Watson, Levelle v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed August 16, 2005

Affirmed and Memorandum Opinion filed August 16, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01181-CR

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LEVELLE WATSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 941,620

M E M O R A N D U M O P I N I O N

Appellant, Levelle Watson, was convicted by a jury of aggravated robbery enhanced with a prior conviction for aggravated robbery. See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003). The court sentenced appellant to 35 years= confinement in the Texas Department of Criminal Justice, Institutional Division. In his sole point of error on appeal, appellant contends the trial court erred by permitting an in-court identification that was allegedly tainted by an overly suggestive out-of-court identification procedure. We affirm.

On March 6, 2003, at approximately 8:00 p.m., two men entered a AFood and More@ gas station where Daanish Jamil, the complainant, was working for his father. One of the men immediately walked behind the counter, pulled out a pistol, and ordered Jamil to open the cash register. The two men further demanded that Jamil relinquish his watch, his wallet, and additional cash that was located in two cash boxes beneath the register. After Jamil complied with each of these demands, the two men forced him into the store=s freezer and fled the scene.

Because the freezer lock was not properly affixed, Jamil was able to free himself within a few minutes and subsequently called the Pasadena Police Department. Once officers arrived at the scene, Jamil provided an account of the robbery and described his assailants as two black males in their late 20's or early 30's. He explained that one of the men wore a hood or cap, had on dark clothingCeither a dark blue or black jacketCand brandished a large, dull or dark silver, revolver type gun. Jamil described the other man as Avery tall@ with a Apretty good build@ and Apretty big nose and slender face,@ and explained that the man wore a light blue or gray jacket. Finally, Jamil detailed the property and money that were stolen, and specifically explained that the gas station kept $5 bills in stacks of ten bound by black rubber bands.

Shortly thereafter, another Pasadena police officer was approximately one mile from the Food and More gas station when he observed two men matching the robbery suspects=descriptions. When the officer approached the men, they ran. During the pursuit, one of the men shed his Abluish green@ jacket and the other man discarded a black toboggan hat. After the men were captured, officers found a black semiautomatic pistol located about five feet from the discarded jacket and also retrieved property matching the stolen property=s description. In addition, the two men were found carrying two stacks of $5 billsCten bills in each stackCwrapped with black rubber bands.

Less than an hour after the robbery, each perpetrator was returned to the scene individually for Jamil to identify. Officers informed Jamil that the two men might or might not be the robbers. At no time did officers indicate that the men were captured with the stolen property and cash. However, Jamil immediately identified both men as the robbers and also recognized that one of the men was wearing different clothing than when the robbery occurred.[1] Jamil further explained that he recognized the men=s faces and stated that he was 100 percent certain that they were the assailants.

To further verify that they had captured the correct suspects, the police requested that Pasadena Police Department Crime Scene Investigators take cast moldings of two footprints found outside the Food and More gas station. Investigators compared the footprint-moldings with the shoes worn by appellant and his accomplice during the robbery and determined that they matched.

Prior to trial, appellant filed a motion to suppress Jamil=s out-of-court identification. The trial court held a suppression hearing on the issue but determined that the identification was not overly suggestive. Therefore, the court allowed evidence about the out-of-court identification and permitted Jamil to make an in-court identification of appellant as one of the assailants.

In his sole point of error, appellant argues that the trial court committed reversible error by permitting the in-court identification. Specifically, appellant argues the out-of-court identification was likely a misidentification because Jamil: (1) only viewed the assailants for three or four minutes; (2) incorrectly described the robbers= clothing; (3) was mistaken about appellant=s height and weight; and (4) misidentified the type and color of the gun used during the offense. Based on these factors, appellant suggests the out-of-court identification was incorrect and Atainted,@ and therefore, the in-court identification should not have been permitted.

An appellant who complains of an in-court identification bears a difficult and heavy burden. Loving v. State, 947 S.W.2d 615, 617 (Tex. App.CAustin 1997, no pet.). An appellant must show by clear and convincing evidence that the in-court identification was tainted by improper pretrial identification procedures that likely led to a misidentification. Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982). Absent such strong proof, an in-court identification is always admissible. Id.

In evaluating the admissibility of an in-court identification, a court is required to engage in a two-step analysis. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). First, the court is to determine whether the out-of-court identification procedure was impermissibly suggestive. Conner, 67 S.W.3d at 200; Loserth, 963 S.W.2d at 772. Second, the court must decide whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Conner, 67 S.W.3d at 200; Loserth, 963 S.W.2d at 772. An analysis under this two-part test is conducted by using a Atotality of the circumstances@ approach. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Therefore, we must first consider whether the procedure utilized to obtain an identification of appellant was overly suggestive.

