CHARLES EDWARD BEASLEY, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion issued November 15, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01419-CR
............................
CHARLES EDWARD BEASLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-01299-M
.............................................................
OPINION
Before Chief Justice Thomas and Justices O'Neill and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        A jury convicted appellant, on his not guilty plea, of aggravated robbery. See Tex. Pen. Code Ann. § 29.02(a), 29.03(a)(2) (Vernon 2003). The jury assessed punishment, enhanced by two prior felony convictions, at sixty years' imprisonment. In two points of error, appellant contends the trial court erred in admitting the complainant's in-court identification and the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
 
In-Court Identification
 
        In his first point of error, appellant claims the trial court erred in admitting the complainant's in-court identification of appellant because the pretrial photographic lineup was impermissibly suggestive. The State responds that the trial court properly admitted the in-court identification.
Background
 
        Appellant filed a pretrial motion to quash and suppress the photographic lineup because it was unduly suggestive. The trial court conducted a pretrial identification hearing, at which the complainant Gabriel Sotelo and Dallas police detective Dale Lundberg testified.
        Sotelo testified that at about 10:45 p.m. on July 9, 2004, he was robbed and attacked. The entire encounter lasted twenty to twenty-five minutes. Sotelo identified appellant at the hearing as one of the two men who robbed him on that date. After he reported the robbery, Sotelo went to the police station and met with two detectives. In the early morning hours of July 10, the detectives showed Sotelo a six-person photographic lineup and asked if Sotelo could identify who had attacked him.   See Footnote 2  The detectives did not suggest who Sotelo should pick. Sotelo picked number 14D, which was appellant's photograph. Sotelo and the detectives signed the photograph and dated it July 10, 2004 at 1:55 a.m. In response to whether Sotelo needed the photographic lineup at trial to remember the man who attacked him, he replied, “I have my own independent recollection.” Sotelo testified his recollection of appellant was based on what happened the night of the offense.
        On cross-examination, defense counsel elicited that it was dark when the offense occurred. He also elicited that appellant was wearing a white “wife beater.”   See Footnote 3  Defense counsel then brought out that only one person in the photographic lineup was wearing a “wife beater” and when Sotelo looked at the photograph, he “couldn't help but notice the wife beater.” During cross-examination, counsel was unable to get Sotelo to agree that the inclusion of appellant's photograph wearing the same “wife beater” the suspect was wearing hinted to Sotelo who to pick, and the following exchange occurred:
 
[Defense Counsel]:
 
Well, would you agree with me that to some extent the-since the presence of the wife beater in the photograph that you were shown let you know which-or hinted at which photograph was the assailant or one of the assailants, as you put it, would you agree that-that the selection of that photograph suggested to you who to pick?
 
 
 
[Sotelo]:
 
No, I would disagree with that. I was able to remember in my mind. In fact, it wasn't the wife beater that really-struck a chord with me. It was his face that hit it for me. Once I saw the face, I knew that was him.
 
 
 
 
* * * *
 
 
 
 
[Defense Counsel]:
 
My question is didn't the photograph give you a hint as to which photograph to select?
 
 
 
[Sotelo]:
 
No, it didn't. It didn't.
 
 
        Lundberg testified that minutes before midnight on July 9, 2004, just as he was reaching for the door handle to leave for the night, appellant was brought into the police station as a robbery suspect. Lundberg stayed and put together a photographic lineup for Sotelo to view. Lundberg said it took a long time to get a lineup together because they had a very limited group of photographs from which to pick. Lundberg was able to get photographs of people of basically the same age, ethnicity, facial hair or lack of it, but he was trying to find at least “one other person or possibly two other people that had the same type of clothing as Mr. Beasley.” He was, however, unable to do so, despite going through at least 100 or more photographs in his effort. Lundberg was present when Sotelo viewed the lineup, and Sotelo picked appellant “very quick.” Lundberg identified the lineup photographs and, specifically, the photograph of appellant Sotelo picked from the lineup. Lundberg also identified his signature and badge number written on the back of the photograph. The lineup photographs were admitted into evidence without objection.         On cross-examination, Lundberg testified the picture of appellant included in the lineup was taken the night of the robbery, and he recognized that having just one person in a white tank top might suggest to the victim the answer to the question. However, Lundberg testified the police tried to minimize the portion of the shirt that was showing in the photograph so it was mostly just a head shot.
        At the conclusion of the hearing, the trial judge stated,
 
