Harris, Charles DeWayne v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Memorandum Opinion filed January 27, 2005

Affirmed and Memorandum Opinion filed January 27, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00767-CR

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 CHARLES DEWAYNE HARRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 910,553

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M E M O R A N D U M O P I N I O N

Appellant Charles Dewayne Harris appeals his conviction for aggravated robbery. Appellant asserts the trial court erred in (1) failing to suppress in-court identification testimony after the police used an allegedly impermissibly suggestive pretrial identification procedure, and (2) allegedly admitting evidence of an extraneous offense. We affirm.

I. Factual and Procedural History

While returning to her office after lunch on October 8, 2001, Sachie Canales, an intern at a law firm, passed a man in the hallway of her office building. She made eye contact and smiled at him. A short time later, the man entered the reception area of her office suite. They talked for three to four minutes about what types of cases her firm handled, and then the man left. About an hour later, the man came into Canales=s office and asked her about a legal consultation. The man placed his hand on Canales=s shoulder, held up a pocketknife with the blade extended, and demanded her purse. He then ordered Canales to sit on the couch, locked the door to the office suite, and closed the blinds on the windows. Canales unsuccessfully lunged for the knife. The man hit Canales several times and knocked her to the ground. The assailant then left the office suite with Canales=s purse. The assailant broke Canales=s nose and cheekbone. Canales spent several days in the hospital because of her injuries.

In March 2002, about five months after this incident, Canales attended a live line-up and also looked at a police photo spread, but failed to identify anyone as her attacker. Canales met with police detective Robert Sherrouse in early April 2002, and described her attacker to him. A few weeks later, Detective Sherrouse showed Canales black and white surveillance photographs from another office building and asked Canales to examine the pictures to determine if the man in the photos was of the same body type as her attacker. Detective Sherrouse did not say that the man in the photos was her attacker, but said that the man was a person he thought might have been involved in her attack. The facial features of the man in the photos were not discernable, but Canales said that the person had the same body type as her attacker. At the end of April 2002, Canales was shown a photo spread in which she positively identified appellant as her attacker. Canales attended a live lineup the following day, and she again positively identified appellant based on his appearance and the sound of his voice.

Appellant was charged with aggravated robbery of Canales. He entered a Anot guilty@plea. During the pretrial motion to suppress hearing and at trial, Canales identified appellant as her attacker. A jury found appellant guilty and assessed punishment at forty years in the Texas Department of Criminal Justice, Institutional Division.

II. Analysis and Discussion

 A. Was the pretrial identification procedure unduly suggestive and, if so, did it render the complainant=s in-court identification inadmissable?

In his first issue, appellant argues that the trial court should have suppressed Canales=s in-court identification of appellant because it was tainted by an identification procedure appellant claims was unduly suggestive.[1]

An in-court identification is inadmissable if tainted by an unduly suggestive pretrial identification. See Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998). In determining whether the trial court was correct in admitting an in-court identification, the appellate court employs a two-step analysis, inquiring: (1) if the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). It is the risk of in-court misidentification that taints the identification. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). The defendant has the burden to show by clear and convincing evidence that the in-court identification is unreliable. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the testimony is admissible. Id.

Under the first step of the analysis, we evaluate the pretrial identification procedure to determine if it was impermissibly suggestive. See Ibarra, 11 S.W.3d at 195. Appellant asserts that Detective Sherrouse showing Canales two surveillance photos before she viewed the photo spread and the live lineup impermissibly suggested appellant=s in-court identification because the still surveillance photos depicted only one black male. At the time Detective Sherrouse showed the surveillance photos he instructed Canales to compare only the physical shape and size of the person in the photograph to the body type of her attacker. Because the photographs are black and white, blurry, and show the person from a distance, nothing more than the size and shape of the person can be deciphered from the photographs. One of the photographs is a picture of the person from the back.

Without deciding whether Detective Sherrouse=s pretrial identification procedure was impermissibly suggestive, we look to the second step of the analysis and determine whether the procedure rendered Canales=s identification unreliable. If Detective Sherrouse=s procedure did not give rise to a very substantial likelihood of irreparable misidentification at trial, there would be no basis for reversing even if the procedure were impermissibly suggestive.

Under the second phase of the analysis, we assess the reliability of the in-court identification by looking to the factors set forth in Neil v. Biggers, 409 U.S. 188, 199B200, 93 S. Ct. 375, 382B83, 34 L. Ed. 2d 401 (1972). Ibarra, 11 S.W.3d at 195. We weigh the following five non-exclusive factors against the Acorrupting effect of any suggestive identification procedure in assessing the reliability under the totality of the circumstances@: (1) the opportunity of the witness 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 confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199B200, 93 S. Ct. at 382B83. Applying the five Biggers factors, we find that there was not a substantial likelihood of misidentification at trial.

