Michael Anthony Harkless v. The State of Texas--Appeal from 184th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-192-CR

MICHAEL ANTHONY HARKLESS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 184th District Court

Harris County, Texas

Trial Court # 668,730

O P I N I O N

A jury convicted Michael Anthony Harkless of aggravated robbery. See Tex. Penal Code Ann. 29.03 (Vernon Supp. 1994). He pleaded "true" to two enhancement paragraphs, and the court assessed punishment at forty years' imprisonment. In his sole point of error, Harkless asserts that the court erred in failing to suppress an impermissibly suggestive photographic lineup. We will affirm the judgment.

Harkless filed a "Motion for Identification Hearing," asking the court to determine outside the jury's presence whether the "prior identification proceeding was conducted in a manner that was impermissibly suggestive and likely to lead to irreparable misidentification at trial." The court held a hearing outside the presence of the jury.

Fazel Khan, the victim and cashier at a convenience store, was robbed by three men. He testified that after he was robbed, the police showed him a set of photographs. He stated that the officer instructed him to "tell us truth . . . [a]nd if that man not here don't lie, have to tell truth." Khan examined State's Exhibit No. 1 the photo lineup and identified Harkless as the man who had robbed him. Harkless was number six in the lineup.

Khan further testified that "number six" came into the convenience store several times a day. Number five came in occasionally. When asked whether "number six" was lighter-skinned than the other five, Khan testified that number six's skin was "lighter than some." The court overruled Harkless' objection that the lineup was impermissibly suggestive.

On appeal, Harkless asserts that, because his skin color was lighter than that of the other individuals, the photo spread was impermissibly suggestive. Although a pretrial identification can be so suggestive and conducive to misidentification that it renders an in-court identification inadmissible, we do not believe that is the present case. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988), cert. denied, 491 U.S. 910, 109 S. Ct. 3202, 105 L. Ed. 2d 709 (1989). Khan testified that he was instructed to tell the truth if the man who robbed him was not pictured in the lineup he was to say so. We have viewed the lineup, and we do not find that "number six" has significantly lighter-colored skin than the men pictured in the other five photos. Khan also testified that "number six" had skin "lighter than some" indicating that Harkless was neither the darkest nor lightest-skinned male in the lineup. We find nothing in the record to indicate that the photographic lineup was impermissibly suggestive. See Chase v. State, 706 S.W.2d 717, 719 (Tex. App. Corpus Christi 1986, no pet.).

We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 24, 1994

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