LADELL DAMON MOSS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued December 21, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00483-CR
............................
LADELL DAMON MOSS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-55492-TW
.............................................................
OPINION
Before Chief Justice Thomas and Justices O'Neill and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        A jury found appellant Ladell Damon Moss guilty of aggravated robbery of an elderly person. Tex. Penal Code § 29.03(a)(3)(A) (Vernon 2003). Thereafter, the trial court assessed appellant's punishment at sixteen years' imprisonment and an $800 fine. Appellant now appeals that judgment, asserting the trial court reversibly erred in two ways: by committing Batson error in violation of the federal constitution and by failing to suppress the in-court identification of two witnesses. Concluding no reversible error has been shown, we affirm.
        Appellant does not challenge sufficiency of the evidence; however, we briefly set out the facts. On August 26, 2004, Apolonio Puga, an elderly person who does not drive, was walking toward a bus stop on Illinois Avenue in Dallas County when two black males assaulted him. Puga noticed the two men as he was walking toward them; however, after he passed them, the men turned and began following Puga. One of the men then said, “give me the money.” Both of the men hit and kicked Puga, knocking him to the ground. One tore the pocket off his shirt and took his eyeglasses' case.
        On the same date and at the same time on Illinois Avenue, Angelina Torbellin was driving a car in which Leticia Cerda was a passenger. The women noticed two men following an elderly Hispanic man. After the women passed by, for some reason unknown to her, Cerda looked back and saw the two men hitting and kicking the elderly man. Upon seeing the assault, Cerda called 911. Cerda told the 911 operator about an “older model” white four-door vehicle she had noticed parked in an alley nearby. The 911 operator instructed Cerda to return to the scene of the assault. Torbellin made a U-turn and returned to the scene. As the women were driving back to the scene of the assault, they saw the two men walking toward the “older model” car parked in the alley. The men passed immediately in front of Torbellin's car, and looked toward the car. Torbellin “froze,” apparently because she saw a gun.
        Presumably in response to a police broadcast, a vehicle matching the description given by Cerda and occupied by two black males wearing white shirts was spotted in the same area driving at an excessive rate of speed. The police stopped the vehicle and detained the two male occupants. Puga, Cerda, and Torbellin were taken to the scene of the stop. Puga identified both detainees as the same two men who had earlier assaulted him. Cerda identified only one of the men, appellant. The two women also identified the vehicle stopped by the police as the same vehicle they had earlier seen parked in the alley toward which the two males were walking. The two men were arrested and later identified as Alvin Arnold and appellant. Puga was taken by ambulance from the scene of the arrest to the hospital where he was treated for his injuries.   See Footnote 2 
Procedural Background
        Appellant and co-defendant Arnold were tried in a joint trial before a jury. Each had a separate attorney. At the conclusion of voir dire, each defendant exercised his peremptory strikes, leaving a jury of twelve. As those twelve jurors were being seated, Arnold's attorney made an oral Batson challenge to the prosecutor's striking of nine African-American jurors, the same race as the two defendants. In making his motion, Arnold's attorney stated, “I believe that at least some of these strikes were made for reasons other than race-neutral.” Through counsel, appellant joined in co-defendant Arnold's Batson motion. The trial judge asked the prosecutor to explain the reasons for her strikes, which she did.   See Footnote 3 
         Pretrial, appellant moved to suppress the three witnesses' in-court identifications. Outside the jury's presence, the trial court heard extensive testimony from the three witnesses. Thereafter, the trial court suppressed Torbellin's in-court identification. However, the trial court allowed Puga's and Cerda's in-court identification, finding their identification testimony was of an origin independent of either a photograph spread or the “show-up” at the arrest scene. At trial, however, both Cerda and Torbellin were allowed to describe the clothing the two men were wearing: white T-shirts or “muscle” shirts and blue jean shorts.
BATSON
Standard of Review
        When reviewing a trial court's finding regarding a Batson challenge, an appellate court reverses the trial court's ruling only if it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 358-59 (1991); Rhoades v. State, 934 S.W.2d 113, 123-24 (Tex. Crim. App. 1996). We do not reverse the trial court's ruling unless we have a definite and firm conviction a mistake has been made. Id. We give great deference to a trial court's determination and view the evidence in the light most favorable to the trial court's ruling. Stewart v. State, 176 S.W.3d 856, 859 (Tex. App.-Houston [1st Dist.] 2005, no pet.) citing Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001). If the prosecutor's explanations have not been rebutted by appellant, we deem the trial court's ruling there was no purposeful discrimination on the basis of race as not clearly erroneous. Stewart, 176 S.W.3d at 859 citing Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991).
Discussion
        The challenged strikes were of juror numbers 1, 8, 10   See Footnote 4 , 17, 23, 26, 28, 45, 46, and 55. The prosecutor stated her reasons for each strike.
        Juror 1 was James Jones. The prosecutor struck Jones because she said he could not consider life, even though he was later rehabilitated. The prosecutor also struck juror number 10, a white juror, for the same reason.
        Juror number 8 was Bernie Jackson. The prosecutor struck Jackson based on several of his answers she deemed to be “clearly for the defense.” Jackson shook his head at the prosecutor after she discussed the issue with him. She also struck him because she considered him to have been a bad juror on a prior murder case.         Juror number 17 was Mary Mbogo. The prosecutor described Mbogo as being the only person on the panel with a criminal conviction who was not struck for cause. Mbogo had a misdemeanor driving while license deferred adjudication. The prosecutor struck Mbogo because she had a “run-in with the law and suffered consequences therefrom.”
        Juror number 23 was Andre Wilson. The prosecutor explained that although Wilson was not excused for cause, Wilson was “very hesitant” about giving a life sentence and stated he would only do so “if the law forced him to.” Wilson also stated “it would be very uncomfortable for [him].” For those reasons, she struck Wilson.
        Juror number 26 was Catherine Martin. The prosecutor's reasons for striking Martin were essentially the same as for numbers 1 and 23. Martin had a distaste for giving a life sentence, although Martin “changed her mind” to avoid disqualifying herself as a matter of law. Nevertheless, the prosecutor stated, that was a valid reason for her strike of Martin.
        Juror number 28 was Jason Lee. The prosecutor struck Lee because he wore earrings, had gold teeth, and wore a head covering. When Lee was asked to remove his head covering, Lee replied “with some degree of attitude,” asking “[w]hy?” The bailiff responded because he was required to. The prosecutor struck Lee because she found his “display of attitude” disturbing.
        Juror number 45 was Bridgette Gilbert. The prosecutor struck Gilbert because, although Gilbert stated she could give life if her heart told her to, she also said she would be “back there hanging up the jury on the matter of life.”
        Juror number 46 was Justin Jones. The prosecutor stated he had missing front teeth which, in her opinion, was representative of a certain socioeconomic level, and was not a favorable juror for the State. The prosecutor stated that although that reason may not be a tasteful one, it was, nevertheless, race neutral. Jones's overall appearance gave the prosecutor the impression he would not be a favorable juror for the State.
        In response to the prosecutor's stated reasons for striking Justin Jones, Arnold's attorney responded that her reasons were not race neutral, stating, “[t]hat's - to say that because he doesn't have his teeth, he's of a certain economic class that, therefore, is against the State, is knitting a parachute out of thin air.” When asked by the court whether he had anything in response, appellant's attorney stated,
 
