No. 01-08-00285-CR
Opinion issued May 14, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1131373.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
SHERRY RADACK, Chief Justice.
A jury convicted appellant, Kevin Patrick Pilgreen, of burglary of a habitation, enhanced by two prior felonies, and assessed punishment at 40 years' confinement. In two points of error, appellant contends that (1) the trial court erred in denying his motion to suppress evidence, which was based on his assertion that a pretrial lineup was impermissibly suggestive, and (2) the evidence is factually insufficient to support the conviction. We affirm.
Background
On August 14, 2007, Veronica Ramos was taking a shower at 10:30 in the morning when she heard her dog barking excitedly at the door. Ramos turned off the water and heard a loud, repeated knocking at the front door. Ramos went to get dressed when she heard the knocking stop and the garage door open. As Ramos was trying to get dressed, she heard the sliding glass doors on the patio open and a man screaming "HPD, HPD." Ramos grabbed a dumbbell and walked into the hallway. A man standing about six to seven feet away said, "I'm so sorry," and then ran out the door and closed it behind him. Ramos then ran toward the window to look out. She saw the man get into the driver's seat of a pickup truck. She also saw that her brother's motorcycle was in the bed of the truck. Ramos also saw another man in the passenger seat of the truck, but she could not see his face. As the man she had seen in the house pulled the truck out of the driveway, Ramos wrote down the truck's license plate number. Ramos called the police. When they arrived she gave them the license plate number she had written down. She also described the man she had seen as having "dirty blond" hair, being in his late 30's or early 40's and approximately 5' 6" tall. The man was wearing a baseball cap, jeans, and a polo shirt. Seventeen days later, on August 31, Ramos went to the police station to view a videotaped lineup. The officer conducting the lineup told Ramos to look at the video and to take her time. He offered to replay the video if necessary, and he also told Ramos that "the person [who committed the crime] might not even be in the lineup." Within 40 seconds, Ramos had concluded that appellant was the man she had seen in her house, but she did not say anything to the officer until the video was over. On the video, the officer had all the participants in the lineup put on a baseball cap and say "HPD." After the video concluded, Ramos identified appellant as the man she had seen in her house. At this point, she noted that one of the other lineup participants looked a lot like appellant, but that he was much taller than the man she had seen. The officer conducting the lineup said, "yeah, they're brothers." Pretrial Lineup Identification of Appellant
In his first point of error, appellant contends that the trial court erred when it denied his motion to suppress Ramos's pretrial lineup identification of him. Appellant asserts that the lineup viewed by Ramos was impermissively suggestive because of the disparity in height and hair color of appellant and the other lineup participants. Additionally, appellant asserts that Ramos "realized that there were two men that looked alike and chose appellant because he was the shorter of the two." Appellant points out that Ramos described her assailant as being between 5' 6" and 5' 7", but that all of the men except one — not appellant — were actually taller than 5' 6". The record shows that appellant, and all but one of the men in the line up are taller than 5' 6". Appellant is approximately 5'10" tall, and is at least 1 inch shorter than his brother, who was also in the lineup. Appellant also points out that two of the men in the lineup had darker hair that he has. Appellant concludes, "The discrepancies in Ms. Ramos' description of the burglar and the man that she chose in the video lineup demonstrate the unreliability of the in-court identification and the Motion to Suppress should have been granted." We apply a de novo standard of review to determine whether an identification procedure was so impermissibly suggestive that it gave rise to a very substantial likelihood of misidentification. Cienfuegos v. State, 113 S.W.3d 481, 491 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). We first look to the totality of the circumstances surrounding the identification to determine if the procedure was unnecessarily suggestive. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). If we conclude that the identification procedure was impermissibly suggestive, we then consider the factors listed in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972), to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Cienfuegos, 113 S.W.3d at 491. A defendant bears the burden to show by clear and comvincing evidence both impermissible suggestion and a substantial likelihood of misidentification. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995). Though good practice dictates that the individuals in a lineup should be as similar as possible, a pretrial identification procedure is not impermissibly suggestive simply because the lineup members are not identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985); Cienfuegos, 113 S.W.3d at 491. Neither due process nor common sense requires such exactitude. Buxton, 699 S.W.2d at 216; Cienfuegos, 113 S.W.3d at 491. A lineup becomes suggestive when the accused is placed with persons of distinctly different appearance, race, hair color, height, or age. Withers v. State, 902 S.W.2d 122, 125 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Minor discrepancies between lineup participants will not render a lineup unduly suggestive. Id. In sum, the individuals need not be identical in appearance to the defendant, but their similarities in appearance should provide a reasonable test for the witness's capacity to reliably identify the perpetrator. Cienfuegos, 113 S.W.3d at 492. As mentioned, appellant bases his challenge to the lineup on discrepancies in the height and hair color of appellant and the other individuals in the lineup. The record reflects that two of the lineup participants had somewhat darker hair than appellant. Four of the participants, including appellant, had light hair and were balding. All except one of the men, including appellant, were taller than the 5' 6" that Ramos had recalled. All were similar in age and weight. Despite any dissimilarities, we note that all six men in the lineup were dressed in light colored shirts, jeans, and were asked to put a baseball cap on their heads. All had blond to light brown hair, which they each wore short. Four participants, including appellant, were balding, although this fact would not have been apparent to Ramos at the time of the offense because the perpetrator wore a baseball cap. All of the men were of a similar height. Appellant was neither the tallest nor the shortest. We conclude that the participants in the lineup were not so distinctly different as to make the identification procedure impermissibly suggestive. This is particularly true in light of the overall similarities in the men's actual appearances, as reflected in the videotaped lineup. In fact, appellant's real complaint seems to be that he looked too similar to his brother, who was also in the lineup. However, a lineup is considered unduly suggestive if other participants are too dissimilar — not too similar — to the defendant. See Reynolds v. State, 2006 WL 3742898 (Tex.App.-Dallas 2006, no pet.) (memo op.) (not designated for publication) (holding that lineup is not impermissively suggestive because other participants are too similar). We conclude that appellant has not shown that the lineup procedure was impermissibly suggestive. Accordingly, we overrule point of error one. In point of error two, appellant contends that the evidence is factually insufficient to support his conviction. Specifically, appellant claims that "the [identification] testimony [by Ramos] was not clear and convincing," and there was no physical evidence linking appellant to the crime. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). "Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). "The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record." Id. The jury "may choose to believe some testimony and disbelieve other testimony." Id. at 707. Here, Ramos positively identified appellant as the perpetrator both in the pretrial lineup and at trial. Ramos never wavered in her identification of appellant. She stated that she was about 6 to 7 feet from appellant when she saw him. She testified that he had lots of wrinkles on his face and his cheekbones were very defined. Even though appellant's brother and several very similar looking men were in the lineup, Ramos quickly identified appellant as the man she had seen in her apartment. Although there was no fingerprint, DNA, or other physical evidence linking appellant to the crime, there was other circumstantial evidence linking him to the crime. In fact, when appellant was arrested, he was driving the truck that matched the description and license plate number that Ramos had provided to the police. Inside the truck were several items that appeared to have been stolen, including a box of watches and pocket knives. In light of the Ramos's positive and unwavering identification of appellant and the circumstances of appellant's arrest, we cannot say that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Accordingly, we overrule point of error two. CONCLUSION
We affirm the judgment of the trial court.