DERRYCK RASHAD MILLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00056-CR
............................
DERRYCK RASHAD MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F04-55231-LH
.............................................................
OPINION
Before Chief Justice Thomas and Justices Whittington and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Derryck Rashad Miller appeals his conviction for aggravated robbery with a deadly weapon. On his plea of not guilty, a jury found appellant guilty as charged, found one enhancement paragraph true, and assessed appellant's punishment at 25 years' imprisonment. In two issues on appeal, appellant asks whether the eyewitness identification testimony of the victim and the victim's wife was impermissibly tainted by a suggestive photograph line-up. Concluding no reversible error is shown, we affirm the judgment of conviction.
 
Standard of Review
        In reviewing a trial court's ruling on a motion to suppress evidence, appellate courts use a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998), the court of criminal appeals held that the Guzman standard was “applicable to review of a trial court's ruling on a motion to suppress evidence based upon a claim that an in-court identification should not have been admitted due to taint by an impermissibly suggestive pretrial identification procedure, in violation of the defendant's due process rights under the Fourteenth Amendment” to the United States Constitution. Under Guzman, “almost total deference” is given to the trial court's factual determinations involving credibility and demeanor evaluations, and to mixed questions of law and fact if the resolution of those questions turns on credibility and demeanor evaluations. Guzman, 955 S.W.2d at 89. When mixed questions of law and fact do not involve credibility and demeanor evaluations, an appellate court reviews the trial court's determinations de novo. Id.
        The issue presented in this case-whether the pictorial spread was so impermissibly suggestive it gave rise to a substantial likelihood of misidentification-is a mixed question of law and fact that does not require credibility and demeanor evaluations. Loserth, 963 S.W.2d at 772-73. Consequently, we apply a de novo standard of review.
Law
        Due process requires suppression of in-court identification when a pretrial identification procedure is so suggestive and conducive to mistaken identification that use of that identification at trial would deny the accused due process of law. Moore v. State, 140 S.W.3d 720, 730 (Tex. App.-Austin 2004, pet. ref'd).         A two-step analysis is involved in determining the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Moore, 140 S.W.3d at 730. Each case is determined on its own merit. Simmons, 390 U.S. at 384. Proper analysis requires an examination of the totality of the circumstances. Id.
        The defendant bears the burden of proving by clear and convincing evidence each element of the analysis: impermissible suggestiveness and substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). If the first element of impermissible suggestiveness is not met, however, it is not necessary to evaluate the second element of likely misidentification. Id. at 34. However, the converse is not true. Even if impermissible suggestiveness is found, it is still necessary to determine whether such suggestive pretrial procedure gave rise to a substantial likelihood of misidentification. Moore, 140 S.W.3d at 731 (citing Simmons, 390 U.S. at 383, and Brown v. State, 64 S.W.3d 94, 99 (Tex. App.-Austin 2001, no pet.).
        Reliability is the linchpin in determining the admissibility of identification testimony. Moore, 140 S.W.3d at 731 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). In Neil v. Biggers, 409 U.S. 188, 199-200 (1972), the Supreme Court listed five nonexclusive factors to assess reliability: (1) opportunity of the witness to view the perpetrator at the time of the offense; (2) the witness's degree of attention; (3) accuracy of the witness's prior description of the perpetrator; (4) level of certainty demonstrated at the pretrial procedure or confrontation; and (5) the length of time between the crime and the confrontation.
        These five factors are to be viewed in the light most favorable to the trial court's ruling. Moore, 140 S.W.3d at 731 (citing Ibarra v. State, 11 S.W.3d 189, 195-96 (Tex. Crim. App. 1999)). The five factors, viewed in this manner, are then reviewed de novo against “the corrupting effect” of the suggestive pretrial identification procedure. Id. at 731 (citing Ibarra, 11 S.W.3d at 195-96 and Loserth, 963 S.W.2d at 773-74). We turn now to the factors:
Opportunity to View
        Appellant argues that Robert saw the perpetrator for “less than a minute” and infers from Robert's thorough description of the weapon, that Robert was not looking at the perpetrator all of that time. Appellant argues Nichole “claimed that she was 'in the presence of' Appellant for five minutes, during which she 'glanced at the man maybe two to three times.' A couple of these were 'fleeting glances.'” He also points to Robert's conflicting testimony “that the whole thing took two, or a couple, minutes.”
         The State responds “the record shows that both victims had an intense exchange with appellant over the course of at least a minute, and Nichole made and maintained eye contact with appellant.”
Degree of Attention
        Appellant contends “[t]here is no evidence on either side of this issue, but Robert did say that he was very scared . . . and that even 45 minutes later, when the police finally arrived, he was still panicked and scared.” Appellant argues Nichole was “frantic, nervous, and upset. She was 'very frightened' and thought Robert would be shot and she would be raped. She tried to look away.”
        The State agrees “they were scared for their lives and were therefore paying close attention to him [the perpetrator] both as he entered the door and [as he] robbed them.” The State also cites authority that “[u]nexpectedly finding oneself the victim of a robbery would be considered attention riveting” and that “[w]itnesses who are victims, rather than casual observers, are generally believed to have a greater degree of attention.” See Bond v. State, 29 S.W.3d 169, 172 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) and Brown, 64 S.W.3d at 101, respectively.
Accuracy of Prior Descriptions
        Appellant argues Robert's description of the perpetrator was confusing. He points out the description “given the detective was that the suspect had an Afro, was 5'10", and weighed 210, no facial hair.” In footnote, appellant adds, “Appellant is 6'2" and weights [sic] about 250 pounds.” Appellant then states, “[t]he 'second suspect' was taller with short, braided hair, and no facial hair. Robert, on the other hand claimed at one point that the 'second suspect' was 5'9" or 5'10". He did not recall mis-describing the perpetrator.” Appellant states Nichole “claimed she did not give a description to police.”
        The State argues “their descriptions were relatively detailed, especially as they compared the first knocker to the second knocker, and included his color, complexion, build, clothing, and hair- style.”
Level of Certainty Demonstrated at Confrontation
        Appellant argues “Robert claimed he was sure Appellant was the robber and recognized him from the scene.” Appellant then states, “[h]e was not asked if the photo spread had any influence on his ability to identify Appellant in court.” Appellant argues Nichole “said she was sure the photo she picked out was the man who robbed them.” He again notes Nichole was not asked if the photo spread influenced her ability to identify Appellant in court.   See Footnote 2 
        The State responds that the victims' “quick and identical identification of appellant in the lineup eight days later punctuates their level of certainty.” Length of Time Between Crime and Confrontation
        Appellant simply states “[e]ight days elapsed from the date of the offense to the date of the photo spread. Nearly 20 months had gone by from the offense to the trial.”
        The State argues “although the trial did not begin for nearly twenty months, both [victim/witnesses] identified appellant at trial without hesitation.” The State then concludes, citing Ibarra, 11 S.W.3d at 196, “these factors indicate a reliable independent origin for their in-court identifications, and the Court should overrule appellant's points of error.”
Findings of Fact
 