Nothing other than I do think it continues a similar pattern. I think we're - I think this is probably more illustrative of the true motivation that was going on with not only this juror but other jurors that are very marginal. For instance, I notice that number 1 is a Dallas Independent School District teacher. I mean, they're solid people. I'm also disturbed by the pattern here, Judge. And I would ask that as far as a remedy - I know we haven't quite finished, but I would ask that each one of these jurors be replaced on the jury in the order that they would have been actually on it; either that, or we call up new witnesses and voir dire them, or have a new panel.
 
        The prosecutor then defended her position that certain socioeconomic levels don't like the police and that such a reason is race neutral. A lengthy dialogue among the prosecutor, Arnold's defense counsel and the trial court ensued. Arnold's counsel objected to the prosecutor's reasons for striking Jason Lee, juror number 28. The trial court questioned the bailiff about his encounter with Lee about taking off his head covering. The bailiff told the trial judge,
 
He asked me, your Honor. I said - when he came walking around the edge there, he had his hat in his hand, but he still had his scarf on. I said, you'll have to take your head covering off, please. And he looked at me and he stopped and he said, why? And I said, well, that's the way that we do it in court.” The bailiff then stated, “So he took it off. I can't - he didn't say anything further to me, so I can't honestly say it was reluctantly, but he sure didn't look like he enjoyed it very much.
 
