Opinion
No. 11-18-00124-CR
05-07-2020
DOUGLAS ALLAN SKAGGS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court Ector County, Texas
Trial Court Cause No. C-17-0836-CR
MEMORANDUM OPINION
Appellant, Douglas Allan Skaggs, pleaded guilty to aggravated robbery and true to two enhancement paragraphs, and the jury assessed his punishment at confinement for a term of fifty years in the Institutional Division of the Texas Department of Criminal Justice. In one issue, Appellant asserts that the trial court's failure to suppress Lori Pena's identification of Appellant as the robber deprived him of due process of law. We affirm.
Background
Appellant was charged with aggravated robbery of a 7-Eleven convenience store. Pena, the clerk at the convenience store at the time of the robbery, identified Appellant as the robber at a one-person "showup." Appellant filed a motion to suppress Pena's pretrial identification of Appellant as the robber as well as any testimony by Pena during trial that Appellant was the robber.
A "showup" is "[a] police procedure in which a suspect is shown singly to a witness for identification, rather than as part of a lineup." Showup, BLACK'S LAW DICTIONARY (10th ed. 2014). "In a showup, a witness is brought to the scene and asked whether a detained or arrested suspect is the perpetrator." Id.
At the hearing on the motion to suppress, the State presented surveillance videos from the 7-Eleven and from Homemade Wines, which was located behind the 7-Eleven. The surveillance video from Homemade Wines shows that a white, single cab Ford pickup entered the parking lot and stopped behind the 7-Eleven. The pickup did not have a front bumper, had damage on the panel above the right rear passenger tire, had two tires with distinctive rims, and had a black toolbox in the bed. The video shows that a man got out of the vehicle and walked toward the alley by the 7-Eleven.
The surveillance video from the 7-Eleven shows that, at approximately 1:00 p.m., a man wearing blue pants, a blue shirt, and a baseball cap walked out of the alley, entered the store, and robbed Pena. Pena testified that the man removed a case of beer from the cooler and took it to the counter. The man was "right in front of the counter," probably two or three feet away from Pena, and Pena saw the man's face. When Pena approached the cash register, the man displayed a knife and told Pena to give him all the money in the register. According to Pena, at that point, she was "a hundred percent paying attention."
After Pena gave the man the money from the cash register, he instructed her to also give him some Marlboro cigarettes. When Pena retrieved a package of cigarettes, the man told her to get five packages. He then left the store and turned left. Pena could see the man as he walked past the store window. The surveillance video from Homemade Wines shows that the man came out of the alley from the direction of the 7-Eleven, got into the pickup, and drove away.
Pena pressed the silent alarm and called 9-1-1. Police officers responded within five minutes of the robbery. Pena told Sergeant Christopher Aguilar that the robber was a man wearing a cap and that she could identify the robber if she saw him again.
Officer Anthony Rossman watched the surveillance videos at the 7-Eleven and at Homemade Wines. Officer Rossman "put out" an "attempt to locate" that included a description of the pickup. At approximately 2:30 p.m., Officer David Muniz saw a pickup that matched the description given by Officer Rossman. Appellant, who was putting gas into the pickup, was detained approximately two miles from the location of the robbery.
Although the Odessa Police Department's standard operating procedures discourage the use of a "showup," Sergeant Aguilar asked Pena if she would determine whether Appellant was the robber. Sergeant Aguilar specifically told Pena that it was as important to exclude an innocent person as it was to identify the perpetrator. Pena stated that she understood.
Sergeant Aguilar drove Pena to the location where Appellant was detained. While Sergeant Aguilar and Pena were en route, another officer indicated over the radio that Appellant was on the southwest side of the gas pumps and was wearing a white tank top. During the showup, Appellant was wearing a white tank top, was standing between two uniformed police officers, and was possibly in handcuffs.
At 2:48 p.m., Pena identified Appellant as the robber and indicated that she was 99% sure of the identification. Pena then asked Sergeant Aguilar to drive closer to Appellant. After Sergeant Aguilar did so, Pena stated that she was 100% certain that Appellant was the robber. Pena specifically testified that she "remembered his face."
The trial court made oral findings (1) that Pena heard over the radio that Appellant was being detained at a specific location; (2) that Pena had an "excellent" opportunity to view the criminal at the scene of the crime; (3) that, when the robber came to the counter, he stood directly in front of Pena and his face "was just a matter of inches" from Pena's face; (4) that Pena observed the robber very closely during and after the robbery; (5) that Pena's "degree of attention" was "very high" and became "crystal clear" when she saw the knife; (6) that Pena's level of certainty of her identification was "extremely high"; (7) that Pena's prior description of the robber was "extremely limited" but that the accuracy of the description was "high"; and (8) that only approximately one hour and forty minutes elapsed between the time of the crime and Pena's identification of Appellant as the robber. Based on these findings, the trial court determined that the admission of Pena's identification of Appellant "was not so extremely unfair that its admission violate[d] fundamental conceptions of justice." The trial court determined that the admission of evidence about Pena's identification of Appellant as the robber would not violate Appellant's due process rights and denied the motion to suppress.
At trial, Appellant pleaded guilty to the charge of aggravated robbery and true to two enhancement paragraphs. The trial court found Appellant guilty, and the jury assessed punishment at confinement for fifty years.
