Luther Ray Hudson v. State ( 2009 )

Affirmed and Memorandum Opinion filed January 29, 2008

Affirmed and Memorandum Opinion filed January 29, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00888-CR  

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LUTHER RAY HUDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court  

Harris County, Texas

Trial Court Cause No. 1095420  

M E M O R A N D U M   O P I N I O N

Appellant Luther Ray Hudson appeals his conviction for aggravated robbery complaining (1) the evidence is legally and factually insufficient, (2) the in-court identification was tainted by an out-of-court identification from an impermissibly suggestive photo array, (3) the jury charge contained error, and (4) the trial court erred in denying appellant=s motion for new trial.  We affirm.

I.  Factual and Procedural Background

Police responded to a call for robbery involving four young men and the complainant, Jose Corea, his wife, and his stepson, Javier. Corea was helping Javier move into an apartment at night.  They were moving items in the back of Corea=s pick-up truck when another vehicle blocked the truck in the apartment complex parking lot.  Four, young black men emerged from the vehicle.  The men were armed and wore grey, hooded sweatshirts with the hoods pulled over their heads.  One man placed the barrel of a pistol-grip, sawed-off shotgun against Corea=s head, and another man demanded the keys to the truck from Javier.  The man pressing the gun to Corea=s head initially wore a ski mask, but, at some point, the mask fell off, and Corea was able to see the man=s face for several seconds.

When one of the bandits cocked a gun against Javier=s head and threatened to kill him, Corea handed over the keys.  Two men forced Corea=s wife from inside the cab of the truck and then fled in Corea=s truck; the other men left in the vehicle in which they had arrived. Police recovered the abandoned truck the next day. 

The apartment complex=s video surveillance equipment recorded the incident.  Corea and his wife each described the parking lot as being well lit.  Corea maintained he would be able to recognize the robber if he saw him, but his wife acknowledged she could not.

One month after the robbery, police arrested appellant on charges unrelated to the robbery.  As part of that investigation, police found a ski mask and several guns, including a sawed-off, pistol-grip shotgun in appellant=s vehicle.

Based on information contained in a robbery offense report and based on the fact that appellant had a sawed-off shotgun in his possession, a police investigator for the robbery compiled a photo array to show Corea.  Appellant=s photo was among those included in the array.  In that photo, appellant wore a dark-colored, hooded sweatshirt with the hood pulled down at appellant=s shoulders. After viewing the photos for several seconds, Corea identified appellant as the robber who had held a gun to his head.

Appellant was charged with aggravated robbery, to which he pleaded Anot guilty.@  Appellant filed a motion to suppress Corea=s in-court identification of appellant based on the pretrial photo array.  At a hearing on this motion, Corea identified appellant as the robber who had held the shotgun to his head.  The police investigator testified he selected the photos for a photo array based on information contained in a robbery offense report compiled by the responding officer.  The investigator testified that the offense report described the robbers as black males in grey hooded sweatshirts; one man, with a medium-colored complexion, was six feet tall at two hundred pounds, and two other men were five feet and eight inches tall at 160 pounds.  The police investigator explained that the Corea robbery involved a shotgun, but the offense report did not mention ski masks.  The investigator explained that because a sawed-off shotgun was found in appellant=s car and based on information in the robbery offense report, he created the photo array using photos of men who looked like appellant.  The trial court denied appellant=s motion to suppress.

At the jury trial that followed, Corea identified the shotgun and ski mask collected from appellant=s vehicle as being consistent with or the same as the those used in the robbery.  Corea identified appellant as one of the robbers.  The jury found appellant guilty as charged.  Upon the jury=s recommendation, the trial court ordered appellant placed in community supervision probation for ten years.

II.  Issues and Analysis

A.      Is the evidence legally and factually sufficient to support appellant=s conviction?

In two issues, appellant challenges the legal and factual sufficiency of the evidence identifying appellant as a participant in the robbery.  Furthermore, in another issue, appellant claims the trial court erred in denying his motion for an instructed verdict, which is treated as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).  Appellant claims the following facts are insufficient to support his conviction:

$ The jury foreman signed the verdict form in the area marked Anot guilty,@ which was scratched out, and the Aguilty@ portion was signed;

$ There is a lack of physical or circumstantial evidence;

$ A lone eyewitness gave varied testimony about reporting the ski mask and identified appellant only by his hooded sweatshirt in the photo array;

$ Neither the robbers= vehicle nor Corea=s stolen bank card, which was used, could be traced to appellant; and

$ Alibi evidence proved appellant was at home in bed after working all day on the night of the robbery.

