NICHOLAS DEWAYNE TERRY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 7, 2009.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00165-CR
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NICHOLAS DEWAYNE TERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 24,428
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OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice Moseley
        A jury found Nicholas Dewayne Terry guilty of aggravated robbery and the trial court sentenced him to thirty six years' imprisonment. Terry appeals, arguing in four issues that the evidence is factually insufficient to support the conviction, the trial court erred by denying his motion to suppress the in-court identification, by failing to suppress evidence seized from him, and the State committed prosecutorial misconduct by violating the order in limine. We affirm.
Background
        Early one morning in December, Jaspal Singh warmed up his van and scraped the ice from the windshield before driving to his convenience store. After he started driving to work, he heard two men in the backseat yelling at him. Singh looked back and saw a man with a gun and a red cloth partially covering his face. One of the men shot Singh in his arm and wrist. The men told Singh to stop the van and get out. They demanded money; Singh gave them his wallet with about $200 in it. The men put Singh on the ground and shot him a third time, in his right leg. The man with the gun no longer had the red cloth on his face and Singh was able to see his face. Singh described the man as a tall black man who had not shaved. Singh also noticed the man's eyes.
        The shooter then demanded Singh drive to his store to get more money and threatened to kill Singh and his son. After entering the store, Singh turned off the alarm, but as the men were looking through his papers for money, Singh turned the alarm on again. Both men ran out of the store.
        When police arrived at the store, Singh told them he was afraid for his family because the men told him they followed him home the night before and they threatened to kill his son. Police went to Singh's apartment to investigate. Officer Rascoe noticed one of the vehicles in the parking lot did not have frost on the windows and was warm to the touch. The registered owner of the vehicle was Terry's mother; Rascoe went to her address and she told Rascoe that Terry drove the vehicle but was not home. Meanwhile, a police officer was watching the vehicle while other officers were obtaining a search warrant. Later that day, Terry arrived at the apartments to retrieve the vehicle and Rascoe questioned him. Rascoe noticed spots on Terry's white t-shirt and on his shoe that could be blood. There was no blood on the sole of the shoe. Later analysis showed Singh's blood was on Terry's shoe, but not on the t-shirt. Police also found a red bandana inside Terry's vehicle.
        Two days after the robbery, while Singh was in the hospital, police showed a photographic lineup including Terry's photograph. Singh did not identify any of the photographs as pictures of the robbers. Approximately nine-months later-two weeks before trial-Singh was present at a bond-reduction hearing for Terry and identified Terry as the man who shot him.         At trial, Singh also identified Terry as the shooter. A videotape from the store showed Singh
and two black males during a portion of the robbery. The taller man had a white t-shirt protruding out of his jacket. A forensic scientist testified he compared Terry's shoe with a photograph of a partial impression left at the store. He concluded the impression was consistent with having been made by the shoe or a shoe with a similar tread design.
DISCUSSION
A. Factual Sufficiency
        In his first point of error, Terry asserts the evidence is factually insufficient to support his conviction. In a factually sufficiency review, we view all of the evidence in a neutral light and ask whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. See Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence that is legally sufficient under a Jackson v. Virginia, 443 U.S. 307, 319 (1979) analysis, may be factually insufficient if the evidence is “so weak” that the verdict “seems clearly wrong or manifestly unjust,” or the verdict is “against the great weight and preponderance of the evidence.” Watson, 204 S.W.3d at 414-15, 417; see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Appellant does not challenge the legal sufficiency of the evidence under the Jackson standard. Jackson, 443 U.S. at 319.
        A person commits the offense of aggravated robbery if, he commits robbery and causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(1), (2) (Vernon 2003). A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property; appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(a), (b)(1) (Vernon Supp. 2008). “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46) (Vernon Supp. 2008). A firearm is a deadly weapon. Id. § 1.07(a)(17)(A).
        Terry argues the evidence is factually insufficient because the only evidence linking him to the crime was the victim's identification, a small blood stain on his shoe that matched the victim's blood, and a bloody footprint at the scene that was similar to the tread on his shoe. Terry argues the blood was transferred to the top of his shoe by police when they touched the shoes after being at the scene and there was no blood found on the soles of his shoes. He notes the absence of blood on his t-shirt, and his fingerprints were not found at the scene or in the van. Terry asserts this is a case of mistaken identity by the victim.
        The record indicates Singh identified Terry in court as the shooter. Singh explained he was able to see the shooter's face after the red cloth came loose, was able to see his eyes and that he had not shaved. The jury heard the evidence that Singh did not identify Terry from the photographic lineup while in the hospital, but did identify him in person at the pretrial hearing. Although no blood was found on the sole of Terry's shoe, DNA tests showed the blood found on the top of Terry's shoe was Singh's. Police officers denied touching the shoe before they noticed the blood spot and denied doing anything that could have transferred blood from the scene to the shoe. The other evidence, while circumstantial, presented a question for the jury to resolve. We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
        Evaluating all of the evidence under the factual sufficiency standard, we cannot say the evidence is so weak that the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex. Crim. App. 2007). We overrule appellant's first point of error.
