Opinion
No. 05-05-00366-CR
Opinion Filed October 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F04-49254-VK. Affirmed.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Lakendrick Ward of the murder of Gary West at the Dallas Inn on November 30, 2003 and sentenced him to twenty-nine years' confinement. In four issues, appellant argues the evidence is factually insufficient to support the conviction; the trial court erred by overruling his pretrial motion to suppress the in-court identification; and the trial court erred by overruling his objection to the prosecutor's improper jury arguments. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4.
Factual Sufficiency of the Evidence
In his first issue, appellant argues the evidence is factually insufficient to support the conviction. He argues the State could not have met its beyond-a-reasonable-doubt burden of proof because the evidence contrary to guilt outweighs the evidence supporting guilt. In a challenge to the factual sufficiency of the evidence, we review the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272 at *8-10 (Tex.Crim.App. Oct. 18, 2006). Under this review, the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The jury may accept or reject any or all of the evidence. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). We will only reverse a jury's verdict if the record clearly shows a different result is required to prevent a manifest injustice. See Watson, 2006 WL 2956272 at *10; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). The testimony revealed that three people saw appellant at the Dallas Inn on the night of November 29, 2003 and the early morning hours of November 30, 2003. Two of these actually witnessed the crime and identified appellant as the person they saw shoot West. A fourth witness, who was not at the Dallas Inn that night, testified appellant told her before November 29 that he was going to kill West over drugs and money. She also testified appellant called her after November 30 and told her he had killed West. Appellant's cell phone records showed he made thirteen calls to the Dallas Inn within two hours after the incident. One of the eyewitnesses testified appellant called her the day of the incident and asked if West was dead. The evidence also showed that the two eyewitnesses gave statements to police and that their statements were inconsistent with each other about some details of the incident. Additionally, portions of their trial testimony conflicted with their statements. All but one of the witnesses at the Dallas Inn that night had been using drugs and admitted they were high when the incident occurred. The only witness not using drugs that night initially identified another person, Sylvester Hampton, as the shooter. Hampton was one of two other suspects identified during the investigation. The other suspect was never interviewed. Fingerprints taken from the crime scene did not match appellant's prints and were not compared to Hampton's or the other suspect's prints. Appellant argues that none of the testimony was consistent, the witnesses told stories that could not be corroborated, the police conducted an incomplete investigation, two other suspects had been identified as the shooter, the witnesses were unreliable because all but one admitted to being high on drugs, and the fingerprints lifted from the crime scene did not match appellant's. But defense counsel thoroughly cross-examined each witness about these inconsistencies and their motives for testifying, and all of appellant's complaints are issues of credibility and weight of the evidence, which the jury resolved against him. Having reviewed all of the evidence under the proper standard, we conclude the evidence is factually sufficient to support the conviction. We overrule appellant's first issue.Motion to Suppress In-Court Identification
In his second issue, appellant argues the trial court erred by overruling his motion to suppress the in-court identification by Drucilla Jones and James Rogers because of an impermissibly suggestive pretrial identification procedure. In his motion, appellant asked the court to suppress the in-court identification of "any identification witness." But at the hearing on the motion, appellant asked only that the in-court identification by James Rogers be suppressed. As a result, we conclude appellant has not preserved error on his complaint about Drucilla Jones. See Tex.R.App.P. 33.1(a)(1)(A). Appellant complains that James Rogers initially positively identified Sylvester Hampton as the shooter in a six-photograph lineup but, two months later, was shown a single photograph, this time of appellant, and identified him as the shooter. Rogers also identified appellant as the shooter during his trial testimony. Appellant argues this was a coercive police tactic resulting in a tainted in-court identification. An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998). The concern is whether the in-court identification is reliable. See id. at 772. In determining admissibility, the test is whether, considering the totality of the circumstances, "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification." Id. (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). The defendant bears the burden to show by clear and convincing evidence that the out-of-court identification was impermissibly suggestive and that the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384; Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). We review the issue de novo because it is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. Loserth, 963 S.W.2d at 772-73. However, we afford almost total deference to a trial court's determination of historical facts, expressed or implied, that the record supports when those findings are based on an evaluation of credibility and demeanor. Id. at 772; Loserth v. State, 985 S.W.2d 536, 542 (Tex.App.-San Antonio 1998, pet. ref'd). Courts have cautioned about the improper use of a single photograph to identify a perpetrator because the procedure lacks the traditional safeguards of a lineup or photographic array. See Stovall v. Denno, 388 U.S. 293, 302 (1967); Simmons, 390 U.S. at 383-84; Loserth v. State, 985 S.W.2d at 543-44. Assuming, without deciding, that the single photograph identification procedure was impermissibly suggestive, we turn to the next step in the analysis. In determining whether this identification procedure gave rise to a very substantial likelihood of irreparable misidentification, we consider the facts of the case in relation to the five Biggers factors. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Loserth, 963 S.W.2d at 773. The nonexclusive factors include: (1) the witness's opportunity 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 trial confrontation, and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200; Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App. 1990), overruled on other grounds by Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App. 1992); Loserth, 985 S.W.2d at 543. These factors are issues of historical fact which we consider deferentially in a light favorable to the trial court's ruling. Loserth, 963 S.W.2d at 773. The factors must then be weighed de novo against the corrupting effect of the suggestive pretrial procedure. Id. at 773-74. Rogers testified in and out of the jury's presence that he heard knocking on a door, looked out his window, and saw a woman knocking on the door to room 210 while a man holding a gun stood next to the window. He saw West look out the window and then open the door (he did not think West could see the man standing outside). He said the entire incident happened pretty quickly and that he saw the shooter for about fifteen or twenty seconds. He said there was some light out, even though it was 2:30 in the morning, and that he could see the crime. He saw the man fire the gun twice into the room. The man turned, looked around, and walked off. Rogers watched him as he went down the steps, got into a vehicle, and left. On December 17, 2003, Rogers gave a statement to police about what he saw. The statement does not contain a description of the perpetrator other than he was a man and may have worn or carried a flannel "warm-up" type jacket, and the record does not contain any evidence that Rogers ever described the man he saw fire the gun. At trial, Rogers also testified the jacket was cotton-like and white. He did not state the shooter's race, his height, his weight, the type of haircut he was wearing, or whether he had facial hair. Rogers admitted that he initially picked Hampton as the shooter when he was shown a six-photograph array and that he said he was sure Hampton was the shooter. The picture of Hampton showed a dark-skinned black male from the shoulders up with a close-cut haircut and no apparent facial hair. Rogers also admitted that he picked appellant as the shooter two months later when he was shown the lone photograph. That picture showed a dark-skinned black male from the neck up with a close-cut haircut and a thin moustache. Rogers testified at the hearing and at trial that, as he was sitting in the hallway outside the courtroom, he saw appellant also in the hallway and, looking at appellant's face, he realized appellant was the one he saw shoot West. He told the court and the jury that he was one hundred percent certain appellant was the shooter and that his identification of appellant as the shooter was based on seeing his face, not the photographs. Approximately two weeks passed from the date of the crime on November 30, 2003, until Rogers identified Hampton as the shooter on December 17, 2003. Approximately three months passed between the date of the crime and the date Rogers was shown the lone photograph of appellant on February 16, 2004 and identified him as the shooter. Approximately one year and three months passed between the date of the crime and the date of Rogers's in-court confrontation and identification of appellant. After hearing Rogers's testimony at the hearing on the motion to suppress Rogers's in-court identification, the trial judge asked defense counsel what basis he would have for reaching the conclusion that the photographic identification procedure tainted the in-court identification when Rogers testified that his identification of appellant was based on seeing appellant in person and not on the photograph. Defense counsel responded that "it's pretty clear that was coercive identification and that his subsequent in-court I.D. is a result of coercion by the police in the way they conducted this." But the trial court questioned how he could reach that conclusion when the witness "says unequivocally that that did not influence his identification of the person in court today[.]" Defense counsel asked the court to consider the totality of the circumstances. Because the trial court did not make any express findings concerning the Biggers factors, we must view the facts in a light favorable to the trial court's ruling. Loserth, 985 S.W.2d at 544. At the outset, we note that Rogers had an opportunity to view the person who shot West, and he had the degree of attention necessary to describe what he saw-he was looking out the window specifically to find out what was going on. And because Rogers did not give a description of the shooter prior to his identification of either photograph, there is no basis in the record upon which we may conclude that his first identification was more reliable than his second identification. The two photographs Rogers picked depicted men with similar features. Although he initially told police he was "positive" Hampton was the shooter, Rogers also testified he was not one hundred percent certain who the shooter was until he saw appellant in the hallway. His identification of appellant was unequivocal and was made before he had the opportunity to see appellant sitting in the defendant's chair. Having viewed the evidence under the appropriate standards, we conclude appellant did not carry his burden of showing that the pretrial identification procedure tainted Rogers's in-court identification. See Madden, 799 S.W.2d at 695-96; see also Johnson v. State, 651 S.W.2d 434, 436 (Tex.App.-Dallas 1983, no pet.). We overrule appellant's second issue.Improper Jury Argument