        There was then a discussion about Denise, juror number 55. The prosecutor stated her reason for striking Sanders was because she was a female dressed predominantly male. She was wearing her hat backwards, and was sullen when the prosecutor addressed her. The prosecutor's view was that a female dressed primarily as a male is indicative of a liberal lifestyle, which the State would not prefer as a juror. The prosecutor asked that Sanders be brought in to be viewed by the trial court.
        The trial judge then requested to see Justin Jones. Justin Jones was brought before the court. After questioning by the trial judge about whether his teeth were missing, Jones stated they were not, but his tongue was pierced. The trial judge then asked Jones to open his mouth. After determining Jones had no missing teeth, the prosecutor apologized, stating she had confused him with the man in front of Jones. The prosecutor told the trial judge, “Your Honor, I made a physical appearance judgment, and I wrote it in the wrong blank, and I sincerely apologize to all of you. I would never, ever, ever do that.” The prosecutor then stated, “I have no problem with [Jones] being on the jury, none whatsoever.” Justin Jones replaced Ellen Krupinski as a juror.
        The trial court then asked that Sanders be brought before her. Upon being questioned by the trial judge, Sanders stated she had worked for Surf Pro of North Irving for three years. Sanders told the trial judge she had a hat but it was outside. Defense counsel asked what kind of hat she had. Sanders replied it was a baseball cap, that she did not wear it because of her work, but just because she liked to wear caps “all the time.” Appellant's counsel asked Sanders if she wore “those kind of clothes that you're wearing right now where you work,” to which she replied, “[n]o, I wear a uniform.” The trial court stated, “[l]et the record reflect that she did appear as though she was dressed in men's clothing.” Defense counsel agreed. The trial court stated, “[o]kay. So we're not gonna get to her.” The judge stated, “The other ones, I - I guess I'm gonna - I'll - I will grant your challenge as it relates to number 46, and we will replace 46 with 49. We'll let her go. But the - you'all have any arguments on the rest of 'em?” Arnold's attorney then objected to Jason Lee, juror number 28, who had been stricken because of his “attitude.” The trial court, however, determined the prosecutor's reasons were race neutral as to Lee. In short, the trial judge denied the rest of the challenges, but granted the Batson motion as to Justin Jones, juror number 46.         In response to a question by the trial judge of appellant's counsel about whether he had any other arguments, the record reflects the following:
 
        MR. ASHE [appellant's attorney]: Yes, your Honor. I've had a chance to talk with my client, and we're grateful for the ruling the Court's made, and we're satisfied with the jury, then, at this time.   See Footnote 5 
 
