Opinion
No. 05-08-00494-CR
Opinion issued April 21, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-72706-PI.
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Kenneth Dale Penney was indicted for the first-degree felony offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2), (b) (Vernon 2003) (committing robbery and using or exhibiting deadly weapon). The indictment also alleged Penney had twice previously been convicted of felony offenses. See id. § 12.42(d) (Vernon Supp. 2008). On a plea of not guilty, a jury convicted him of aggravated robbery. On a plea of true, the jury found both enhancement paragraphs true, and it assessed punishment at seventy years' confinement. In seven issues, Penney contends: (1) the evidence is factually insufficient to support the conviction because Penney was "misidentified" as the robber; (2) the trial court erred by failing to suppress the complainant's in-court identification of Penney as the robber because it was based on an impermissibly suggestive pretrial photographic array; (3) the trial court improperly ruled that Penney "opened the door" to evidence of an extraneous offense; (4) the State failed to provide the defense with timely notice of its intent to offer evidence, during the punishment phase, of three extraneous offenses; and (5) Penney received ineffective assistance of counsel. For the reasons set forth below, we resolve Penney's issues against him and affirm the trial court's judgment.
I. BACKGROUND
Outside the presence of the jury, the complainant, Amadou Sonko, testified that, four days after he was robbed, a detective showed him six pictures and asked him to identify the robber. Sonko picked out a picture of Penney and identified Penney in court. Penney argued that the photographic array was "not sufficiently close to the appearance of [Penney] to be worthwhile" and objected to admission of the identification. The trial court overruled Penney's objection. Before the jury, Sonko testified he was working at a gas station convenience store cash register at Plano Road and Northwest Highway after 6:00 p.m. on November 12, 2006, a Sunday evening. A customer, identified by Sonko as Penney, entered the store, picked up several items, including two bottles of soda, placed them on the counter by Sonko, and browsed through the videos. After some other customers bought items and left, Penney approached the cash register, pulled a gun, and told Sonko to open the cash register. Sonko tried to run, but Penney chased him and told him he was "not playing." Sonko finally opened the register. Penney told Sonko to lie down behind the counter, grabbed money from the register, and left. Sonko followed him and saw him leave in a small truck, but he did not see a passenger. Sonko testified he could see Penney's face; he had a mustache, blonde hair, and was in his 50s. He was about five feet, six inches and was "not a heavy man." Sonko testified he wore a yellow cap, a yellow shirt, and a jacket or sweatshirt. Sonko had never seen him before. Sonko identified Penney in court as the robber. He was also shown a photographic array and identified Penney as the robber. The array was admitted as State's Exhibit 1. Penney testified he "independently recognized [Penney's] eyes." Testimony established that fingerprints collected from the bottles on the counter matched Penney's fingerprints. An investigating police officer testified Sonko told him the robber was wearing a red (not a yellow) shirt. In addition, a surveillance video of the interior of the store showed "a white male matching [Sonko's] description" to the police officer robbing the store as Sonko described. Penney testified that, at the time of trial (about one and one-half years after the incident), he was forty-seven years old. He testified that on the day of the incident, he was working in the northwest part of the Dallas metropolitan area, repairing a furnace and air conditioners at two locations. He was working with his daughter's boyfriend. They left the second job about 8:30 or 9:00 p.m., during half-time of a televised football game. They drove to Penney's home in Pleasant Grove and finished watching the game there, with other family members. Penney testified he had lived previously, for four years, about five blocks from the store, and went into the store once or twice a month; he had been to the gas station convenience store to buy gas and items, including sodas. He recognized Sonko but had never spoken to him. He said Sonko was mistaken about identifying him as the robber. He said he had picked up his daughter's boyfriend, who lived "two houses" from the store, both the day before and the day of the incident, and he may have bought gas and ice cream sandwiches from the store one of those days. But he denied being in the store about 6:30 p.m. on the day it was robbed. On cross-examination, the State showed Penney a schedule showing a football game started at 4:15 p.m. EST on November 12, 2006, but no game was listed for 7:00 p.m. Penney said those schedules were not always correct. The State played the surveillance video. Penney denied he was the person robbing the store. But his testimony as to the robber's clothing in the video matched Sonko's description of it to the investigating officer, including that the robber wore a red shirt. Penney was arrested two days after the incident. He was shown his book-in photograph, marked as State's Exhibit 14, and asked whether it "fairly and accurately represent[ed]" how he looked that day. Penney replied, "After the beating, yes." The State argued Penney opened the door to an extraneous offense-namely, that he was arrested after a police chase in which he was driving a stolen vehicle and carrying a gun. Penney objected that the State "made him say it." The trial court overruled the objection and, at Penney's request, held a hearing outside the presence of the jury. Counsel argued further that the State brought up extraneous offenses with its exhibit, not any response to counsel's question. In addition, there had been no notice of such extraneous offenses. After further argument, the trial court again overruled the objection. Before the jury, Penney admitted the above-described circumstances of his arrest. During the punishment phase, Penney objected to the State's intention to produce evidence of extraneous offenses on grounds that he had not received written notification from the State pursuant to code of criminal procedure article 37.07 as he requested in a pretrial motion. After hearing argument, the trial court denied the objection. The State offered evidence through testimony and State's Exhibit 17, the video from a police squad car, of the chase preceding Penney's arrest. The State also offered evidence of a November 6, 2006 burglary and a November 13, 2006 home invasion/aggravated robbery, both connected to Penney. The trial court pronounced sentence in accordance with the jury's verdict. Penney's motion for new trial was overruled by operation of law. This appeal followed.II. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Penney contends the evidence is factually insufficient to support the conviction because the testimony shows he was misidentified as the robber.A. Standard of Review and Applicable Law
In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether: (1) the evidence supporting the conviction is too weak to support the factfinder's verdict, or, (2) considering conflicting evidence, the factfinder's verdict is "against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). We must defer to the jury's findings. Id. We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. A factual sufficiency reversal certainly may not occur when the evidence actually preponderates in favor of conviction. Steadman v. State, No. PD-1311-08, 2009 WL 838550, at *4 (Tex.Crim.App. Apr. 1, 2009). In our sufficiency review, we consider all the evidence admitted at trial, even improperly admitted evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). The factual sufficiency of evidence to support a conviction is measured by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 261 (Tex.Crim.App. 2008) (citing Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997)). When the presence of the accused at the time and place of the crime is essential to a finding of guilt, the State has the burden of proof beyond a reasonable doubt on that element of the offense. Drake v. State, 860 S.W.2d 182, 185 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd).B. Discussion
The evidence supporting Penney's conviction consists of Sonko's identification of him as the robber, the fingerprints from the bottles that match Penney's, and the surveillance video supporting Sonko's description to the investigating officer of the robber's physical build and clothes. First, Penney attacks Sonko's identification on grounds it was tainted by an impermissibly suggestive photographic array. However, in a factual sufficiency review, we consider all evidence whether properly or improperly admitted. See Moff, 131 S.W.3d at 488. Thus, Penney's argument under his first issue based on the admissibility of this evidence is misplaced. Next, Penney argues Sonko was unable to identify the robber accurately because: (1) he first testified at trial that the robber wore a yellow shirt, but he had told the investigating officer the shirt was red, and the surveillance video showed the robber wore a red shirt; and (2) Sonko misremembered an incident shortly before the robbery when he called the manager for a price check, testifying the incident involved the robber when later testimony clarified it involved the customer before the robber. Contradictions in testimony go to the weight to be given that testimony. See Johnson v. State, 454 S.W.2d 205, 206-07 (Tex.Crim.App. 1970). The jury is the ultimate authority as to the credibility of witnesses and the weight to be given their testimony. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). Next, Penney directs us to his testimony he had been in the store previously, explaining the fingerprints by his previous visits and open shelves available to the public. However, Penney's reliance on Phelps v. State, 594 S.W.2d 434 (Tex.Crim.App. 1980), is misplaced. In that case, the eye-witness to a murder was unable to identify the appellant as the murderer, and the only evidence linking the appellant to the crime were two latent fingerprints at the scene. Id. at 435. Phelps's discussion of the sufficiency of fingerprint evidence is unhelpful because here there is direct, not just circumstantial-"fingerprints, standing alone"-evidence as in that case. See id. at 436. Moreover, although Penney testified he had been in the store previously, he did not testify that he had handled the merchandise found to bear his fingerprints. Finally, Penney directs our attention to the poor quality of the surveillance videotape and his testimony explaining the evidence and alibi. In our factual sufficiency review, we consider the existence of alternative reasonable hypotheses, which may be relevant but are not determinative. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). When an appellant identifies an alternative reasonable hypothesis raised by the evidence, the standard of review remains the same. See Laster, 275 S.W.3d at 518; Richardson v. State, 973 S.W.2d 384, 387 (Tex.App.-Dallas 1998, no pet.). Penney's arguments are directed to the weight and credibility of the evidence, which is the jury's province. See Penagraph, 623 S.W.2d at 343. Having reviewed all the evidence, including that outlined above specifically concerning identification of Penney as the robber, under the appropriate standard of review, we cannot conclude the evidence is factually insufficient to support the conviction. We resolve Penney's first issue against him.III. IN-COURT IDENTIFICATION
In his second issue, Penney contends the trial court erred by failing to suppress Sonko's in-court identification of Penney as the robber because the pretrial identification procedure was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification.A. Applicable Law and Standard of Review
