Patrick Denyan Lane v. The State of Texas--Appeal from 203rd District Court of Dallas County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00027-CR
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PATRICK DENYAN LANE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court No. F01-02286-NP
Before Morriss, C.J., Ross and Grant,* JJ.
Memorandum Opinion by Justice Ross

*Ben Z. Grant, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION

Patrick Denyan Lane appeals his conviction by a jury for aggravated robbery. After Lane pled true to the enhancement paragraphs in the indictment, the trial court sentenced him to forty years' imprisonment. The trial court also made an affirmative finding that Lane used or exhibited a deadly weapon during the commission of the offense. On appeal, Lane contends that the evidence is factually insufficient to support his conviction and that the victim's in-court identification violated his due process rights. For the reasons set forth below, we affirm the trial court's judgment.

Factual Background:

Angela Hobbs was purchasing gasoline July 17, 2000, around 6:00 a.m. at a convenience store in Dallas. As she pumped her gasoline, the driver of a white Cadillac drove into the station at the same pump opposite from Hobbs. A man got out of the Cadillac and asked Hobbs for directions. The man then came closer and threatened to stab her if she said anything. The man looked Hobbs in the face when he threatened her and displayed a knife. Hobbs was able to run away from the immediate area. The man did not pursue her, but got in her car, grabbed her purse, ran to his car, and then drove away. Hobbs went inside the gasoline station, where she called police. The police arrived quickly and began pursuing the Cadillac. The chase included a helicopter unit, but the police soon lost track of the vehicle and its driver in a wooded area. Less than an hour later, police found the white Cadillac abandoned in that same wooded area with Hobbs' purse and its contents on the floorboard. Two knives were also found in the vehicle. Police dusted the car and its contents for fingerprints, but only found three "usable" prints, two on the trunk and one on the passenger side mirror, none of which matched the appellant's.

Hobbs told police the robber "wasn't like dark skin or light skin, he was just brown - brown skin-colored" and weighed about 130 pounds. She stood about five to six feet away from the man when he first arrived at the gasoline pump. The man later got as close as two feet from Hobbs. Hobbs identified Lane in open court as the man who robbed her. Hobbs stated, repeatedly, she was certain of her identification of Lane.

John Hopes testified for the State. He lives in the same neighborhood where the white Cadillac was abandoned, and his sister previously dated Lane. As Hopes gave his dogs water on the morning of July 17, Lane ran to Hopes' house. Lane identified himself to Hopes and told him the police were going to get him (Lane) and that he needed a place to hide. Lane offered to pay Hopes in exchange for hiding him. Hopes testified Lane was out of breath and desperate for a place to hide. Hopes also stated he had no doubt it was Lane who approached his home on the morning of July 17. When Hopes did not provide sanctuary to Lane, Lane ran away. Hopes then went inside his home and called police. Hopes gave officers Lane's name and other general information.

Detective Richard Wilson later talked to Hobbs, Hopes, and Lane's former girlfriend. From those conversations, Wilson developed Lane as a suspect. Wilson compiled a photographic line-up with Lane's driver's license photograph placed in slot number five. For the remaining five pictures, Wilson chose men who had similar facial characteristics: mustaches, hair styles, age, and race. Hobbs had not told officers the suspect wore his hair close cut or had facial hair.

About a week after the robbery, Hobbs met with Wilson to view the photographic array. Wilson did not tell her to pick anyone out of the line-up, but did ask if she saw the man who robbed her. Hobbs selected picture number five (Lane's) as the man who robbed her. Hobbs later testified she had no trouble selecting number five as the man who robbed her. After Hobbs picked Lane's photograph from the line-up, Wilson told her, "I believe this [picture five] is the right person." Wilson later testified he said this because he wanted to enlist Hobbs' support in prosecuting the man who robbed her.

Based on Hobbs' identification of Lane, Wilson prepared an application for an arrest warrant. Hobbs' application listed Lane's weight as 170 pounds, not 130 pounds as described by Hobbs in her initial telephone call to police shortly after the robbery. Wilson changed the suspect's weight on the warrant because he thought Hobbs had erroneously "guesstimated" the robber's weight.

Analysis:

In his first point of error, Lane contends the evidence is factually insufficient to support the essential element of identity, absent the unduly suggestive line-up. The victim did not tell police the robber had facial hair or had "almond shaped" eyes. Nonetheless, the line-up included only pictures of persons with facial hair. Additionally, Lane weighs approximately forty pounds more than the person described by the victim. Lane believes these factors contributed to Hobbs' misidentification of him as the robber, and he contends that if all taint from the misidentification through the faulty photographic array were removed, the overwhelming weight of the evidence would support granting a new trial. Before the issue of factual sufficiency may be resolved, we must first decide whether the photographic array was unduly suggestive.

1. Preservation of Error.

A defendant may attack an in-court identification through a motion to suppress. Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.-Texarkana 2002, pet. granted). A hearing is then conducted outside the jury's presence. Id. This process is generally sufficient to preserve the issue for appellate review. Id. This procedure was followed in this case. Therefore, the issue has been preserved for the Court's review.