        At the conclusion of the identification hearing, the record reflects the following occurred, in relevant part:
                THE COURT: Could I take a look at those photographs?
. . .
 
 
 
        THE COURT: All right. The Court makes the following findings: That during the course of this hearing the attorney for the Defendant, Wayne Huff, objected to the admission of the in-Court identification of witnesses Robert Glover and Nichole Glover. That each of those two witnesses did make in-Court identifications, identifying the Defendant as having been connected with the commission of the offense on trial here today.
 
 
 
        The Court further finds that the in-Court identification of the Defendant by the said two witnesses was not influenced by the witnesses having seen photographs of the Defendant on the date of the photo lineup.
 
 
 
        The Court further finds the in-Court identification of the witnesses was based solely on the witnesses having viewed the Defendant on August 10th, 2004, at the time and place alleged in this Indictment.
 
 
 
        The Court finds that the circumstances under which the witnesses viewed the Defendant were such that their identification is not subject to any substantial or reasonable doubts. That the lighting conditions were adequate in order to make an identification. That each of the witnesses observed the Defendant at a fairly close distance. That each of the witnesses observed the Defendant for a sufficient period of time to make an identification. That neither informant witnesses has ever identified any other person as being the perpetrator of the offense.
        The Court finds that each of the two identification witnesses were persons who were observant and articulate in their identification. And the evidence submitted to the Court - in the evidence submitted to the Court.
 
