BRYLON LEMONT HUTCHINS v. THE STATE OF TEXAS--Appeal from 248th District Court of Harris County

NUMBERS 13-05-00046-CR

13-05-00047-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

BRYLON LEMONT HUTCHINS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 248th District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa

Appellant, Brylon Lemont Hutchins, was indicted for two separate incidents of felony aggravated robbery. (1) A single jury found him guilty in both cases, and the trial court assessed his punishment at twenty years' imprisonment and a $5000 fine for one case, and twenty years' imprisonment for the other. In eight points of error, appellant contends (1) the evidence is legally and factually insufficient to support his convictions and (2) the trial court erred by (a) admitting evidence of an extraneous offense and (b) failing to suppress out-of-court and in-court identifications of him. We affirm.

A. Extraneous Offense

In his third and fourth points of error, appellant contends the trial court erred in admitting testimony regarding an extraneous robbery offense because the extraneous offense was not relevant to any issue in the case and the probative value of the extraneous offense was substantially outweighed by the unfair prejudice, undue delay, and confusion of issues relevant to the case.

We review a trial court's decision to admit extraneous offense evidence under an abuse of discretion standard. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Saenz v. State, 843 S.W.2d 24, 26 (Tex. Crim. App. 1992). A trial court is given wide latitude to admit or exclude evidence of other crimes, wrongs, or acts. Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1992). Therefore, we will uphold a trial court's ruling as long as it is within the zone of reasonable disagreement. Id. at 391.

While evidence of the commission of other offenses by a defendant is generally not admissible to prove he committed the charged offense, it may be admissible to prove identity when it is a disputed issue in the case. Tex. R. Evid. 404(b); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The extraneous offense must be so nearly identical in method to the charged offense that the offenses are marked as the defendant's "handiwork." Lane, 933 S.W.2d at 519; Johnson v. State, 68 S.W.3d 644, 650-51 (Tex. Crim. App. 2002). In determining whether the similarity between the offenses is sufficient, the court should consider both the specific characteristics of the offenses and the time interval between them. Johnson, 68 S.W.3d at 651. Sufficient similarity between the offenses may be shown by proximity in time and place, or by a common mode of committing the offenses, i.e., a common modus operandi. Lane, 933 S.W.2d at 519 (citing Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974)).

Appellant admits that he raised identity as an issue by denying that he was present during the alleged offenses and challenging the identification testimony of witnesses. However, appellant asserts that the similarities between the extraneous offense and the aggravated robbery offenses are not sufficient to allow the introduction of the extraneous offense. We disagree.

The extraneous robbery and the charged robberies all occurred on April 5, 2004, within hours of each other in the Meyerland area of Houston. The victim in each robbery was an older female, each of whom was dragged or thrown to the ground as her purse was pulled from her arm. Appellant's vehicle was used and identified in all three robberies, and the witnesses' descriptions of the perpetrator generally matched appellant, who was subsequently positively identified in all three robberies. In light of the proximity in time and place and the common distinguishing characteristics, we conclude that evidence of the extraneous robbery was admissible to show appellant's identity as the perpetrator of the charged offenses. Appellant's third point of error is overruled.

In his fourth point of error, appellant contends the probative value of the extraneous robbery was substantially outweighed by unfair prejudice. Even if evidence is admissible under rule 404(b), it may still be excluded under rule 403 if the danger of unfair prejudice substantially outweighs its probative value. See Tex. R. Evid. 403. The State asserts that appellant failed to preserve this issue for our review.

To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Here, the State sought to offer evidence of the extraneous robbery after appellant rested. Prior to the admission of the evidence, the trial court held a hearing outside the presence of the jury; the witness described the extraneous robbery at the Fiesta grocery store and identified appellant as the perpetrator. Appellant objected to the introduction of evidence regarding the extraneous robbery, arguing that for impeachment purposes, (2) the evidence should be limited to identifying appellant as being present at the Fiesta on April 5. He asserted, "[t]he fact that another offense occurred is more prejudicial than probative for impeachment purposes. . . ." The trial court agreed with appellant, stating that for purposes of rebuttal, only testimony showing appellant was outside of the hotel room would be admissible. The trial court said that because identity was at issue, if the extraneous robbery was similar enough to the charged offenses, it might be admissible for purposes of identity. The State then proffered evidence of the extraneous robbery. Appellant argued that there was nothing "unique" about the extraneous offense and the charged offenses. The trial court then reviewed the specific similarities between the offenses and ruled that all of the circumstances of the robbery were admissible because identity was at issue. Following this ruling, appellant responded, "[a]nd I'm objecting." As each witness to the extraneous offense testified, appellant "renewed his objection."

Although appellant objected that evidence of the extraneous offense was more prejudicial than probative, he did so only in the context of his objection to the introduction for impeachment purposes. However, after the trial court ruled that it would only allow evidence that the witness saw appellant outside of the hotel that day, the trial court then considered the admissibility of the extraneous offense to show identity. While appellant objected to its admissibility based on lack of similarity between the two offenses, appellant never objected that the introduction of the extraneous offense to show identity was more prejudicial than probative. After the trial court ruled on the admissibility of the extraneous offense to show identity, appellant's mere statement that he was "objecting" failed to specifically alert the trial judge to the alleged error of which he now complains. See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996). Accordingly, we conclude that appellant failed to preserve a rule 403 issue for appellate review. Appellant's fourth point of error is overruled.

B. Identifications

In his fifth, sixth, seventh, and eighth points of error, appellant contends the trial court erred by failing to suppress the in-court and out-of-court identifications of appellant. In his fifth and seventh points of error, appellant asserts that the out-of-court identifications by the two complainants and an additional witness were unduly suggestive and in violation of his federal constitutional rights. In his sixth and eighth points of error, appellant asserts that the in-court identifications by the complainants and the additional witness were tainted by pre-trial identification procedures.

In evaluating a defendant's due process rights with regard to the admission of identification evidence, pre-trial and in-court identifications are closely connected; "a pre-trial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification would deny the accused due process of law." Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995) (citing Stovall v. Denno, 388 U.S. 293 (1967)). We conduct a two-step analysis to determine the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. at 33 (citing Simmons v. United States, 390 U.S. 377 (1968)). However, even where a pre-trial identification procedure may be suggestive, "it is the 'substantial likelihood of misidentification' . . . that works the deprivation." Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (quoting Simmons v. United States, 390 U.S. 377 (1968)). "Thus, if the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pre-trial procedure, subsequent identification testimony will be deemed 'reliable,' 'reliability [being] the linchpin in determining the admissibility of identification testimony.'" Id. (quoting Manson v. Brathwaite, 432 U.S. 98 (1977)). The burden is on the defendant to show by clear and convincing evidence that an identification procedure is impermissibly suggestive or that an in-court identification is unreliable. Barley, 906 S.W.2d at 33-34; Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992) (citing Madden v. State, 799 S.W.2d 683, 695 (Tex. Crim. App. 1990)).

First, we look to whether the pre-trial lineup at which appellant was identified was impermissibly suggestive. A pre-trial identification may be rendered "suggestive" by the way the identification procedure is conducted if an officer points out the suspect or suggests that a suspect is included in the lineup, or by the content of the lineup if the suspect is the only individual who closely resembles the pre-procedure description. Barley, 906 S.W.2d at 33 (citing Herrera v. State, 682 S.W.2d 313 (Tex. Crim. App. 1984); Williams v. State, 675 S.W.2d 754 (Tex. Crim. App. 1984)). "An individual procedure may be suggestive or the cumulative effect of the procedures may be suggestive." Id.

In this case, appellant complains about the content of the lineup through which he was identified pre-trial. The trial court held a hearing on appellant's motion to suppress the pre-trial identifications. The evidence and testimony show that the lineup consisted of five African American males. All five participants had some type of facial hair and were wearing civilian clothing. There was a variation in the height of the participants of two to three inches, with appellant being the shortest. In addition, the length of hair of the participants varied from very short to moderately long. Appellant's hair was the longest of any of the lineup participants and was described by one of the witnesses as a "mini-afro."

Officer Darren K. Williams testified that the four fill-ins were chosen from the general population of the jail at the time based on features that most resembled or fit in with appellant's. Prior to viewing the lineup, the witnesses were given the standard admonishments that the individual involved in their incident may or may not be present in the lineup, and that they were under no obligation to pick anyone if they were not sure that the person involved in the incident was present in the lineup. The witnesses were also instructed that hairstyle, facial hair, clothing, and hairstyles may change. Officer Williams testified that in the descriptions given by the witnesses, the suspect's height varied from five feet, six inches to five feet, eight inches, and the description of the suspect's hair varied from medium to long, and one of the witnesses may not have included length of hair in the description given to the police. He further testified that the lineup participants all met the description of complexion and general build given by the witnesses.

