Jerry Glenn Johnson A/K/A Jerry Glen Johnson A/K/A Jerridy Johnson A/K/A Jerry Johnson A/K/A Donovan Jefferson A/K/A Baby J v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-12-00058-CR
____________________
JERRY GLENN JOHNSON A/K/A JERRY GLEN JOHNSON A/K/A
JERRIDY JOHNSON A/K/A JERRY JOHNSON A/KA DONOVAN
JEFFERSON A/K/A/ BABY J, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ _____________ _
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 11-12248
________________________________________________________ ____________ _
MEMORANDUM OPINION
Jerry Glenn Johnson 1 appeals his aggravated robbery conviction,
complaining the trial court should have disallowed the testimony of witnesses who
he asserts erroneously identified him as the person who committed the robbery. In
his motion to suppress, Johnson asked the trial court to suppress testimony from
witnesses who identified him as the person who committed the robbery. With
1
Jerry Glenn Johnson is also known as Jerry Glen Johnson, Jerridy Johnson,
Jerry Johnson, Donovan Jefferson, and Baby J.
1
respect to the witnesses who identified Johnson, we conclude the testimony was
admissible because the pre-trial photographic identification procedure resulting in
his identification as the robber was not impermissibly suggestive. In another issue,
Johnson complains the trial court should have granted his request for a mistrial
because the State elicited testimony from a defense witness who testified that he
had visited Johnson while Johnson was in jail. With respect to Johnson’s request
for a mistrial, the record shows that Johnson failed to request a mistrial when the
grounds on which his request was based became apparent; therefore, his request
was untimely. Consequently, we hold the trial court did not abuse its discretion by
denying his untimely request.
Background
In July 2011, the complainant, J.N., was robbed while working at his store.
According to J.N., on the day of the robbery, a man wearing an orange vest entered
the store, walked around, and then left. Several hours later, the man returned,
pulled out a gun, and demanded money. The man took J.N.’s money and wallet, hit
J.N. in the head with the gun, and then fled. J.N. walked out of the store and yelled
for help.
Officer Lam Nguyen, who was in the area when the robbery occurred, saw a
man running towards him in the parking lot. Officer Nguyen testified that he was
suspicious, so he stared at the man and looked to see where he was going.
2
According to Officer Nguyen, a “split second later[,]” J.N. came running out of his
store yelling that he had been robbed. Although Officer Nguyen followed the
suspect, he eventually lost sight of him.
Officer Jeremy Houston also testified during the trial. He explained that he
became involved in the investigation of the robbery, and that he assisted another
officer who had detained various men in the area where Officer Nguyen lost sight
of the suspect. Officer Houston testified that after he arrived in the area where the
men were being detained, he saw Johnson among the men and noticed that Johnson
was “sweating profusely.” However, Johnson left the area before J.N. arrived to
identify the person who had robbed him.
According to Officer Houston, after bringing J.N. to the area where various
men were being detained, he drove J.N. slowly by the line of men; J.N. indicated
that one of the men lined up there was possibly the robber, but J.N. also indicated
that he was not able to positively identify the person who had robbed him. Also,
Officer Houston stated that the person J.N. identified in the line did not match
Johnson’s description.
Detective Herbert Otis, who also testified during Johnson’s trial, explained
how he had prepared a photo array that included Johnson’s image. According to
Detective Otis, he used a computer program to generate photographs of people
who had characteristics similar to Johnson’s. Detective Otis explained that after
3
showing J.N. and Officer Nguyen the same photo array, both J.N. and Officer
Nguyen identified Johnson as the person who committed the robbery.
During the trial, J.N. identified Johnson, who was seated at counsel table, as
the person who had committed the robbery. Officer Nguyen also identified
Johnson in the courtroom as the person he saw running from J.N.’s store. At the
conclusion of the trial, the jury found Johnson guilty of aggravated robbery.
Following a punishment hearing, the jury assessed Johnson’s punishment at thirty-
one years in prison.
Analysis
In issues one through three, Johnson complains the trial court erred by
admitting testimony of the two witnesses who identified him as the person who
committed the robbery. Johnson’s brief combines his argument regarding his first
three issues, so we do so as well.
