REGINALD NEWTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 16, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01070-CR
No. 05-07-01071-CR
No. 05-07-01072-CR
 
............................
REGINALD NEWTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F06-16302-JU, F06-16303-JU, F06-16304-JU
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant Reginald Newton appeals convictions for aggravated sexual assault, aggravated kidnaping, and aggravated robbery. After finding appellant guilty of each offense, the jury assessed life sentences for the aggravated sexual assault and aggravated kidnaping offenses and a ninety-year sentence for the aggravated robbery offense. In six points of error, appellant generally contends (1) the trial court should have suppressed the in-court identifications of the two complainants, and (2) the trial court erred in denying his pretrial motion to suppress. For the following reasons, we affirm the trial court's judgments.
        On the evening of December 6, 2006, appellant, with the assistance of his codefendant, Joshua Danzi, assaulted and robbed M.W. and then kidnaped and sexually assaulted her friend, L.B. The assaults began in the parking lot of L.B.'s apartment complex. M.W. was sitting in her car smoking a cigarette while she waited for L.B. to take her shopping. A silver car drove up and parked next to M.W. Appellant got out of the passenger side, walked up to M.W.'s window and asked her “what you doing.” M.W. responded “what are you doing.” Appellant said “I am trying to holler at you.” M.W. tried to roll up her window. Appellant reached through and held the window down. M.W. was scared and she took her lit cigarette and burned appellant on his left cheek. Appellant grabbed M.W., put her in a head lock, and started beating her. Appellant told M.W. he was going to rape her and then kill her. Appellant then called to his accomplice, Danzi, and told him to get in M.W.'s car. Danzi did so and held a knife to M.W.'s neck.
        Somehow, M.W. was able to grab the knife from Danzi, who did not seem as “committed” to the crime as appellant. Appellant then pushed Danzi out of the car and tried to get the knife from M.W. M.W. started honking her horn, flashing her lights and screaming. When L.B. approached, appellant jumped out of the car and grabbed her. M.W. escaped and ran to a nearby apartment where she called police.
        Meanwhile, appellant started punching L.B. and threatened to kill her. He pushed her into M.W.'s car and ordered her to drive to a nearby location. Danzi followed in the silver car. Appellant ordered L.B. out of M.W.'s car and into the silver car. Appellant sexually assaulted L.B. in the silver car while Danzi drove. After the sexual assault, the two men released L.B. behind an abandoned warehouse. L.B. started running toward some lights where she found a Rider truck stop. She called police from the office.
        Appellant was apprehended that night with what appeared to be a cigarette burn on his left cheek. He was wearing a blood stained shirt. DNA evidence showed the blood belonged to L.B. The day after the offense, both L.B. and M.W. each independently identified appellant from a photographic line-up as the perpetrator.
        At trial, appellant sought to suppress the victims' in-court identifications asserting both were tainted by an unduly suggestive pretrial line-up. The trial court denied appellant's motion and permitted both victims to identify appellant before the jury. After hearing the evidence, the jury found appellant guilty of the aggravated robbery of M.W. and the aggravated kidnaping and aggravated sexual assault of L.B. This appeal followed.
        In his first, second, and third points of error, appellant contends the trial court erred in refusing to suppress the victims' in-court identifications. In particular, he asserts the photographic line-up police showed the victims was unduly suggestive. We disagree.
        A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. See Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2007). We conduct a two-step analysis to determine the admissibility of the in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. Appellant has the burden to show by clear and convincing evidence that the in-court identification was irreparably tainted. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995).
        In reviewing a trial court's ruling on a motion to suppress an in-court identification, we defer to a trial court's determination of historical facts that are based upon an evaluation of the credibility and demeanor of the witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App.1998). We similarly defer to the trial court's rulings on mixed questions of law and fact when they turn on the credibility of witnesses. Id. We review de novo, however, mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. at 772-73.