B. Suppression of In-court Identification
        Terry's second point of error argues the trial court erred by overruling his motion to suppress Singh's in-court identification of Terry because it was tainted by an unduly suggestive pretrial procedure. We set aside a conviction based on an in-court identification only when the in-court identification was the result of a pretrial identification procedure that was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Wilson v. State, 15 S.W.3d 544, 552 (Tex. App.-Dallas 1999, pet. ref'd). We look to (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether it was so suggestive that there is a strong possibility of irreparable misidentification. See Conner, 67 S.W.3d at 200 (citing Simmons v. United States, 390 U.S. 377 (1968)). We evaluate whether the pretrial procedure fatally tainted the in-court identification by reviewing the totality of the surrounding circumstances. Conner, 67 S.W.3d at 200; Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983); Wilson, 15 S.W.3d at 552.
        Suggestiveness may arise from the manner in which a pretrial identification procedure is conducted. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). For example, a police officer may point out the suspect or suggest that a suspect is included in a lineup or photographic array. Id. Also, the content of a lineup or photographic array itself may be suggestive if the suspect is the only individual who closely resembles the description given by the witness. Id. Also, an individual procedure may be suggestive or the cumulative effect of procedures may be suggestive. Id.
        The appellant bears the burden of establishing by clear and convincing evidence that the in- court identification was unreliable. Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992). If the out-of-court identification procedure was impermissibly suggestive, we consider several factors to determine the reliability of the in-court identification. See Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim App. 1998) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). Those factors include: (i) the witness's opportunity to observe the defendant; (ii) the witness's degree of attention; (iii) the accuracy of the witness's physical description, if any; (iv) the witness's degree of certainty; and (v) the amount of time between the offense and the identification of the accused. Id. When the record clearly reveals that a witness's ability to make an in-court identification has an origin independent of any allegedly improper pretrial identification procedure, any impermissible pretrial procedure would not create a substantial likelihood of misidentification and the in-court identification is admissible at trial. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985); Jackson, 657 S.W.2d at 130 (“[I]t is well established that, even where the pre-trial identification procedure is impermissibly suggestive, in-court testimony of an identification witness will still be admissible as long as the record clearly reveals that the witness' prior observation of the accused was sufficient to serve as an independent origin for the in-court identification.”); Johnson v. State, 901 S.W.2d 525, 534 (Tex. App.-El Paso 1995, pet. ref'd).
        Terry does not complain that the photographic array was impermissibly suggestive, he merely points out the Singh was unable to identify him from the photograph in the array. Singh testified at the hearing on the motion to suppress that he was in the hospital and under medication at the time he saw the array and was unsure because Terry was clean shaven in the photograph, but had a light beard at the time of the robbery.
        Terry also argues the pretrial hearing was unduly suggestive because Singh knew Terry would be in court, and Terry was one of only two black males in court and was taller than the other black man in the court room. Terry was also wearing jail clothes and shackled. Singh testified he was present at the bail reduction hearing and recognized Terry when he came into the court room. Kelly Wood, who was with Singh at the bail hearing, testified that Singh recognized Terry when ten to twelve prisoners, including three black people, came into the courtroom. No one told Singh that Terry would be coming through the door before Singh saw him. Singh testified he was certain Terry was the man who shot him and never identified anyone else as the shooter, Singh had opportunity to see the shooter's face during the abduction, shooting, and robbery, Singh was attentive, but gave only a general description of the shooter as a tall black man. Nine months elapsed between the robbery and the bail reduction hearing where Singh recognized Terry.
        Based on the totality of the circumstances shown in the record and giving appropriate deference to the trial court's implied findings of historical fact and mixed questions of law and fact based on credibility and demeanor, we conclude Terry has not shown the pretrial identification procedures were impermissibly suggestive. See Loserth, 963 S.W.2d at 772-73; Barley, 906 S.W.2d at 33-34. Further, if the procedure was impermissibly suggestive, the application of the Biggers factors in this case do not show the procedure created a substantial likelihood of irreparable misidentification. See Conner, 67 S.W.3d at 200. We overrule Terry's second point of error.
C. Suppression of Evidence
        Terry's third point of error is that the trial court erred by overruling his pretrial motion to suppress his shoes and t-shirt seized by police. We conclude Terry failed to preserve this issue when his counsel affirmatively stated “no objection” when the State offered the items in evidence at trial. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (affirmative acceptance of previously challenged evidence waives any error in its admission). We overrule Terry's third point of error.
D. Prosecutorial Misconduct
        In his fourth point of error, Terry states the State committed prosecutorial misconduct by eliciting testimony that Terry was on probation in violation of the order on the motion in limine. He does not, however, assert any trial court error in connection with this argument. The trial court sustained the objection to the officer's statement about finding Terry at the probation office, but denied the motion for mistrial and request for an instruction to disregard because it would call more attention to the statement. Terry does not complain on appeal about either of these adverse rulings. See Tex. R. App. P. 33.1(a). Further, Terry merely requested a bench conference when the officer mentioned Terry's “mug shots” and that police were looking at Terry's “known associates” in connection with this case. Terry asked only that the court instruct the witness “about what his testimony needs to stay away from.” The trial court responded (outside the presence of the jury), “I think we're getting into some dangerous territory. I think you've made all the mileage you're going to make out of the mug shots anyway so let's go on.” Again, Terry does not assert on appeal that the trial court erred in any way. We conclude the point of error presents nothing for review. We overrule Terry's fourth point of error.
 
 
CONCLUSION
 
        Having overruled all of Terry's points of error, we affirm the trial court's judgment.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2(b)
080165F.U05