ROBERT EARL RANSOM, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed September 12, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00837-CR
No. 05-88-00838-CR
............................
ROBERT EARL RANSOM, Appellant
V.
THE STATE OF TEXAS, Appellee
.................................................................
On Appeal from the Criminal District Court No. 5 Court
Dallas County, Texas
Trial Court Cause No. F88-93007-SL
Trial Court Cause No. F88-93006-SL
.................................................................
O P I N I O N
Before Justices Howell, Thomas, and Ovard
Opinion By Justice Howell
        Robert Earl Ransom appeals his jury conviction for two counts of aggravated robbery. Enhanced by one prior felony conviction, the trial court assessed punishment at sixty years' confinement. In two points of error, appellant complains that the trial court erred in overruling his Batson FN:1 motion and his motion to suppress identification evidence. Finding no such error, we affirm.
        In his first point, appellant argues that the court improperly overruled his motion to quash the jury panel because the State's peremptory challenges excluded black venire members solely on the basis of race. FN:2 During voir dire, the State exercised three peremptory strikes against black potential jurors. One black juror was seated on the jury panel, and several black jurors were excused by agreement of the parties.
        Batson v. Kentucky, 476 U.S. 79 (1986), holds that the equal protection clause of the federal constitution forbids a prosecutor from peremptorily challenging potential jurors solely on the basis of race or on the assumption that jurors of the same race will not be able to render an impartial verdict. Batson, 476 U.S. at 89. To invoke Batson's protection, a defendant must prove a prima facie case of purposeful discrimination by showing that:
    1.    he was a member of a cognizable racial group;
 
    2.    the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race; and
 
    3.    these facts plus any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.
Id. at 96; see also Miller-El v. State, 748 S.W.2d 459, 460 (Tex. Crim. App. 1988). Once the trial court determines that a defendant has made a prima facie showing, the burden shifts to the State to present neutral explanations for peremptory strikes used against black venirepersons.
        In reviewing a Batson challenge, the appellate court must focus on whether purposeful discrimination was established. Whitsey v. State, No. 1121-87, slip op. at 6-7 (Tex. Crim. App. May 10, 1989); Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). In making this determination, we consider all relevant circumstances. Batson, 476 U.S. at 96-97. Viewing the evidence in the light most favorable to the trial judge's rulings, if the Batson rulings are supported by the record they will not be disturbed on appeal. Whitsey, slip op. at 7; Keeton, 749 S.W.2d at 870.
        At the Batson hearing, the trial court stated, "Without deciding whether any prima facie case of discrimination has been established at this point, I'm going to call the State to justify its strikes at least as far as 8, 19 and 24 concerning some racially neutral reason." Consequently, the State explained its strikes.
        The trial court then overruled appellant's objection to the jury as seated, finding that the State's peremptory challenges to jurors eight, nineteen, and twenty four "were made for racially neutral purposes." The court found that no prima facie case of purposeful discrimination had been established.
        Appellant had apparently shown that he was a member of a cognizable racial group and that the prosecutor had exercised peremptory challenges against members of his race. See Batson, 476 U.S. at 96. Thus, we must determine whether these facts, plus other relevant circumstances, raised an inference of purposeful discrimination.
        Regarding potential juror eight, the prosecutor told the trial court that she struck the black woman for two reasons: (1) she had served on a previous criminal jury and found the defendant not guilty of theft; and (2) her husband had prior convictions for driving while intoxicated. Striking a juror for the reason that he or she has relatives who have had problems with the law is a valid ground for challenge in a Batson context. See, e.g., Rasco v. State, 739 S.W.2d 437, 439 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd, untimely filed); Garza v. State, 739 S.W.2d 374, 375 (Tex. App.--Corpus Christi 1987, no pet.). We conclude that the circumstances do not indicate that juror eight was struck solely on the basis of race.
        As for potential juror nineteen, the prosecutor reasoned that she struck the black female because the woman appeared sleepy through the voir dire and admitted that she had slept through part of the State's voir dire. Lack of attentiveness to the prosecutor has been held to be a race-neutral ground for striking a potential juror. See Anderson v. State, 758 S.W.2d 676, 680 (Tex. App.--Fort Worth 1988, pet. ref'd); Townsend v. State, 730 S.W.2d 24, 26 (Tex. App.--Texarkana 1987, no pet.). Thus, we conclude that the State's strike was racially neutral.
        Finally, regarding potential juror twenty-four, the prosecutor told the trial court that she struck the black man based on his personal appearance and his physical problems. Specifically, the prosecutor said:
        [H]is physical appearance appeared to me, and I made notes on my paper, that he looked like a drug dealer. He had long, disheveled hair. He had complete facial hair. . . . [H]e discussed several injuries that he said would cause him pain and discomfort to sit on the jury.
 
