Darian C. Williams v. The State of Texas--Appeal from 185th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-00-235-CR

DARIAN C. WILLIAMS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 185th District Court

Harris County, Texas

Trial Court # 804055

O P I N I O N

Appellant Williams appeals his conviction for aggravated robbery (enhanced by two prior felony convictions), for which he was sentenced to thirty years in the Texas Department of Criminal Justice - Institutional Division.

Scotty Broussard and Everett Voisin, who worked for a phone company, were sent to Houston to connect lines in a computer company. They were staying at a motel. The door to their room was partially open. Suddenly two black males entered the room carrying guns. One of the black males struck Voisin in the head knocking him unconscious. The second black male, appellant, put his gun in Broussard s face and demanded his money and valuables. Broussard looked at appellant, and was scared for his life. Appellant then struck Broussard in the head with his gun. Voisin s wallet containing credit cards were taken. Voisin received a credit card bill for phone calls made, which had a phone number in Houston from which the calls were placed. Detective Frazee found out who the phone number belonged to and inquired of the owner if black males had used her phone in November 1998. The owner of the phone furnished the detective the names of three black males who had used her phone. Detective Frazee made a photo spread of six persons, including the three who had used the phone, and three others similar in age and appearance to the persons who had used the phone. The photo spread was shown to Broussard, who immediately identified appellant as the man who robbed him on November 17, 1998. Detective Frazee then arranged a live lineup with appellant and five other black males similar in age and appearance. Broussard again positively and immediately identified appellant as the man who robbed him. Likewise, at trial, Broussard identified appellant as the robber.

Prior to trial, appellant filed a motion to suppress all identifications by Broussard of appellant as the robber, contending the line up identification was unnecessarily suggestive and gave rise to a substantial likelihood of irreparable misidentification. The trial court overruled such motion.

After the State rested, appellant made a motion for a directed verdict of not guilty, which the trial court denied.

The jury found appellant guilty, found the two alleged prior convictions to be True, and assessed appellant thirty years in prison.

Appellant appeals presenting two issues.

Issue I. Whether the trial court abused the discretion in denying appellants motion for a directed verdict.

Appellant asserts he was wrongfully accused as the person who robbed Broussard, and that though Broussard testified he saw the person s face who robbed him, that his description to the officer after the crime did not fit appellant. Specifically, appellant argues Broussard s identification of the robber was that he was five foot ten inches tall, when in fact, he was five foot, three inches tall, a discrepancy of seven inches.

A challenge to the trial court s denial of a motion for directed verdict is, in effect, a challenge to the legal sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1940); Nam Hoai Le v. State, 963 S.W.2d 838, 841 (Tex. App. Corpus Christi 1948, pet. refused). If the evidence is sufficient to sustain the conviction then the trial judge did not err in denying the appellant s motion. Madden, Id., p. 686. In determining a legal sufficiency claim, we review the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found beyond a reasonable doubt all the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997).

The indictment alleged that on November 17, 1998, appellant:

while in the course of committing theft of property owned by Scotty Broussard and with intent to obtain and maintain control over the property, intentionally and knowingly threatened and placed Scotty Broussard in fear of imminent bodily injury and death, and the defendant did then and there use and exhibit a deadly weapon, to wit: A FIREARM.

The State had to prove each element of the offense alleged in the indictment. Nothing in the indictment alleged height, nor did the State have to prove the height of appellant when he robbed Broussard.

Although Broussard misstated the height of the robber to the police officer, there are other factors to take into consideration when evaluating the height discrepancy. Broussard had been struck in the head with a pistol. Broussard testified he focused on appellant s face and not on his height. Moreover, any matter of height discrepancy is a matter for the jury s consideration. The jury, as the trier of fact, is free to accept or reject all or a part of a witness testimony, and is the judge of the credibility of the witness. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). Here, the discrepancy is Broussard s height statement to the police goes to Broussard s credibility. Here, the jury accepted his testimony and found him to be a credible witness despite the height discrepancy.

Viewing the evidence in a light most favorable to the verdict, we hold that any rational trier of fact could have found beyond a reasonable doubt that appellant robbed Broussard. The jury used reason and common sense in deciding that Broussard was a credible witness even though he did not have a perfect recollection of every detail of being robbed, including the height of the person who had a gun on him and had pistol whipped him.

Appellant s Issue I and the contentions thereunder are overruled.

Issue II: Whether the trial court abused its discretion in denying appellant s motion to suppress identification.

Appellant argues that the pretrial line up identification was suggestive because Broussard had been shown a picture in a photo spread two weeks earlier, and appellant was the only person in the line up who had been in the photo spread.

When reviewing a trial courts ruling on a motion to suppress, we examine the trial court s ruling de novo under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Nevertheless, we give almost total deference to the trial court s rulings that turn on an evaluation of credibility or demeanor of a witness. Id.

An in court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. The test is whether considering the totality of the circumstances, the photographic identification s procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. If the totality of the circumstances reveals no likelihood of misidentification despite suggestive pretrial procedures, subsequent identification testimony will be deemed reliable, reliability being the linchpin in determining the admissibility of identification testimony. Loserth v. State, 985 S.W.2d 536, 543 (Tex. App. San Antonio 1998, Disc. Review Refused).

Five factors should be used to assess reliability. These factors are:

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

2) the witnesses 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.

Id., p. 543; Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).

In this case, Broussard identified appellant from a photo spread; then from a lineup; and then in court.

Broussard had described the robber to investigating officers as a black male, 20-25 years old, short black hair, 150-160 pounds, approximately five foot ten. The appellant meets the description except for the height discrepancy he is five foot three.

The live lineup was not impermissibly suggestive. Broussard testified he saw the robber s face and that he looked at him during the course of the robbery. Except for the height discrepancy, Broussard s prior description was accurate. Broussard stated he was certain and positive that the man who robbed him was appellant. Finally, the crime occurred in November, the photo spread took place in January, and the live lineup took place two weeks later.

Appellant s contention that the live lineup was impermissibly suggestive is not supported, nor is his contention that the lineup led to irreparable misidentification. The evidence as a whole shows that Broussard consistently identified appellant as the man who robbed him on November 17, 1998. When viewing the totality of the circumstances and the evidence, appellant has not shown that the pretrial identification was impermissibly suggestive or that it led to an irreparable misidentification. The trial court did not abuse its discretion in denying the motion to suppress identification.

Issue II and the contentions made thereunder are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 18, 2000

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