Bernie Bernard Cofer v. State of Texas--Appeal from 204th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Bernie Bernard Cofer

Appellant

Vs. No. 11-01-00223-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Bernie Bernard Cofer of the offense of burglary of a habitation, and the trial court assessed punishment at confinement for 10 years and a fine of $500. We affirm.

Appellant presents three issues for appellate review. In the second and third issues, appellant contends that the evidence is legally and factually insufficient to prove that he was the person who committed the offense. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence in support of a vital fact is so weak as to be clearly wrong and manifestly unjust or whether the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

The record shows that the home of Claude Jones, the complainant, was burglarized on September 11, 2000. At about 2:00 p.m., Henry Smith, one of Jones=s next-door neighbors, saw a man inside Jones=s home. The man was carrying things out of the house. Smith approached the man to inquire if he had permission to be there. The man told Smith that he was doing some work for Jones. Smith saw the man put an evaporative cooler into the trunk of a car and leave. When Jones returned home later that afternoon and realized that his house had been burglarized, Jones contacted his neighbors. He received a description of the man from Smith and information from other neighbors about where to locate appellant=s mother, who also lived in the neighborhood. Jones contacted appellant=s mother, who Asaid it was her son.@ Officer Edward Calhoun responded to the burglary call and located appellant at the location provided by appellant=s mother. The officer then took appellant back to the scene of the crime. Smith positively identified appellant as the man he had seen taking items from Jones=s home earlier that day.

Another witness, Mark Knight, had seen appellant in his backyard near the time of the burglary of Jones=s home. Knight chased appellant away. Knight also lived next door to Jones. Knight positively identified appellant in court as the man he had seen in his backyard. Both Smith and Knight saw appellant in broad daylight and were able to describe appellant and his rather distinctive clothing. Appellant was wearing a pair of Apinkish@ and white striped shorts. Appellant was still wearing these shorts when Officer Calhoun took him into custody.

We hold that the evidence is both legally and factually sufficient to support appellant=s conviction. The second and third issues are overruled.

In the first issue, appellant argues that the trial court erred in overruling his motion to suppress the witnesses= identification of appellant. Appellant asserts that the pretrial, out-of-court identification procedure was impermissibly suggestive and that it violated appellant=s right to due process under the federal and state constitutions. A two step analysis is used to determine the admissibility of identification evidence. Simmons v. United States, 390 U.S. 377 (1968); Delk v. State, 855 S.W.2d 700, 706 (Tex.Cr.App.), cert. den=d, 510 U.S. 982 (1993). First, the out-of-court identification procedure must not be impermissibly suggestive. Second, based upon the totality of the circumstances, the suggestive procedure must not give rise to a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Delk v. State, supra. In determining the second step, we must consider: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description; (4) the level of certainty demonstrated by him at the confrontation; and (5) the length of time between the offense and the confrontation. Manson v. Brathwaite, supra; Delk v. State, supra.

Identification procedures in which the police present only one suspect have been widely condemned because of their suggestiveness. See Stovall v. Denno, 388 U.S. 293 (1967); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976). However, under certain circumstances, the identification of a suspect in this manner is permissible and is not a violation of due process or due course of law. See Neil v. Biggers, 409 U.S. 188 (1972); Garza v. State, 633 S.W.2d 508, 512 (Tex.Cr.App.1982).

In this case, Smith gave a detailed description of the man he had seen taking things from the complainant=s house. This description included the man=s clothing. The man was wearing a very distinctive pair of Apinkish@ and white striped shorts. Shortly after the commission of the offense, the police took appellant into custody and drove him back to the scene of the burglary. Both Smith and another neighbor positively identified appellant as the man they had seen. Appellant was still wearing the same distinctive shorts. The police officer did not suggest that the witnesses identify appellant, that appellant committed the offense, or that appellant had already been charged with the offense. Although he could not positively identify appellant at trial, Smith testified that appellant looked similar to and favored the man he had seen and identified on the day of the offense. We hold that the identification of appellant was not impermissibly suggestive. See Pace v. State, 986 S.W.2d 740 (Tex.App. - El Paso 1999, pet=n ref=d); Navarette v. State, 875 S.W.2d 452 (Tex.App. - Corpus Christi 1994, no pet'n). The first issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

June 20, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.