                . . . .
 
        He refused to agree that being in pain would cause any problem with his attention span, and I think that as far as I'm concerned that is a well-known fact, as well as a probability and a possibility, that someone in chronic pain is [not] going to be able to pay the sort of attention that I would like a juror to pay in a case in which I am a party.
 
                . . . .
 
        He said that he was on a great deal of medication and it was my concern that someone on a great deal of medication, that may affect their reasoning, thinking or attention span.
Striking a juror based on his personal history is also a race-neutral ground in a Batson context. See Townsend, 730 S.W.2d at 26. Further, the prosecutor may consider the potential juror's appearance in deciding to strike. See id. We conclude that the State did not challenge juror twenty-four solely on the basis of race.
        Reviewing the evidence in the light most favorable to the trial court's findings, we hold that the defendant failed to establish a prima facie case of purposeful discrimination by the State. Considering all relevant circumstances, we find no pattern of discriminatory strikes or other indications of race-based challenges against the potential jurors. See Batson, 479 U.S. at 97.
        In an abundance of caution and before it ruled, the trial court asked the State to justify its strikes against black venirepersons. The court then stated that, just as it had felt before the State explained its strikes, no prima facie case of discrimination had been established by appellant. Finding that the trial court's rulings on the Batson motion are amply supported by the record, we do not disturb them on appeal. We overrule appellant's first point.
        By his second point, appellant alleges error in the trial court's refusal to suppress the complainants' identifications of appellant. The complainants in this case were Reverend Druedell Smith, Sr. and Lula Mae Thompson. Both were preparing for Sunday church services at First Thompson Missionary Church when appellant entered the sanctuary carrying a gun. At first he stood about ten feet from the complainants but then he moved closer to the reverend, told him to turn around, and placed the gun to his neck. Appellant searched the reverend's pockets and stole his wallet, a Masonic ring, and another ring. He also stole Thompson's purse, which contained $100 in cash. He forced the complainants to lie down on the sanctuary floor, told them to "[s]tay there 20 minutes before [they] move[d]," and exited the church.
        Following the robbery, Thompson was shown two photographic lineups. She picked appellant's picture from the second lineup; the first lineup was apparently lost. Appellant claims, therefore, that he was denied his constitutional right to cross-examination because he could not ask Thompson about the pictures in the first lineup. He also claims that the picture of appellant in the second lineup was impermissibly suggestive because appellant was depicted larger than the other suspects.
        As for Reverend Smith, appellant complains that because the reverend could not identify appellant in open court, his pretrial identification should have been suppressed. FN:3 We disagree with appellant's contentions regarding both complainants.
        Initially, we address appellant's complaint regarding the missing pictures. The State is not necessarily required to produce all pretrial photo lineups. See Smith v. State, 595 S.W.2d 120, 122 (Tex. Crim. App. 1980). Where the evidence shows that an eyewitness had an opportunity to view the defendant at the time of the offense and the identification stems from those observations, the witness's testimony is admissible without production of the first set of photographs used in a pretrial lineup. Id.
        In the sub rosa hearing on appellant's motion to suppress and before the jury, Thompson testified that she saw appellant's face for at least one full minute. Although she was told to lie on the sanctuary floor, both the reverend and appellant were standing to her left side and she could see them from the side. She was able to observe appellant from this angle for about four minutes. She said the church was well-lighted. She also identified appellant in open court as the man who robbed her.
        Thompson participated in the pretrial photographic lineup about one month after the robbery. Thompson did not recognize anyone as the assailant in the first group of pictures, so the police officer brought in a second group. Thompson picked appellant from the second set. The first set of photographs was not preserved by the officer and, therefore, was not available at trial.
