-offense evidence of other crimes, wrongs, or acts if the evidence holds relevance apart from proving that the defendant acted in conformity with bad character. TEX. R. EVID. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). A trial court violates Rule 404(b) if, despite a timely and specific objection, the court admits evidence of other crimes, wrongs, or acts that is relevant to nothing except an attempt to show the defendant acted in conformity with a bad character. Montgomery, 810 S.W.2d at 386-87. The State, in offering evidence of Respress's fingerprint, did not offer any evidence of extraneous-offense conduct that could be linked to appellant or Respress. Throughout the investigator's testimony at trial, the State linked an affiliation between appellant and Respress through the photos of Respress and appellant in the truck and her fingerprint found in the truck. The investigator testified that Respress's name was developed in the case as a witness and that appellant and Respress were friends. The jury did not hear any evidence of any extraneous-offense conduct, and appellant has not pointed to any place in the record showing that the evidence of extraneous-offense conduct was presented to the jury. Therefore, appellant's reliance upon Rule 404 is misplaced on these facts, and for this reason, the cases appellant cites are not applicable. As to appellant's complaint under Rule 403, appellant has waived error on this complaint. To present an issue for appellate review "the brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(h). Appellant has not presented a single argument or citation in support of his argument under Rule 403. He has not addressed any of the governing legal principles or applied them to the facts of this case. See King v. State, 17 S.W.3d 7, 23 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant's brief contains a sentence that says, "The introduction of the letters photographs, names of the co-defendant and his photo spread as well as [] Respress and her print was highly prejudicial and tainted the trial to the extent that it could have caused Appellant's conviction even without the identification." However, conclusory statements which contain no authority or citation present nothing for appellate review. Id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992). Therefore, appellant's third issue is overruled. C. Should the trial court's judgment be reformed to reflect the jury's affirmative finding that appellant used a deadly weapon in the commission of the offense?
In the State's sole cross-issue, it requests this court to reform the trial court's judgment to show that the jury made an affirmative finding that appellant used a deadly weapon in the commission of the offense. The jury's written verdict reflects the jury's affirmative finding that appellant used a deadly weapon, namely a motor vehicle, during the commission of the offense, and the trial made an oral pronouncement in open court to the same effect; however, the trial court's judgment does not reflect this finding. Consequently, we find merit in the State's cross-issue. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Accordingly, we reform the trial court's judgment to reflect the jury's finding. Having overruled all of appellant's issues on appeal and having sustained the State's cross-issues seeking reformation of the judgment, we affirm the trial court's judgment as reformed.