The lineup was conducted on April 7, 2004, and was attended live by witness Elizabeth Burnett. Victim Jerline Lambert viewed a videotape of the lineup at her home on April 8, 2004, and victim Geraldine Green viewed a videotape of the lineup at the police station a few weeks after the robberies. All three witnesses identified the person standing in position 4, appellant, as the suspect, and said that at no point did anyone indicate to them that a suspect was included in the lineup or that they should pick a certain person. Moreover, while all three witnesses acknowledged that appellant's hair and height were characteristics that added to the identification, they all insisted that they recognized other features.

Burnett testified at the hearing that she recognized the defendant both from the lineup and from the robbery, and that she had no trouble recognizing him. She said that during the robbery she was able to view him from a few feet away and remembered and recognized him. Burnett further stated that she would have recognized appellant even if he had shorter hair at the lineup, and that she still recognized him at the time of the hearing, even though he had much shorter hair by that time.

Geraldine Green also said that she recognized the defendant both from the lineup and from the robbery. In her opinion, the participants in the lineup were not all of the same height but all had about the same length hair, and in her opinion, appellant's hair was not really longer than anyone else's, but it was "bushier." She further said that appellant's movements were familiar to her from the robbery. She testified that she got a look at appellant as he got into his car right next to her after he pushed her down. Green said that appellant's hair, height, and movements were distinguishing characteristics at the lineup. At the pre-trial hearing, Green testified that she recognized appellant from the robbery, but that his hair had been cut. She said that she recognized his face and "everything about him."

Jerline Lambert testified that she recognized appellant both from the robbery and from the lineup. She said that she recognized him because of

the height and I don't know, it just kind of came back. I guess it's something with the mind. It just kind of came back. When I saw the video it came back. There wasn't any hesitancy about who it was.

 

She further said that when she saw the lineup, she "just knew who he was." She said that she recognized his height, his complexion, his size, and his facial features. Lambert explained that "there [were] some tall men and some medium-sized men in the video. I don't know if they were exactly his height, but when I saw his face and everything, I just knew it."

We conclude that while some details of the lineup may have been slightly suggestive, as a whole it was not impermissibly so. Appellant's fifth and seventh points of error are overruled.

Even under circumstances where a lineup constitutes an impermissibly suggestive pre-trial identification, "identification testimony will be admissible if the indicia of reliability outweigh the apparent corrupting effect of the unnecessarily suggestive pre-trial occurrence." Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992). In making a determination regarding whether a suggestive lineup created a substantial likelihood of misidentification, we consider several factors, including but not limited to: (1) the witness's opportunity to observe the criminal act; (2) any discrepancy between the pre-lineup description and the defendant's actual appearance; (3) whether the witness identified another individual prior to the allegedly illegal lineup; (4) prior identification of the accused by the witness or failure to identify the accused prior to the suggestive lineup; and (5) the amount of time between the crime and the illegal lineup. Barley, 906 S.W.2d at 35 n.8.

Each victim described viewing appellant during the robberies, in daylight, from only a few feet away. Appellant fits within the descriptions given to police at the scene, and none of the witnesses ever identified another individual as the perpetrator, nor hesitated in their identification of appellant. Two of the witnesses identified appellant within days of the robberies; the third identified him just a few weeks later. Moreover, at the time of the trial, all three witnesses testified that they were positive that appellant was the perpetrator based on their recollections of the robbery and not just from the lineup, and all three were able to identify specific cosmetic differences in appellant's appearance from the time of the robberies to the time of trial. Weighing these considerations against the slight suggestive aspects of the pre-trial lineup, we conclude that the in-court identifications are reliable (3)

and that appellant has not met his burden. Appellant's sixth and eighth points of error are overruled.

The judgment of the trial court is affirmed.

 

FEDERICO G. HINOJOSA

Justice

 

Do not publish. See Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 28th day of September, 2006.

1. Both indictments were tried at the same time and before the same jury. On appeal, appellant raises the same issues and makes identical arguments regarding each case. Accordingly, we address both appeals in one opinion.

2. Appellant testified that he never left his motel room on April 5, 2004.

3. In his first and second points of error, appellant attempts to challenge the legal and factual sufficiency of the evidence. However, in his argument appellant only challenges the evidence regarding his identification. Specifically, appellant challenges the credibility of the testimony establishing his identification. We have already discussed the reliability of the identifications of appellant by the complaining witnesses. Any further evaluation of the credibility of the witnesses is strictly within the province of the jury. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). Appellant has otherwise failed to identify how the evidence is legally and factually insufficient. See Tex. R. App. P. 38.1(h). Appellant's first and second points of error are overruled. See Tex. R. App. P. 47.1.