Arthur Lee Perkins v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00118-CR

Arthur Lee PERKINS,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-2860A

Honorable Fred Shannon, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 19, 2005

AFFIRMED

Arthur Lee Perkins appeals his conviction by a jury of aggravated robbery. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion.

1. In his first point of error, Perkins challenges the search and arrest warrant under Franks v. Delaware, 438 U.S. 154 (1978), asserting that the lead detective relied on information from an unnamed, confidential informant by telephone without engaging in an independent investigation to corroborate the facts. In Franks v. Delaware, the United States Supreme Court held that if an affirmative misstatement is knowingly or recklessly included in a probable cause affidavit and it is material and necessary to establish probable cause, the warrant is rendered invalid if the remaining content is insufficient to establish probable cause under the Fourth Amendment. Franks v. Delaware, 438 U.S. at 155-56. In a phone call with the lead detective, the owners of the game room that was robbed provided the detective with a nickname and a partial license plate number relating to a possible suspect. The lead detective took numerous additional steps to verify the information and to obtain additional information to support his probable cause affidavit, including: (1) running a computer check of the license plate number and linking Perkins to the vehicle through records showing that Perkins had previously been arrested in the same vehicle; (2) placing phone calls and running a computer search to link Perkins with the nickname; (3) showing the complainant, a game room employee, a photo line-up from which the complainant identified Perkins; and (4) reviewing the police report to confirm the consistency of the information. Perkins, therefore, failed to show that the detective knowingly, intentionally or with reckless disregard for the truth, included any material false statements in his affidavit. See Garza v. State, 161 S.W.3d 636, 640 (Tex. App. San Antonio 2005, no pet.).

2. In his second point of error, Perkins asserts that the evidence is factually insufficient to support his conviction. // In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). Perkins and another man entered a game room stealing money and cell phones from a safe, the gaming machines, and the employees and customers who were present. Perkins was identified by several of the witnesses through photo line-ups. Perkins was linked to a vehicle that matched the description of the vehicle driven away after the robbery. Although evidence was presented that the witnesses were forced to lie face down on the floor after the two gunmen entered the game room and that some of the witnesses described Perkins as being younger than his age, it is the province of the jury to evaluate the credibility and demeanor of witnesses and determine the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Since Perkins personally searched the pockets of the witnesses and stood over the employee who was opening the gaming machines, the jury was within its province in finding the witnesses identification of Perkins credible. The evidence is factually sufficient to support the jury s verdict.

3. In his final point of error, Perkins complains that the pre-trial photographic identification was impermissibly suggestive. A trial court s ruling on the suggestiveness of a pre-trial photographic display is reviewed under a de novo standard of review. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). If we determine the pre-trial photographic display was not impermissibly suggestive, Perkins s complaint is without merit, and our analysis ends. Garcia v. State, 988 S.W.2d 862, 863 (Tex. App. San Antonio 1999, no pet.). The burden is on the defendant to show by clear and convincing evidence that the in-court identification is unreliable. Id.

The photographic arrays shown in this case were not impermissibly suggestive. The photographs depicted males of the same race with similar builds and features. Although the individual was looking down in only one of the photographs, that photograph was not of Perkins. Nothing about Perkins s photograph makes it particularly distinguishable or different. The evidence established that the officer who showed the array did nothing to influence the witnesses identification or to suggest that Perkins s photograph should be selected. Accordingly, Perkins failed to show by clear and convincing evidence that the pre-trial photographic line-up was impermissibly suggestive.

The trial court s judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH