Kendrick Burks v. State ( 2012 )

Opinion issued January 19, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00633-CR

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KENDRICK BURKS, Appellant

V.

tHE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

of Harris County, Texas

Trial Court Case No. 1209133

MEMORANDUM OPINION

          A jury convicted appellant, Kendrick Burks, of aggravated robbery and assessed punishment at 30 years’ confinement.  In two issues, appellant complains that (1) the trial court erred in admitting into evidence an out-of-court photo lineup because its content impermissibly suggested appellant as the offender, and (2) the out-of-court identification of appellant tainted a subsequent in-court identification. We affirm.

Background

          On the day of the incident, Benjamin Mbagwu was selling ice cream from his vending truck near the Clem Manor apartment complex. While tending to a customer, Mbagwu noticed two men running towards him with guns.  One of the men, later identified as appellant, jumped through the truck’s vending window demanding money.  After responding that he had no money, appellant struck Mbagwu with his gun and took off Mbagwu’s pants to take his wallet.  Meanwhile, the second gunman put on a mask and remained outside of the truck with his gun pointed at Mbagwu.  Mbagwu escaped by jumping through the vending window, as appellant drove the truck a short distance before stopping.  Intending to buy ice cream, a woman and her son approached the truck, but, after noticing appellant’s gun, ran inside their home and called police.  When police arrived, Mbagwu described appellant as a black male around 21 years old, with a broad nose, about 5'5–5'7" tall, wearing a sleeveless shirt with another shirt wrapped around his waist, and with braided hair with beads placed at the top and bottom of the braids.

          After a “concerned citizen” provided the police at the scene with the name “Kendrick Burks,” Houston Police Officer J. Dickerson ran appellant’s criminal history and noticed that appellant’s photo matched the description given by Mbagwu.  Dickerson then created a photo array by selecting five other males from a mug shot database who had similar characteristics as appellant, primarily focusing on the hair.  The array consisted of photos of six black males of similar age and skin tone, style of clothing, and with braided hair.  Three of the six men had beads in their hair, but appellant alone had beads at the top and bottom of his braids.  In addition, appellant wore a yellow shirt, while the others wore black, white, or maroon colored shirts. 

          Six days after the incident, Dickerson met Mbagwu at his apartment to show him the photo array.  According to testimony, Dickerson told Mbagwu to examine the photos and explained that the gunman might or might not be pictured.  Within seconds, Mbagwu positively identified appellant as the gunman in the truck.  After identifying appellant, Dickerson testified that Mbagwu became emotional, started shaking, and appeared as though he wanted to cry. 

          About a week after the first identification, Dickerson again met with Mbagwu with another photo array – this time to identify appellant’s accomplice.  Dickerson testified it took Mbagwu about five minutes to select the second gunman, and Mbagwu displayed no emotional response as he had when he identified appellant. Mbagwu later became uncertain about the identity of the second gunman, testifying that he may have seen the man previously as a customer and wanted to confirm by seeing him in person.  The case against the alleged second gunman was subsequently dismissed. 

          Appellant filed a motion to suppress the photo identification, contending the photo array was impermissibly suggestive, thereby violating the procedures safe-guarding against misidentification.  At the motion to suppress hearing, the court heard testimony from Dickerson and Mbagwu.  Mbagwu testified that he made his identification based on his recollection of appellant’s face.  According to Mbagwu, he suffered from no visual limitations and the day was bright and clear.  Mbagwu was able to view the gunman for four to six minutes in close proximity because the gunman jumped into the truck, did not wear a mask or anything to obscure his face, and stood close enough to assault Mbagwu and remove his pants.  At the conclusion of the hearing, the court denied the motion and admitted the out-of-court photo identification.  During trial, Mbagwu again positively identified appellant as the gunman.  A jury found appellant guilty of aggravated robbery, and this appeal followed. 

PRETRIAL IDENTIFICATION

          Appellant argues that the pretrial photo line-up impermissibly suggested him because the array showed appellant in a bright yellow shirt causing him to stand out among the other pictured men who wore dull-colored clothing.  Appellant further argues that, out of the three suspects who wore beads in their hair, he alone matched the description provided to police because he was the only one with beads placed at the top and bottom of his hair.  Appellant contends that the impermissible suggestion created a substantial likelihood of misidentification because Mbagwu’s observation of the gunman was limited in time and affected by the gun and fear. 

Standard of Review

A pretrial 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. See Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995).  When challenging the admissibility of a pretrial identification, an accused has the burden to show: (1) the out-of-court identification procedure was impermissibly suggestive; and (2) the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.  Barley, 906 S.W.2d at 33.  If a court finds that a pretrial identification procedure was impermissibly suggestive, it must then consider whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.  Neil v. Biggers, 409 U.S. 188, 198 (1972).

