Idarine Rada Ketchum v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 12, 2007

Affirmed and Memorandum Opinion filed April 12, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01083-CR

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IDARINE RADA KETCHUM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1018571

M E M O R A ND U M  O P I N I O N

A jury found appellant, Idarine Rada Ketchum, guilty of aggravated robbery and sentenced her to fifteen years= confinement.  In three issues, appellant contends (1) the evidence is legally insufficient, (2) the evidence is factually insufficient, and (3) the line-up procedure used by the police was impermissibly suggestive, tainting the complainant=s courtroom identification.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

On March 1, 2005, Maria Sanchez, complainant, was working as a bartender at the Del Barrio bar.  Around 11:30 p.m., Sanchez and three other people were in the bar when two African-American men and an African-American woman entered the bar. The faces of the two men were covered by ski masks.  The woman wore a loose, black hooded jacket and did not have her face covered.  One man carried a shotgun and the other man and the woman each carried smaller guns.  Initially, one of the men went to the bar and pointed his gun to the head of a woman sitting at the bar and asked her for money.  The other man and the woman knocked the two men standing at the pool table to the ground.  The man at the bar pointed his gun at Sanchez and asked her for money.  She gave him approximately $50 from the register.  The woman approached Sanchez and standing two to three feet from her, pointed a small gun at Sanchez=s forehead and demanded more money. Sanchez told the female perpetrator that she did not have any more money.  The three perpetrators then left through the back of the bar.  Sanchez called 9-1-1.

Officer M.R. Burdick responded to the call. Sanchez gave him a description of the perpetrators.  She described the female as a small, African-American woman with a very narrow face wearing a black jacket with a hood.  The woman=s jacket was zipped-up about halfway, revealing only skin.  Sanchez could not see whether she was wearing a shirt underneath.  Less then two hours later, Officer Burdick located and arrested appellant with two black males twelve blocks from the scene of the robbery. Appellant was in possession of approximately $50.  She was wearing a black loose-fitting hooded jacket and a low-cut tank top that exposed her chest.

Officer Steven Guerra, the assigned investigator, created a videotape line-up featuring appellant and four other women.  The day after the robbery Officer Guerra called Sanchez and asked her to view a video line-up. During the phone call, he mentioned that some people had been arrested; however,  he was not sure whether they were involved in the robbery.  Officer Guerra went to Sanchez=s  home later that day to show her the video line-up. When Sanchez viewed the video line-up, she immediately identified appellant as the female perpetrator.

At appellant=s urging, the trial court conducted a hearing outside the presence of the jury regarding the admissibility of Sanchez=s out-of-court and in-court identifications of appellant to determine if the video line-up was impermissibly suggestive.  After Sanchez and Officer Guerra testified regarding the video line-up, the trial court concluded the State=s investigators had not engaged in conduct that rendered the video line-up impermissibly suggestive.  Accordingly, the trial court ruled that the out-of-court and in-court identifications by Sanchez were admissible.  On appeal, appellant challenges this ruling as well as the legal and factual sufficiency of the evidence.

II.  Legal Sufficiency

Appellant contends the evidence at trial was legally insufficient to support her aggravated robbery conviction because (1) the State did not prove beyond a reasonable doubt that a firearm was used during the robbery, (2) no physical evidence was recovered, (3) Sanchez was the State=s only eyewitness who testified, and (4) out of three perpetrators, appellant was the only person charged.

In a legal sufficiency review, we consider all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

A person commits aggravated robbery if in the course of committing theft of property and with intent to obtain and maintain control of the property, she intentionally and knowingly threatens and places another in fear of imminent bodily injury or death and uses or exhibits a deadly weapon.  See Tex. Penal Code Ann. ' 29.02 (Vernon 2003); Tex. Penal Code Ann. ' 29.03 (Vernon 2003).  When, as in this case, the State alleges in an indictment for aggravated robbery that the deadly weapon used or exhibited by the defendant was a firearm, the State is required to prove, beyond a reasonable doubt, that the deadly weapon used or exhibited was, in fact, a firearm.  See Gomez v. State, 685 S.W.2d 333, 335S36 (Tex. (Tex. Crim. App. App. 1985); Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.CHouston [14th District.] 2000, pet. ref=d).

After viewing the evidence in the light most favorable to the verdict, we conclude there is sufficient evidence for a jury to find that appellant committed aggravated robbery with a firearm.  Appellant contends the State failed to prove the use of a firearm beyond a reasonable doubt.  Specifically, she argues the evidence is legally insufficient because Sanchez did not fully describe the gun, and a gun was not recovered.  However, Atestimony using any of the terms >gun,= >pistol,= or >revolver= is sufficient to authorize the jury to find that a deadly weapon was used@ in an aggravated robbery.  Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1980).  In Carter v. State, this court found the evidence legally sufficient to prove a firearm was used in an aggravated robbery although no firearm was recovered because the victims testified the defendant pointed a Agun@ at their heads during the robbery. 946 S.W.2d 507, 509B10 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d); see also Joseph v. State, 681 S.W.2d 738, 739 (Tex. App.CHouston [14th Dist.] 1984, no pet.) (holding testimony making reference to Aguns@ and a Along-barreled gun@ as legally sufficient to prove a firearm was used). 