2. The Photographic Array.

We review a trial court's ruling on a motion to suppress identification for abuse of discretion. Woodard v. State, 931 S.W.2d 747, 751 (Tex. App.-Waco 1996, no pet.). A trial court abuses its discretion when it so deviates from applicable guidelines and principles that the court's decision falls outside the zone of reasonable disagreement. See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001).

When analyzing the admissibility of an in-court identification, the reviewing court uses a two-step analysis: 1) Was the photo display impermissibly suggestive? 2) If it was suggestive, the court looks to the totality of the circumstances to determine if the suggestive procedure gave rise to a "very substantial likelihood of irreparable misidentification."

 

Mitchell v. State, 974 S.W.2d 161, 164 (Tex. App.-San Antonio 1998), vacated on other grounds, 989 S.W.2d 747 (Tex. Crim. App. 1999) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)); see also Wallace, 75 S.W.3d at 584 (citing In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.-Houston [14th Dist.] 2000, pet. denied)) (listing two-pronged test).

The evidence shows that, during her 9-1-1 call to police, Hobbs described the suspect as a black male, about 5'7" tall, weighing 130 pounds, and in his mid-twenties. Less than one and one-half hours later, police received a tip from Hopes that a person being sought by police was sighted in a location a few blocks away from where the robber abandoned the Cadillac. Hopes described the man as out of breath and desperate for a place to hide. He also told police the man's name was Patrick Lane, whom Hopes knew as his sister's former boyfriend. From this evidence, Wilson developed Lane as a suspect in the robbery. Given the state of the investigation at the time, there was no obligation to prepare a line-up fitting a description of someone not a suspect. See Wallace, 75 S.W.3d at 585. The argument that the persons in the photographic array have characteristics not described by the victim at the time of the 9-1-1 call has no validity. Cf. id. at 584 (allegation that array did not contain anyone matching original description by witnesses has no validity). The record before the trial court does not convey the idea that Wilson used the array in an unduly suggestive manner or indicate the pictures themselves led to a misidentification. Therefore, we cannot say the trial court abused its discretion by finding the photographic display was not unduly suggestive.

As the second step of the analysis, the Texas Court of Criminal Appeals has outlined five nonexclusive factors that should be weighed against the corrupting effect of any suggestive identification procedures in assessing reliability under the totality of the circumstances:

1) the opportunity of the witness to view the accused at the time of the crime;

2) the witness' degree of attention;

3) the accuracy of the witness' prior description of the accused;

4) the level of certainty demonstrated by the witness at the confrontation; and

5) the length of time between the crime and the confrontation.

 

Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Wallace, 75 S.W.3d at 585. "We are required to review the trial court's findings on these factors, regarded as matters of historical fact, deferentially in the light most favorable to the trial court's ruling. These factors should then be weighed de novo against the corrupting effect of the suggestive pretrial identification procedure." Wallace, 75 S.W.3d at 585.

Hobbs had ample time to view the robber, especially his face, during the commission of the crime. At times, the robber was as close as two feet from her. There was no evidence she was intoxicated or had impaired vision. She gave police a description of the man's vehicle, his clothing, and his height-demonstrating at least a moderate level of attentiveness during the encounter. While Hobbs described the suspect as weighing approximately forty pounds less than Lane's weight at trial, this evidence alone is not sufficient to label her identification as erroneous, given the totality of the circumstances. Cf. id. (discrepancies between early descriptions of suspect and defendant's actual appearance do not necessarily lead to misidentification when evidence is viewed under totality of circumstances). Our review of the photographic array admitted into evidence shows two other men in the array have eyes of a similar oval shape to Lane's eyes. Hobbs was quite positive photograph number five (Lane) was the person who committed the robbery. Only one week passed between the crime and the identification of Lane from the array. Therefore, examining the totality of the circumstances surrounding Hobbs' identification of Lane, we do not believe there was a very substantial likelihood of misidentification. See id. at 584.

The trial court's findings of fact and conclusions of law on the motion to suppress identification are supported by the evidence presented in this case. Therefore, the trial court did not abuse its discretion by denying Lane's motion to suppress.

3. Factual Sufficiency.

In his final point of error, Lane contends that, absent the victim's identification of him at trial, the overwhelming weight of the evidence does not support his conviction. He further contends the victim would not have identified him at trial as the robber absent her erroneous identification of him from the unduly suggestive photographic line-up.

The Texas Court of Criminal Appeals recently reaffirmed the Clewis (1) standard for reviewing factual sufficiency:

In conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). While a reviewing court has some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact[-]finder. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001). The reviewing court should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony.

 

Ortiz v. State, No. 73692, 2002 WL 31116634, at *5 (Tex. Crim. App. Sept. 25, 2002).

We have already found Hobbs' pretrial identification of Lane was not the product of an unduly suggestive photographic array. It follows that her in-court identification would not be the product of an overly suggestive pretrial identification. Additionally, the victim explicitly testified at trial that her in-court identification of Lane was made independently of her pretrial identification from the photographic array. Hobbs never wavered in the surety of her in-court identification. Nor does the overwhelming weight of the remaining evidence suggest Hobbs erroneously identified Lane. The evidence is thereby factually sufficient to support the conviction. Lane's final point of error is overruled.

We affirm the trial court's judgment.

 

Donald R. Ross

Justice

 

Date Submitted: January 17, 2003

Date Decided: February 4, 2003

 

Do Not Publish

1. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).