In his third and fourth issues, appellant argues the prosecutor made improper jury arguments and the trial court erred by overruling his objection to the arguments. Proper jury argument generally falls into one of the following categories: (1) summation of the evidence, (2) reasonable deduction drawn from the evidence, (3) answer to opposing counsel's argument, or (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999); Magana v. State, 177 S.W.3d 670, 674 (Tex.App.-Houston [1st Dist.] 2005, no pet.). To determine whether a party's argument falls within one of these categories, we consider the argument in light of the entire record. Magana, 177 S.W.3d at 674. For improper argument to constitute reversible error, it must be extreme or manifestly improper or inject new and harmful facts. Duffy v. State, 567 S.W.2d 197, 206 (Tex.Crim.App. 1978); Johnson, 651 S.W.2d at 437. Appellant complains about the following argument made by the prosecutor:You know, I know for a fact that you have heard from not one, but two investigators, in the Public Defender's Office in this place. They have investigators, folks, and they are passionate about representing their client. You have seen that. You know, those fingerprint cards, that whiskey bottle, they have been down to DPD since November 30th of 2003, and if they wanted to get Brian Turner's prints compared or Sylvester Hampton's or any other Black in that packet, one of the two investigators that you have heard from, from the Public Defender's Office could have marched down there and got those fingerprints and compared them to anybody they wanted to. They could have done that. They could have done that.Defense counsel objected to this argument on the grounds it shifted the burden of proof. The trial court overruled the objection. On appeal, appellant contends "[t]he argument left an impression with the jury that if the appellant felt the State did not prove their case, then he, the appellant, had the duty to investigate the crime and prove who actually committed the murder." The complained-of jury argument was made by the State after defense counsel's closing argument, in which counsel criticized the police department's failure to compare the fingerprints taken from the crime scene to those of other suspects; its failure to obtain telephone records from other suspects to see if they made or received calls to or from the Dallas Inn; and its failure to identify a potential suspect. At one point, referencing other suspects' telephone records that were not subpoenaed, defense counsel argued, "Of course, you don't have that evidence because the State controls that. And they didn't bring you that." Defense counsel argued that the "cops . . . get to decide what witnesses or suspects to interview. They get to decide what phone records to pull. They get to decide what evidence is presented to you. . . . From December 17 of '03 until February the 10th of '04, . . . there was no work done. Nothing. And I guarantee you, ladies and gentlemen, if this wasn't a crack house murder, a crack motel murder, there would have been a much more thorough investigation. . . . [The lead detective], whether intentionally or not, has focused completely on implicating; implication [sic], not investigating, but implicating this man. He . . . was not approaching as a neutral investigator." Later, defense counsel argued that the detective was not "playing above board." Just before the complained-of argument, the State told the jury, "We have to prove that [appellant] shot and killed Gary West with a firearm and he did it intentionally or knowingly. That's what we have to prove in this case." The testimony revealed that latent prints were taken from a liquor bottle, a pickle jar, a lid, a compact disc, and an orange juice bottle found at the crime scene and compared to appellant's prints. The prints were also submitted to a computerized system which tried to match the prints to anyone previously arrested or convicted of a crime. The State's fingerprint expert testified the prints did not match appellant's and the inference was that the prints did not match any prints in the database. The expert testified the prints were available for further testing and comparison. The State contends its argument was a proper response to opposing counsel's argument. We agree. The State may properly comment on a defendant's failure to produce evidence or witnesses favorable to him without shifting the burden of proof, as long as the State does not comment on the defendant's failure to testify. See, e.g., Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App. 2000); see also Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App. 1995) (argument referring to appellant's failure to produce evidence or testimony other than own not improper); Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App. 1987) (same); Johnson, 651 S.W.2d at 437-38 (same). We conclude the State's argument was an answer to defense counsel's closing argument and was not improper. Appellant also argues that the State's failure to compare the fingerprints to other suspects in the case warranted the jury's inference that the evidence would be unfavorable to the State and further supports his position that the trial court erred by overruling his objection that the State's argument was improper. To support his argument, appellant cites Albiar v. State, 739 S.W.2d 360, 363 (Tex.Crim.App. 1987), which held that the defendant's failure to call an alibi witness to testify on his behalf warranted the inference that the witness's testimony would be unfavorable to the defendant. But we have already held that the State's argument was not improper. And the jury heard the evidence that the State failed to compare the fingerprints as well as the defense argument that the State controlled the evidence and focused the investigation on convicting him, not on a neutral investigation of the facts. As a result, appellant's counsel encouraged the jury to make the very inferences against the State that he argues the jury should have been allowed to make. Finally, defense counsel also complains about the following prosecutor's argument:
He could have sent [the investigators] out there to talk to Brian Turner or Sylvester Hampton: Hey, fellows, what was your cell phone number back in December of 2003? Do you mind giving us the numbers so we can subpoena? They could have done that.But defense counsel did not object to this last argument and did not preserve error for our review. See Tex.R.App.P. 33.1(a)(1)(A); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). We overrule appellant's third and fourth issues. We affirm the trial court's judgment.