No. 08-05-00365-CR
August 23, 2007. DO NOT PUBLISH.
Appeal from Criminal District Court No. 2 of Dallas County, Texas (TC # F-0548440-I).
Before CHEW, C.J., MCCLURE, and CARR, JJ.
ANN CRAWFORD McCLURE, Justice.
Odis Rushing appeals his conviction of aggravated robbery, enhanced with a prior aggravated robbery conviction. After the jury found him guilty, Appellant entered a plea of true to the enhancement allegation. The jury found the enhancement allegation true and assessed Appellant's punishment at imprisonment for a term of sixty-seven years. The trial court also entered a deadly weapon finding in the judgment. We affirm.
FACTUAL SUMMARY
On January 17, 2005, Nell Brown was waiting for a bus after buying groceries at the Albertson's on the corner of McKinney and Lemmon in Dallas. She was walking back and forth because it was cold that day. A black man approached her and asked what time the next bus would arrive. She answered, "In about ten minutes." As she turned and faced the man, she saw that he was holding a knife with a three to four inch blade, and he demanded her purse. She handed him her billfold and he ran away across a parking lot. Because the billfold contained $100 in cash, a debit card, and identification, Brown began chasing after him while yelling, "He's got my billfold!" As she chased the robber, Brown saw another young man talking on a cell phone in the parking lot and she later learned that he called 911. The robber got into a car and sped away from the scene. Brown was later shown a photo lineup but she was unable to positively identify any of the men as the man who robbed her. Although Appellant looked similar to the man who robbed her, she was also unable to make an in-court identification. Marcus Johnson, a student at Parker College of Chiropractic, was in the parking lot at Albertson's when he saw a black man running towards him. Johnson saw that the man was being followed by a woman who was obviously upset and frantic. Johnson heard her say, "My purse" and he again looked at the man who was still running towards him. Johnson thought about intervening but backed off when he saw a knife "flash out from underneath his shirt." He recalled that the man was wearing a dark blue jacket and the knife blade was about four inches in length. Johnson identified State's Exhibit 3, a photograph of a dark blue jacket, as the jacket worn by the robber. He watched the man run past him and get into the driver's seat of a blue Hyundai that was backed into a parking spot. The car started quickly and then "burned out" of the parking lot with its tires squealing. Johnson got the vehicle's license plate and called 911. He had a good look at the man's face as he ran towards him and when he got into the car. Based on his memory of these events, Johnson made an in-court identification of Appellant as the man he had seen in the Albertson's parking lot running from Nell Brown. Johnson also recalled that the police contacted him several hours after the robbery and showed him a photo lineup at approximately 2:30 a.m. He signed the back of the photograph that he thought was the suspect. He based his identification solely on facial features, not on any other distinction such as different clothing or background colors. At approximately 4:30 p.m. on January 17, 2005, Corporal John Nichols of the Dallas Police Department began his off-duty security job at Albertson's. Approximately one minute after he arrived, Nichols heard the robbery dispatch and he began looking around the premises to find the witnesses. Nell Brown was waiting in the store's witness room and Nichols could see that she was visibly shaken. He began gathering information from Brown while they waited for a patrol officer to arrive. As he spoke with her, Nichols realized that he had seen the vehicle used in the robbery as he drove into the parking lot. Nichols reviewed the videotape from the store's security cameras and found footage of a small, dark-colored vehicle. The video quality was poor but he was able to see a figure exit the vehicle and walk over to where Brown was waiting at the bus stop. Within ten seconds, the figure ran back to the vehicle with another person in pursuit. He jumped into the car and drove away. The video was not preserved for trial but Nichols printed two stills off of it in the hope that something in the photos might be recognizable. However, the picture quality was so poor that he was unable to get a license plate number or identify the individual depicted in the video. Police officer Juan Aguinaga was on duty during the evening of January 17, 2005. He had received over his computer the license plate and a description of a dark blue 2000 four-door Hyundai vehicle used in an armed robbery. At approximately 11:45 p.m., Aguinaga saw a the vehicle matching the description and license plate and he stopped it. Because he was making a felony stop, Aguinaga asked for cover and several patrol cars responded. The officers arrested the driver of the vehicle, Appellant, and detained the passenger, Louis Leonard. Police officer Mark Anthony Torres responded to Aguinaga's request for backup. As Appellant exited the vehicle, Torres saw him drop something on the ground. After Appellant was secured, Torres picked up the item which Appellant had dropped and saw that it was a driver's license issued to Nell Marie Brown. Torres also searched the center console of the vehicle and found a checkbook and a Visa check card both bearing Nell Brown's name. He also found some knives. Jessie Woods, a Dallas Police Officer, also responded to Aguinaga's request for cover. Woods searched Appellant's person following his arrest and found a Bank of America debit card bearing the name of Nell Brown. Appellant was wearing a dark blue jacket at the time of his arrest and a photograph of the jacket was admitted into evidence as State's Exhibit 3. The jacket was also admitted into evidence. Detective William Brook Smith presented two photo line-ups to the complainant, Nell Brown. One lineup contained Appellant's photograph and the other lineup contained the photograph of Leonard. Brown was unable to identify either man. Smith also showed Johnson the photo lineup containing Appellant's photograph. When Johnson positively identified Appellant as the man he saw running from Brown earlier that day, Smith did not show him Leonard's photograph. FACTUAL SUFFICIENCY
