MICHAEL EARL WHITE,FROM A DISTRICT COURT APPELLANT, v. OF THE STATE OF TEXAS, APPELLEE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
MICHAEL EARL WHITE,FROM A DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE. DALLAS COUNTY, TEXAS
BEFORE JUSTICES MCCLUNG, ROWE AND BURNETT
OPINION PER CURIAM
MAY 31, 1989
Michael Earl White was convicted in a jury trial of the offense of robbery. Punishment, enhanced by two prior convictions, was assessed at forty-two years' confinement. Appellant raises two points of error on appeal, claiming that (1) the evidence is insufficient to support his conviction; and (2) the trial court erred in denying his motion to suppress in-court identification. We overrule both points and affirm the judgment of the trial court.
Gizaw Gedlu, the complainant, testified that on February 28, 1988, he was working as a night cashier for Republic Parking at Love Field. Shortly after 2:00 a.m., a lady came to his toll booth and asked to use the restroom in the office nearby. After he had told her she could not use the restroom, she went to the office, then returned to her car, which he described as a black Camaro. Appellant and the woman then came up on either side of him; appellant pointed at him and said, "Don't move." At that time, the hand with which appellant pointed at Mr. Gedlu was covered; Mr. Gedlu believed he was carrying a gun. Appellant and the lady pushed Mr. Gedlu and his supervisor into the restroom of the office, then beat Mr. Gedlu in the head with a broom handle and the barrel of a gun. Appellant and the woman locked Mr. Gedlu and his supervisor in the restroom, then went through the office and took money from the safe. Finally, he testified that he had a greater right to possession of the money than appellant, that he did not consent to appellant taking the money, and that appellant caused him pain by beating him with the broom handle. On cross-examination, he testified that he was not sure whether appellant or the woman hit him with the broom handle.
Deborah Elaine Solomon, a police officer with the City of Dallas, testified that on February 28, 1988, she was on patrol at Love Field at approximately 3:00 a.m. when she saw a black 1986 Camaro without its lights on headed away from the airport toward Mockingbird. Officer Solomon and her partner followed in their patrol car, turned on the red lights on their car, and hit several bursts on their siren. The Camaro appeared to be pulling over, then sped away, turning west onto Mockingbird. After a short chase, the Camaro flipped over near the intersection of Harry Hines and Mockingbird. Officer Solomon saw a woman run from the car, cross the street and enter another car. Appellant crawled out of the Camaro. Several bags containing currency and change were found inside the car.
Curtis Jones testified on behalf of appellant. Jones said that on February 28, 1988, he was the complainant's supervisor at Republic Parking at Love Field. His testimony concerning the robbery paralleled that of Mr. Gedlu; however, he also testified that he was beaten by the robbers as well. He said that he was asked if he could identify the male robber from a photographic lineup. He recognized one of the subjects, but could not tell whether he remembered the individual from the robbery or another time. In addition, he said that he recognized appellant, but could not positively identify him as the male of the pair of robbers.
In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating all the evidence in the light most favorable to the verdict, any rational trier of fact could find the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Burks v. State, 693 S.W.2d 932, 937 (Tex. Crim. App. 1985). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
In the present cause, the evidence reflects that the complainant positively identified appellant in court as one of the individuals who beat him. The record also shows that appellant was apprehended as he left a vehicle that matched the description of the car carrying the individuals that robbed Mr. Gedlu.
The complainant was unable to say positively that appellant beat him with the broom handle alleged in the indictment; however, he said that either appellant or the woman beat him. The record also reflects that a proper charge on liability as a party was given to the jury. As a result, the jury could find appellant guilty if it found that either appellant or the woman beat the complainant with the broom handle in the course of the theft. See Sanchez v. State, 722 S.W.2d 781, 785-786 (Tex. App.--Dallas 1986, pet. ref'd); TEX. PENAL CODE § 7.01 (Vernon 1974).
