No. 01-03-01351-CR
Opinion issued February 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 963213.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
JANE BLAND, Justice.
A jury found appellant, Maurick Jerre O'Neal, guilty of the offense of aggravated robbery. The trial court, after having found true the enhancement paragraph of a prior felony conviction, assessed punishment at thirty-eight years' confinement and a $10,000 fine. In this appeal, O'Neal contends that the trial court erred in refusing to exclude witness identification testimony because the identification was the result of an impermissibly-suggestive pretrial procedure. We affirm the judgment of the trial court.
Background
On May 28, 2003, at approximately 11:45 a.m., O'Neal, along with two other men, entered the home of Thomas Douglas, his wife Letrina Douglas, and their daughter, Kennetta Thomas. Thomas and Letrina were in their bedroom, with the door closed, when they heard a loud noise. Kennetta, also in her bedroom, heard beating and kicking on the door, and glass cracking on the window beside the door. Kennettta walked outside her bedroom to the hallway and saw two men. The men demanded that Kennetta give them money, told her to "shut up," and demanded that she turn off the alarm. Kennetta walked about fifteen to twenty feet to the front of the home to turn off the alarm and she saw a third man possessing a handgun. Kennetta observed that the man was wearing a red or orange shirt. Thomas testified that, from his bedroom, he heard a man yell "turn off the alarm or we're going to kill you." Thomas then grabbed his gun and told Letrina to leave their home though the patio door and seek help. After Letrina exited their home, he fired a warning shot into the ceiling and yelled for the intruders to get out of his home. Then, Thomas opened his bedroom door and stepped into the hallway where he saw two armed men. Upon seeing Thomas, they ran. Thomas chased the men outside and down the street. During Thomas's pursuit of the intruders, a man across the street began firing at him. Thomas fired back five times, and the gunman fired back twice before fleeing the scene. Thomas returned to his home and waited around thirty minutes for the police to arrive. The police informed Thomas and Kennetta that they had apprehended one of the men and wanted Thomas to identify him. Later that day, Thomas went to the police station and viewed a photographic array. Thomas was unable to identify O'Neal. During the trial, however, Thomas identified O'Neal as the gunman on the street who had fired shots at him. Kennetta also went to the police station and viewed a photo array of six individuals. Both at the police station and during trial, she identified O'Neal as one of the men who broke into her home. O'Neal moved to suppress Kennetta's identification testimony, but did not similarly move to suppress Thomas's testimony. The trial court held a hearing on the admissibility Kennetta's testimony identifying O'Neal as one of the intruders. The trial court denied the motion, ruling that the photospread was not impermissibly suggestive and that its use would not preclude any witness from testifying regarding her identification of O'Neal. Witness Identification
O'Neal contends that the pretrial photo array was unnecessarily suggestive, and thus in-court identification by witnesses Kennetta Thomas and Thomas Douglas should have been suppressed. O'Neal failed to properly preserve his complaint regarding Thomas's in-court identification for appeal. In order to preserve a complaint, one must timely, specifically object and obtain a ruling from the trial court. See Tex.R.App.P. 33.1. O'Neal did not object to Thomas's in-court identification during the trial or move to suppress the identification. We therefore consider only Kennetta's testimony in this appeal. Standard of Review We defer to a trial court's determination of historical facts supported by the record when the trial court finds facts based upon evaluation of the credibility and demeanor of the witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex.Crim.App. 1998). We similarly defer to the trial court's rulings on mixed questions of law and fact when they turn on the credibility of witnesses. Id. We review de novo, however, mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. at 772-73. Here, the admission of the witness identification testimony does not turn on a credibility evaluation, and therefore we review it de novo. The Identification Procedure In-court identifications are inadmissible when tainted by an unduly suggestive pretrial identification. See Loserth, 963 S.W.2d at 771-72; Colgin v. State, 132 S.W.3d 526, 531-32 (Tex.App.-Houston [1st Dist.] 2004, no pet.). To determine whether a trial court correctly admitted an in-court identification, we use a two-step analysis, and determine (1) whether the pretrial identification was impermissibly suggestive, and if so, (2) whether the suggestive pretrial identification gave rise to a substantial likelihood of misidentification at trial. Colgin, 132 S.W.3d at 532. In order for an in-court identification to be inadmissible, a defendant must demonstrate the existence of both elements by clear and convincing evidence. Id. If a court finds that a pretrial identification procedure was impermissibly suggestive, it then must consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). Neither due process nor common sense requires that the individuals in a lineup exhibit features exactly matching the accused. Turner v. State, 600 S.W.2d 927, 933 (Tex.Crim.App. 1980); Colgin, 132 S.W.3d at 532. Rather, a photo array must contain individuals who fit a rough description of the suspect. Colgin, 132 S.W.3d at 532; see also Wilson v. State, 15 S.W.3d 544, 553 (Tex.App.