Preservation of Error
        Appellant's counsel initially joined in co-defendant Arnold's oral Batson motion. Thereafter, the prosecutor stated her reasons for each strike. The trial court carefully, tediously, and repeatedly considered the prosecutor's reasons for each strike. After personally questioning at least two of the challenged jurors, the trial judge indicated she was going to grant the Batson motion as to Justin Jones, juror number 46, and deny it as to the other challenged jurors. Thereafter, appellant's counsel stated, “I've had a chance to talk with my client, and we're grateful for the ruling the Court's made, and we're satisfied with the jury, then, at this time.” (emphasis added). By so doing, appellant affirmatively waived any challenge to the makeup of the jury, which included Justin Jones. Consequently, we overrule appellant's Batson point of error.
IN-COURT IDENTIFICATION
        In his second and third points of error, appellant contends the trial court erred by denying his motion to suppress the in-court identification of him by two witnesses: Leticia Cerda and Apolonio Puga, the complainant. Appellant claims the identification of each witness was tainted by impermissible out-of-court suggestiveness. Both witnesses viewed appellant at the scene of the arrest shortly after the offense. Cerda later identified appellant as one of the assailants in a photographic spread she viewed at the police station. Puga was later shown pictures of appellant and Arnold at the hospital after he had already identified them in an effort by the police to determine specifically what each defendant did to Puga.
        The trial court conducted an extensive sub rosa hearing on the identification issue. At the conclusion of the hearing, the trial court found Cerda's and Puga's in-court identifications were not tainted either by a “show-up” at the arrest scene or by later viewing photographs. The trial court found the identification testimony of both witnesses was independent of those out-of-court events and, thus, admissible. Cerda and Puga identified appellant during the trial before the jury as one of the men who beat and kicked Puga.
Cerda
        Cerda positively identified appellant as one of two black males she saw beating the elderly Hispanic complainant on August 26, 2004. Cerda was riding as a passenger in a car driven by Torbellin when she witnessed the assault. Cerda immediately called 911 and gave a description of the men as wearing white tank tops and blue shorts. She also gave a general description of a car she had seen parked in a nearby alley. Torbellin made a U-turn and returned to the scene of the assault. It was then Cerda got within two feet of appellant and had a close-up view of his face. After the police stopped and detained appellant and co-defendant Arnold, Cerda was taken by the police to the arrest scene, where she identified appellant as one of the men. Cerda testified she could identify appellant from having seen him within two feet of Torbellin's car even if she had never seen him at the arrest scene. Later that day she picked appellant's photograph from a photograph spread at the police station.
Puga
        Puga, the complainant, cannot read and did not know how to spell. He testified he was a diabetic and his sight was not good. However, he recalled walking down Illinois Avenue six or seven months before the trial. He recalled being accosted on that date by two black males who were following him. One of the men turned to Puga and said, “[g]ive me the money.” One of the men kicked him “all the way down to the ground,” hit him and broke one of his ribs. One of the men tore off Puga's pocket and took his eyeglass container. Puga testified he did see their faces before and during the assault. At trial, he testified, “I believe they are those two over there.” Puga identified both appellant and co-defendant Arnold. When asked if he recalled in his mind as he sat on the witness stand whether the faces he identified were the same faces he saw at the scene, Puga responded, “[y]es.”
        On cross-examination, Puga testified the first time he saw the men was when they parked a car nearby and were crossing the street. When Puga was crossing the street, the men were coming in front of him. When Puga passed by them, the men followed him. Puga let the men pass him, but they were not walking fast, so Puga tried to pass them. When Puga was trying to pass the men, that's when they hit him. After they threw him to the ground they took a car and left. Puga was unable to say how many times he was struck. Puga testified he was taken by the police to the place where the two men were detained. When asked what he was told about why he was being taken there, Puga replied, “[t]o see if we're - if - to see - or to go to the place to see if the people they have is the one that they did that to me. When I got there, I said, yes, they are.” Puga testified the police never told him they were the guys who had assaulted him. Rather, the police asked him, “[a]re they the ones?” And Puga told the police, “yes, they are.” At the scene of the detention, Puga could not tell if the men were handcuffed. He testified he was “far away” from them. Puga could not remember whether the police showed him pictures at the police station.
        In response to a question by the trial court, the prosecutor stated Puga was not shown a photographic lineup. However, the prosecutor explained that after Puga identified the men at the “show-up,” the police later showed him pictures of the two men whom he had earlier identified in an effort to determine specifically what each man did to Puga. Although Puga could not remember having been shown pictures by the police nor could he say how long he observed the two men at the scene of the assault, Puga was clear he recognized the two men. Specifically, Puga stated, “[a]s I said before, I will not be able to tell you how long or how long I saw them, but I saw them when they were coming towards me, saw them when I let them pass, then I saw them when I was behind them, and then I saw them again when they were watching for the cars on the street.” Finally, the trial judge had the following exchange with Puga:
 
        THE COURT: Are you picking these guys out today because of seeing them when they were walking on the sidewalk or when they were arrested?
 
 
 
        [PUGA]: The identification is because the way they are here and the way they are shown in the pictures, they are the ones who did that to me.
 
 
 
        THE COURT: Okay. So is your identification today based on seeing the picture, or is it because you saw them walking down the sidewalk when you first saw them?
 
 
 
        [PUGA]: I saw them since the time they park the car supposedly, and then they walk towards me and I look at them during all that time.
 
 
 
        THE COURT: Okay. So you picked them out today; is that correct, in the courtroom?
 
 
 
        [PUGA]: Correct.
        THE COURT: Okay. Did you pick them out today because you remember what they looked like when they got out of the car and when they attacked you or because you saw them when they were arrested?
 
 
 
        [PUGA]: I didn't know they were driving a car or not, but I suppose they did. I saw them at that time when they were walking towards me and then after that when they took me to identify them where they have them arrested, that - that's why.
 
 
 
        THE COURT: Okay. You saw them twice.
        [PUGA]: That day, yes.
 
        THE COURT: Okay. And you picked them out today.
        [PUGA]: Oh, yes, exactly.
        THE COURT: So when you picked them out today, is it because you saw them the first time or because you saw them the second time?
 
 
 
        [PUGA]: I identify them here today because I saw them when they were walking towards me and when they took me, also, to where they were arrested.
 
. . .
 
