COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

TERREL L RAY J ACKSON, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00213- CR

Appea l from 297th District Court of Tar rant County , Texas (TC # 1107660D)

O P I N I O N
A jury convicted Terr ell Ray J ackson of ag g rava ted robber y with a deadl y wea

pon and he was
sent enced by the trial court to life imprisonment toge ther with a $10,000 fine. I n two points of 1

err or, Appellant complains that (1) the trial court abused its d i s cr et i o n by failing to suppress his identification by t wo ey ewitnesses beca use they wer e impermissibly tainted by improper pretria l
proce dure; and (2) the evidenc e is b oth leg ally and factually insufficient to prove identity without the alleg edly

tainted identifica

tions. For the r easons that f ollow, we af

firm.
F ACTUAL SUMMA RY On April 2, 2008, at approximately 9:30 a.m., two men enter ed and robbed Sanjay Mehta’s convenie nce store. The men wer e descr ibed as black males, ear ly twenties, and one was wea ring a hooded swea tshirt and car ry ing a g un. The man with the g un--late r identified as Appellant-- crosse d

over the counter , pointed the g un at Mehta, and order ed him to open the cash reg ister. M ehta

A p p e l l a n t w a s i n d i c t e d a n d c o n v i c t e d o n t w o a g g r a v a t e d r o b b e r y c h a r g e s w h i c h w e r e c o n s o l i d a t e d i n t o a 1

s i n g l e t r i a l

. T h e j u r y f

o u n d h i m g u i l t y o f b o t h c h a r g e s a n d h e w a s s e n t e n c e d t o l i f e i m p r i s o n m e n t a n d a $ 1 0 , 0 0 0 f i n e f o r e a c h c h a r g e . T h e j u d g e e l e c t e d t o h a v e t h e s e n t e n c e s r u n c o n c u r r e n t l y . A p p e l l a n t a p p e a l s e a c h c h a r g e s e p a r a t e l y b u t i n i d e n t i c a l b r i e f

s . A s e p a r a t e o p i n i o n w i l l b e i s s u e d f o r e a c h a p p e a l

.complied. Wit h the g un still pointed at Mehta, Appellant order ed him to g et on the g round. Ag ain,

Mehta complied. Mehta hear d the man put the entire cash reg ister draw er into what was descr ibed as a bla ck tra sh bag . Appellant also took Me hta’s wallet and cell phone. Me anwhile, Appe llant’s companion we nt throug h the store taking cig are ttes, small novelty items, and knives. Kevin P ool, a reg ular customer and local firema n, then entered the store. He imm ediately

saw the men wer e robbing the place

. Appellant pointed his g un at Pool and order ed him to g et down, but Pool turned a

nd ran instea d. A shot was fire d in Pool’s direc tion, missing him but striking his veh i cl e p ar k ed outside. Mr. Wicker, a postal worke r, was standing on a corne r acr oss the street having a cig are tte when he hear d the g unshot. He then heade d toward the store as P o o l ra n b y , telling him a robber

y was in pr og ress. Wicker positioned his body behind a pole but ke pt his ey es

on the store as he called 911. He was approximately 100 fee t from the entra

nce. He saw one man

wea ring a hooded swea tshirt an d ca rr y ing a black trash bag exit the store and climb into the
passeng er s i d e o f a l i gh t blue vehicle. The car head north on Heig hts Street. Wicker was talking with the 911 opera tor as these events unfolded and he rela ted each of them to the operator as they

o ccur red. Wicker momentarily lost sight of the car as it made a left turn on Heig hts, but h e s o o n

s p o t t ed it coming back toward him a few streets over. Wicker was cer tain the car he observed leaving the store wa s the same one which the police pursued. Offic ers Thompson and Wallace wer e only blocks awa y when they rec eived a dispatch of a robber y with shots fired. The dispatch advised that the suspects wer e two black males driving a blue four door vehicle west on Main. The office rs immediately g ot into their respe ctive patrol car s and heade d toward the crime scene . At the corne r of Eag le and Main, the office rs spotted the suspects. The office rs quickly made U-turns and a chase en s u ed for sever al blocks, picking up additional patrol car s along the way . Appellant’s c ompanion lost c ontrol of the car and ran into a ditch. Thetwo men exit ed the car and beg an to run. One duck ed b ehind a house and was appre hended.