In reviewing a trial court’s decision on the admissibility of a pretrial identification, we defer to the trial court’s rulings on mixed questions of law and fact if they turn on the credibility and demeanor of witnesses.  The question of whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor; therefore, we apply a de novo standard of review.  Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).

Appellate courts are not limited to reviewing only the evidence adduced at the admissibility hearing when considering the identification.  Webb v. State, 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988).  An appellate court may review both the hearing testimony and evidence adduced at trial when determining the admissibility of a pretrial identification.  Id.

Impermissibly Suggestive

In determining the suggestiveness of an out-of-court identification, the court must examine the manner in which the pretrial procedure was conducted, as well as the content of the line-up or photo spread.  See Burns v. State, 923 S.W.2d 233, 237–38 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).  Suggestiveness may arise from the manner in which a pretrial identification procedure was conducted.  Barley, 906 S.W.2d at 33.  For example, a police officer may point out the suspect or suggest that a suspect is included in a line-up or photo array.  Id. In addition, the content of a line-up or photo array itself may be suggestive if the suspect is the only individual who closely resembles the witness’s description.  Id. A pretrial identification may be suggestive in a single procedure or by the cumulative effect of multiple procedures.  Id.  Even when a pretrial   identification procedure may have been suggestive, the defendant still bears the burden to establish by clear and convincing evidence that the procedure was impermissibly suggestive.  Id. at 33–34 (emphasis added). 

Appellant argues that, because of his brightly colored yellow shirt, he stood out among the others, drawing attention immediately to him.  In addition, although all men wore braids, only three wore beads, and appellant was the only person with white beads at the top and bottom of his braids.  We do not find these arguments persuasive. 

To amount to the suggestiveness made impermissible, the photographic identification procedure must in some way be so defective as to indicate or suggest the photograph that the witness is to identify.  Ward v. State, 474 S.W.2d 471, 475 (Tex. Crim. App. 1971).  We do not find that to be the case here.  While every photographic array must contain photographs of individuals who fit the rough description of the suspect, it is not essential that all individuals be identical in appearance.  Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985).  Neither due process nor common sense requires that the individuals in a lineup exhibit features exactly matching the accused. Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Turner v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980)). Nor are such practices practical. Ward, 474 S.W.2d at 475–76.  All men pictured in the array wore braids and were of similar age, race, and size – fitting the general description of the gunman.  The fact that appellant’s shirt was yellow does not rise to the level of suggestiveness prohibited by the courts of this state.  See Bethune v. State, 821 S.W.2d 222, 228–29 (Tex. App.—Houston [14th Dist.] 1991), aff’d, 828 S.W.2d 14 (Tex. Crim. App. 1992) (not suggestive when appellant only one wearing a collared shirt with lettering and a design); Epps v. State, 811 S.W.2d 237, 243–44 (Tex. App.—Dallas 1991, no pet.) (not suggestive when appellant wearing jacket); Barley v. State, 906 S.W.2d 27. 33–34 (Tex. Crim. App. 1995) (en banc) (photo of appellant taken in different setting not impermissibly suggestive).

Nor do we find that the beads impermissibly suggested appellant as the offender.  Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App. 1984) (not suggestive when appellant was one of two men who appeared to match age in witness’s description, while others looked younger); Ward, 474 S.W.2d at 475–76 (not suggestive when only appellant had Afro hairstyle as described by witness). Dickerson was not required to find five other individuals with the same color shirt and placement of hair beads as appellant.  Even if the beads suggested appellant, Mbagwu testified that he selected appellant based on his recollection of the gunman’s facial features and not because of the beads. See Barley, 906 S.W.2d at 34; Bethune, 821 S.W.2d at 229.

Appellant has failed to prove by clear and convincing evidence how the suggestiveness, if any, was impermissible.  A finding that a pretrial identification procedure was not in fact impermissibly suggestive obviates the need to determine whether it created a substantial likelihood of misidentification.  Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App. 1984). 

We overrule Appellant’s first issue.

IN-COURT IDENTIFICATION

In his second issue, Appellant contends the impermissible photo array identification tainted the subsequent in-court identification.  In-court identifications are inadmissible when tainted by an unduly suggestive pretrial identification.  Colgin v. State, 132 S.W.3d 526, 531–32 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). 

Because we have held that the pretrial identification procedure was not unduly suggestive, we also hold that the subsequent in-court identification was not tainted.

We overrule appellant’s second issue.

Conclusion

We affirm the trial court’s judgment.

                                                          Sherry Radack

                                                          Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).