PAUL TONY SMITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed November 17, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01356-CR
No. 05-05-01357-CR
............................
PAUL TONY SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-49779-WM & F05-71506-UM
.............................................................
OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Francis
        A jury convicted Paul Tony Smith of two aggravated robberies and assessed punishment in each case at life in prison and a $10,000 fine. In seven issues, appellant complains of tainted in- court identifications at guilt-innocence and punishment, admission of his confessions, and charge error. We affirm.
        Appellant does not challenge the sufficiency of the evidence to support his convictions, so we will only briefly recount the facts. In February 2005, aggravated robberies occurred at two Radio Shacks on consecutive days. In both offenses, a man entered the store, looked at store products, and talked with the employees for a while before pulling a gun, demanding money, and fleeing in a black Lincoln. Both robberies were videotaped. The following week, police identified appellant as a suspect. A photographic lineup was shown to store employees, who immediately identified appellant as the armed robber. At punishment, the State introduced evidence of appellant's extensive criminal history, including two other aggravated robberies in which four witnesses identified appellant in court as the robber.
        Issues one, four, five, six, and seven are complaints regarding the in-court identifications of appellant at the guilt-innocence and the punishment phases as the perpetrator of three aggravated robberies. In each case, the complainants identified appellant from a photographic lineup. Appellant contends the pretrial identification procecure was impermissibly suggestive.
        An in-court identification is inadmissible if tainted by an impermissibly suggestive pretrial photographic identification. See Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998). In determining whether the trial court erred in admitting an in-court identification, we employ a two- step analysis and ask (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33-34. Furthermore, the analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 33.
        If a court determines that a pretrial identification procedure was impermissibly suggestive, it must then consider whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199 (1972). Factors to be considered are: (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 time of confrontation; and (5) the lapse of time between the alleged act and the time of confrontation. Id.; Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). Because all of these factors are issues of historical fact, we weigh them deferentially in a light favorable to the trial court's ruling. See Ibarra, 11 S.W.3d at 195-96. Viewed in this light, we then weigh the factors de novo “against the 'corrupting effect' of the suggestive identification itself.” Id.
        In his first issue, appellant contends the trial court erred in denying his motion to suppress Kenneth Janes's in-court identification of him as the robber in Cause No. 05-05-01356-CR. He argues the identification process was tainted by the police showing Janes the store videotape of the robbery ten minutes before showing him the photo lineup.
        At the suppression hearing, Janes testified he was working at the Radio Shack at Mockingbird Lane and U.S. 75 on February 16, 2005 when appellant came into the store twice. The second time appellant came into the store, Janes said the two “chatted for about 30 minutes” before appellant pulled a gun and robbed him. Janes testified he got an “extremely good look” at the robber's face and described him as a black male, light complected, in his early 20s. The man's face was not covered.
        One week later, Janes met with Detective Tommy Raley, who showed him a lineup of six photographs. Janes selected appellant's photo and said he had “no hesitation.” On cross- examination, Janes testified that about ten minutes before he viewed the lineup, the police showed him the surveillance videotape of the robbery, but the tape would not play correctly. Janes said the tape's images were “very blurry” and he could not see the robber's face. Appellant complained that showing Janes the tape minutes before the lineup was an impermissibly suggestive procedure. The trial court, however, found the procedure did not create a “substantial likelihood of irrevocable misidentification” and denied the motion to suppress. Janes retook the stand about fifteen minutes later to say he was mistaken in his previous testimony. Janes testified he viewed the tape after the lineup while helping the police make a copy of the tape.
        Although Janes initially testified he viewed the robbery videotape ten minutes before viewing the photographic lineup, he later explained that his testimony was incorrect and that he, in fact, viewed the tape after he identified appellant in the lineup. Under these circumstances, we question whether the videotape could have tainted the pretrial photographic procedure. Assuming Janes viewed the videotape before seeing the lineup and the procedure could be considered suggestive, the identification testimony would still be admissible because, in the totality of the circumstances, there is no substantial likelihood of misidentification.
        The record shows Janes had a clear opportunity to view appellant because appellant was in the store twice on the day of the robbery and he “chatted” with him for thirty minutes. During that time, Janes had “an extremely good look” at appellant's face. One week later, Detective Tommy Raley showed him a photographic lineup at the police station. Raley did not tell him he had to select one of the photos, nor did he indicate which person Janes should select. Janes had no hesitation or doubt in identifying appellant. Further, Janes testified that if he had never seen the photographic lineup, he would have been able to identify appellant in court as the robber because he remembered him as the person “that came into my store twice and robbed us.” Considering the Biggers factors, we conclude the pretrial identification process did not create a substantial likelihood of irreparable misidentification. Accordingly, the trial court did not err in admitting the evidence. We overrule the first issue.
        In the fourth and fifth issues, appellant complains about the in-court identification testimony of two witnesses at punishment. Brandy Washington and Carla Randolph both selected appellant's photograph during separate lineups and, at trial, identified him as the person that robbed them at gunpoint at the Advance America Cash Advance in Mesquite on January 31, 2005. Appellant complains about the following instructions given by Mesquite police at the photographic lineups:
 