Appellant argues that the evidence was insufficient in part because the photographic lineup viewed by Mr. Gedlu was impermissibly suggestive. However, in determining the sufficiency of the evidence, this Court must consider all the evidence admitted at trial, whether or not properly admitted. Dunn v. State, 721 S.W.2d 325, 327 (Tex. Crim. App. 1986). We conclude that the evidence introduced at trial was sufficient to support the jury's verdict of guilty. Appellant's first point of error is overruled.
In appellant's second point of error, he claims that the trial court erred in denying his motion to suppress the in-court identification testimony of the complainant. The record reflects that a hearing on appellant's motion was held outside the presence of the jury. See Martinez v. State, 437 S.W.2d 842, 848 (Tex. Crim. App. 1969). At this hearing, Mr. Gedlu testified again concerning the robbery. He also said that the day after the offense, a police investigator showed him some pictures. The investigator did not make any suggestion as to which photograph to select, and told him that the man who participated in the robbery may or may not be in the photographs. Mr. Gedlu selected one of the photographs, and signed and dated it. He also said that the photograph had nothing to do with his ability to identify appellant, and that he could identify appellant even if he had never seen a photograph. On cross-examination, he said that he saw the photograph three times; once with the police investigator, once in the District Attorney's office, and once during the hearing. He also said that after he had been beaten for some time, he did not look at the faces of the people assaulting him.
J.C. Foster, a detective with the Dallas Police Department, testified that he showed the photographic lineup to Mr. Gedlu. He told Mr. Gedlu that he should not feel pressured to pick anyone, but that if he did see the person that had robbed him, Detective Foster would like him to point out the picture. Mr. Gedlu picked out one of the pictures after approximately ten seconds. Detective Foster also said that at the time of the lineup, Mr. Gedlu appeared alert.
A photographic lineup will be set aside as impermissibly suggestive only when the procedure utilized is such that it gives rise to a substantial likelihood of misidentification. Simmons v. State, 390 U.S. 377, 384 (1968); Taylor v. State, 474 S.W.2d 207, 210 (Tex. Crim. App. 1974). In order to sustain a challenge to in-court identification, a defendant must show by clear and convincing evidence that the in-court identification was tainted by improper pretrial identification procedures. Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982).
Appellant claims that appellant's photograph is different from the others in the lineup. Our record contains photocopies of each of the photographs used in the lineup. Each photograph appears to have as its subject a black male. Five of the six photographs, including the photograph selected by Mr. Gedlu, has its subject standing before a light background. We see no substantial difference between the photograph of appellant and the other subjects. The record further reflects that Detective Foster did not tell Mr. Gedlu which picture to select, or whether appellant's picture was contained in the lineup. We conclude, based on the record before us, that the lineup was not impermissibly suggestive.
Even if we had found the lineup unduly suggestive, we still conclude that the in-court identification testimony is not tainted by the lineup. In determining whether an in-court identification is of an origin independent of a photographic lineup, the court should consider (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancies between any pre-trial lineup description and the actual description of the defendant; (3) any identification prior to the lineup of another person; (4) the identification prior to the lineup of a photograph of the defendant; (5) any failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged offense and the lineup identification. Thompson v. State, 480 S.W.2d 624, 627 (Tex. Crim. App. 1972).
In the present cause, Mr. Gedlu testified that he had an opportunity to observe appellant for approximately ten minutes during the offense. There is no evidence of any description he gave police; as a result, there is no evidence of discrepancies between any description he gave and appellant's actual appearance. Mr. Gedlu did not identify anyone other than appellant prior to the photo lineup. He saw appellant only at the time of the offense, when he viewed his picture in the lineup, once in the District Attorney's office, and at trial. There is no evidence that he ever failed to identify appellant as the person who beat and robbed him. Finally, he identified appellant only one day after the robbery. We conclude that the identification testimony of the complainant was sufficiently reliable to allow its admission. Accordingly, the trial court did not err in denying appellant's motion to suppress in-court identification. Appellant's second point of error is overruled.
The judgment of the trial court is affirmed.
DO NOT PUBLISH
TEX. R. APP. P. 90