Under Webb versus State, 760 S.W.2d 263, Texas Court of Criminal Appeals, burden is upon the defendant to show that the identification procedure was faulty and that it created a substantial likelihood of irreparable misidentification. The Court does not believe that second prong was met, that it was a substantial likelihood of irreparable misidentification. The Court finds that the alleged complainant in this case had the opportunity to see the alleged assailant's face, had the opportunity to commit that to memory. And that if there was any taint, it would not meet the substantial likelihood of irreparable misidentification.
 
Standard of Review and Applicable Law
 
        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 photographic 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 to show by clear and convincing evidence the in-court identification was impermissibly suggestive and the improper procedure gave rise to a very substantial likelihood of irreparable misidentification. See Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995).
        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).
Analysis
 
        Appellant asserts that because his was the only photograph in the lineup showing a person in a “wife beater”style T-shirt, he was distinguished as the “culprit,” thereby creating a substantial likelihood of irreparable misidentification. He recognizes he labors under a heavy burden. See Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984). Appellant asks us to consider the following: (a) Sotelo was attacked at night and thrown into the floorboard of a vehicle; (b) there was no evidence the vehicle was lighted; (c) he was severely beaten, including his face and eye area, and was in severe pain; (d) he could hardly see out of his left eye; (e) he attempted to shield his face from the blows; (f) he could not describe the facial features of the attackers; (g) he only remembered the attacker was wearing a white “wife beater” styled T-shirt; and (h) he picked the only person in the lineup wearing a “wife beater” shirt. Appellant also argues that even the police had concerns about the fairness of the lineup. Appellant concludes, therefore, there was a very substantial likelihood of irreparable misidentification. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).
        The State responds that Sotelo's in-court identification of appellant was admissible. The State argues that even if the lineup was impermissibly suggestive, appellant did not meet his burden to show it created a substantial likelihood of misidentification and, thus irreparably tainted Sotelo's in-court identification testimony.
        Applying the Biggers factors to the evidence presented at the suppression hearing, we conclude the pretrial identification procedure did not create a substantial likelihood of misidentification. The evidence shows that at the time of trial, Sotelo had just finished his Master's degree in public health. Although it was dark when Sotelo was attacked, he had several opportunities with sufficient lighting to clearly see appellant's face.   See Footnote 4  After the initial blow turned Sotelo to his side and he saw “the other man,” Sotelo realized he had been attacked. Sotelo “was trying to see what was going on.” When Sotelo was put on the floorboard of the Explorer, appellant was in the back seat with him. Sotelo clearly saw appellant's face, which was not covered or disguised in any way. At one point, appellant reached into Sotelo's pockets to retrieve money and was “hovering”over Sotelo. Throughout the ordeal, Sotelo testified he looked directly at appellant's face several times and got “clear looks” and he had no problem at all remembering his face at trial. Sotelo paid a high degree of attention to detail as evidenced by the fact he noted the make, color, and type of vehicle he parked in front of on the street; he described in detail where and when he was struck; he noted the gun was “smaller;” he saw, and remembered, the first three numbers of the license plate on the vehicle; and he gave a description of the vehicle and the men to the 911 operator. That description was sufficient to enable the police to identify the vehicle and the attackers when they saw the vehicle outside, and the men inside, a Taco Bueno shortly after the offense. Sotelo was certain and consistent in his identification of appellant. He quickly picked appellant from the photographic lineup, stating, “I stopped as soon as his face came up in the-you know, when I recognized him. I didn't need any more-I just recognized his face, and I stopped.”
        When a witness's in-court identification has an origin independent of a claimed improper pretrial identification procedure, the in-court identification is admissible at trial. See Gaines v. State, 789 S.W.2d 926, 929 (Tex. App.-Dallas 1990, no pet.) (holding in-court identification not tainted by improper pretrial procedures where, although defendant only individual in pretrial lineup wearing yellow tank top like one worn during the crime, victim based identification strictly on recognizing defendant's face from the time of offense and others identified defendant based on their recollection of events). We conclude appellant has not met his burden to show by clear and convincing evidence there was a substantial likelihood of misidentification. Consequently, the trial court properly admitted the identification testimony. We overrule appellant's first point of error.
Factual Sufficiency of the Evidence
 