 
 
        The Court finds the pictorial lineups which were conducted by the Dallas Police Department in this case were conducted in such a manner as not to deprive the Defendant of due process of law. And of course the photographs in the lineup will speak for themselves as far as their similarity, as well as the detective's testimony as to what he said about concentrating on the facial features that do not change.
 
 
 
        The evidence moving the Court to make the foregoing findings is clear, convincing, unequivocal and leaves no substantial reasonable doubt in the mind of the Court, based on the foregoing findings, the Court concludes that as a matter of Law the in-Court identification of the two witnesses is admissible, and the Court overrules the objections thereto and notes the Defendant's objections.
 
        Appellant acknowledges deference should be given to the trial court's factual findings; however, he argues the court's factual findings are significantly inconsistent with the facts. After reviewing the record, including the six photographs in the pictorial lineup, we disagree.
        The robbery occurred on August 10, 2004, when two men came to the door of the complainant's apartment. A man rang Robert's doorbell. Robert did not answer the door but, instead, looked outside through the peep hole in the door. Robert saw a man, not appellant, whom he described as wearing a red shirt with a corn row hair style. He was shorter than the second man who later kicked in the door and burst in the apartment with a gun.   See Footnote 3  Shortly after the first knock, to which no one responded, there was a second knock on the door. Robert again looked through the peep hole.   See Footnote 4  This time he saw a different man, whom he later identified as appellant. Robert did not respond to the second knock. Within a very short time, appellant kicked in the door and burst in the apartment with a gun. He demanded money and ordered Robert to get on the floor. Nichole was present but was not made to get on the floor. She gave the man some money. The man's face was not covered in any way. The robbery occurred at 11:30 a.m. during daylight hours. Each witness independently picked appellant's photograph from a pictorial lineup on August 18, 2004, and each identified appellant at trial as the man who robbed them at gunpoint on August 10, 2004.         Immediately before trial, an identification hearing was held outside the jury's presence. Willie Braggs, a 23-year veteran detective with the Dallas Police Department, testified that on August 18, 2004, he showed a pictorial lineup, which he did not assemble, to the two witnesses in question. This was done at Robert's parents' home in their computer room. Appellant was not in custody at the time of the lineup. Braggs testified there were six photographs in the lineup, including appellant's. The photographs were all of African American individuals with the same general features and characteristics as appellant. Separately, Braggs showed the six photographs to each witness. He first showed them to Robert and then to Nichole.
        The procedure Braggs used was the same for each witness. He told each witness to take their time in looking at the photographs, the suspect may or may not be in the lineup, and to pay attention to the nose, the mouth, and the eyes, because they rarely change. Braggs explained a suspect can grow hair, cut hair, grow a mustache, or shave a mustache off. Braggs also testified the witnesses looked only at the front of the photographs, never at the back, and that he never suggests to a witness which one the witness should pick. Each witness picked appellant, and each signed their name on the back of the photograph and wrote the time and date of their selection. Each was certain of their identification. Braggs also testified there were two suspects in the offense: one suspect had been described as 5'10" with an afro-style hairdo, no facial hair, and weighed 210 pounds. He had kicked in the apartment door with a gun. The other suspect had been described as 6'2" tall, with short type braided hair, and no facial hair.         Reviewing de novo the evidence in the record before us in light of the five Biggers factors, we agree with the trial court the in-court identification of appellant was not tainted by the pictorial lineup and that the identification testimony of each witness was admissible. The record supports such findings and conclusions. Any inconsistencies in the testimony went only to the weight, not to the admissibility, of the evidence.
        No reversible error is shown. We affirm.
 
                                                  
                                                  SUE LAGARDE
                                                  JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070056F.P05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 We note in response appellant had the burden of proof and certainly could have asked those questions if he felt they were appropriate. We also note we consider only evidence in the record.
Footnote 3 The man who first knocked never entered the apartment.
Footnote 4 Robert's and Nichole's testimony is inconsistent on this point. She said Robert looked out the bathroom window, not the peep hole in the front door. Robert said he looked through the peep hole.