Appellant pull ed a g un from his waistband, dropped i t to the ground, hopped a fence and took off toward some near

by s o cc er fields. Offic ers W enman and Wallace pursued Appellant on foot and

wer e able to appre hend him. The total time lapse betwee n the initial 911 call and the appre hension

was a pproxi mately

thirty minutes. After police arr ested the two men, they wer e handcuf fed, place d in the back of separ ate squad

car s, and taken to the convenie nce store to see if Mehta or Pool could i dentify them. When Appellant stepped outside of the ca r, Mehta quickly identified him as the man with the g un. A second positi ve identification was subsequently made by Pool. Neither Mehta nor P o o l o b serve d

or over hear d the other’ s identification. All of the items stolen from the convenie nce store, including Mehta’s wallet, wer e found in the blue car . A ballistics expert matched the bullet found lodge d in Pool’s car to the g un Appellant ditched bef

ore jumping the fe nce. Appellant was char g ed with the felony offe nse of ag g rava ted robber y . He filed a motion to suppress the pretria l and in-court identifications. After a hearing , the t rial court found t hat, based

on the totality of the circ umstances, the id e n ti f ications wer e not impermissibly sug g estive and denied the motion to suppress.MOTION TO S UP P RESS

We revie w a trial court’s ruling on a motion to suppress on the bifurcated standard of revie w articula ted in Guzman v. State , 955 S.W .2d 85, 89 (Tex.Crim.App. 1997). This standard include s revie w of a motion to suppress evidenc e based on a claim that an in-court identification should not have been admitted due to the taint of an impermissibly sug g estive pretria l identification proce dure.
See Loserth v. State , 963 S.W .2d 770, 771 (Tex.Crim.App. 1998). We g ive almost total defe renc e to a trial cour

t’s ruling on questions of historical fac t a nd application-of

-law- to-fac t que stions that

turn on an evalua

tion of cre dibilit y and dem ea n o r. Amador v. State , 221 S.W .3d 666, 673 (Tex.Crim.App. 2007). We revie w de novo mix ed questions of law and fac t that do not turn on the

cre dibilit y

and deme anor of

witnesses. Id. ; Guzman , 955 S.W .2d at 88-89.
A p re trial identification proce dure may be so impermissibly sug g estive and conducive to mistaken identification that subsequent use of that identification at trial would deny the acc used due
proce ss of law. Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct

. 967, 971, 19 L .Ed.2d 1247 (1968); Barley v. State , 906 S.W .2d 27, 32-33 (Tex.Crim.App. 1995), cert. denied , 516 U.S. 1176,
116 S.Ct

. 1271, 134 L .Ed.2d 217 (1996). Whether an identification proce dure was so impermissibly
sug g estive as to g ive rise to a substantial likelihood of misidentification is a mix ed question of law and fac t which does not turn on an evalua tion of cre dibilit y and demea nor. Loserth , 963 S.W .2d at 772-73. Ac cording ly

we a pply a de novo standard of

revie w. Identification
A two-step analy sis is used to deter mine admissibili ty of an in-court identification. Delk v. State , 855 S.W .2d 700, 706 (Tex

. C ri m . App. 1993). First, we examine whether the pretria l identification proce dure was impermissibly sug g estive. Id

. at 706. Second, i f we conclude the identification was the result of an impermissibly sug g estive proce dure, then we examine the totalityof t he circumstance s to deter mine whether the i m p er m i s sibly sug g estive procedure g ives rise to a
very substantial likelihood of irrepa rable misidentification. Id. Whil e an in-field show-up identification is not per se a violation of due proce ss, the courts have expressed conce rn and no t ed such proce dures can be problematic. See Neil v. Biggers , 409
U.S. 188, 93 S.Ct

. 375, 3 4 L .Ed.2d 401 (1972); Garza v. State , 633 S.W .2d 508, 512 (Tex.Crim.App. 1982) (Opin. on reh’ g ); Scranton v. State , No. 2-09-242, 2010 WL 2721483, at *6 ( T e x. A p p . - - F o r t Wo r th 2010, pet. filed)( not desig nated for publication); Stewart v. S ta te , 1 9 8 S. W. 3 d 60, 63 (Tex.App.--F ort Worth 2006, no pet.). For purposes of this analy sis, we assume without deciding that the show-up was impermissibly sug g estive and focus on whether , under the totality of the circ umstances, there wa s a very substantial likelihood of irrepa rable misidentification. See
W ilson v. State , 267 S.W .3d 215, 217 (Tex.App.--Waco 2008, pet. ref ’d). I n assessing the reliability of the in-court identification, we weig h five nonexclusive fac tors ag ainst the corr upting eff ect of the unduly sug g estive identification proce dure: (1) the opportunity of a witness to view the criminal at the time of crime; (2) the witness’s deg ree of attention; (3) the acc urac y of witness’s prior descr iption of the criminal; (4) the le vel of c erta inty demonstrated by witness upon confr ontation; and (5) the leng th of time betwee n the crime and confr ontation. Garza, 633 S.W .2d at 513; Loserth , 963 S.W .2d at 772. I n weighi n g these factors, the burden is on the accused to show, by clea r and convincing evidenc e, that the witness’s identification was unreliable