        In appellant's second point of error, he contends the evidence is factually insufficient to show he was the person who committed the offense. Specifically, appellant claims he was misidentified by the victim whose testimony was uncorroborated by scientific evidence proving his identity.
        The State responds the evidence is factually sufficient to sustain appellant's conviction because the victim identified appellant and his testimony was corroborated by appellant's connection with the suspect vehicle shortly after the crime, as well as presence of the victim's DNA on a pistol recovered during the arrest.
Facts
 
        Sotelo testified he lived in Fort Worth. He had been attending graduate school and finished up his Master's in public health in May 2005. On July 9, 2004, around 10:15 p.m., Sotelo left Fort Worth to drive to Dallas, where he was going to meet some friends and go to a club “right off of Cedar Springs.”   See Footnote 5  Sotelo parked on the street in front of a beige Ford Explorer. While talking on his cellular telephone, Sotelo got out of his vehicle, locked the door, and began to walk away. He was attacked from behind by two men. Sotelo first heard footsteps. A second or two later, he was hit on the back “pretty hard” with a fist-hard enough to turn him to the side. He then saw a second man to his right. Sotelo realized he had been attacked and testified he “was trying to see what was going on.” Although it was dark, there was some lighting, and Sotelo got a good look at the men, one of whom he identified as appellant.   See Footnote 6  Appellant struck Sotelo on the back, left side of his head with a gun,   See Footnote 7  causing Sotelo to fall to the pavement. Everything happened “very, very quickly.” After striking Sotelo with the gun, appellant just held it; he did not point it at anything. When asked what appellant did with the gun, Sotelo replied, “Well, he had struck me on the head with it.” Then “one of the guys” took Sotelo by his legs and the other one took him by his arms, pulled him, lifted him up, and put him on the back floorboard of the Explorer. Appellant was in the back seat with Sotelo, and Sotelo could see appellant's face clearly. The other man was driving and conversing with appellant. Sotelo could not see where the man was driving. While on the floorboard, Sotelo was “assaulted and punched and kicked” by appellant. Appellant kicked Sotelo in various places on his chest area and in the face. The attack caused Sotelo pain and injury; he was bleeding, and “kind of stunned.” The men demanded money. Appellant reached into Sotelo's front pockets and took whatever he found in there. He found Sotelo's driver's license, credit card, car keys, and $15. Appellant was angered at finding only $15, calling it “petty cash.” Appellant then put a gun to Sotelo's throat and said, “I'm going to kill you.” Appellant wanted Sotelo's PIN number for his credit card and said if Sotelo did not give appellant the number, appellant would kill Sotelo. Sotelo did not know his PIN number and was terrified. Appellant kicked Sotelo forcefully on the left side of his face, right around the eyes and the temple area, because Sotelo did not give appellant the PIN number. The pain was incredible. Appellant “pushed [the gun] up against [Sotelo's] throat quite hard” and held it there “maybe about 30 seconds or so.” At one point, while appellant was talking to the driver, Sotelo seized an opportunity and kicked appellant as hard as Sotelo could. Appellant then kicked and punched Sotelo again. Sotelo did not think he was going to make it out of the vehicle alive.