        The photographs in the line-up in this case were all of African American males, of the same general age, with the same general characteristics. Appellant nevertheless asserts the lineup was unduly suggestive because his photograph was placed first in the line-up, he had the longest hair, and he was the only person with two earrings. We do not agree that the placement of appellant's photograph first is suggestive. Further, the earrings appellant wore were not prominent and did not make appellant's photograph stand out in any significant way. Finally, appellant's hair was only slightly longer than the other persons in the photographic line-up. Indeed, all six of the individuals in the photographs, including appellant, had fairly short hair. However, at the time of the offense, appellant's hair was much longer, in corn rows. Thus, appellant's hair in the line-up would not have drawn attention to him as the likely perpetrator. While there were some minor differences in the photographs, it is not essential to a proper line-up for all the individuals to be identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985); Epps v. State, 811 S.W.2d 237, 244 (Tex. App.-Dallas 1991, no pet.). After reviewing the photographs, we conclude appellant's photo does not “[stand] out as the likely candidate among the others in the lineup.” Cooks v. State, 844 S.W.2d 697, 732 (Tex. Crim. App. 1992). Thus, the array was not suggestive.
        Appellant also asserts the lineup procedure was suggestive because the victims may have seen his photograph in the news media before they were shown the lineup. However, both victims testified at the identification hearing that they did not see any images of appellant in the news before they identified him for police. The trial court was free to believe this testimony. See Loserth, 963 S.W.2d at 772. We cannot conclude the trial court erred in refusing to suppress the in-court identifications. We overrule appellant's first three points of error.
        In his fourth, fifth and sixth points of error, appellant contends the trial court erred in denying his pretrial motions to suppress evidence. Appellant was arrested on the same evening he committed the charged offenses. While police detained appellant, police obtained three search warrants - to search appellant's person, car and apartment. The warrants were based on probable cause that appellant had committed another sexual assault against another woman that same night. According to appellant, the warrants did not support a finding of probable cause because the warrants on their face do not show they were based on “credible evidence.” The extent of appellant's argument in this regard is that there is “no evidence that the warrants were based on information from the complainants in the case at hand.”         Appellant does nothing to analyze the information that was contained in the search warrant affidavits or assert how or why the information relied upon in the affidavits was not credible. Indeed, appellant's brief fails to even outline the substance of the affidavits in support of the search warrants. Appellant has thus wholly failed to apply the law to the facts as required under the appellate rules. Tex. R. App. P. 38.1. Thus, this issue is not adequately briefed. Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).
        Moreover, the probable cause affidavits in this case were based upon information reported to police by appellant's victims in another case - not a confidential informant. Where a named informant is a private citizen whose only contact with the police is a result of having been a victim of or witness to a criminal act, the credibility and reliability of the information is inherent. See Esco v. State, 668 S.W.2d 358, 360 (Tex. Crim. App.1982); Victor v. State, 995 S.W.2d 216, 224 (Tex. App.-Houston [14th Dist.]-1999, pet. ref'd). We conclude appellant has not shown the affidavits in support of the search warrants were not based on credible or reliable information.   See Footnote 1 
        Finally, appellant suggests that the trial court should have granted the motion to suppress because police exceeded the scope of the warrant authorizing a search of his person by obtaining swabs from appellant's genitals. Appellant cites no authority in support of this contention. Thus, it presents nothing to review. See Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). We overrule appellant's fourth, fifth, and sixth points of error.
        We affirm the trial court's judgments.
        
                                                                          
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
        
Do Not Publish
Tex. R. App. P. 47
071070F.U05
 
                                                                  
 
 
 
Footnote 1 Contrary to the suggestion in appellant's brief, credibility and reliability need not necessarily be separately established. State v. Wester, 109 S.W.3d 824, 827 (Tex. App.-Dallas 2003, no pet.). They are, however, highly relevant factors in determining, by the totality of the circumstances, whether probable cause exists. Id.