Opinion
No. 05-05-01596-CR.
Opinion issued January 30, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F-0501175-NS.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
OPINION
William Rafael Padrino appeals his conviction for aggravated robbery. In four issues, he claims extraneous offense evidence was improperly admitted; the police used an improperly suggestive procedure to identify him; the State's closing argument injected personal opinion outside the record; and the police officers lacked reasonable suspicion to detain him. We affirm the trial court's judgment.
Discussion
Extraneous Offense Evidence In his first issue, appellant complains of the trial court's admission of testimony from two police officers concerning a bag containing a green, leafy substance and another bag containing a white powder which were found in his possession when he was arrested. Appellant argues this evidence should have been excluded under rule 404(b). He points out that, during the trial, no evidence was introduced linking the robbery to any extraneous offenses and the State did not rely on them to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident. Furthermore, the prosecutor violated rule 404(b) when she mentioned the extraneous offenses in her closing argument. As part of this first issue, appellant also claims admission of the extraneous offense evidence violated rule 403 because it had the potential for unfair prejudice and was not probative of any element of the indicted offense. He argues he was harmed by the admission of this evidence because it persuaded the jury he was a drug dealer who was preying "upon people in this high crime area" and sent a message to the jury that he "is a drug dealer and should be locked up so the area can be safer." Background Mohammad Mohasin is a cab driver. He was born in Bangladesh and has lived in the United States for fifteen years. On May 13, 2005, just before 2:00 a.m., appellant walked up to his vehicle and said, "I need a cab." Mohasin positively identified appellant in court and told the jury he got a good look at his face under bright lighting when he stood by the cab asking for a ride. Because of the late hour, Mohasin told appellant he needed a twenty dollar deposit toward the cab fare. Appellant paid the deposit. During the ride, appellant would not give Mohasin a destination address, providing only general directions. Mohasin was becoming increasingly nervous about the situation. Eventually, appellant directed him to a secluded dead-end street leading up to an apartment complex. At this point, appellant put a gun to Mohasin's head and said, "Give me the money." Mohasin gave appellant approximately $250.00 from his wallet. Appellant then jumped out of the cab, slammed the door, and said, "Mother f —, I [sic] kill you." Appellant fired his gun into the air twice. Mohasin drove approximately one hundred yards before spotting two police officers in a squad car and asking them for assistance. Dallas police officer Richard Manuel testified that on the evening of May 13th he was assigned to patrol a secluded area in Dallas known for high crime, including robberies, drug dealing, and assaults. At approximately 2:00 a.m., he and his partner saw a taxi cab drive down the street and then later turn around and drive back towards them, nearly blocking their vehicle. The driver of the cab, Mohasin, jumped out of the car and said, "Hey, I've just been robbed." Mohasin explained that he drove a man to a nearby apartment complex to drop him off and the man pointed a gun at him, took his money, and fired a gun. He described the assailant as an Hispanic male in his twenties wearing a black t-shirt with a grey silhouette on the front and black shorts. Manuel recalled that police officers had been searching the crime scene for nearly two hours when they saw appellant. He was walking through a nearby apartment complex toward the street. It was almost 4:00 a.m. Appellant drew their attention because he was the only person outside and people are not often found walking alone at that hour. Manuel then saw appellant's t-shirt, which bore the face of the actor Al Pacino in grey silhouette, and said, "Well, this could be the guy." Manuel decided to "stop and frisk" appellant. He told appellant to kneel on the ground until other officers arrived. When his back-up arrived, Manuel patted appellant down and "immediately felt something hard in the back," which was a 9mm Luger. There was one round in the chamber and six in the magazine. Manuel took note of the serial number from the gun and later found it was stolen. Appellant was then taken into custody and Mohasin was told officers had made an arrest. After placing appellant under arrest, Manuel searched appellant's pants pockets and found "a little bag with green stuff that looked like marijuana." Appellant's trial counsel objected stating, "Your Honor, I'm going to object again. This is another extraneous offense that there is nothing from a lab report or anything like that showing what this green leafy substance is." The objection was overruled. Manuel testified that, based on his training and experience, the substance appeared to be marijuana. The prosecutor then continued her direct examination:Q. [PROSECUTOR:] And was there another — a smaller baggie of a white substance found within that green — that green baggie? Was it — was there one found?