        The driver eventually stopped the Explorer, and “one of the guys” got Sotelo's legs and literally yanked him out of the vehicle very forcefully. Sotelo hit the back of his head on the pavement. The man then went to the passenger side of the vehicle to get in. Sotelo got up and went up to the driver's side of the Explorer to look at the driver, but the window was tinted and he could not see the driver very well at that time. As the vehicle drove off, Sotelo was able to get the first three characters of the license plate number, which were M26. After orienting himself, Sotelo realized he was in the parking lot of the American Airlines Center. He found a pay phone, called 911, and reported the robbery.   See Footnote 8  Sotelo gave the dispatcher a description of the vehicle and the men who beat him. An ambulance arrived and paramedics treated Sotelo. Dallas police officer Kyle Land arrived.   See Footnote 9  Sotelo described the suspects to Land and gave him a clothing description of one of them as wearing a white tank top. Sotelo testified that throughout the ordeal, he saw appellant's face several times, got clear looks at it, and had no problem remembering appellant's face in court.
        Sotelo insisted on going to the police station and making a report before being taken to the hospital to have his injuries treated. At the police station, Sotelo met with detectives who interviewed him, cleaned him up a bit, and had him look at a photographic lineup. Sotelo quickly identified appellant as one of his attackers. The time was 1:55 a.m. Sotelo did not remember whether appellant had a gold tooth.
        Dallas police officer Kyle Land testified he responded to the 911 call. Upon arriving at the scene, Land saw Sotelo had been severely beaten. Notwithstanding his injuries, Sotelo gave Land a detailed account of the attack and a description of the vehicle and the men who had beat him. Sotelo described both men as black males in their late twenties or early thirties; one of the men had a gun; one man was about 5'8" or 5'9" tall and was wearing a white “wife beater” T-shirt and jean shorts; the other man was wearing all dark clothing. Sotelo described the vehicle as a new-styled tan Ford Explorer and gave a partial license plate number. Land broadcast the information out over the radio.
        Around 11:00 p.m. on July 9, Dallas police officers Bryan McCullough and Emmett Jackson were on routine patrol when they heard the radio dispatch of the description of the suspects and their vehicle, including the partial plate number M26. Shortly thereafter, McCullough and Jackson spotted a vehicle matching the description outside a nearby Taco Cabana. The officers could see two black males fitting the description of the robbers inside the restaurant. The officers watched the suspects as they left the restaurant. The man wearing the white T-shirt drove. After confirming the first three characters of the license plate matched the partial plate dispatched, the officers arrested the two men. Just before midnight, the officers took the men to the police station, where Sotelo picked them out of a photographic lineup.
        The vehicle was impounded and dusted for fingerprints; no fingerprints were identified. Other testing was also performed. The white T-shirt tested negative for blood. Kerri Kwist, a forensic biologist at the SWIFS,   See Footnote 10  testified she tested nine different samples: three were the DNA standards from Sotelo, appellant, and co-defendant Cyral Barnes; two were taken from the gun;   See Footnote 11  three were taken from the jean shorts; and one was from a piece of cloth.   See Footnote 12  Appellant was excluded as a possible contributor of the DNA obtained from the gun and the cloth. DNA tests on the gun were identified as being from a major contributor, Cyral Barnes, and a minor contributor, Sotelo. The statistical weight of Sotelo's DNA sample on the gun was high-only one in 2.17 trillion Hispanics would match the profile of Sotelo, the minor contributor of the DNA sample on the gun. Samples from the jean shorts were all mixtures. The major contributor to the DNA found on the shorts matched appellant's DNA profile. Included within the mixture was Sotelo's DNA profile. However, the statistical weight given to that inclusion was not very high.
        The defense called Dallas police detective Martha Sanders, who testified that on July 9, 2004, she was assigned to the Crimes Against Persons, Robbery Unit. On that date, Sanders had a conversation pertaining to a license plate with Sotelo before he went to the hospital. In response to a question about what Sotelo told her, she replied,
 
