Opinion filed Jun e 18 , 2 009



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 08 -0 00 19 -CR

____ ____ __ WALT ER BOO KER A/ K/ A WALTE R WI LSO N BOO KER A/ K/ A STEPHE N WI LSO N TAYLOR A/K/AWAL TER

W. BOOKER , A ppellant
V.
STA TE OF TEX AS , A ppellee

On App eal from the 252nd District Court
Jeff erson County, Texas
Trial Court Cause No. 93628

O P I N I O N The jury convicted Walter

Booke r a/k/a Walter Wilson Booker a/k/a Stephen Wilson Taylor a/k/a Walter W. Booke r of the first deg ree felony offe nse of a g g ravated robbe ry , found enha nceme nt alleg ations char g ing him as a habitual offende r to be true , and asse ssed his punishment at forty y ear s2

confine ment. I n two issues, appellant c ontends that the trial court err ed in allowingin-court ide nti fi c a tio ns of

him by tw o w itn e sse s. We a ff

ir m. Ba c k gr ou nd Fa c ts The re cord shows that, on October 13, 2004, L akeshia L ittle wa s workingas a c arhop at the S o n i c Dr i v e- I n located at 1340 Washington Boule vard in B eaumont. B etty J eff erson a nd I rec a Stewart we re w orking inside the Sonic. At about 8:00 p.m. on that date, a man place d an orde r by using the speake r box at the walk-up window at that Sonic. After the or der was prepare d, L ittle took it o uts ide to t

he man. L itt le te sti fi e d that she c a me fa c e -t o- fa c e wi th the man w he n s he br ou g ht h im the order. She also testified t hat t he man was not wea ring any thing to obstruct the vie w of his fa ce. L ittle said that the man had a cne on his face , had bra ids in his hair, and had re d beads at the bottom of the bra ids. The man aske d L ittle if she had chang e for a $20 bill, and she told him t hat she did. At that time, the man stuck his rig ht ha nd in his rig ht poc ket and pulled out a g un. The man g rabbe d L ittle’s left arm with his left hand, put the gun to h er s t o m ac h , an d told her to “g ive him all the money .” L ittle was standing aga inst the walk-up window. She was terrified and in fea r for her life

. Fr om inside the S onic, S tewar t lo o k ed t hroug h the walk-up window and saw that the man h a d L ittl e an d w a s h o ld in g a

g u nto h e r s to ma c h

. St e w art s a id , “ O h , my G o d , M s
. B e tt y [Je f f e r s o n ], L akeshia ’s g etting r obbed.” Jeffe rson ra n to the window and sa

w t he man robbing L ittle. J eff erson testified that she g ot a g ood look at the man’s f ace . J eff erson testified that the man’s face was scruf fy , that he had a cne on his fa ce, a nd that he had br aids in his hair. L ittle g ave appellant the money that she had in her chang e apron. Appellant then ran a way throu g h a b r o k e nf e n c e th a t w a s b e h in d

th e So n ic

. T h e li g h ti n g in th e ar e a w h e r e th e r o b b e ry
occur red w as g ood. A fluore scent lig ht was located above the walk- up window. The police wer e ca lled to the scene . Be aumont Police Offic er Staci Patrice L andor r ece ived a dispatch that a robbe ry

had occ urre d at the Sonic. L ittle testified that she told the police that the man had a cne ma

rks on his fac e. J eff

erson testified that she t old the pol ice about the man’s sc ruff y fac e and a cne. O ffice r L andor te stified that, afte r arr iving at the sce ne, she r ece ived the following descr iption of the suspect: “[l] ight- skinned black male with acne , 5' 9" to 6' 1", 30, 35 year s of ag e,
wea ring a blac k shirt, long- sleeve shirt, black pants, blac k tennis shoes.”3