First, we address Johnson’s argument concerning the admissibility of the
photo array. According to Johnson, the array the police used to identify him
excluded a possible suspect, a man who J.N. indicated was possibly the robber.
Johnson argues that the absence of the possible robber in the array that was shown
to J.N. and Officer Nguyen made the pretrial identification procedure
impermissibly suggestive.
4
If too suggestive, the procedures followed by police to create a photographic
array can be challenged at trial. See Barley v. State, 906 S.W.2d 27, 32-33 (Tex.
Crim. App. 1995) (“[A] pre-trial identification procedure may be so suggestive and
conducive to mistaken identification that subsequent use of that identification at
trial would deny the accused due process of law.”). The Court of Criminal Appeals
has stated: “An in-court identification is inadmissible when it has been tainted by
an impermissibly suggestive pretrial photographic identification.” Luna v. State,
268 S.W.3d 594, 605 (Tex. Crim. App. 2008). “The test is whether, considering the
totality of the circumstances, ‘the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.’” Id. (quoting Ibarra v. State, 11 S.W.3d 189, 195
(Tex. Crim. App. 1999)). However, “a finding that a challenged pretrial
identification procedure was not in fact impermissibly suggestive will obviate the
need to assay whether under the circumstances it created a substantial likelihood of
misidentification.” Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988).
Courts analyze the suggestiveness of a pre-trial photographic identification
by examining the manner that police conducted the procedure, as well as the
content of the array. See Burns v. State, 923 S.W.2d 233, 237-38 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d). “Suggestiveness may be created by the
manner in which the pre-trial identification procedure is conducted, for example by
5
police pointing out the suspect or suggesting that a suspect is included in the line-
up or photo array.” Barley, 906 S.W.2d at 33. Comments made by police during
the presentation of the array to the witness are relevant in evaluating whether
police signaled the identity of a particular image in the array. However, Johnson
does not argue that police suggested to the witnesses that the suspect’s image was
in the photo array, nor does Johnson suggest that police pointed to his picture when
the witnesses were shown the array. Additionally, courts evaluate whether an array
is impermissibly suggestive by evaluating the content of the photo array itself in
determining whether the defendant is the only individual resembling the
description of the suspect. See id.
At Johnson’s request, the trial court conducted a hearing outside the
presence of the jury to consider whether the pre-trial identification procedure was
impermissibly suggestive. Detective Otis testified about the procedure he followed
in preparing the photo array. Detective Otis used a computer program to generate
photographs of people having the same or similar characteristics as Johnson.
According to Detective Otis, all of the photographs contained African American
males who were the same size, had the same type and color of hair, and had the
same type of facial hair. Detective Otis testified that there was nothing unique or
different about Johnson’s picture that suggested he was the suspect. In reviewing
the array, we conclude the photographs depict men with similar features and that
6
the array does not suggest that Johnson was a suspect in the robbery. Also,
Detective Otis explained that when he showed J.N. and Officer Nguyen the array,
he did not suggest that Johnson was the suspect. While Johnson’s principal
complaint is that another suspect was omitted from the array, the record includes
testimony that police procedures called for only one suspect to be placed in a given
array. Detective Otis explained: “Well, I couldn’t put him in this photo lineup.
That’s computer-generated. I would have had to get another photo lineup together
with his photo.”
Based on the testimony of Detective Otis, and the characteristics of the men
depicted in the photo array containing Johnson’s photo, the trial court found that
the array was not impermissibly suggestive. In support of its decision to admit the
testimony regarding the array, the trial court found the photo array depicted six
men of the same race with similar features, and found “there’s nothing odd or
unique about any of the circumstances surrounding their facial appearance or their
clothing that would stick out and point to that person in particular as being unique
or different.”
Considering all of the circumstances regarding the array, we conclude that
the omission of another suspect from the array did not render the array suggestive.
See Barley, 906 S.W.2d at 33 (holding that array of six males with similar features
and of similar heights was not suggestive). As a result, we conclude the trial court
7
properly admitted the testimony of the witnesses who identified Johnson in the
photo array. We further conclude that the array did not create a substantial
likelihood that Johnson was irreparably misidentified by J.N. when he testified at
trial. See Webb, 760 S.W.2d at 269. Johnson’s first three issues are overruled.