A. Yes.
Q. And —
[DEFENSE COUNSEL:] Your Honor, I'll object to that, as well.
Q. [PROSECUTOR:] And you don't —
THE COURT: Do you have any more questions on that?
[PROSECUTOR:]Yes.
THE COURT: Okay.
Q. [PROSECUTOR:] And you're not — you're not here to testify what — to what that —
A. No.
Q. — substance is?
A. No.
Q. You're here to testify that it's a white —
A. Right.
Q. — powdery substance.
A. Right.
Q. Correct?
A. Right.
Q. Which may or may not be cocaine?
A. Right.
[PROSECUTOR:] Okay.
[DEFENSE COUNSEL:] Your Honor, again, I would object.
THE COURT: Overruled.Shortly thereafter, the State offered the substances found in appellant's pockets into evidence as State's exhibit number six. After questioning Manuel on voir dire, defense counsel objected "as to chain of custody." The trial court overruled the objection. The prosecutor also asked Tanya Gooden, an officer with the Dallas Police Department who was present when appellant was searched, whether she was "present when the drugs were found?" She answered, "Yes, ma'am." Defense counsel objected, stating, "Your Honor, again, I'm going to object to something being characterized as drugs without a lab analysis." The objection was overruled. She was later asked, without objection from defense counsel, whether, "from your training and experience, that green stuff's marijuana, right?" Gooden responded, "Yes, ma'am." During the conference on the jury charge, appellant's trial counsel requested and received the following instruction limiting the jury's consideration of extraneous offense evidence:
You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the motive, intent, preparation or plan of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.The defense rested without presenting any evidence. During closing arguments, the prosecutor commented on the items that were found in appellant's possession when he was arrested:
Unluckiest man found with a pistol, two shells are missing, same area, 4:00 o'clock in the morning, only two hours later, drugs in his pocket, twenty-eight dollars in his pocket, and he's arrested and he still — he — he gets even unluckier because, down at the police station, he says "I want to use the restroom."Defense counsel did not object to these remarks and did not mention them in his closing argument. Preservation of Error In addition to arguing the extraneous offense evidence was admissible under rules 403 and 404(b), the State also claims appellant waived his complaints because defense counsel's "extraneous offense" objections were too general to preserve the issues for appellant review. We agree appellant's rule 403 complaint is not preserved for appellate review. Defense counsel did not invoke rule 403 or claim the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. He raised only a general objection concerning the extraneous nature of the evidence. A rule 403 objection is not implicitly contained within a relevancy or 404(b) objection; rather, a specific rule 403 objection must be raised to preserve the issue for appellate review. See Lopez v. State, 200 S.W.3d 246, 251 (Tex.App.-Houston [14th Dist. 2006, pet. filed) (citing Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App. 1990) (op. on reh'g)); Weber v. State, 829 S.W.2d 394, 397 (Tex.App.-Beaumont 1992, no pet.) (citing Montgomery, 810 S.W.2d at 388). Therefore, appellant's argument that Manuel's testimony was more prejudicial than probative under rule 403 is not preserved for appeal. We do not agree, however, with the State's contention that appellant waived his complaint under rule 404(b). As other courts have noted, the court of criminal appeals allows review under rule 404(b) even though an appellant does not precisely recite rule 404(b) when making the objection to the trial court. See, e.g., Lopez, 200 S.W.3d at 251 (citing Montgomery, 810 S.W.3d at 387). Harm Analysis In the present case, however, we need not explore the State's theories of admissibility because we conclude the error, if any, committed by the trial court in overruling defense counsel's objections was harmless. Therefore, for purposes of this analysis, we will assume error and address appellant's contention that the error was harmful. Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any non-constitutional error that does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). The erroneous admission of an extraneous offense is non-constitutional error. Johnson v. State, 84 S.W.3d 726, 729 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the trial court's instructions to the jury, the State's theory, any defensive theories, closing arguments, and even voir dire if material to the appellant's claim. Motilla, 78 S.W.3d at 355-56; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 355; Morales, 32 S.W.3d at 867. Whether the State emphasized the error can be a factor. Motilla, 78 S.W.3d at 356. The weight of the evidence of appellant's guilt is also relevant in conducting the harm analysis under rule 44.2(b). Id. at 359-60. In the present case, after examining the record as a whole, we have a fair assurance the error, if any, did not influence the jury or had but a slight effect and did not affect any substantial right. The only potential significance of the evidence is that it might have allowed the jury to infer appellant robbed the victim in order to buy the drugs which were found in his possession when he was arrested. But the testimony at issue occupies only a small portion of the trial record and concerns allegations that are far less serious than the charged offense, minimizing the prejudicial effect of the evidence even in the absence of a contemporaneous limiting instruction. Second, appellant received a limiting instruction in the jury charge which further reduced the risk the jury might misuse the evidence during its deliberations. See Jones v. State, 944 S.W.2d 653, 654 (Tex.Crim.App. 1996). Furthermore, a plethora of evidence establishes his guilt. In addition to the complainant's testimony positively identifying him as the armed robber, the evidence also shows appellant was found in the vicinity of the robbery only two hours after it occurred; he was wearing the same distinctive clothing described by Mohasin; a loaded gun was found tucked into his waistband; gunshot particle residue found on his hands suggested he had recently discharged a firearm, been close to a discharging firearm, or handled a firearm that had been discharged. Considering the record as a whole, we cannot say the admission of the alleged extraneous offense evidence, if erroneous, affected appellant's substantial rights. We overrule appellant's first issue.
Identification
In his second point of error, appellant contends the complainant's out-of-court "show-up" identification should have been suppressed. He argues the out-of-court identification was impermissibly suggestive and created a very substantial risk of misidentification in violation of his right to due process. The State responds that (1) the issue was not preserved for appellate review, (2) the pretrial "show-up" was not unnecessarily suggestive, and (3) there is no harm to appellant. Background Following voir dire, the trial court held an identification hearing outside the jury's presence. During the hearing, Mohasin identified appellant as the man who robbed him at gunpoint. Mohasin testified that he recognized appellant because he saw his face for approximately thirty minutes while he rode in Mohasin's cab on the night of the robbery. Mohasin explained that he came to the police station on the night of the robbery, saw appellant walking by him, and said, "This is the guy that robbed me, you know, that pulled the gun." He did not view a pretrial photographic lineup of suspects. There were no objections on the record during the identification hearing and there is no reference in the record to a motion to suppress. Nor did appellant object to Mohasin's testimony in front of the jury which identified appellant as the armed robber:Q. [PROSECUTOR:] And you say that the guy walked back to go to the bathroom or something.