INSTRUCTIONS TO BE READ TO WITNESS: In a moment I am going to show you a group of photographs. Take your time and carefully look at all the photographs before you make any decisions. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hair styles, beards and moustaches may be easily changed. Also, photographs may not always depict the true complexion of a person - it may be lighter or darker than shown in the photo. Pay no attention to any markings or numbers that may appear on the photos or any other differences in the type of style of the photographs. When you have looked at all the photos, tell me whether you see anyone you recognize. Do not tell other witnesses that you have or have not identified anyone.
 
(Emphasis added.) Appellant argues the highlighted instructions are unduly suggestive because they contain “information that would kind of give the witness the opportunity to just pick out anybody . . . .” The trial court found that neither the identifications nor instructions were unduly suggestive. We agree.
        The instructions do nothing more than state the obvious: appearances change. The instructions did not in any way suggest which photograph, if any, a witness should select nor did they suggest that a suspect was included in the photographs. To the contrary, witnesses were instructed that the lineup may or may not contain a photograph of the person who committed the cime. The instructions were not impermissibly suggestive. We overrule issues four and five.
        In issues six and seven, appellant challenges the trial court's ruling regarding the in-court identifications by Manuel Zertuche and Cianna Anthony at punishment. Zertuche and Anthony each selected appellant's photograph from a lineup as the person who robbed them at the Advance America Cash Advance on Garland Road in Dallas on February 7, 2005. Appellant complains the array was suggestive because his photograph was the smallest in the lineup.
        We have reviewed the lineup and agree with the trial judge that the lineup is not impermissibly suggestive. The lineup contains two rows of three photographs. All of the photographs depict African-American men with close-cropped hair and facial hair. All of the photographs are the same size; the only difference is that the heads of the men in photographs 5 and 6 appear larger than the heads of the men in photographs 1, 2, 3, and 4. (Appellant was depicted in photograph 4.) Thus, if any of the photographs stand out, it would be photographs 5 and 6. The trial court did not erred in overruling appellant's objections to the in-court identifications. We overrule issues six and seven.
        In his second issue, appellant complains the trial court erred in refusing to suppress his written confessions to three aggravated robberies, including the two that are the subject of these appeals, because the face of the statements did not reflect that he was given his Miranda warnings. Specifically, he complains that he did not initial the warnings at the top of each statement.
        Detective Raley was the sole witness at the suppression hearing. He testified he interviewed appellant on the day he was arrested for the aggravated robberies of four stores. Before talking to appellant, Raley read him his Miranda warnings. According to Raley, appellant waived these rights and talked to him. After discussing the four robberies, appellant agreed to give a written statement in each case and told Raley what to write. Before writing each of the statements, Raley read the warnings at the top of the form and, after ascertaining that appellant could read, had appellant read the rights to himself. The statements are contained in Exhibits 67, 68, 69, and 70. Raley had appellant initial the warnings only on State's Exhibit 69, which recounted the first robbery, because he had already given appellant his warnings three or four times and did not want appellant to become “bored with this.”
        After the statements were written out, Raley brought in a civilian witness. Again, Raley read appellant each statement separately, including the rights and admonishments as the top of each form. He asked appellant if he wanted to make any changes, and appellant did not. Appellant, Raley, and the civilian witness signed each of the statements. Raley also testified that he did not promise leniency or threaten or coerce appellant. At the conclusion of the hearing, the trial court made oral findings that the statements were freely and voluntarily given; defendant's rights were given to him; andno promises were made and no coercion done.
        We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is the sole fact finder. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). We give almost total deference to the trial court's determination of historical facts when supported by the record, particularly if the findings turn on witness credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856. Issues that present purely legal questions are considered under a de novo standard. Id.
        Article 38.22 of the Texas Code of Criminal Procedure provides that no written statement made by an accused as a result of custodial interrogation is admissible as evidence unless on its face it contains what are the equivalent of Miranda warnings and that the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).         The preprinted forms on which appellant made his written statements contain the warnings required by article 38.22. Appellant signed each statement, affirming “that all facts and statements contained herein are true and correct.” Although he asserts that a defendant must initial these warnings for the statement to properly reflect he waived his rights, he has not presented any argument or authority to support that position. The evidence shows that by the time appellant signed the first statement, Exhibit 67, Detective Raley had apprised him of his rights no fewer than five times; moreover, appellant had read the rights contained on the statements himself. Under these circumstances, we conclude the statements show on their faces that appellant received the requisite warnings as required by article 38.22. The trial court did not err in admitting the statements. To the extent appellant has requested that we abate the appeal so that findings can be made on the voluntariness of the confessions, such action is not warranted given that the the trial court made oral findings. See Murphy v. State, 112 S.W.3d 592, 601-02 (Tex. Crim. App. 2003) (explaining that trial court satisfies article 38.22 requirement of making findings of fact and conclusions of law when it dictates findings into record and they are transcribed and made part of reporter's record). Issue two is without merit.
        In his third issue, appellant complains the trial court erred in denying his request for a separate reasonable doubt instruction for each extraneous offense for which evidence was admitted at punishment. At punishment, the State presented evidence of four felony convictions, two juvenile adjudications, and three other unadjudicated offenses (two aggravated robberies and one murder). The charge instructed the jury as follows:
 