Analysis
In his sole issue, Appellant contends that the trial court erred when it denied the motion to suppress Pena's identification of Appellant as the robber because the showup procedure that the police used to facilitate the identification violated Appellant's right to due process.
A pretrial identification procedure such as a showup "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." Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995); see also August v. State, 588 S.W.3d 704, 710 (Tex. App.—Houston [14th Dist.] 2019, no pet.). However, "the admission of evidence of a one man showup without more does not violate due process." Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)); see also Balderas v. State, 517 S.W.3d 756, 791 (Tex. Crim. App. 2016) ("The Due Process Clause bars the admission of identification evidence only when the introduction of such evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'" (quoting Perry v. New Hampshire, 565 U.S. 228, 237 (2012))). Rather, the admission of such evidence violates due process only if (1) the out-of-court identification procedure was impermissibly or unnecessarily suggestive and (2) the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Garza, 633 S.W.2d at 512; see also Balderas, 517 S.W.3d at 792; August, 588 S.W.3d at 710.
As related to the admission of evidence of a pretrial identification procedure, the Texas Court of Criminal Appeals has used "impermissibly" and "unnecessarily" without distinguishing between the terms. Barley, 906 S.W.2d at 33 n.7.
The defendant has the burden to prove both of these elements by clear and convincing evidence. Balderas, 517 S.W.3d at 792; Barley, 906 S.W.2d at 34. In this case, even if we assume that the identification procedure used was impermissibly suggestive, Appellant has failed to establish that the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Therefore, we will address only the second element.
An impermissibly suggestive pretrial identification procedure does not violate due process if the identification possesses sufficient aspects of reliability under the totality of the circumstances. Garza, 633 S.W.2d at 512-13; see also Balderas, 517 S.W.3d at 792. Reliability is the linchpin in the determination of the admissibility of identification testimony. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). In our analysis of the reliability of the identification, we consider five nonexclusive factors: (1) the witness's opportunity to view the assailant at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the assailant, (4) the witness's level of certainty at the time of the confrontation, and (5) the length of time between the crime and the confrontation. Garza, 633 S.W.2d at 513; see also Balderas, 517 S.W.3d at 792. These factors are then weighed "against the corrupting effect of any suggestive identification procedures." Barley, 906 S.W.2d at 35; see also Balderas, 517 S.W.3d at 792. If the indicia of reliability outweigh the apparent corrupting effect of the impermissibly suggestive procedure, the identification testimony is admissible. Barley, 906 S.W.2d at 34; August, 588 S.W.3d at 710.
Because the reliability factors are issues of historical fact, we review the trial court's assessment of those factors deferentially in a light favorable to the trial court's ruling. Balderas, 517 S.W.3d at 792. We review de novo the question of whether a pretrial identification procedure amounted to a denial of due process. Id.; August, 588 S.W.3d at 710.
The evidence at the suppression hearing established that the robbery took place at approximately 1:00 p.m. in a well-lit store. Pena saw the robber when he walked into the store and was within two to three feet of the robber when he brought the case of beer to the counter. After Pena handed the robber the money, he ordered her to give him some Marlboro cigarettes. Pena got a package of cigarettes, but the robber told her to get five packages. Pena had the opportunity to observe the robber throughout this interaction and continued to observe him through the store window as he left. As the trial court found, Pena had an excellent opportunity to view the robber. See Barley, 906 S.W.2d at 35 (having an unobstructed frontal view of the perpetrator from a close distance in a well-lit store at the time of the crime indicates that the pretrial identification is sufficiently reliable).
Pena also paid close attention to the robber. According to Pena, after she saw the knife, she paid 100% attention to the robber and remembered his face. As the victim of the robbery, Pena was more than just a "casual observer" of the crime and had "more reason to be attentive" to the perpetrator of the robbery. See id. Further, although Pena provided only a very general description of the robber to Sergeant Aguilar, she immediately indicated that she would be able to identify the robber. See Aviles-Barroso v. State, 477 S.W.3d 363, 389-90 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (noting that, although victim provided only a general description of the assailant's voice, her immediate statement that she could identify the voice supported determination that identification was reliable).
When Pena arrived at the scene where Appellant was detained, she immediately identified Appellant as the robber with 99% certainty. Pena asked Sergeant Aguilar to move the car closer to Appellant. After Sergeant Aguilar did so, Pena indicated that she was 100% certain that Appellant was the robber. See Nunez-Marquez v. State, 501 S.W.3d 226, 238 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (holding that showup did not give rise to substantial likelihood of irreparable misidentification when the witnesses immediately and unequivocally identified the defendant as the perpetrator).
Finally, the showup identification took place only one hour and forty minutes after the robbery. Pena, therefore, had the opportunity to view Appellant while the offense was still fresh in her memory, reducing the likelihood of misidentification. See id. (noting that showup that occurred between two and three hours after the robbery reduced the likelihood of misidentification because the witnesses had the opportunity to view the defendant while the offense was still fresh in their memories).
We hold that, even if the showup identification procedure used in this case was impermissibly suggestive, the totality of the circumstances, viewed in the light most favorable to the trial court's ruling, shows no substantial likelihood of irreparable misidentification. See Gamboa v. State, 296 S.W.3d 574, 581-82 (Tex. Crim. App. 2009); Garza, 633 S.W.2d at 513. Therefore, the trial court did not err when it denied Appellant's motion to suppress. We overrule Appellant's sole issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE May 7, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.