At trial, Sanchez testified the female perpetrator had a Asmall gun.@  Sanchez also testified that, in contrast to the small gun appellant carried,  one of the male perpetrators had a Ashotgun.@  Accordingly, we find the evidence legally sufficient to support the jury=s finding that a firearm was used. 

Appellant also contends the evidence is legally insufficient because the police did not recover any physical evidence.  However, testimony of one eyewitness is sufficient to support a jury=s verdict.  Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Accordingly, Sanchez=s testimony is sufficient to support the jury=s verdict even in the absence of physical evidence from the scene. Nevertheless, the State offered and the trial court admitted the black jacket worn by appellant when she was arrested by Officer Burdick Sanchez testified that it was the same jacket worn by the female perpetrator during the robbery.  Sanchez based her identification of the jacket on the fact that the hood was loose.

Appellant further contends the evidence is legally insufficient because the State should have called other witnesses.  However, as we just discussed, the testimony of one eye witness is sufficient to support a jury=s verdict.  Id.

Finally, appellant contends the evidence is legally insufficient because the other two men who were with appellant when she was arrested were not charged with the offense. However, the record reflects that the other two perpetrators wore ski masks concealing their faces during the robbery.  Consequently, Sanchez was unable to describe their facial features to Officer Burdick to support identification that would warrant arrest.  Moreover, whether the State charged the two men who were with appellant at the time of her arrest has no impact on the legal sufficiency of evidence to convict appellant.

Examining the evidence in the light most favorable to the verdict, we conclude a reasonable jury could have found beyond a reasonable doubt that appellant committed aggravated robbery. Accordingly, we overrule appellant=s first issue.

III.  Factual Sufficiency

Appellant challenges the factual sufficiency of the evidence arguing (1) the black jacket did not have any distinguishing features, (2) Sanchez was the only witness called by the State to testify, and (3) Sanchez=s identification of appellant was unreliable because Sanchez was probably in a state of shock. 

When reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)).  Before we may reverse for factual insufficiency, we must first conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  When reviewing evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.   Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  We do not re-evaluate the credibility of witnesses or the weight of evidence and will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  Finally, we must discuss the most important and relevant evidence that supports the appellant=s contention. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).            

Appellant contends the evidence is factually insufficient because the black jacket does not have any distinguishing features.  Therefore, witness identification of the jacket does not necessarily connect appellant to the robbery.  However, the jury is the sole judge of the weight and credibility of Sanchez=s testimony about the black jacket.  See Johnson, 23 S.W.3d at 9.  We will not substitute our opinion for the determination of the jury.  Id.  Moreover, Sanchez identified appellant without the jacket in the line-up the day after the robbery. 

Appellant argues the line-up identification was unreliable because Ait is highly likely [Sanchez] was still in a state of shock due to the traumatic event the night before, and she was most likely still feeling defenseless and scared.@  Appellant does not cite, and we have not have found, any evidence indicating Sanchez was suffering from shock or otherwise unable to perform her function in viewing  the video line-up. 

Appellant also contends the evidence is factually insufficient because she was identified by one eyewitness, and the State did not call the other purported eyewitnesses to testify.  However, as we already explained, testimony of one eyewitness is sufficient to support a jury=s verdict.  Aguilar, 468 S.W.2d at 77 (finding evidence sufficient to support jury=s finding of assault with intent to murder where one eyewitness in a crowded bar testified she saw the defendant with a pistol).  Moreover, the State is not required to call every eyewitness to testify as long as the necessary proof is presented.  Id. at 78; Shelvin v. State, 884 S.W.2d 874, 877 (Tex. App.CAustin 1994, pet. ref=d). 

Viewing the evidence in a neutral light, we conclude that the jury=s verdict is not contrary to the great weight and preponderance of the evidence.  Accordingly, we overrule appellant=s second issue.

IV.  Line-up Procedure

Appellant contends the line-up procedure was impermissibly suggestive, and thus, Sanchez=s courtroom identification of appellant was tainted.  Specifically, appellant contends Officer Guerra told Sanchez that suspects had been arrested and Sanchez testified that she believed one of the suspects would be in the line-up.

A.        Standard of Review

We defer to a trial court=s determination of historical facts supported by the record when the trial court finds facts based upon an evaluation of the credibility and demeanor of the witnesses.  Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).  We also defer to the trial court=s rulings on mixed questions of law and fact when they turn on the credibility of witnesses.  Id.  However, we review de novo mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor.  Id. at 772B73.  In this case, the question whether a pretrial identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor.  Id.  Accordingly, we apply a de novo standard of review. 