        For a pretrial identification procedure to invalidate an in-court identification, the pretrial procedure must be impermissibly suggestive and give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Turner v. State, 614 S.W.2d 144, 146 (Tex. Crim. App. 1981). The factors considered in deciding a claim of impermissibly suggestive identification procedures include (1) the opportunity of the witness to observe the defendant; (2) the degree of attention; (3) the accuracy of description; (4) the degree of certainty; and (5) the time lapse between the offense and the identification. Jackson v. State, 657 S.W.2d 123, 129-30 (Tex. Crim. App. 1983); Ross v. State, 715 S.W.2d 55, 56 (Tex. App.--Dallas, 1986, no pet.); see also Williams v. State, 675 S.W.2d 754, 756-57 (Tex. Crim. App. 1984); Turner, 614 S.W.2d at 146.
        In this case, we conclude that the evidence reflects that Thompson's identifications of appellant, both in the lineup and in court, were based on her personal observation of appellant during commission of the offense. She saw appellant's face for several minutes in a well-lighted area. She testified that she made an effort to remember the assailant's face in case she would have to identify him. The lineup occurred within a month of the robbery. Thompson's identification of appellant as the robber never wavered. Consequently, we conclude that her in-court identification was admissible because it stemmed from her eyewitness observation of appellant. As such, the State was not required to produce the first photographic lineup. See Smith, 595 S.W.2d at 122.
        Regarding appellant's contention that appellant's photograph itself was impermissibly suggestive, we hold that his argument is without merit. We have reviewed the six photographs used in the second lineup, and each depicts a black man from the shoulders up. The pictures are sufficiently similar. The individuals portrayed in a lineup need not be identical in all respects. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1189 (1986). This especially holds true where the eyewitness's identification is based on viewing the defendant's face during the offense. See Brown v. State, 513 S.W.2d 35, 37 (Tex. Crim. App. 1974); Bickems v. State, 708 S.W.2d 541, 544 (Tex. App.--Dallas 1986, no pet.). Finding no impermissible taint in Thompson's identifications of appellant, we overrule appellant's second point insofar as it pertains to Thompson.
        As we mentioned, appellant also argues that Reverend Smith's testimony that he identified appellant in a photo lineup should have been suppressed because he could not identify appellant in open court. In the sub rosa hearing and before the jury, Reverend Smith testified that he saw his assailant's face for approximately three seconds before he was told to turn and face away from the robber. He said that he and appellant were "eye-to-eye" for a few seconds. The lighting in the sanctuary was "good," and the reverend saw the assailant clearly. He described in detail the clothing worn by appellant, his long hair, and his facial hair. Specifically the reverend remembered appellant's "penetrating eyes."
        The reverend picked appellant from a pretrial photo lineup similar to the one shown to Thompson. He said he selected appellant's picture because of "[h]is eyes, his whole makeup and his face." His identification of appellant as the robber remained consistent. At trial, the reverend recounted the events related to his selection of appellant's picture from the pretrial photo lineup, but did not identify appellant in open court.
        Based on the evidence, we conclude that Reverend Smith's identification of appellant in the photo lineup was not impermissibly suggestive, but instead was based on his personal observation of appellant during the commission of the offense. The admission of identification testimony does not violate due process so long as the identification possesses sufficient aspects of reliability. Garza v. State, 633 S.W.2d 508, 513 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g). Here, the reverend saw appellant's face for a brief time in a well-lighted area. His identification occurred within a month of the robbery, and his identification of appellant's photograph as the perpetrator remained definite through the trial. Any doubts about the certainty of the reverend's identification went to the weight to be given his testimony, not its admissibility. See id. We hold that trial court did not err in admitting Reverend Smith's identification testimony; it was admissible because it derived from eyewitness observation of appellant during commission of the offense. We overrule the remaining contentions in appellant's second point.
        We AFFIRM the trial court's judgment.
 
 
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
880837F.U05
 
FN:1 Batson v. Kentucky, 476 U.S. 79 (1986).
FN:2 The record reflects that the appellant, the two complainants, the police officers, and most of the State's witnesses were black.
FN:3 We note that appellant's appearance had changed completely by the time of trial. On the day of the robbery, appellant had long hair and a mustache; at trial, he was bald and clean-shaven.
File Date[09-11-89]
File Name[880837F]