 
        THE COURT: If you had not seen them the second time, would you be able to pick them out because of seeing them the first time? Meaning identify them in the courtroom because you had seen them the first time.
 
 
 
        [PUGA]: (In English) Exactly.
        THE INTERPRETER: Exactly.
        THE COURT: Exactly what?
        [PUGA]: Exactly they are the ones. When I saw them, I know so when they took me over there.
 
 
 
        THE COURT: So if they hadn't taken you over there, would you be able to pick them out today, based on seeing them the very first time?
 
 
 
        [PUGA]: If they hadn't take me to the second place, I would be able to identify them.
 
        The trial judge then allowed Puga's identification because he testified that his identification was based on his first encounter with appellant and Arnold. Concerning any “show-up” or pictures Puga may have been shown, the trial judge stated, “I think that's gonna really probably go to the weight of his identification and credibility before the jury.”
Law
        To warrant the exclusion of a witness's in-court identification, appellant had to show the out- of-court identification procedure was impermissibly suggestive. Rojas v. State, 171 S.W.3d 442, 448 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) citing Santos v. State, 116 S.W.3d 447, 451, 455 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). And if the out-of-court identification was impermissibly suggestive, appellant was next required to show it contributed to a very substantial likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). The in-court identification is admissible if the record clearly reveals the witness's prior observation of the defendant was sufficient to serve as an independent origin for the in-court identification. Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983).
        Pretrial use of a photographic lineup does not automatically taint an in-court identification. Woodson v. State, 777 S.W.2d 525, 530 (Tex. App.-Corpus Christi 1989, pet. ref'd). Nor does a one-on-one confrontation between a suspect and a witness shortly after the commission of an offense without more, violate due process or render an in-court identification inadmissible. See Neil v. Biggers , 409 U.S. 188, 198 (1972); Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981) (op. on reh'g).
Standard of Appellate Review
        A trial court's ruling on a motion to suppress an in-court identification involves a mixed question of law and fact that an appellate court reviews de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). The reviewing court examines the “totality of the circumstances” of the case in determining whether the out-of-court identification was reliable or was so impermissibly suggestive to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Wilson v. State, 15 S.W.3d 544, 552 (Tex. App.-Dallas 2000, pet. ref'd).
        An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure to the extent there is a strong possibility of “irreparable misidentification.” See Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999); Loserth, 963 S.W.2d at 773; Wilson, 15 S.W.3d at 552. It is the “substantial likelihood of misidentification” that denies a defendant due process of law. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). The defendant bears the burden of establishing by clear and convincing evidence the in-court identification was unreliable. Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992). A determination of whether the out-of-court procedure fatally tainted the in-court identification is made by reviewing the totality of the surrounding circumstances. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001).
        In determining whether an out-of-court identification procedure was impermissibly suggestive thereby creating a substantial likelihood of misidentification, we apply the following non- exclusive list of factors: (a) the witness's opportunity to see the attacker at the time of the offense; (b) the witness's degree of attention; (c) the accuracy of the witness's prior description of the defendant; (d) the level of certainty of the witness at the confrontation; and (e) the length of time between the offense and the confrontation. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
        We have reviewed both the pretrial and the trial record of the identification testimony of both Cerda and Puga. Applying the Biggers factors to the evidence presented, we conclude the out-of- court identification procedures did not create a substantial likelihood of misidentification. Cerda's testimony was clear her identification was based on an origin independent of either the “show-up” or the photographic spread later shown to her at the police station. As such, it was admissible.
        And even though Puga's testimony was often confusing, and perhaps ambiguous or unclear at times, when we view the totality of the surrounding circumstances, we agree Puga's identification testimony, as measured against the Biggers factors, was also admissible. Any issues of weight and credibility were properly left to the jury. Consequently, no error having been shown, we overrule appellant's points of error two and three. We affirm.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
050483F.U05
 
Footnote 1          The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Photographs of the complainant's injuries were admitted into evidence at trial.
Footnote 3 The prosecutor's articulation of her reasons for the strikes, together with the trial court's ruling on the Batson motion, renders moot the preliminary issue of whether appellant made a prima facie showing of racial bias. See Hernandez v. New York, 500 U.S. 352, 359 (1991); Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996) (citing Hernandez, 500 U.S. at 359).
Footnote 4 Juror number 10 was Caucasion, not African-American.
Footnote 5 Arnold's counsel, however, was still not satisfied and continued to argue in favor of his Batson motion. Appellant's counsel, however, never re-urged any objection to the makeup of the jury.