In Issue One, Appellant challenges the factual sufficiency of the evidence supporting his conviction. More specifically, he argues that the photographic array shown to Johnson tainted his in-court identification of Appellant. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. 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. Identification of the defendant as the person who committed the offense charged is an element of the offense which the State must prove beyond a reasonable doubt. Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App. 1984). The identity of a perpetrator may be proven by either direct or circumstantial evidence. Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.-Austin 2000, pet. ref'd); Couchman v. State, 3 S.W.3d 155, 162 (Tex.App.-Fort Worth 1999, pet. ref'd), citing Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986). While Brown did not make either an out-of-court or in-court identification, Johnson identified Appellant in a photo lineup as the person he saw running from Brown. Johnson also made a positive in-court identification of Appellant. Appellant contends that Johnson's in-court identification of Appellant was tainted because the photo array was impermissibly suggestive. 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. Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App. 2001), citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). We utilize a two-step analysis to determine the admissibility of an in-court identification: (1) whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive, (2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Conner, 67 S.W.3d at 200, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). An analysis under these steps requires an examination of the "totality of the circumstances" surrounding the particular case and a determination of the reliability of the identification. Id. Appellant argues that the photo lineup was impermissibly suggestive because he was the only person in the lineup with his distinctive facial features, a long nose and high cheekbones. Neither due process nor common sense requires that the individuals in a lineup exhibit features exactly matching the accused. Turner v. State, 600 S.W.2d 927, 933 (Tex.Crim.App. 1980); Colgin v. State, 132 S.W.3d 526, 532 (Tex.App. — Houston [1st Dist.] 2004, pet. ref'd). Rather, a photo array must contain individuals who fit a rough description of the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex.App.-Dallas 1999, pet. ref'd). A photographic spread should depict persons of the same race, general skin color, age, and height as the suspect. Id. There is no standard as to the similarities required of the subjects used in a pretrial identification procedure, only that there not be a likelihood of irreparable misidentification. Id. The mere fact that lineup participants do not perfectly match the physical description of the accused does not render a lineup impermissibly suggestive. Id. Detective Smith testified that he chose the photographs used in the lineup based on similarities in appearance to Appellant. The appellate record contains a copy of the photographs used in the lineup. While none of the other subjects looks exactly like Appellant, the individuals depicted in the array are of the same race, general skin color, age, and height. We conclude that the photo array was not impermissibly suggestive, and did not constitute an unfair lineup. See Wilson, 15 S.W.3d at 553. Because we have found that the pretrial identification procedures were not impermissibly suggestive, we need not address whether those procedures created a substantial likelihood of misidentification. See Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). In addition to Johnson's pretrial and in-court identification of Appellant, there is other evidence establishing Appellant's identity as the robber. Johnson provided the police with a description of the vehicle and its license plate number. Appellant was found driving the vehicle a few hours later with the complainant's debit card in his pocket. One police officer at the scene of Appellant's arrest saw him drop the complainant's driver's license to the ground as he exited the vehicle. Other items taken from the complainant during the robbery and a knife similar to the one used in the robbery were found in the center console of the vehicle. Johnson also identified the jacket Appellant was wearing at the time of his arrest as being the jacket worn by the robber. Having conducted a neutral review of all the evidence, we are unable to conclude that the proof of Appellant's guilt is so obviously weak as to undermine confidence in the jury's determination that he committed the offense. Issue One is overruled. VOIR DIRE
In Issue Two, Appellant complains that the prosecutor effectively informed the jury that Appellant had a prior conviction when he informed the panel during voir dire that probation was not an issue in the case. During voir dire, the prosecutor said that aggravated robbery is a first degree felony and the range of punishment is ordinarily imprisonment for a minimum of five years to a maximum of 99 years or life. He mentioned that if a certain evidentiary showing is made, the minimum sentence might be fifteen years. The prosecutor then ascertained the ability of the veniremembers to consider the full range of punishment, taking into account the two potential minimum sentences. Near the close of the State's voir dire, the prosecutor informed the panel that probation was not an issue and inquired whether anyone would have a problem sitting as a juror in an aggravated robbery case where probation could not be given. The trial court overruled Appellant's objection and denied his request for a mistrial. During voir dire by the defense, a potential juror stated that "there is some kind of history" because the jury had been told that "[p]robation is not an option." In response, defense counsel countered that "nobody said there was a history." He reiterated that the attorneys could not talk about the facts of the case before the evidence was presented and that what the attorneys said was not evidence. The State cannot read the enhancement portion of the indictment before the punishment hearing. Tex. Code Crim.Proc.Ann. art. 36.01(a)(1) (Vernon 2007). Nor may the State give the specifics of the prior offenses as this is tantamount to reading the allegations. Frausto v. State, 642 S.W.2d 506, 509 (Tex.Crim.App. 1982). Article 36.01 is designed to prevent the prejudice that would inevitably result from "an announcement at the outset of proceedings that the State believes that the defendant was previously convicted of a particular offense at a particular time and in a particular court." Johnson v. State, 901 S.W.2d 525, 532 (Tex.App.-El Paso 1995, pet. ref'd), quoting Frausto, 642 S.W.2d at 508. But Article 36.01 does not prevent the trial court or the prosecutor from informing the jury in hypothetical terms of the applicable range of punishment if the State proves any prior convictions for enhancement purposes. Frausto, 642 S.W.2d at 509; Johnson, 901 S.W.2d at 532. Both the State and the accused have the right to inform the venire of the range of punishment applicable to an enhanced offense under Section 12.42(a), (b) or (c), and to qualify it on the full range of punishment. Frausto, 642 S.W.2d at 509. The prosecutor clearly stayed within the bounds of Frausto in his comments regarding the minimum range of punishment "bumping up" to fifteen years in the event an unspecified evidentiary showing was met. The prosecutor's comment that "probation is not an issue" did not violate Article 36.01 or exceed what is permissible under Frausto because, even assuming that the potential jurors would necessarily have understood that probation was unavailable because Appellant had a prior conviction, it did not inform the jury of the specifics of the prior conviction. Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court.