In evaluating a legal‑sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).  It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Fuentes, 991 S.W.2d at 271.  Unless the court issues a memorandum opinion, in conducting a factual‑sufficiency review, we are to address the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of robbery if, in the course of committing theft and with intent to obtain and maintain control of property, that person A(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.@  Tex. Penal Code Ann. ' 29.02 (Vernon 2003).  The offense becomes aggravated robbery if the person committing the robbery causes serious bodily injury to another or uses or exhibits a deadly weapon.  Id. ' 29.03(a)(1), (2) (Vernon 2003).  A sawed-off shotgun, such as what Corea testified was used in this case, is a firearm and is considered a deadly weapon.  Id. ' 1.07(a)(17)(A) (Vernon 2003); Rodriguez v. State, 644 S.W.2d 200, 203 (Tex. App.CSan Antonio 1982, no pet.).

Corea testified the pistol-grip style sawed-off shot gun and ski mask recovered from appellant were consistent with or similar to the ones used in the robbery.  Corea and his wife both testified they feared for their lives by the robbers= threats and use of guns.  Based on his glimpse of the robber=s face in the well-lit parking lot, Corea identified appellant^[1]     as the robber who held the gun to his head before fleeing in Corea=s truck.  The testimony of a single eye-witness, such as the complainant in this case, is sufficient to support a felony conviction for aggravated robbery.  See Taplin v. State, No. 14-05-00194-CR, 2006 WL 397234, at *2B3 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (mem. op., not designated for publication); Johnson v. State, 176 S.W.3d 74, 77B78 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d).  Therefore, a rational trier of fact could have found the elements beyond a reasonable doubt.  See Johnson, 176 S.W.3d at 77.

According to appellant, no physical evidence links him to the charged offense except for Corea=s allegedly mistaken identification of appellant based on the hooded shirt appellant wore in the photo featured in the pretrial array.  Furthermore, appellant complains of Corea=s inconsistent testimony regarding the ski mask, alleging that Corea told authorities about a ski mask only after one such mask was found in appellant=s possession and authorities showed it to Corea.  According to appellant, the ski mask was left in his car after a photo shoot for a musical compact disc cover, and he planned to use the guns to apply for a concealed handgun permit.  Determining what weight to give any testimonial evidence is within the sole province of the jury.  This determination turns on an evaluation of credibility and demeanor.  See id. at 78.  Appellant also offered an alibi that he was at home with his mother at the time of the offense.  His mother testified to seeing him that evening, but acknowledged it was possible appellant left the house while she was sleeping.  Alibi evidence is just one factor for the jury=s consideration, and an evaluation of such evidence also turns on credibility and demeanor.  Id.; Davis v. State, 831 S.W.2d 839, 842 (Tex. App.CDallas 1992, pet. ref=d).  Thus, the jury was free to accept or reject appellant=s alibi evidence.  See Vasquez v. State, 67 S.W.3d 229, 236B39 (Tex. Crim. App. 2002); Johnson, 176 S.W.3d at 78.

Though appellant suggests that his alibi evidence and Corea=s allegedly mistaken identification weaken the State=s evidence, a jury=s decision is not manifestly unjust simply because the jury resolved conflicting views of the evidence in favor of the State.  See Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Johnson, 176 S.W.3d at 78.  Accordingly, in the face of any conflicting evidence, such as when Corea reported seeing the ski mask, we presume the jury resolved conflicts in favor of the State.  See Lancon v. State, 253 S.W.3d 699, 706B07 (Tex. Crim. App. 2008) (involving no physical evidence and inconsistent testimony about a shooting and description of the shooter=s clothing, but holding the evidence was factually sufficient to support conviction).  The identification evidence presented, particularly the investigator=s testimony that the offense report described a young, black male with a sawed-off shotgun, which corroborated Corea=s identification of appellant, is not so weak that the jury=s verdict is against the great weight and preponderance of the evidence.  See Brown v. State, 212 S.W.3d 851, 864B65 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).  Corea=s identification of the pistol-grip, sawed-off shotgun and ski mask found in appellant=s car link appellant to the crime as well.  See id.  Furthermore, when the evidence is viewed in a neutral light, we cannot say, with some objective basis in the record, that appellant=s conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Vasquez, 67 S.W.3d at 236B39; Brown, 212 S.W.3d at 864B65.

