CURTIS LEWIS PERRY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and opinion filed September 29, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01235-CR
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CURTIS LEWIS PERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 265th District Court
Dallas County, Texas
Trial Court Cause No. F88-79688-JR
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Justice Baker
 
        A jury convicted appellant of aggravated robbery. Punishment, enhanced by a prior conviction, was assessed at ninety-nine years' confinement and a $10,000 fine. Appellant appeals, contending that the in-court identifications of him were tainted by impermissibly suggestive out-of-court identification procedures. We disagree and affirm the trial court's judgment.
        Police responded to a report of robbery at a Church's Fried Chicken Restaurant. Upon arrival, three employees described the perpetrator as a black male, approximately twenty, five feet eleven inches tall, weighing 160 pounds and wearing a long gray coat, blue jeans, hat, and carrying a sawed-off shotgun. Within twenty minutes after the robbery took place, appellant was apprehended by the police and returned to the crime scene. The three employees identified the appellant as the robber. Appellant complains that this was impermissibly suggestive and conducive to irreparable mistaken identification so as to deny him due process. See Stovall v. Denno, 388 U.S. 293, 300-01 (1967).
        One-on-one, on-the-scene showup procedures are not per se unconstitutional. The confrontation must be viewed considering the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 196-97 (1972). This question involves a two prong analysis: (1) whether the identification procedure itself was unnecessarily suggestive; and (2) whether the identification was reliable. Garza v. State, 633 S.W.2d 508, 512-13 (Tex. Crim. App. 1981) (op. on reh'g); Lewis v. State, 751 S.W.2d 895, 897 (Tex. App.--Houston [14th District] 1988, no pet.). Even if the identification procedure is unnecessarily suggestive, the out-of-court identification is admissible if it possesses sufficient aspects of reliability. Mason v. Brathwaite, 432 U.S. 98, 114 (1977); Garza, 633 S.W.2d at 513.
        On-the-scene showups may be appropriate when the confrontation occurs shortly after the offense because the witness' recollection and memory of the suspect's identity is still fresh and accurate. Additionally, if the police have apprehended the wrong person, he can be released and the search continued for the true perpetrator. Garza, 633 S.W.2d at 512. In the present case, the appellant was brought directly to the crime scene within twenty minutes after the crime occurred. All three witnesses had no doubt that appellant was the robber. There was nothing in the record to suggest that the police prodded the witnesses to identify the appellant as the robber. We hold that under the totality of the circumstances, the identification procedure was not unnecessarily suggestive.
        In determining the reliability of an on the scene identification, the Court is guided by the following factors:
 
        1) The opportunity to view;
        2) The degree of attention;
        3) The accuracy of the description;
        4) The witness' level of certainty;
        5) The time between the crime and the confrontation.
Garza, 633 S.W.2d at 513. Appellant was in the restaurant for approximately ten minutes. The scene was well lit. All three employees testified that they were in close proximity to appellant and got a good, thorough and unobstructed view of his face. Two employees recognized him as being in the area before. When the police arrived, all the witnesses gave a positive and accurate description of the robber. This description fit the appellant and he was returned within twenty minutes to the crime scene. The witnesses, without hesitancy, positively identified the appellant as the robber. At trial, they expressed no doubt that appellant was the robber. All factors set out in Garza are met. Under the totality of the circumstances, the on-the-scene showup was reliable and not unnecessarily suggestive so as to deny appellant due process. See Hudson v. State, 675 S.W.2d 507, 510 (Tex. Crim. App. 1984). We overrule appellant's point of error and affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE        
 
Do Not Publish
Tex. R. App. P. 90
881235F.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, Retired, Court of Criminal Appeals, sitting by assignment.
File Date[10-09-89]
File Name[881235F]