TONY DONNELL CROWDER, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 21, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01080-CR
No. 05-88-01081-CR
............................
TONY DONNELL CROWDER, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F88-83959-VN/F88-82734-LN
.................................................................
OPINION PER CURIAM
Before Justices Howell, Baker and Burnett
        A jury convicted Tony Donnell Crowder of the offenses of aggravated robbery and aggravated assault, and sentenced him, upon his plea of true to an enhancement paragraph in each case, to fifty years' and fifteen years' confinement respectively. Appellant claims in three points of error that the trial court erred in allowing: (1) the in-court identification testimony of two witnesses; and (2) evidence of an extraneous offense. We affirm the trial court's judgment.
        In his first two points, appellant claims that the trial court erred in overruling his motion to suppress in-court identification testimony of Virginia Hector and Joseph Hogkins. A hearing on appellant's motion was held outside the presence of the jury. See Martinez v. State, 437 S.W.2d 842, 848 (Tex. Crim. App. 1969). At the hearing, Ms. Hector testified that on June 18, 1988, she went to a gas station where she saw a person walking from the store with a pack of beer. She then saw appellant asking the clerk why the clerk had allowed the person to take the beer without paying. After she received change from the clerk, Ms. Hector took her bicycle to the air pump. Appellant approached her and said, "Give me your wallet." When Ms. Hector refused, appellant shot her. After he threatened to shoot her again, she gave him the wallet; he then left. Approximately one hour after the shooting, she was shown a photographic lineup by a police investigator. The lineup consisted of six photographs. After she selected a photograph, the police asked her if she would be able to positively say that the man in the picture was the man who shot her; however, prior to the identification, the police gave no indication of which picture she was supposed to pick. She also testified that she remembered appellant from the shooting, not the photographic lineup.
        Hogkins testified that on June 18, he was near the gas station when he heard a loud noise; when he looked in the direction of the station, he saw a lady fall to the ground and shout for help, and a man running up the street. He chased the man down an alleyway; he was able to see the man's face from a distance of ten to twenty feet. He identified appellant as the person he saw. Approximately three hours after he chased appellant, he was shown a photographic lineup containing from five to seven photographs. He selected one of the photographs; he testified that he picked the photograph of the person he had chased. Police said nothing to him while he examined the photographic lineup. Hogkins testified that he remembered appellant from when he saw him in the alley, not from the photographic lineup.
        A photographic lineup will be set aside as impermissibly suggestive only when the procedure utilized is such that it gives rise to a substantial likelihood of misidentification. Simmons v. State, 390 U.S. 377, 384 (1968); Taylor v. State, 474 S.W.2d 207, 210 (Tex. Crim. App. 1974). In order to sustain a challenge to in-court identification, a defendant must show by clear and convincing evidence that the in-court identification was tainted by improper pretrial identification procedures. Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. [Panel Op.] 1982).
        In the present cause, appellant argues that both photographic lineups were impermissibly suggestive because the head in appellant's picture is larger than those in the other pictures. The trial court found that the photographs were all Polaroids of the same type, and that there was no significant distinction between the pictures. We find nothing in the record to rebut the finding made by the trial court. It may be the better practice to use photographs in which all the subjects are of identical size. However, neither common sense nor due process of law requires such a procedure. Cf. Ward v. State, 474 S.W.2d 471, 476 (Tex. Crim. App. 1971). In the present cause, the lineup depicts six men of the same general age and appearance. There is no evidence in the record that the police suggested to either witness that they should select a particular photograph. We conclude that the record supports the judge's determination that the lineups were not impermissibly suggestive. We overrule appellant's first and second points of error.
        In his final point, appellant claims that the trial court erred in admitting evidence of an extraneous offense. Mulu Tsegay, the clerk at the store where the shooting occurred, testified that prior to the shooting, she saw appellant talking to a man who stole a pack of beer from the store. She also testified that after the theft, appellant remained at the store and urged her to chase the man, and that after she returned to the store, appellant was "being nice" to her. Appellant claims that since the shoplifting offense was unrelated to the robbery, the evidence was inadmissible.
        A person may not be tried for a collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). For extraneous offenses committed by the accused to be admissible, the offense must be both relevant to a material issue in the case, and the relevancy of the evidence must outweigh its inflammatory or prejudicial potential. Mannie v. State, 738 S.W.2d 751, 755 (Tex. App.--Dallas 1987, pet. ref'd). Evidence of an extraneous offense has been held admissible to show the context in which the criminal act occurred. Wilkerson v. State, 736 S.W.2d 656, 660 (Tex. Crim. App. 1987).
        We find that the testimony was relevant to show the first point at which the store clerk noticed appellant. The events leading up to commission of the offense would help to place the offense in its proper context. In addition, the evidence did not implicate appellant in the theft; rather, it merely placed him at the scene conversing with the person. As a result, we find that admission of evidence concerning appellant's presence at the store immediately prior to the shooting, when another person to whom appellant spoke stole some beer, did not constitute improper evidence of an extraneous offense. We overrule appellant's third point of error.
        We affirm the trial court's judgments.
 
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
881080F.U05
 
 
File Date[12-21-89]
File Name[881080F]