You are instructed in this case that certain evidence was admitted before you in regard to the defendant having committed offenses other than the offense alleged against him in the indictment in this case for which he is now on trial. You are instructed that such evidence cannot be considered against the defendant as any evidence in this case unless you first find and believe beyond a reasonable doubt that the defendant committed such offenses.
 
 
 
Therefore, before you may consider the evidence admitted before you of the offenses, if any, you must first find and believe beyond a reasonable doubt that such offenses occurred and you must further find and believe beyond a reasonable doubt that the defendant, Paul Tony Smith, committed such offenses, if any.
 
        
        Appellant argues, without any analysis of the cases relied upon, that the general instruction given violated Apprendi v. New Jersey, 530 U.S. 466 (2002) and Blakely v. Washington, 542 U.S. 296 (2004). We disagree.
        If the State offers evidence of extraneous offenses during the punishment phase of a trial, the court must charge the jury that it can only consider such evidence if it finds beyond a reasonable doubt that the defendant committed the extraneous offenses. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon 2006); Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim. App. 2000) (holding there is statutory requirement that jury find beyond reasonable doubt that extraneous bad acts are attributable to defendant before jury can consider them in assessing punishment.) Huizar, however, does not require a separate instruction for each extraneous offense. Id. And neither does Apprendi or Blakely.
        In both Blakely and Apprendi, the trial judge made findings that increased the defendant's sentences beyond the statutory maximum. Woods v. State, 152 S.W.3d 105, 120 (Tex. Crim. App. 2004). In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Supreme Court defined the term “statutory maximum” for purposes of an Apprendi analysis as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303.         Here, appellant's punishment (life confinement and a $10,000 fine) did not exceed the statutory maximum for aggravated robbery. See Tex. Pen. Code Ann. §§ 12.32 & 29.03(b) (Vernon 2003). Consequently, neither Apprendi nor Blakely applies to these cases. Cf. Rios v. State, No. 01- 04-00795-CR, 2005 WL 3077220, *7-8 (Tex. App.-Houston [1st Dist.] Nov. 17, 2005, pet. dismissed, untimely filed) (rejecting argument that Blakely required jury to make affirmative finding of guilt beyond reasonable doubt on unadjudicated extraneous offenses). Issue three is without merit.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051356f.u05