The evidence presented is legally and factually sufficient to support appellant=s conviction for aggravated robbery.^[2]     See Vasquez, 67 S.W.3d at 238B39; Brown, 212 S.W.3d at 864B65.  Accordingly, we overrule appellant=s second and third issues.

B. Was the complainant=s out-of-court identification of appellant based on an impermissibly suggestive pretrial photo array so that the in-court identification lacked indicia of reliability?

In his first issue, appellant asserts that Corea=s out-of-court identification based on an impermissibly suggestive pretrial photo array tainted Corea=s in-court identification and implicates appellant=s due process rights under the United States and Texas Constitutions.^[3]    

An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure.  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).  We consider, under the totality of circumstances, whether the pretrial photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.  Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008).  Because admissibility of identification testimony hinges on reliability, to warrant exclusion of Corea=s in-court identification, appellant must prove by clear and convincing evidence that the in-court identification was unreliable.  See id.; Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451, 455 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, in-court identification testimony is admissible.  See Luna, 268 S.W.3d at 608; Delk, 855 S.W.2d at 706.

A pretrial procedure may be suggestive, but that does not necessarily mean it is impermissibly so.  Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995).  Suggestiveness may be implicated by the manner a pretrial identification procedure is conducted, as in suggesting a suspect is included in the array, or by the content of the photo array itself, for example, when the suspect is the only individual who closely resembles the pre-procedure description.  See id. at 33. Testimony from neither Corea nor the officer indicates an unduly suggestive procedure.^[4]     The photo array is comprised of six pictures of young, black men with similar facial features, skin color, and hair styles.  All are dressed in street clothes, and appellant is wearing a dark-colored, hooded sweatshirt pulled down around his shoulders.  Corea testified the sweatshirt shown in the photo is different from the one worn by the robber.  The fact that appellant is wearing apparel similar to the grey, hooded sweatshirts worn by the robbers is not necessarily impermissibly suggestive.  See Smith v. State, 930 S.W.2d 227, 229 (Tex. App.CBeaumont 1996, pet. ref=d) (holding in-court identification of defendant was not tainted by pretrial photo array when the defendant was the only person wearing a hooded sweatshirt similar to the one worn in the robbery); see also Roberts v. State, No. 14-04-01048-CR, 2006 WL 561786, at *2 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (mem. op., not designated for publication) (involving a suspect shown in the photo array wearing an orange shirt that suggested he was in custody).

Even assuming arguendo the pretrial photo array was suggestive, Corea=s in-court identification still would be admissible because there is no substantial likelihood of irreparable misidentification.  See Luna, 268 S.W.3d at 608.  In assessing reliability under the totality of the circumstances, we weigh the following five factors against the corrupting effect of any suggestive pretrial identification procedure:  (1) the witness=s opportunity to view the criminal act, (2) the witness=s degree of attention, (3) the accuracy of the suspect=s description, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and confrontation.  Luna, 268 S.W.3d at 605; Ibarra, 11 S.W.3d at 195. 

The record reflects that Corea was within arms-length of the robber.  Corea explained, and the video and Corea=s wife confirmed, the parking lot was well-lit that night.  Corea had the opportunity to glimpse the robber=s face without a ski mask for several seconds.  As the complainant who was threatened at close range, he had reason to be attentive.  See Smith, 930 S.W.2d at 229.  Before the pretrial identification, Corea was confident that he could identify the robber.  The time between the crime and the confrontation was about one month, and Corea quickly identified appellant as the robber when shown the photo array.  He remained certain of the identification.  Moreover, the general description Corea relayed to authorities matched appellant=s physical appearance at over six feet tall and over two hundred pounds.  After seeing the photo, Corea told authorities the robber was Awell-built,@ an accurate detail not apparent from appellant=s head-shot photo.  At trial, Corea testified that he noticed the hood in the photo, but he recognized appellant=s face first.  Weighing this reliability against any suggestiveness of the photo array leads us to conclude that no substantial risk of irreparable misidentification was created so as to deny appellant due process.  The trial court did not err in allowing this testimony before the jury.  See Luna, 268 S.W.3d at 608; Smith, 930 S.W.2d at 229.  Accordingly, we overrule appellant=s first issue.

