DAMIAN ANTHONY HENDERSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 1, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00203-CR
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DAMIAN ANTHONY HENDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-69473-NR
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OPINION PER CURIAM
Before Justices McClung, Thomas and Whittington
        Damian Anthony Henderson was convicted in a bench trial of the offense of robbery. Punishment was assessed at ten years' confinement. Appellant claims that in-court identification testimony of the complainant and her husband should not have been admitted because identification procedures used by police were unnecessarily suggestive. We disagree and affirm the judgment of the trial court.
        John Fred Brown, Jr. testified that on October 4, 1988, he was in bed when he heard his car start up. He ran outside, and saw that the person in the car had it in reverse, and had the dome light on, trying to figure how to put the car into drive. He testified that the car belonged to both himself and his wife. He went to the car and hit the windshield; the person in the car looked up at him. The person reached to open the door, but was unsuccessful in his attempt. The person then succeeded in opening the door and jumped from the car while the car was still in gear. He ran back and forth between Brown and Brian Harris, a house guest of Brown, who shouted that he knew the man. Every time he ran at Brown, he looked him square in the face. Finally, Harris jumped out of the man's way; appellant ran up to Brown's wife, the complainant, and hit her in the nose with his closed fist. Brown chased the man, but the man escaped. He identified appellant as the man who attempted to steal the car.
        Approximately five days after the offense, he was shown a photographic lineup by the Duncanville Police. He was shown six photographs of the same size, portraying men of approximately the same age. Each man was shown from the chest up. The police did not suggest in any way which photo to choose. He identified the picture of appellant included in the lineup; however, he said that he did not remember putting his initials on the photograph. He testified that if he had never seen the photograph, he would be able to identify appellant on the day of trial. His identification of appellant was based on his observations at the time the offense occurred. On cross-examination, he testified that he had described the person who committed the robbery as about his size; he testified that he was approximately six feet tall and weighed about 200 pounds. He was asked to stand with appellant; after he had done so, he said that he was still sure that appellant was the person he saw on October 4.
        Michelle Renee Brown, the complainant, testified that on October 4, 1988, she was in the house with Brian Harris when she heard her car start up. She and Harris went outside, and Harris went to see if it was in fact her car; he shouted to her that it was, and to get her husband. Her husband came out and ran to the car, yelling at the man inside the car. When he exited the car, the man ran back and forth between the men, then ran up to Michelle and hit her in the face. She identified appellant as the man who hit her. On cross-examination, she said that she could not remember what appellant wore the night of the robbery. She also admitted telling police that the robber was about her husband's height.
        On redirect, she testified that she was shown a photographic lineup by the Duncanville Police after she was released from the hospital; she could not remember how much time had elapsed from the robbery. The photographic lineup consisted of photos of six black men of approximately the same age and the same physical characteristics. The police officer who showed her the lineup neither suggested to her that the person responsible for the crime was in the lineup, nor told her to pick anybody in particular. She selected a photo of appellant from the lineup.
        James Glasscock, an investigator with the Duncanville Police Department, testified that he showed a photo lineup to the complainant on October 17, 1989. She identified appellant from the lineup and initialed a photocopy. He had indicated to her that the suspect was in the lineup; however, he did not suggest to her who she should select. He also testified that he did not show the photographic lineup to the complainant's husband; however, he also said that his sergeant, Jim Cowsert, could have shown the lineup to the husband.
        On recall, Mr. Brown testified that Officer Glasscock did not show him the photographic lineup; the lineup was shown to him by Officer Cowsert. He also identified State's Exhibit No. 1 as the photo lineup he saw.
        Appellant testified on his own behalf. He denied being the person who hit the complainant on the night of October 4. He also said that he was about five feet nine inches tall, and weighed approximately 175 pounds.
        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. U.S., 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. 1982).
        Appellant argues that the lineup was unduly suggestive because he is the only person wearing a white t-shirt. An examination of the lineup discloses that while appellant may be the only person wearing a white t-shirt, one person is wearing a white tank top, and the other members of the lineup are otherwise not significantly distinguishable from appellant. It may be the better practice to use photographs which portray persons whose every feature matches the pre-identification description. However, neither common sense nor due process of law requires such a procedure. Ward v. State, 474 S.W.2d 471, 476 (Tex. Crim. App. 1971). Uncontroverted evidence discloses that the witnesses selected appellant's photograph without prompting from police. In addition, there is nothing in the record to render the photos suggestive in and of themselves, and the witnesses testified that nothing in the lineup appeared suggestive to them. Compare Bell v. State, 724 S.W.2d 780, 798-799 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1046 (1987) (in-court I.D. not tainted when appellant was only person in lineup wearing bright white pants, was tallest of group, number was underlined, and triangle mark appeared over his picture alone, where witnesses testified they did not notice anything suggestive about lineup, and I.D. was based on occurences on date of offense). Accordingly, we conclude that the photographic lineup was not unnecessarily suggestive.
        Even if we had found the lineup unduly suggestive, we still conclude that the in-court identification testimony was not tainted by the lineup. In determining whether an in-court identification is of an origin independent of a photographic lineup, the court should consider: (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancies between any pre-trial lineup description and the actual description of the defendant; (3) the identification prior to the lineup of a photograph of the defendant; (4) any failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged offense and the lineup identification. Turner v. State, 614 S.W.2d 144, 146 (Tex. Crim. App. [Panel Op.] 1981).
        In the present cause, both witnesses testified that they saw appellant face-to-face throughout the commission of the offense. The witnesses had described appellant as approximately six feet tall, while appellant gave his height as five feet nine inches. However, the witnesses said they did not pay particular attention to appellant's size during the commission of the offense. There is neither evidence that either witness ever identified anyone other than appellant as the person who committed the offense, nor that the witnesses ever failed to identify appellant. Finally, Mr. Brown identified appellant five days after the offense. Compare Ross v. State, 715 S.W.2d 55, 56 (Tex. App.-- Dallas 1986, no pet.) (identification one week after offense held reliable). While the complainant's identification of appellant took place nearly two weeks after the robbery, her identification was unequivocal. In addition, she testified at trial that she was sure of her identification of appellant. We conclude that the trial court did not err in admitting the testimony of the complainant and her husband. Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
Do Not Publish
Tex. R. App. P. 90
 
 
 
File Date[11-01-89]
File Name[890203F]