Roberts, Brock Lamont v. State ( 2006 )

Affirmed and Memorandum Opinion filed March 9, 2006

Affirmed and Memorandum Opinion filed March 9, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01048-CR

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BROCK LAMONT ROBERTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 977,777

M E M O R A N D U M   O P I N I O N

Appellant Brock Lamont Roberts was convicted of the felony offense of aggravated robbery and sentenced to thirty years= imprisonment.  In two issues, appellant claims the trial court erred in allowing evidence of the victim=s in-court and out-of-court identifications of him.  We affirm. 

On February 13, 2004, Tiffany Fitzgerald was robbed at gunpoint by a passenger in her taxi cab whom she had driven around for more than an hour.  Four days later, the detective investigating the case identified appellant as a suspect and contacted Captain Steven Conroy of the Harris County Sheriff=s Department to arrange a photo spread for Fitzgerald. Conroy contacted Fitzgerald, and a clerical worker at the department prepared a photo array with six subjects, including appellant.  Conroy did not give Fitzgerald a form admonition, the common practice in the department, but instructed her orally from memory because no forms were available. According to Fitzgerald, Conroy told her, AI=m going to show you a lineup.  If you see him, I need you to circle it and sign it and date it, and take your time on it.@  Almost immediately, Fitzgerald selected appellant=s photograph. 

At a pretrial identification hearing, appellant moved to suppress the photo array, arguing that it was impermissibly suggestive because he was the only subject wearing an orange shirt, which suggested he was in custody.  At the hearing, Fitzgerald testified she noticed appellant=s orange shirt and thought it was a county jail jumpsuit. Nonetheless, she said this did not influence her identification of appellant because she recognized him as her robber.  The trial judge denied appellant=s motion to exclude the photo spread.  At trial, appellant renewed his objection when the photo spread was entered into evidence during Conroy=s testimony.  However, appellant did not object when Fitzgerald again identified him in court. The jury convicted appellant, and this appeal followed. 

In two issues, appellant contends the trial court erred in denying his motion to suppress evidence of the in-court and out-of-court identifications because the pretrial identification procedure was impermissibly suggestive.  We review a trial court=s decision on a motion to suppress under an abuse of discretion standard.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  Under this standard, we give almost total deference to historical findings of fact and to mixed questions of law and fact that turn on witness credibility and demeanor. See Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).  We review de novo mixed questions of law and fact that do not turn on witness credibility and demeanor.  Id.

The United States Supreme Court has recognized that a pretrial identification procedure may be so suggestive as to lead to an irreparable misidentification. Simmons v. United States, 390 U.S. 377, 383B84 (1968).  When seeking to suppress an in-court or out-of-court identification, the defendant must prove by clear and convincing evidence that the out-of-court identification procedure was impermissibly suggestive.  See Barley v. State, 906 S.W.2d 27, 33B34 (Tex. Crim. App. 1995); Vasquez v. State, 101 S.W.3d 794, 796 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Photo arrays may be suggestive in two general ways.  First, the content of the array may be suggestive, as when the suspect is the only person closely resembling the description, see Barley, 906 S.W.2d at 33, or the subjects of the photographs are Agrossly dissimilar in appearance to the suspect,@ see United States v. Wade, 388 U.S. 218, 233 (1967). Second, the identification procedure used in a photo array may render it suggestive, as when an officer points out or otherwise indicates to the witness that the suspect is included in the array.  See Barley, 906 S.W.2d at 33.

Appellant contends his orange shirt rendered the photo spread impermissibly suggestive.^[1]  He points out that Fitzgerald testified she thought the orange shirt was a county jail jumpsuit.  However, she also testified this did not impact her identification of appellant, which was based solely on her memory of seeing his face the day he robbed her. Fitzgerald saw appellant=s face several times in the rear view mirror as they drove and talked, and she turned around and looked at him when he pulled out his gun. The trial court, by denying appellant=s motion to suppress, apparently believed Fitzgerald=s testimony that she did not base her identification of appellant on his orange shirt.  See Carmouche v. State, 10 S.W.3d 323, 327B28 (Tex. Crim. App. 2000) (permitting appellate courts to make reasonable inferences in support of trial courts= rulings when there are no explicit findings of fact).  Although we afford great deference to the trial court=s evaluation of Fitzgerald=s credibility and demeanor, the issue of the photo array=s suggestiveness does not turn on this evaluation.^[2]  See Loserth, 963 S.W.2d at 773.  Thus, we review the photo array de novo.  Considering the evidence in the record, including a duplicate of the photo array in which only a small portion of appellant=s shirt collar is visible, the physical similarity of the subjects, Fitzgerald=s testimony from the suppression hearing, and the trial court=s evaluation of her testimony, we find that the photo array was not impermissibly suggestive.

Appellant also claims that even if the photo array was not suggestive, Conroy=s conduct made the identification procedure suggestive.  He argues the manner in which Conroy approached Fitzgerald caused her to conclude they had a suspect in mind.  In support of this contention, appellant points to Conroy=s lack of recent experience administering photo spreads and the fact that he did not give Fitzgerald the department=s standard admonition. However, appellant cites no authority requiring a particular level of expertise or type of admonition to administer a photo spread. Further, appellant points to no evidence that Conroy indicated the suspect was in the photo array or encouraged Fitzgerald to select him.

Based on the foregoing, we conclude that appellant did not prove by clear and convincing evidence that the photo spread was suggestive, and thus the trial court did not err in admitting it.  Having determined the photo spread was not suggestive, we need not consider the in-court identification. See Abney v. State, 1 S.W.3d 271, 275 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (AA finding that a challenged pretrial identification procedure was not impermissibly suggestive eliminates the need to determine whether the procedure gave rise to a very substantial likelihood of misidentification.@).  We overrule appellant=s two issues and affirm the trial court=s judgment.                       

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 9, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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

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^[1]  In his appellate brief, appellant also argues that some of the other photo array subjects appeared to have facial hair and that one wore an earring.  Although there are minor differences among the subjects, all appear to be the same general race, gender, age and to have similar hair styles as appellant.  The State need not produce identical subjects to avoid violating appellant=s due process rights. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985).

^[2]  Loserth describes testimony that A>turns= on an evaluation of credibility and demeanor@ as that which, if believed, is Aalways enough to add up to what is needed to decide the substantive issue.@  Loserth, 963 S.W.2d at 773.  Here, the trial court could have found the photo array impermissibly suggestive despite Fitzgerald=s testimony that she was not influenced by the orange shirt.  See id. (noting that in some cases, application of certain factors may lead to different outcomes, even if witness=s testimony is believed).  Thus, the trial court=s finding does not turn on an evaluation of Fitzgerald=s credibility and demeanor.