Canales had sufficient opportunity to view appellant=s face at the time of the crime. Canales testified that appellant=s face was probably less than a foot away from hers at one point and she Asaw him very, very clearly.@ Canales=s testimony also indicated that she had a high degree of attention during and before the attack. She testified that a picture of her assailant was embedded in her mind. Shortly after the attack, she told police that she could identify her attacker if she saw him again and provided a detailed description of the assailant. The record does not show any major discrepancy between Canales=s pre-identification description of her attacker and appellant=s description. Although there was a slight discrepancy between Canales=s estimation of the assailant=s height and weight, this minor variation does not rise to a level that would weigh against a finding of reliability because the record reflects that Canales identified appellant based on his facial features and the sound of his voice at the pre-trial live lineup and later confirmed that identification at trial. Canales also identified appellant with certainty and conviction at trial and testified that her identification was based on what she saw at the time of the robbery. Even though nineteen months had elapsed between the attack and the trial, her in-court identification was reliable because Canales never identified any other person as her attacker and identified appellant each time he or his photograph was presented to her in a lineup. See, e.g., Delk, 855 S.W.2d at 705B08 (finding eighteen-month time span between robbery and in-court identification did not undermine reliability because witness remembered details and provided consistent testimony).

Having reviewed the facts relating to the reliability of Canales=s in-court identification of appellant, we now weigh them against the effect of the pretrial procedure utilized by Detective Sherrouse. We find that even if the pretrial procedure were impermissibly suggestive, appellant did not meet his burden of showing, by clear and convincing evidence, that the in-court identification was unreliable. Accordingly, we find the trial court did not abuse its discretion by allowing Canales=s in-court identification. Therefore, we overrule appellant=s first issue.

B. Did the trial court admit evidence of an extraneous offense and, if so, does this ruling present grounds for reversal?

In his second issue, appellant contends that the trial court erred in admitting evidence of an extraneous offense in violation of Texas Rules of Evidence 403 and 404(b). At trial, Susan Froebel, a witness for the State, identified appellant as the same person she saw walk out of her office building in Clear Lake and drive away in a dark, brownish-maroon, late-model car. The State offered this testimony to bolster a witness=s identification of appellant leaving the scene of the attack against Canales in a brown, late-model, four-door Honda Accord. The trial court overruled appellant=s objection, finding that the probative value of Froebel=s testimony outweighed its prejudicial effect.

Appellant argues that the jury could have inferred from Froebel=s testimony that appellant committed an extraneous offense. On direct examination, Froebel identified appellant as the same man depicted in the surveillance photographs Detective Sherrouse had shown Canales. At the motion to suppress hearing, Canales testified that when she viewed the surveillance photographs, Detective Sherrouse told her that they were from an office building in Clear Lake and related to a crime committed there. Appellant asserts that the jury also could have concluded that there was an offense committed at that office building because the police would not have obtained surveillance photos of appellant otherwise.

Evidence of an extraneous offense must involve evidence of prior criminal conduct by the accused. See McKay v. State, 707 S.W.2d 23, 31B32 (Tex. Crim. App. 1985). If the evidence does not show that the accused was connected to an offense, then evidence of an extraneous offense is not established and no improper extraneous offense evidence is admitted. Id. at 32. The jury was not privy to Canales=s testimony in the motion to suppress hearing so the jury did not know that the surveillance photos were connected with another crime. Froebel=s testimony at the guilt-innocence phase of the trial was limited to the identification of appellant and the type of vehicle he drove. Froebel=s testimony did not suggest that appellant was involved in an extraneous offense because the jury did not know appellant was suspected of another crime. Additionally, the existence of surveillance photos does not necessarily indicate that appellant was involved in an extraneous offense. Because Froebel=s testimony did not show that appellant committed a prior offense, the surveillance photos did not constitute evidence of an improper extraneous offense. Id. Accordingly, we overrule appellant=s second issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed January 27, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant also argues on appeal that the in-court identifications of appellant by Samuel Garcia, Barbara Benevides, and Debbie Alberts were tainted by suggestive pre-trial identification procedures. We do not address the admissibility of these identifications because appellant never objected to them at trial and therefore, failed to properly preserve error for appeal. See Tex. R. App. P. 33.1(a)(1).