On Octobe r 22, 2004, the police showed Jeffer son a photog raphic lineup. The lineup contained six photogra

phs, and a photog raph of ap p el l an t was include d in the lineup. J eff erson identified appe llant from the lineup as the man who had c ommitt ed the r obbery . On Octobe r 25, 2004, the pol ice showed L ittle the s ame lineup. L ittle also identified appellant from the lineup as t h e m anw h o h a d

c o m m i t t e d

t h e r o b b e r

y. Appellant filed a

pretria l motion t o suppress photog raphic identifications that had bee n made by “potential witnesses” in t h i s ca u s e. In the motion, appellant contende d (1) that the pr etrial ph oto g ra ph ic ide nti fi c a tio n p ro c e dure wa s im pe rm iss ibl y

su g g e sti ve and

(2 ) t hat th e imp e rm iss ibl e proce dure g ave r ise to a substantial likelihood of misidentification of him at tr ial. Appellant soug ht to s up pr e ss a

n in -c ourt

ide nti fi c a tio n of hi m by any wi tne ss who ha d s e e n th e “ imp e rm iss ibl y
su g g e sti ve ph oto g ra

ph s. ” Af te r t he he ari ng , th e tr ia l c ourt de nie d a pp e lla nt’ s mo tio n to su

pp ress. D u r i n g t r i a l , L i t t l e an d

J e f f e r s o ni d e n t i f

i e d a p p e l l an ta s t h e m anw h o h a d c o m m i t t e d

t h e r o b b e r

y. In-Court Identifications App e ll an t a s s e rts th a t t

h e tr ia l c o u rt e r

r e d in a ll o w in g L ittl e ’ s an d

Je f f e r s o n ’ s in

- court identifications. L ittle and J eff erson told the police that the robber had acne on his fac e. Appe llant

c on te nd s th a t th e ph oto g ra ph ic lin e up pr oc e dure wa s im pe rm iss ibl y

su g g e sti ve beca

us e his photog r a p h w a s th e o n ly

p h o to g r a p h in th e li n e u p th a t d e p ic te d

a p e r s o nw it

hf a c ia l b le mi s h e s or
acne marks on his fac e. A pre trial identification proc edure , such as a photogr aphic lineup, may be so sugg estive and conducive to mist aken ide ntification that subsequent use of t hat i dentification at trial would deny the

acc used due pr ocess of

law. Simmons v. United States , 3 90 U. S. 3 77 , 3 84 (1 96 8) ; Ba rle yv . S tate , 90 6 S. W.2 d 2 7, 32 -3 3 ( Te x. Cr im. Ap p. 19 95 ). An in- c ourt ide nti fi c a tio n is ina dmi ssi ble wh e n it has bee n tainted by an impermissibly sug g estive pretria l photogr aphic identific ation. Lun a v . S tate , 26 8 S.W. 3d

59 4, 60 5 ( Te x. Cr im. Ap p. 20 08 ); Ib arra v . S tate , 11 S.W .3d 189, 195 (Tex. Crim. App. 1999). The te st is whether, under t he tot ality of t he circumstance s, the photog raphic identification proce dure w as so impermissibly sug g estive as to gi v e rise to a very substantial likelihood of irrepa rable misidentification. Ib arra , 11 S.W .3d at 195. Reliability is the linchpin in determining the admissibilit y

of identification testim ony
. Luna , 268 S.W .3d at 605. The de fenda nt h as the4

burden to show by

clea r and c onvin ci n g evidence that the in-c ourt identification is inadmissible. De lk v . S tate , 855 S.W .2d 700, 706 (Tex. Crim. App. 1993). I n assessing reliability

under the totality

of t h e ci rc umstances, the f ollowing f

ive nonexclusive factor s should be “we ighe d ag ainst the corr upting e ffe ct of a

ny sug g estive identification proce dure” : (1) the oppor tunity of the witness to vie w the criminal at the time of the crime; (2) the witness’s deg ree of attention; (3) the a ccur acy of the witness’s pr ior descr iption of the criminal; (4) the le ve l of

c e rt a int y de mon str a te d b y

the wi tne ss at th e c on fr on tatio n; a nd (5 ) th e len gth of ti me betwee n the crime and the confr ontation. Ne il v . B igge rs , 4 09 U. S. 1 88 , 1 99 -2 00 (1 97 2) ; Ib arra , 11 S.W. 3d a t 19 5; Los e rth v . S