A pretrial identification procedure may be so suggestive and conducive to misidentification that it would deny the defendant due process of law if the out-of-court identification is used at trial. See Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App. 1995). Similarly, an in-court identification is inadmissible if tainted by such an unduly suggestive pretrial identification procedure. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998). The test is whether, considering the totality of the circumstances, the procedure: (1) was impermissibly suggestive; and, if so, (2) gave rise to a very substantial likelihood of irreparable misidentification. Id. at 772; Barley, 906 S.W.2d at 33. Appellant has the burden to show by clear and convincing evidence that the in-court identification was irreparably tainted. Barley, 906 S.W.2d at 33-34. In reviewing a trial court's ruling on a motion to suppress an in-court identification, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Loserth, 963 S.W.2d at 772-73.B. Discussion
The array shows Penney's photograph first, followed by five photographs of men of the same general age and appearance as Penney. Penney first argues that the detective's statement to Sonko that "a possible suspect" had been developed by the police would have suggested the robber's photograph would be included in the array. However, a photographic array is not rendered impermissibly suggestive simply because the complainant is told it contains a suspect because the complainant would normally assume that to be the case. Harris v. State, 827 S.W.2d 949, 959 (Tex.Crim.App. 1992); Rojas v. State, 171 S.W.3d 442, 448 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Next, Penney argues his photograph "differs significantly from the others": the second photograph is of a "much younger" man; the third shows a younger man with darker hair; the fourth and fifth show older men with darker hair; and the fifth shows a man with different facial features, such as an elongated neck. A photo array should depict persons of the same age, race, general skin color, and height as the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex.App.-Dallas 1999, pet. ref'd). The mere fact that participants in the array do not perfectly match the physical description of the suspect does not render the lineup impermissibly suggestive. See id. This array shows six men of the same general age, race, and skin color, all but one with light hair. Their eyes look similar-Sonko testified he recognized Penney's eyes-and they all appear to have facial hair. Because the pretrial identification procedure used in this case included photographs of Penney and other individuals similar in appearance, we conclude it was not impermissibly suggestive. See id. See also Colgin v. State, 132 S.W.3d 526, 532 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (describing array of individuals with same general traits and "no gross disparities"). Because Penney is unable to satisfy by clear and convincing evidence the first part of the two-part test outlined in Loserth, we need not and do not address the second prong of the test. See Loserth, 963 S.W.2d at 772-73; Barley, 906 S.W.2d at 33. We resolve Penney's second issue against him.IV. ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE
A. Guilt/Innocence Phase
In his third issue, Penney directs our attention to admission of testimony regarding the chase preceding his arrest and contends the trial court erred by overruling his objection that he did not "open the door" to this evidence.1. Applicable Law and Standard of Review
Rule of evidence 107 is the "Rule of Optional Completeness": When part of an act, declaration, conversation, written or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence,. . . . . Tex. R. Evid. 107. Rule 107 is one of admissibility and permits the introduction of otherwise inadmissible evidence when that evidence is necessary to explain fully and fairly a matter "opened up" by the adverse party. Credille v. State, 925 S.W.2d 112, 116 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The purpose of the rule is to reduce the possibility of the jury receiving a false impression from hearing only part of some act, conversation, or writing. Id. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Sherman v. State, 20 S.W.3d. 96, 100 (Tex.App.-Texarkana 2000, no pet.). This inquiry depends on the facts of each case. Id.2. Discussion
Penney argues he did not "open the door" by answering the State's "open-ended question." He argues his answer "after the beating" was neither misleading nor created a false impression before the jury. We disagree. In response to a question seeking a yes-or-no answer, Penney volunteered information that suggested police brutality in his arrest. Penney thereby "opened up" the matter of the circumstances of his arrest, permitting the State to elicit additional evidence to explain fully and fairly those circumstances. See Tex. R. Evid. 107; Credille, 925 S.W.2d at 116. Discerning no abuse of discretion in the admission of this evidence, see Sherman, 20 S.W3d at 100, we resolve Penney's third issue against him.B. Punishment Phase
In his fourth, fifth, and sixth issues, Penney contends the State failed to provide him with timely notice of its intent to offer testimony and evidence at the punishment phase concerning his arrest and the two other November 2006 incidents.1. Applicable Law
Code of criminal procedure article 37.07, section 3(g) provides, in pertinent part:On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. . . . The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Tex. Code Crim. Proc. Ann. art. 37.07(3)(g) (Vernon Supp. 2008). A discovery motion requests the trial court's action, that is, an order from the court directing the State to produce evidence. Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App. 1998) (citing Espinosa v. State, 853 S.W.2d 36, 38 (Tex.Crim.App. 1993) (per curiam)). A discovery motion is therefore not effective until the trial court rules on it. Id. A self-operating "request" is directed to a party and instructs the party to take some action without the necessity of intervention by the court. President v. State, 926 S.W.2d 805, 808 (Tex.App.-Austin 1996, pet. ref'd).