He told me that he was certain that it was the M26, but because he had been beaten really bad, that his vision was very blurry, but it was possible that the tag might have M66, but he was pretty sure on the M26. But the M66 came up and I wrote it down just in case there was any question about that. So I wrote it down, but he seemed-and I put a star next to the M26 on my notes because that's what he was the most certain about.
 
        The defense then offered, and the trial court admitted without objection, Defendant's Exhibit no. 1, an affidavit from the Texas Department of Transportation in Austin showing how many vehicles in Dallas, Tarrant, Collin, and Ellis Counties on July 9, 2004, had license plate numbers beginning with “M26.”   See Footnote 13 
        Outside the jury's presence, the trial court allowed the State to strike the language “and one cellular phone” from the indictment. The following day, even though appellant had not testified, the trial court permitted the defense to reopen the case for a physical demonstration. Defense counsel had appellant “step forward” and asked him “to open his mouth and show the jury his teeth.”   See Footnote 14 
Standard of Review and Applicable Law
 
        The State has the burden of proving all elements of the indictment beyond a reasonable doubt and courts of appeals have the power to review trial court verdicts in order to determine whether the burden has been met. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). When deciding whether the evidence is factually sufficient, we must examine all of the evidence, without the prism of in the light most favorable to the verdict, to determine whether a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).         A person commits aggravated robbery if, in the course of committing robbery, he uses or exhibits a deadly weapon. See Tex. Pen. Code Ann. § 29.03(a)(2) (Vernon 2003). A person commits robbery if, during the course of committing theft, and with the intent to obtain or maintain control of the property, he intentionally or knowingly causes bodily injury to another. See id. § 29.02(a)(1) (Vernon 2003). A firearm is a deadly weapon per se. See id. § 1.07(a)(17)(A) (Vernon Supp. 2006).
        Excluding the enhancement allegations, the indictment alleged that appellant, on or about the 9th day of July, 2004, in Dallas County, Texas, did
 
unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of Gabriel Sotello [sic], hereinafter called complainant, the said property being one (1) set of keys, one (1) credit card and one (1) cellular phone,   See Footnote 15  without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there intentionally and knowingly cause bodily injury to said complainant, by striking complainant with a firearm, and said defendant did then and there use and exhibit a deadly weapon, to-wit: firearm. . . .
 
The trial court instructed the jury on the law of parties that it could convict appellant if it found he, acting alone or as a party, committed aggravated robbery of Sotelo. See id. §§ 7.01(a), 7.02(a) (Vernon 2003).   See Footnote 16 
 
Analysis
 
        Viewing all of the evidence in a neutral light, and measuring it against the court's charge, including the law of parties, we conclude the evidence is factually sufficient to establish appellant's identity as a principal or party to aggravated robbery. Sotelo's identification of appellant was certain and consistent. The jury was the sole judge of the credibility of the evidence. See Cain, 958 S.W.2d at 410 (decision not manifestly unjust merely because jury resolved conflicting views of evidence in favor of State); Harvey v. State, 3 S.W.3d 170, 175 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (holding evidence factually sufficient to support conviction where jury resolved questions about reliability of eyewitness testimony in favor of State). Moreover, Sotelo's eyewitness testimony was corroborated by scientific evidence that Sotelo's DNA profile was found on the gun recovered during the arrest.
        In determining guilt as a party, we look to events before, during, and after the commission of the offense. See Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). The record shows appellant was in the backseat of the Explorer during the robbery and was driving the Explorer both shortly after the robbery and immediately before his arrest. We conclude a reasonable fact finder could have found appellant guilty beyond a reasonable doubt of aggravated robbery. We overrule appellant's second point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
051419F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The pictures in that photographic lineup were marked as State's Exhibits nos. 14A through 14F.
Footnote 3 Sotelo explained that a “wife beater” is a tank top, or a T-shirt, with two narrow straps that go over the shoulders.
Footnote 4 Sotelo testified there were some lights at the location where he was attacked. He said, “At the very end of the street where I almost made it to, there was a street light there.”
Footnote 5 The general area where the offense occurred was near Interstate 35 and Harry Hines Boulevard, the Tollway, and American Airlines Center. Sotelo used a map to describe the various locations to which he referred during his testimony.
Footnote 6 The other man was later identified as Cyral Barnes.
Footnote 7 The gun was admitted into evidence as State's Exhibit no. 2.
Footnote 8 The 911 tape was admitted into evidence over defense counsel's objection and played for the jury.
Footnote 9 Land testified he arrived on the scene at about 11:00 p.m.
Footnote 10 Southwestern Institute of Forensic Sciences.
Footnote 11 One sample was taken from the muzzle and one from the handle of the gun.
Footnote 12 The sample of cloth had apparently been cut from the back seat of the vehicle. Markers from an unknown female and male were found on the cloth.
Footnote 13 Dallas had 715; Tarrant 523; Collin 238; and Ellis 52.
Footnote 14 The record does not reflect what appellant's teeth looked like and defense counsel's closing argument did not address the condition of appellant's teeth.
Footnote 15 The State struck the allegation that one cellular phone was taken, and no complaint is made about the amendment.
Footnote 16 Section 7.01(a) provides that a person is responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Section 7.02(a) provides that a person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

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