Here, appellant was apprehended within one mile of the robbery scene and returned to the gas station for an Aon-the-scene@ identification. As soon as Jamil saw appellant sitting in the patrol car, he identified appellant as one of the two attackers. Undoubtedly, there is a certain amount of suggestiveness in having a suspect identified in the back of a police car. However, the Texas Court of Criminal Appeals has held that the use of such a procedure may be permissible and even necessary in some situations. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (citing Stovall v. Denno, 388 U.S. 293, 302 (1967)).[2] Furthermore, here the police did not claim to have captured the perpetrators and, in fact, told Jamil that the men in custody might or might not be the hijackers. The police also refrained from informing Jamil that the men were captured with property and cash stolen during the robbery. Therefore, the police took precautions to ensure any suggestiveness in the identification was minimized. As such, we conclude that the out-of-court identification procedure utilized in this case was suggestive, but not impermissibly suggestive.

Assuming arguendo that the procedure in this case was impermissibly suggestive, we next must determine whether this created a very substantial likelihood of irreparable misidentification. See Conner, 67 S.W.3d at 200; Loserth, 963 S.W.2d at 772. The factors to be considered in evaluating the likelihood of misidentification due to a suggestive pretrial procedure include: (1) the witness= opportunity to view the criminal during the commission of the crime; (2) the witness= degree of attention; (3) the accuracy of the witness= prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the confrontation and the crime. Manson v. Braithwaite, 432 U.S. 98, 114 (1977); Jackson v. State, 808 S.W.2d 570, 572 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d). AAgainst these factors is to be weighed the corrupting effect of the suggestive identification itself.@ Manson, 432 U.S. at 114. However, the critical, overriding factor is the reliability of the identification. Benitez v. State, 5 S.W.3d 915, 921 (Tex. App.CAmarillo 1999, pet. ref=d). If the totality of the circumstances reveal no substantial likelihood of misidentification, the identification testimony will be deemed Areliable@ and will be admissible regardless of the suggestive pretrial procedure. Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992); Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988).

After considering the above five factors, we conclude the pretrial identification procedure, if impermissibly suggestive, did not give rise to a very substantial likelihood of irreparable misidentification. First, Jamil had a significant opportunity to view appellant at the time of the robbery. While appellant=s accomplice stood primarily behind Jamil, appellant himself was directly in front of JamilCa mere two to three feet awayCfor approximately three minutes. Appellant also leaned over the counter to grab money from the register and looked at Jamil eye-to-eye to ask for his watch and wallet. Nothing obscured Jamil=s view of appellant, such as a mask or poor lighting.

Second, Jamil demonstrated that he was very attentive by recounting exact details of the incident to police. This included a detailed description of the robber=s clothing and appearance and specifics about the verbal exchanges that occurred during the robbery.

Third, Jamil described appellant with a fair degree of accuracy. He explained to police that appellant was in his late 20's or early 30's, about 6'2" with a Apretty good build,@ and a Apretty big nose and slender face.@ Appellant was 37 years old at the time of the offense and stands about 6'1" tall. At trial, the arresting officers commented that appellant had a substantial physique and could be a Alinebacker@ playing football somewhere. Moreover, the jury had an opportunity to scrutinize Jamil=s physical description of appellant and compare it with appellant=s actual physical appearance. In addition, Jamil told officers at the scene that one of his assailants wore a blue or baby blue jacket and Adirty white shoes.@ In fact, appellant was seen discarding a Abluish green@ jacket and was captured wearing white shoes.

Fourth, Jamil identified both appellant and his accomplice immediately upon seeing them in the patrol car and explained that he was 100 percent certain they were the robbers.

Fifth, less than an hour elapsed between the robbery and the Aon-the-scene@ confrontation. This presents the exact scenario the Court of Criminal Appeals envisioned when it discussed permitting Aon-the-scene@ confrontations because of the Afreshness@ of the witness= recollection. See Garza, 633 S.W.2d at 512.

Considering the totality of the circumstances, including the above listed factors, the additional footprint evidence, and the fact that appellant and his accomplice were apprehended with the stolen property and cash, we cannot say there was a very substantial likelihood of misidentification. As such, we hold that the trial court did not err in permitting the in-court identification and overrule appellant=s sole point of error.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The clothing discrepancy was due to appellant=s removing and discarding his bluish-green jacket. Thus, at the time of Jamil=s identification, appellant was wearing a white t-shirt. Despite this discrepancy, Jamil testified that he instantly recognized appellant by his facial features and was certain of his identification.

[2] The court specifically recognized numerous reasons for allowing such Aon-the-scene@identifications. For example, they provide quick confirmation or denial of identification, which expedites the release of innocent suspects and prevents further unnecessary detention. Id. They also afford police an opportunity to continue their search for the actual perpetrator. Id. Furthermore, the court noted that Aon-the-scene@confrontations allow witnesses to test their recollection while their memory is still fresh and accurate. Id. Finally, the court explained that any possible prejudice resulting from such a confrontation can be exposed through a rigorous cross-examination of the witness. Id.