C. Did the trial court commit error in denying appellant=s requested jury instructions?

In two issues, appellant complains that the trial court erred in refusing his request for certain jury instructions.  In analyzing a jury-charge issue, we first determine if an error occurred, and, if so, we conduct a harm analysis.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).  The degree of harm necessary for reversal turns on whether appellant preserved error by objection.  Id.

In his fifth issue, appellant claims the trial court erred in overruling his request for a jury instruction as to the exclusionary rule under Article 38.23 of the Texas Code of Criminal Procedure because he alleges there was conflicting evidence concerning the manner in which the photo array identification was conducted.  Article 38.23 of the Texas Code of Criminal Procedure provides in relevant part:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes , or has reasonable doubt, that the evidence was obtained in violation of the provisions of the article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

By its own terms, Article 38.23 applies only to illegally obtained evidence, but not identification.  See Andujo v. State, 755 S.W.2d 138, 143 (Tex. Crim. App. 1988); Allen v. State, 511 S.W.2d 53, 54 (Tex. Crim. App. 1974).  The Article 38.23 jury-instruction requirement applies only when there is a fact issue regarding whether the evidence was obtained in violation of state or federal laws.  See Reece v. State, No. 14-98-00564-CR, 2000 WL 991326, at *5 (Tex. App.CHouston [14th Dist.] Jul. 20, 2000, pet. ref=d) (not designated for publication). Appellant has not demonstrated a fact issue concerning the legality of Corea=s identification of him.  See id.  Appellant was not entitled to an Article 38.23 instruction regarding Corea=s out-of-court identification of him, and, thus, no error occurred.  See Andujo, 755 S.W.2d at 143; Allen, 511 S.W.2d at 54; Reece, 2000 WL 991326, at *5. Therefore, we overrule appellant=s fifth issue.

In his sixth issue appellant complains the trial court erred in denying his request for two jury instructions pertaining to identification.  Appellant=s requested instructions are provided below:

Requested Jury Instruction Number One:  One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime.  The State has the burden of identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of this statement.  However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him.  If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Requested Jury Instruction Number Three:  The burden of proof on the State extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged.  If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.

A jury charge based on eyewitness identification, instructing the jury to acquit a defendant if the jury has reasonable doubt that the defendant was mistakenly identified, amounts to an impermissible comment on the weight of the evidence and should not be given.^[5]     See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993); Waller v. State, 581 S.W.2d 483, 484 (Tex. Crim. App. 1979) (indicating such instructions single out identification evidence and improperly magnify facts before the jury).  The trial court did not commit error in refusing to give the proffered instructions.  See St. Luce v. State, 14-98-01316-CR, 2000 WL 1862843, at *1 (Tex. App.CHouston [14th Dist.] Dec. 21, 2000, pet. ref=d).  Therefore, we overrule appellant=s sixth issue.

D. Did the trial court abuse its discretion in not granting appellant=s motion for new trial?

In his seventh issue, appellant claims the trial court abused its discretion in denying his motion for new trial.  Appellant=s motion for new trial was based on his complaint that the notice given on October 3, 2007, for an October 8, 2007, trial was insufficient.  Such actions, appellant alleges, denied him of an opportunity to present a witness essential to his defense.  Furthermore, appellant claims that, as a result of the trial court=s action, he was denied effective assistance of counsel, compulsory process, and due process rights under the United States and Texas Constitutions.