In issue four, Johnson argues the trial court should have granted his request
for a mistrial because the State elicited testimony from a witness indicating that
Johnson had been in jail prior to trial. The State argues that Johnson did not lodge a
timely objection to the testimony at issue. As a prerequisite to presenting a
complaint for appellate review, the rules of error preservation require the record to
show that the complaint was made to the trial court by a timely request, objection,
or motion. See Tex. R. App. P. 33.1(a). “In accordance with Rule 33.1, a motion
for mistrial must be both timely and specific.” Griggs v. State, 213 S.W.3d 923,
927 (Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 65-66 (Tex.
Crim. App. 2004)). “A motion for mistrial is timely only if it is made as soon as
the grounds for it become apparent.” Id. (citing Wilkerson v. State, 881 S.W.2d
321, 326 (Tex. Crim. App. 1994)).
The record shows that D.C., a witness called by Johnson, testified on direct
examination that he gave Johnson a ride home from work on the day the robbery
occurred. During cross-examination, the prosecutor asked D.C whether he had
visited Johnson at the jail in the previous month and in the last few days;
8
responding to the questions, D.C. answered: “Yes, sir.” Johnson failed to object
when the prosecutor asked whether the witness had visited Johnson at the jail.
During defense counsel’s redirect examination, D.C. explained that he and Johnson
were friends, that it was not uncommon that they would give each other rides, and
that he visited with his friends.
Only after having asked several follow-up questions, Johnson’s counsel
moved for a mistrial. The trial court denied the motion; nevertheless, the trial court
instructed the jury that the fact a person is in jail awaiting trial should not be used
as an indication of guilt and that the fact a person cannot make a bond requires
they await trial in jail. The trial court’s lengthy instruction included the following:
[I]f there is evidence in regards to the Defendant and this witness
having discussions while in jail, do not infer that if it’s implied that
the Defendant might have been in jail that is not meant in any way to
be an indication of guilt in this case or for any other purpose, but is
normal and customary for folks who are charged with felony offenses
who are unable to post a bond, for example. And there are other
reasons that there might be a discussion between these two while in
the jail that are just as [innocuous.] And there is nothing in this record
that should suggest or imply or infer to you nor should you consider
that discussion at a location such as in the jail to be an indication of
the guilt in any way of the Defendant for this charge.
In Johnson’s case, the grounds on which Johnson requested the trial court to
grant a mistrial first became apparent during the State’s cross-examination of D.C.
Yet, Johnson waited until after he re-examined the witness to move for mistrial.
Because Johnson did not object when the prosecutor questioned the witness about
9
visiting Johnson in jail, we hold that Johnson’s motion for mistrial was untimely
and the trial court was not required to grant it. See id.
Johnson argues that admitting testimony about D.C. visiting with Johnson at
the jail constitutes incurable error. But, the cases upon which he relies involved
defendants who made timely objections. See Williams v. State, 643 S.W.2d 136,
137 (Tex. Crim. App. 1982); Priest v. State, 282 S.W.2d 390, 391 (Tex. Crim.
App. 1955); Salinas v. State, 175 S.W.2d 253, 254 (Tex. Crim. App. 1943); Ulmer
v. State, 292 S.W. 245, 245-46 (Tex. Crim. App. 1927). Although Johnson has not
cited authority showing that the alleged error at issue constitutes fundamental
error, there are some errors that are considered so fundamental to the right to a fair
trial that the usual error preservation rules are not applied. See Tex. R. Evid. 103(d)
(authorizing appellate courts to take notice of fundamental errors affecting
substantial rights which have not been preserved for appeal).
Nevertheless, we are not persuaded that the admission of the testimony at
issue constituted fundamental error. First, Johnson has not argued that the
fundamental error doctrine applies to the issue raised in his appeal. Moreover, we
presume the jury followed the trial court’s instruction, so the fundamental error
doctrine does not apply. See Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim.
App. 1987) (holding that testimony that appellant had been to the penitentiary was
10
not so inflammatory as to undermine the efficacy of the trial court’s instruction to
disregard).
We conclude that the trial court did not err in overruling Johnson’s untimely
motion for mistrial. Having overruled all of Johnson’s issues, we affirm the trial
court’s judgment.
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on December 27, 2012
Opinion Delivered April 10, 2013
Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.
11