tate , 963 S.W .2d 770, 772 (Tex. Crim. App. 1998). Be ca u s e the f ive Bi gge rs fac tors are all issues of historical fa ct, we must consider them def

er entially in a light f a v o r a b le to th e tr ia l c o u rt’s ruling

. Ibarra , 1 1 S. W.3 d at 19 5; Los e rth , 963 S.W .2d at 773. The fac tors, v i ew ed in t his light, must then be weig hed de novo a g ainst “the c orruptingeff ect” of the sug g estive pre trial identification proc edure

. Ib arra , 1 1 S. W.3 d at 19 5- 96 ; Los e rth , 963 S.W .2d at 773-74. Appellant introduce d a copy of the photog raphic lineup into evidence during the hea ring on the mot ion

to s up pr e ss. Ap pe lla

nt’ s c ouns e l qu e sti on e d L itt le and Jef fe rs on a bo ut t he lin e up . L itt le te sti fi e d that a

pp e lla nt’ s p ho tog ra

phwa s th e on ly

ph oto g ra phin t he lin e up that sh ow e d a

man w ith

a c ne mark s o n h is f

a c e . J e ff e rs on te sti fi e d that app e lla nt’ s pho togra

ph wa s the on ly

ph oto g ra phin the lineup that showed a

man with a scruf

fy fac e and acne on his f

ace
. Be cause appellant wa s the only person in the lineup with ac ne mar ks on his f ace , the photogr aphic identific ation proce dure ma y have be en impermissibly

sug g estive. Howeve r, this c onclusion does not end our a naly sis. Rather, the iss ue fo r de te rm inatio n is wh e the r the pr oc e dure wa s so imp e rm iss ibl y su g g e sti ve a s to g ive ri se to a ver y substantial likelihood of irrepa rable m i s i d entification of appellant. Luna , 268 S.W .3d at 605. The re cord shows that L ittle and J eff erson had clea

r opportunities to view the robbe r. They both testified that they

g ot a clea r look at the robbe r’s fa ce. L ittle wa s standing f ace -to-fa ce w ith the

ro bb e r d uri ng th e ro bb e ry . Sh e sa id t hat sh e wa s p ro ba

bly le ss t ha n tw o f e e t awa y fr om h im. Jef fe rs on saw the ro bb e r t

hr ou g h th e wa lk- up wi nd ow . Jef fe rs on sa id t hat th e ro bb e r w a s d ir e c tly in front of he r. The robber y occur red in a well-lig hted are a, and nothing obstructed the view of the5

ro bb e r’ s fa c e . L itt le and

Jef fe rs on bo th f oc us e d o n th e ro bb e r’ s f

a c e . T he y

we re bo th c on fi de nt i n their identification of appellant as the robber during t heir trial testimony

. L ittle testified t hat s he had “no doubt” that appellant was the man who robbed her. J eff erson testified that she wa s “positive” that appellant was the man who committed the robber y . L ittle and J eff

erson testified that, had they

never seen the photogr aphic lineup, they would have be en able to identify appellant a s the man who committed the robber

y . The evidence supports the conclusion that L ittle’s and J eff erson’ s in-court i d e n t i f i c a t i o n s o f a

p p e l l an t w e r e b a s e d o n t h e i r m e m o r i e s o f a p p e l l an t f r o m t h e n i g h to f

t h e r o b b e r

y. Con sid e ri ngthe tot a lity

of the c ir c ums tanc e s, the pr e tr ia l ph oto g ra ph ic ide nti fi c a tio n p ro c e dure did not give rise to a ve ry

substantial likelihood of misi dentification of appellant by L ittle and J eff

erson. Th e re fo re , w e ov e rr

ule a pp e lla nt’ s is su e s. This Court’s Ruling We a ff ir m th e jud g me nt o f t

he tr ia l c ourt

.

T E R RY M c C A LL

JUSTI CE

J une 18, 2009 Publis h. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.