No. 01-03-01353-CR
Opinion issued December 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 955582.
Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
SAM NUCHIA, Justice.
Appellant, Gavilan Frillo Nichols, pleaded not guilty to the felony offense of robbery. The jury found him guilty and assessed punishment at 35 years in prison. In one issue, appellant contends that the trial court erred in overruling his objection to a photographic array being admitted into evidence. We affirm.
Appellant objected at trial to both the admittance of the photographic array and the witness's identification of appellant at trial. On appeal, he complains only of the admittance of the photographic array.
BACKGROUND
Marje Shepherd testified that she was one of two Washington Mutual Bank tellers robbed on December 30, 2002 at approximately 1:00 p.m. Officer Steven Ruteshouser of the Houston Police Department's Houston Area Bank Robbery Task Force testified that, on January 21, 2003, Shepherd identified appellant from a photographic array. DISCUSSION
Appellant argues that the photographic array was impermissibly suggestive because "the bank teller admitted that [a]ppellant did not look like the remaining five individuals in the photospread." We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard, in light of the evidence before the trial court at the time the ruling was made, and must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We will not reverse the trial court's decision to admit evidence unless a clear abuse of discretion is shown. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991); Escovedo v. State, 902 S.W.2d 109, 116 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). 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. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App. 1995). A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33-34. The admissibility of a pretrial identification is reviewed under the totality of the circumstances. Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App. 1983). Appellant bases his complaint on Shepherd's responses during cross-examination when she was asked to acknowledge specific differences between the facial features, hair lines, and ages of the persons depicted in the photographic array. From this testimony, appellant asserts that she "admitted that [a]ppellant did not look like the remaining five individuals in the photospread." While she did acknowledge that there were certain differences between specific features of the individuals pictured, the record does not reveal any such admission by Shepherd. Shepherd also testified that when Officer Ruteshouser asked her if the photographic array had the picture of the man who robbed her, she pointed to appellant's picture and told him that she was sure appellant was the robber. Officer Ruteshouser testified that he used appellant's mug shot and the mug shots of five other individuals to prepare the photographic array. He testified that he selected photographs in which the persons depicted appeared "similar as far as race, some facial character [sic] and hair characteristics" and that their apparent ages were within five years "give or take." The photographic array in question is contained in the record. It depicts six African-American males belonging to the same approximate age group, and none have significantly different features. The essence of appellant's complaint is that the depicted individuals are not identical. In a pretrial identification procedure, it is not essential that all the individuals be identical. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985); Escovedo, 902 S.W.2d at 117. Neither due process nor common sense requires exact likeness of the defendant in the array. Turner v. State, 600 S.W.2d 927, 933 (Tex.Crim.App. [Panel Op.] 1980) (holding that a photographic array in which suspect's every feature is matched is not practical and not required); Escovedo, 902 S.W.2d at 117 (holding photographic array not impermissibly suggestive when all photographs were of Hispanic males with characteristics similar to appellant's despite teardrop tattoo near appellant's eye). After reviewing the totality of the circumstances, we hold that the photographic array is not so "unnecessarily suggestive as to present a very substantial likelihood of misidentification." See Simmons, 390 U.S. at 384, 88 S.Ct. at 971; see also Barley, 906 S.W.2d at 23-33. Appellant's sole issue is overruled. CONCLUSION
We affirm the judgment of the trial court.