An in-court identification is inadmissible if tainted by impermissibly suggestive pretrial identification.  Loserth, 963 S.W.2d at 771.  To determine whether a pretrial identification was too suggestive to afford the accused a fair trial, we apply a two-step inquiry: (1) whether pre-trial identification procedure was impermissibly suggestive and, if so, (2) whether the impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable misidentification at trial.  Simmons v. U.S., 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32B33 (Tex. Crim. App. 1995);  Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d).  A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive.  Barley, 906 S.W.2d at 33B34; Burkett v. State, 127 S.W.3d 83, 86 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  Furthermore, the steps require an examination of the totality of circumstances surrounding the particular case.  Simmons, 390 U.S. at 384; Barley, 906 S.W.2d at 33. 

B.        Suggestiveness of Line-Up Procedure

Suggestiveness may be created by the manner in which a pretrial identification procedure is conducted.  Barley, 906 S.W.2d at 33.  For example, a police officer may point out the suspect.  Id.  The content of a line-up or photo array itself may be suggestive if the suspect is the only line-up participant who closely resembles the description given by the witness.  Id. Furthermore, an individual may be suggestive or the communicative effect of the procedures may be suggestive.  Id.

Sanchez testified Officer Guerra called her the day after the robbery to ask her to view a line-up.  He told her that officers already had  apprehended the Asuspects@ who robbed the bar.  Officer Guerra testified that when he called Sanchez, he told her some arrests had been made, but he was unsure about the suspects= involvement in the robbery.  He did not tell her that the persons arrested would be in the line-up.  Later that same day, he showed the video line-up to Sanchez in her home.  Before showing her the line-up, he told Sanchez she was going to view a video of five females, she was under no obligation to identify anyone, and the person arrested may or may not be in the video.  Upon viewing the video line-up, Sanchez immediately made a positive identification of appellant.

Appellant cites Reyes v. State, to support her argument that Officer Guerra=s statements to Sanchez on the phone were impermissibly suggestive.  No 14-00-01388-CR, 2002 WL 58836 (Tex. App.CHouston [14th Dist.] Jan. 17, 2002, no pet.) (not designated for publication)  In Reyes, the defendant complained the pretrial video line-up was impermissibly suggestive because the witnesses viewed the line-up in their homes, one witness viewed it while her daughter was in the room, another witness identified the defendant primarily based on voice recognition, and after a witness identified the defendant, the officer told her that she Adid good.@  Id. at *3.  Our court found nothing impermissibly suggestive about the video line-up.  Id.  at *4.  Appellant notes we found the officer=s statement to the witness that she Adid good@ after identifying the defendant was not suggestive because the officer=s statement was made after the identification.  Id.  at *3. Appellant contends because Officer Guerra told Sanchez on the phone before the line-up that persons had been apprehended, this comment impermissibly tainted the line-up identification because Sanchez assumed one of the suspects was in the line-up.  This comparison is not appropriate because the officer=s statement in Reyes in effect told the witness afterwards that  she had identified the person who was arrested.  In this case, Officer Guerra=s statement on the phone had nothing to do with confirming or suggesting any specific identification before the line-up.  Officer Guerra also told Sanchez before she viewed the line-up that the person arrested may or may not be in the line-up and that she was not obligated to identify anyone in the line-up. 

The State argues that Burkett v. State is more similar to this case.  127 S.W.3d at 87B88.  We agree.  In Burkett, the officer told the witness before viewing the photo array that a suspect had been identified and the suspect was one of the men in the photo array.  Id.  at  87.  The First Court of Appeals concluded the officer=s disclosure that a Asuspect was included in the photo array did not itself render the pretrial identification impermissibly suggestive because a complaining witness normally assumes that a photo array includes a suspect.@  Id. at 87B88 (citing Johnson v. State, 901 S.W.2d 525, 534 (Tex. App.CEl Paso 1995, pet. ref=d)). 

In this case, to the extent Officer Guerra=s comment could be characterized as suggestive, the suggestiveness is less than in Burkett, where the officer told the witness one of the suspects would be included in the photo array.  Officer Guerra merely told Sanchez on the phone that suspects were arrested.  Before viewing the line-up, Officer Guerra told Sanchez that the suspects may or may not be in the line-up.  Based on Officer Guerra=s statement on the phone about the arrested suspects, Sanchez believed that a suspect would be included in the line-up.  As the Burkett court and other courts have held, a pretrial identification procedure is not impermissibly suggestive merely because a witness may have believed one of the individuals in the line-up includes a suspect.  See Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992); Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1988); Burkett, 127 S.W.3d at 87B88; Abney v. State, 1 S.W.3d 271, 275 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).

Because we conclude that the pretrial identification procedure was not impermissibly suggestive, we need not address whether the procedure created a substantial likelihood of misidentification.  See Colgin, 132 S.W.3d at 532. Appellant=s third issue is overruled. 

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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