A. [MOHASIN:] Yes.
Q. What — who are you talking about?
A. That's the guy that robbed me.
Q. The guy that robbed you.
A. Yeah.
Q. The Defendant?
A. Yes.
Q. Okay. And — and did — you say they — what did you tell the police when you saw him?
A. I said, "This is guy [sic] robbed me."
Q. You told the police this is the guy that robbed you?
A. Yes.Preservation of Error Texas Rule of Appellate Procedure 33 governs the preservation of appellate complaints. Tex. R. App. P. 33.1. To preserve error for appellate review under rule 33.1(a), the record must show that the complaining party made a timely and specific request, objection, or motion, and the trial court expressly or implicitly (1) ruled on the request, objection, or motion or (2) refused to rule and the complaining party objected to that refusal. Id.; see also Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App. 2003). Texas courts stringently apply the contemporaneous objection rule in the context of improper identification. Without an objection to an in-court identification or to testimony based on an impermissibly suggestive identification procedure, no error is preserved. See Perry v. State, 703 S.W.2d 668, 671 (Tex.Crim.App. 1986) (finding waiver because defendant failed to object or complain about the out-of-court identification procedure at trial). "Holding otherwise would only lead to the absurd result of forcing the trial judge to examine the procedural background of the case and then sua sponte suppress identification evidence. Such is not the role of the trial judge." In re G.A.T., 16 S.W.3d 818, 826 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Although the trial court held an identification hearing, appellant did not file a motion to suppress or object when the out-of-court identification testimony was presented at trial. Accordingly, he failed to preserve his complaint of an impermissibly suggestive out-of-court identification since he did not object when the testimony was admitted at trial. Applicable Law Assuming error was preserved, we further conclude the "show-up" identification was not conducive to a substantial likelihood of irreparable misidentification. 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. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). Determining the admissibility of an in-court identification involves a two-step analysis: (1) whether the out-of-court identification procedure was impermissibly suggestive and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Each case must be considered on its own facts. Simmons, 390 U.S. at 384. In addition, the analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 385. The defendant must prove the two elements by clear and convincing evidence. Barley, 906 S.W.2d at 33-34. If the defendant meets this burden, the in-court identification is inadmissible unless the State can prove by clear and convincing evidence that the identification was of "independent origin." See United States v. Wade, 388 U.S. 218, 240 (1967); Williams v. State, 477 S.W.2d 885, 889 (Tex.Crim.App. 1972). Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). Testimony is reliable if the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure. See Loserth, 963 S.W.2d at 772. Courts consider five nonexclusive factors to assess reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (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 length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Loserth, 963 S.W.2d at 772. We view these factors in the light most favorable to the trial court's ruling. Ibarra v. State, 11 S.W.3d 189, 195-96 (Tex.Crim.App. 1999). The factors are then reviewed de novo against "the corrupting effect" of the suggestive pretrial identification procedure. Id.; Loserth, 963 S.W.2d at 773-74. One man "show-ups" are generally considered suggestive identification procedures but their suggestiveness does not necessarily render a later in-court identification inadmissible. See Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App. 1981) (op. on reh'g). Evidence of a one man "show-up," without more, is not unnecessarily suggestive and does not violate due process. See Biggers, 409 U.S. at 198; Garza, 633 S.W.2d at 512 (such a procedure may be appropriate when the confrontation occurs at the scene of the crime shortly after the offense while the witnesses' memories are still fresh); Stewart v. State, 198 S.W.3d 60, 63 (Tex.App.-Fort Worth 2006, no pet.) ("[A]lthough a one-man show-up does not in and of itself violate due process, it does carry with it a degree of suggestiveness. On the other hand, it also allows the police to quickly release a person who has been seized but is not the perpetrator."). Analysis In the present case, appellant claims the one man "show-up" was unnecessarily suggestive because an officer called Mohasin and told him the police had a person in custody, thereby suggesting the individual in custody was the robber. He points out Mohasin admitted that, when he arrived at the police station, he expected to see the robber because a police officer had told him, "We've got the man." He claims the police walked appellant past Mohasin in an obvious attempt to get Mohasin to identify appellant as the robber. According to the record, Mohasin testified he was one hundred percent sure when he identified appellant at the police station because appellant was still wearing the t-shirt Mohasin saw him wearing at the time of the robbery. Mohasin's description of the suspect's clothing was distinct and unique. An officer testified that the t-shirt worn by appellant at the time he was arrested and brought to the police station was not a commonly seen piece of clothing. Nothing in the record suggests the officers at the police station prompted or encouraged Mohasin's identification of appellant. Furthermore, the record shows the identification occurred within two hours of the crime and Mohasin's identification was immediate and certain. During the trial, Mohasin explained his in-court identification of appellant was based on seeing appellant's face at three distinct times before the robbery occurred. Under these circumstances, we cannot conclude the identification of appellant was tainted by the one-man "show-up." See Biggers, 409 U.S. at 198; Garza, 633 S.W.2d at 512; see also Webb, 760 S.W.2d at 273. We overrule appellant's second issue.