-Dallas, pet. ref'd). Here, O'Neal contends that the photo array was impermissibly suggestive because he was the only individual wearing a red shirt and the other individuals depicted in the array wore neutral tones. Detective McCoy of the Harris County Sheriff's Department created the photo array. He testified that he entered the description of O'Neal given to him by Kennetta and Thomas Douglas into his computer. The computer then generated many pictures of individuals with similar characteristics. McCoy testified that he carefully selected the other men in the array, looking specifically for African-American males close to the same age as O'Neal. McCoy reviewed between seventy-five and one hundred photographs before making the photo grouping, seeking a fair representation of individuals that matched the complainants' description of O'Neal. The photographic array is part of the record on appeal. It consists of six, short-haired black males, who exhibit similar facial features. There are no gross disparities in age among the six men. While two of the photographs display somewhat lighter backgrounds, all six of the photographs are in color. We also note that the photos show only the men's faces and necks, and as a result, only a small portion of the individuals' shirts can be seen. The array shows three men in what appear to be white shirts, one man in a dark colored shirt, O'Neal in a blue, white, and red striped shirt, and the color of one man's shirt cannot be determined. Although Thomas and Kennetta told Detective McCoy that one of the suspects wore a "red or orange" shirt, McCoy testified that he selected the most recent photographs of the individuals to get the most accurate reflection of the subject's appearance. All of the individuals in the photo array fit the description of O'Neal. We hold that the photo array is not unduly suggestive merely because O'Neal is the only one wearing a shirt with a red stripe. Substantial Likelihood of Misidentification Even if we assume that the pretrial identification procedure was impermissibly suggestive, given the totality of circumstances in this case, we do not think that the photo array created a substantial likelihood of misidentification. The following five non-exclusive factors should be "weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of circumstances": (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. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382; Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). We consider the five Biggers factors, all issues of historical fact, deferentially in a light favorable to the trial court's ruling. Ibarra, 11 S.W.3d at 195. The factors, viewed in this light, are then weighed de novo against "the corrupting effect" of the suggestive pretrial identification procedure. Id. at 195-96 (citing Loserth, 963 S.W.2d at 773-74). Opportunity to View First we address Kennetta's opportunity to view O'Neal during the crime. Kennetta stated that, although she did not focus exclusively on O'Neal, she "got a good enough look at him." The crime occurred during the day, and Kennetta viewed O'Neal in the living room of her home. Kennetta further testified that she viewed O'Neal for a period of one to two minutes. These facts suggest that Kennetta had an adequate opportunity to view O'Neal during the crime. Degree of Attention Under the second factor, we consider Kennetta's degree of attention during the commission of the offense. Kennetta's own testimony demonstrates that she paid close attention to O'Neal. Specifically, she testified that "I know if I wanted to get the person who did this I know that I would eventually have to identify them. So I was concentrating on the facial features a lot." Given these facts, we conclude that Kennetta was adequately attentive during the intrusion. Accuracy of Description We next consider the accuracy of Kennetta's prior description of O'Neal. She told the police that she viewed two black males, one with an "Afro" and one with braids. She also stated that the men were between 5'8" and 6' tall. As O'Neal states in his brief, the record is silent as to how well he matches that description. Moreover, O'Neal concedes that here, when the record is silent as to how well he matches Kennetta's description, this factor is of little benefit. Level of Certainty Next, we consider the level of certainty Kennetta demonstrated at the time of the confrontation. Kennetta stated that when she first viewed the photo array she was "pretty sure" that O'Neal was the individual that broke into her home. Nonetheless, she took her time in viewing the photo array and focused on the individuals very carefully. She testified that she was "really trying to concentrate and make sure that I picked the right person." During her in-court identification Kennetta stated she was "pretty sure" that O'Neal was the man she saw in her living room during the intrusion and that she did not believe that the State charged the "wrong guy." Time Between Crime and Confrontation Finally, we consider the lapse of time between the alleged act and the time of the confrontation. This factor seems to weigh in Kennetta's favor. Kennetta identified O'Neal in the photo array on the same day the crime occurred, and identified O'Neal in court only seven months later. At trial, Kennetta easily recalled the details of the crime and her description of O'Neal. Thus, the seven-month time period had no discernable effect on her ability to recall the details of the crime or her in-court identification of O'Neal. Viewing these facts in a light most favorable to the trial court's ruling, we find that Kennetta had sufficient opportunity to view O'Neal and paid particular attention to him during the crime. Further, she never wavered in her pretrial or her in-court identification of O'Neal. Weighing this evidence of reliability against any possible suggestiveness of the photo array, we conclude that the totality of circumstances of the case do not present a substantial likelihood of mistaken identification. Thus, the trial court did not err in allowing Kennetta's in-court identification of O'Neal. Conclusion
We hold that: (1) O'Neal waived his complaint regarding Thomas's in-court identification testimony; and (2) the photo array is not unduly suggestive, but assuming that it is, the Biggers factors show that no substantial likelihood of mistaken identification occurred; thus, the trial court did not err in allowing Kennetta's in-court identification of O'Neal. We therefore affirm the judgment of the trial court.