We review a trial court=s grant or denial of a motion for new trial under an abuse-of-discretion standard.  See Rodriguez v. State, 21 S.W.3d 562, 566 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Originally, appellant=s case was set for trial on July 30, 3007.  Appellant filed a motion for continuance on June 21, 2007, based on the unavailability of an expert witness.  The trial court granted the request and reset trial for September 4, 2007.  A docket sheet reveals that between the dates of September 4, 2007 and October 3, 2007, appellant=s case was reset weekly Aby computer.@  On October 3, 2007, the case was set to commence with jury selection on October 8, 2007.  By affidavit filed with appellant=s motion for new trial, the expert witness explained that the notice given was insufficient to compel his presence.^[6]    

Appellant has failed to adequately brief this argument under his seventh issue.  He cites no authority for his contentions beyond his bald assertions.  To present an issue for appellate review Athe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  Appellant has not presented a single argument or citation in support of his contentions.  He has not addressed any of the governing legal principles or applied them to the facts of this case.  See King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Appellant=s brief contains two sentences that say he was denied an opportunity to present a witness essential to his defense, his right to effective assistance of counsel and compulsory process, and due process rights.  Conclusory statements which contain no citations to authority present nothing for appellate review.  Id.; see also Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992). Therefore, we do not address the merits of these contentions. We overrule appellant=s seventh issue.

Having overruled each of appellant=s seven issues, we affirm the judgment of the trial court.

/s/ Kem Thompson Frost

Justice

Panel consists of Anderson and Frost and Senior Justice Hudson.^*    

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

---

^[1]      In his first issue, which we address below, appellant argues that Corea=s in-court identification of appellant was improperly admitted.  However, in a sufficiency review, a reviewing court must consider all evidence (whether or not properly or improperly admitted at trial) that the jury was permitted to consider.  Moff v. State, 131 S.W.3d 485, 488, 489 (Tex. Crim. App. 2004).

^[2]      Because we conclude the evidence is legally sufficient to support appellant=s conviction for aggravated robbery, we do not find the trial court erred in denying appellant=s motion for an instructed verdict.  See Cravin v. State, No. 14-96-01060-CR, 1999 WL 351162, at *3 (Tex. App.CHouston [14th Dist.] June 3, 1999, pet. ref=d) (not designated for publication).  Therefore, we overrule appellant=s fourth issue.

^[3]      Appellant has not cited and we have not found any place in the appellate record showing that he raised this issue under the Texas Constitution in the trial court.  With few exceptions, not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court.  See Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886B89 (Tex. Crim. App. 2002).  Appellant=s complaint under the Texas Constitution is, therefore, waived.  See Tex. R. App. P. 33.1(a).

^[4]      Appellant complains of conflicting testimony from Corea and the officer regarding the number of photo arrays shown to Corea.  However, such testimony, alone, does not establish an unduly suggestive procedure.  See Barley, 906 S.W.2d at 33 (providing that the manner of a pretrial identification may be suggestive if an officer indicates a suspect is included in the array); see also Benitez v. State, 5 S.W.3d 915, 921B22 (Tex. App.CAmarillo 1999, pet. ref=d) (providing multiple arrays containing different photos of an appellant is not deemed a suggestive procedure); but see Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) (using same photo of an appellant in multiple arrays is suggestive).  The record contains an exhibit comprised of a single photo array of six photos.  Though Corea testified to seeing Aseveral@ arrays, he also testified that he picked out Anumber three,@ appellant=s photo, from an array of six photos.  Even though appellant points out that Corea might have seen multiple photo arrays and appellant=s photo might have been included in multiple arrays, such an assertion is speculative.  See Luna, 268 S.W.3d at 608.

^[5]      Appellant acknowledges that courts view instructions concerning eyewitness testimony and alibi as offering an improper comment on the weight of the evidence.  Appellant urges this court to consider the inherent unreliability of eyewitness testimony and compares this scenario to a jury instruction for  uncorroborated accomplice witness testimony, which is based on the inherently unreliable nature of such testimony.  We are bound by the precedent of this court and the Court of Criminal Appeals.  See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim: App. 1993); St. Luce v. State, 14-98-01316-CR, 2000 WL 1862843, at *1 (Tex. App.CHouston [14th Dist.] Dec. 21, 2000, pet. ref=d).

^[6]      In the affidavit, the expert witness indicates he was to provide expert testimony concerning eyewitness identification and photo array suggestiveness.  The affidavit does not reflect the expert=s knowledge of the identification procedures used in this case nor does the expert offer an opinion whether the photo array in this case was impermissibly suggestive.  See Baldree v. State, 248 S.W.3d 224, 229B30 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d) (analyzing whether expert witness testimony was relevant in determining whether trial court abused its discretion in excluding the expert testimony).

^*      Senior Justice J. Harvey Hudson sitting by assignment.