TIMOTHY CRAIG FRANKLIN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed as Modified; Opinion Filed November 9, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-01419-CR
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TIMOTHY CRAIG FRANKLIN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judical District Court
Dallas County, Texas
Trial Court Cause No. F09-53540-Y
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MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
        After the jury found Timothy Craig Franklin guilty of aggravated robbery, the trial court sentenced him to forty years in prison. In a single issue, appellant claims the trial court committed reversible error by denying his motion to suppress the complainant's in-court identification of appellant during trial. In a cross-point, the State claims the judgment incorrectly reflects appellant pleaded true to two enhancement paragraphs when the record shows he pleaded not true. We modify the trial court's judgment to reflect appellant pleaded not true to the enhancement paragraphs and, as modified, we affirm the trial court's judgment.
        Chan Chandler was waiting for a friend to take her to the airport when appellant approached and asked her for directions to a particular address. Using appellant's Mapsco, Chandler explained how to get to the address. Appellant suddenly grabbed Chandler's purse, jumped in his car, and began to flee. Chandler was dragged for a while before appellant drove off. As a result, she was taken to the emergency room with injuries including a broken nose, two black eyes, and a concussion. While in the ER, she told police she could not identify the man who stole her purse. After Chandler was released from the hospital and recovered from her concussion, she contacted police and gave a description of her attacker. When the police gave her a photographic line-up of six men, she positively identified appellant as her assailant. She likewise identified him in open court.
        In his sole issue, appellant contends the trial court erred by overruling his motion to suppress Chandler's in-court identification of him because it was tainted by an unduly suggestive pretrial procedure. Specifically, appellant claims Chandler indicated she could not identity appellant prior to seeing appellant's photograph in the newspaper and appellant was the only individual in the photographic line-up with a gap between his teeth.
        With respect to appellant's argument the photographic line-up was impermissibly suggestive because he was the only person in the line-up with a gap between his teeth, we conclude
appellant has failed to preserve this issue. At the hearing on appellant's motion to suppress, appellant did not challenge the photographs used in the line-up. He did not argue his photograph was distinctive or he had unique characteristics the other individuals did not display in their photographs. Because appellant did not raise this complaint in the trial court during the hearing on his motion to suppress, we conclude he has waived this complaint on appeal. See Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). We further note Chandler did not testify at the hearing on the motion to suppress that she recognized appellant because of the gap in his teeth. In fact, Chandler did not mention a gap between appellant's teeth during her testimony.         We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted, because it is the trial court that observes first hand the demeanor and appearance of a witness Id. Thus, we give almost total deference to the trial court's determination of historical facts and review the court's application of law de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Here, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).
        We set aside a conviction based on an in-court identification only when the in-court identification was the result of a pretrial identification procedure that was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Wilson v. State, 15 S.W.3d 544, 552 (Tex. App.-Dallas 1999, pet. ref'd). We use a two-prong test to determine the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive, and if so, (2) whether it was so suggestive that there is a strong possibility of irreparable misidentification. See Conner, 67 S.W.3d at 200. We evaluate whether the pretrial procedure fatally tainted the in-court identification by reviewing the totality of the surrounding circumstances. Conner, 67 S.W.3d at 200; Wilson, 15 S.W.3d at 552. Appellant bears the burden of establishing by clear and convincing evidence that the in-court identification was unreliable. Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992).
        Appellant claims Chandler's identification of appellant's photograph in a line-up was “tainted and suggestive” because Chandler initially indicated to police she could not identify the robber but, after seeing a newspaper article with appellant's photo, was able to identify him from the line-up.
        The record shows the attack occurred on April 8, 2009. Chandler was taken immediately to the hospital and diagnosed with a concussion and a broken nose. At that time, she was unable to state what year it was and who the President of the United States was. She told officers she could not identify her attacker. She was released from the hospital and stayed with a neighbor for a few days. Someone sent Chandler a newspaper clipping about the attack, and she believed there was a photograph in the article although it was shortly after she was assaulted and she “still wasn't tracking quite right.” She did not keep the article, did not see anything on television about the robbery, and did not look on the internet to see if she could locate a photograph of her attacker.
        A few weeks later, Chandler contacted the police and asked if they needed her to identify the man who robbed her. When the officer told her she previously stated she could not identify him, she explained she had a concussion and was “out of it” when they asked her in the hospital. She then gave the officer the description of her attacker. The police later showed her a photographic line-up of six men. She positively identified appellant as the man who robbed her.
        Chandler said she knew when she saw the photograph in the newspaper that it was the man who robbed her. She stated that seeing the photograph in the newspaper “had to have a little influence” on her but that she spent a while talking to appellant on the day he robbed her and that amount of time was longer than the time she spent looking at the photograph in the newspaper.
        Officer James Weisinger prepared the double blind sequential photographic line-up using mug shot photos from the system maintained by the Dallas Police Department. After he compiled the photographs, he gave the line-up to Sergeant Charles Young. Weisinger accompanied Young to Chandler's house and waited in the living room while Young gave Chandler the admonishments and instructions about the line-up. Young, who did not know who the suspect was, showed Chandler the photos. When she viewed the photo of appellant, she stated, “This is the guy.” Neither Weisinger nor Young indicated to Chandler she had picked appellant's photo. After hearing this and other evidence, the trial court denied appellant's motion to suppress.
        Appellant assigns this ruling as error but we cannot agree. The trial court was the trier of fact and observed Chandler during her testimony. The trial court heard Chandler explain that, following the robbery, she had a concussion and was unable to say what year it was, who the President was, or who attacked her while she was in the emergency room. Chandler was, however, able to identify him later after she recovered from the concussion. Although Chandler admitted having seen a photograph associated with a newspaper article on the robbery and that it had to have “some influence,” the trial court also her heard testify she spent a lot longer looking at appellant, face-to-face, on the day of the robbery before giving him directions. Nothing in the record before us suggests the pretrial identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. We cannot conclude the trial court abused its discretion in denying appellant's motion to suppress. We overrule appellant's sole issue.
        In a cross-point, the State contends the judgment incorrectly states appellant pleaded true to the two enhancement paragraphs when the record shows he pleaded not true. We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, the reporter's record shows appellant entered pleas of not true to the two prior felony convictions for enhancement purposes. We sustain the State's cross-point. We modify the judgment to show appellant entered pleas of not true to the two enhancement paragraphs.
        As modified, we affirm the trial court's judgment.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091419F.U05