. See Pace v. State , 986 S.W .2d 740, 744 (Tex.App.--El Paso 1999, pet. r ef’ d). Analysis The trial court denied Appellant’s motion to suppress Mehta and Pool’s identification afte r hear ing testimony from Mehta, Pool, and sever al office rs from the Crowley Poli c e D e p a r tme nt. Both Mehta and Pool looked Appellant in the fac e and clea rly observe d his fac ial fea tures. The robber

yoccur

red in broa d day

light and both men vie wed Appe llant from only a fe w fe et awa

y . They both descr ibed him to police as a y oung er, black male, wea ring a hooded swea tshirt, and car ry ing a g un. There wer e some inconsistencies reg arding the color of the swea tshirt, but Appellant did disc ard a hooded swea tshirt befor e his appre hension. I nconsistencies in te stimony g o toward the weig ht and

cre dibilit y of testimony

. See Martinez v. State , 507 S.W .2d 223, 226 (Tex.Crim.App. 1974)(holding that t h e fa ct t h at a witness cannot be positive in her identification g oes to the weig ht of the testimony , not its admissibili ty ). Although neither witness saw Appellant for more than a m i n u t e

or two, eac h paid attention. The show-up identification occur red within a short period of time afte r the robber

y --only twenty or thirty minutes had elapse d. See Pinkston v. State , 744 S.W .2d 329, 334 (Tex.App.--Houston [1st Dist.] 1988 , n o p et .)(holding the fac t that elder ly ag g rava ted robber y victims saw perpe trator for approximately 35 to 45 seconds of the approximately 45 minutes that he

was in victims’ house, and that one victim’s g lasses wer e knocked from his f ace went to weig ht of their in-cour

t identifications and not to admissibili ty ). After being ap prehe nded, Appellant and his cohort wer e broug ht back to the scene of the robber y in se para te car s. Mehta and Pool separ ately identified Appellant. I n fac t, when the police broug ht Appellant back to the store, Mehta immediately identified him as the man who had robbed him a t g un point. B oth witnesses wer e ce rtain about Appe llant’s identity . There was no evidenc e the poli c e p r o mp te d e it

h e r w it n e s s o r ma d e a

ny sug g estive comments provoking their identifications.
We conclude the trial court did not abuse its discretion in ruling that the out-of-c ourt identification
proce dure was not imper

missibl y sug g estive such as to g ive rise to a very substantial likelihood of misidentification. We overrule I ssue One.
INSUF F ICIENCY OF THE E VIDENCE
I n his second issue, Appellant challeng es the leg al and fac tual sufficie ncy of the evidenc e tos upport his conviction. After the parties filed their briefs, the Court of Criminal Appea ls hel d i n

Brooks v. State that the Jack son v. Virginia l egal- sufficie ncy standard is the only standard that a revie wing court should apply in deter mining whether the evidenc e is sufficie n t t o support eac h element of a criminal offe nse that the State is require d to prove bey ond a rea sonable doubt. Brooks

v. Stat e , -- - S.W .3d

--- -, 2010 WL 3894613 (Tex.Crim.App. 2010). I n light of Brooks , we will revie w only

leg al suffic iency

. Appellant maintains that th e evidenc e is insufficient to prove his identity beca use the in-court identification was made based on impermissible pretria l identification proce dures. Be cause we have found no abuse o f d i s cr etion with reg ard to denial of the motion to suppress, the identification

t es t i m o n y was proper ly admitted. Testimony of either ey ewitness, standing alone, would b e considere d leg ally sufficie nt to support the jury ’s conviction. See Aguilar v. State , 468 S.W .2d 75,
7 7 (Tex.Crim.App. 1971)(holding that testimony of ey ewitness alone sufficie nt to support ju ry ’s verdic t). Howeve r, even if the identification testimony had been suppressed, the evidenc e is leg ally sufficie nt. Standard of Review
I n revie wing the leg al sufficie ncy of evidenc e, we consider all ev i d en ce i n the light most favor able to the verdic t to deter mine whether , based on that evidenc e and any rea sonable infere nces there from, any rationale trier of fac t could have found the defe ndant g uilty of all the elements of the offe nse bey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct

. 2781, 2789,
61 L .Ed.2d 560, 573 (1 9 7 9 ); V i llarreal v. State , 286 S.W .3d 321, 327 (Tex.Crim.App. 2009); Clayton v. Stat e , 235 S.W .3d 772, 778 (Tex.Crim.App. 2007); Hooper v . State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007). This standard illust rate s the responsibility of the trier of fac t to fairly resolve conflicts in testimony , to weig h evidenc e, and to draw re as o nable infere nces from basic fac ts toultimate fac ts. Jack son , 443 U.S. at 318-19. We do not resolve any conflict of fac t or ree valuate the weig ht and cre dibilit y of the evidenc e, nor may we substitut e our own judgme nt for that of the fac t finder. King v. State , 29 S.W .3d 556, 562 (Tex.Crim.App. 2000). I nstead, o u r duty is only to deter mine if both the expli cit and implicit finding s of the trier of fac t a re rational by viewing all of the evidenc e admitted at trial in a light most favor able to the verdic t. Adelman v. State , 828 S.W .2d 418, 422 (Tex.Crim.App. 1992). When the rec ord supports conflicting infere nces, we presume that the fac t finder resolved any inconsistencies in favor of the verdic t and defe r to such deter mination. Clayton , 235 S.W .3d at 778; Curry v. State , 30 S.W .3d 394, 406 (Tex.Crim.App. 2000). The same standard of

revie w is a

pplicable for both dir ect and circ umstantial evidence case s. Gee sa v. State , 8 2 0 S

. W .2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds , Paulson v. State , 2 8
S.W .3d 570 (Tex.Crim.App. 2000). Eleme nts of Aggravated Robbery
A person commits ag g rava ted robber y if he commi t s ro b b ery and he: (1) cause s serious bodily injury to another ; (2) uses or exhibi ts a deadly wea pon; or (3) cause s bodily injury to another
person or threa tens or place s another person in fea r of imminent bodily injury or death. T E X .P E N A L C O D E AN N
. § 29.03 (Ve rnon 2003). A deadly wea pon is define d as a firea

rm or any thing manifestly desig ned, made, or adapte d for the purpose of inflicting death or serious bodily injury ; or any thing that in the manner of its use or intended use is capa ble of ca u sing death or serious bodily injury

. T E X .P E N A L C O D E AN N
. § 1.07(a) (17)( A) and (B )(Ve rnon Supp. 2010). The essential element of an
ag g rava ted robber

y is the threa t or fea

r of imminent bodily injury or death “g ener ated simply by the
presenc e of a deadly wea

pon, its use or exhibi tion being mere ly incidental to its prese nce.” Maxwell

v. State , 7 5 6 S

. W

. 2 d 855, 858 (Tex.App.--Austin 1988, pet. ref ’d). Specifica lly , the indictment alleg ed that Appe llant:I

NTENTI ONAL L Y OR KNOWI NGL Y, WHI L E I

N THE COUR S E OF COMMI TTI

NG THEF T OF PROP ERTY AND WI TH I NTENT TO OB TAI

N OR MAI NTAI N CO NT R OL OF SAI D PROP ERTY, THREATEN OR PL ACE SANJ AY MEHTA I

N FEA R OF I MMI

N EN T B O D I LY I

N JU RY O R D E A T H , AND THE DEF ENDAN T USED OR EXHI BI TED A DEADL Y WEAPON, TO-WI T: A FI REARM. Analysis Appellant’s sole arg

ument is that the identification testimony should have been suppressed, and without that testimony , the evidenc e is both lega lly and fa ctually

insufficient. How ever , even without the actua l identification, Mehta testified that a man matching Appellant’s descr iption came into his store, pointed a gu n at him, and demande d he open the cash reg ister. He and Pool both

tes t i fi ed that the robber s hot at P ool when he ran from the s tore. Another witness watche d a man

car ry ing a b l ac k trash bag enter a light blue vehicle and drive awa y , only to be spotted by police

o fficers at a near

by intersec tion. Severa l police office rs testified they spotted the ca r at t h e intersec tion and chase d it for sever al blocks until the car lost control and both occupa nts abandone d the vehicle and fled on foot. They also testified that Appellant pulled a g un from his waistband and discarde d it befor e he was arr ested. A ballistics expert matched the g un to the bullet fired during the robber y . He also testified that the g un met the leg al definition of a firea rm. Finally , all of the items stolen, including Mehta’s wallet, cell phone, and cash reg ister dra wer , wer e found in the suspects’

car . Reviewing all the evidenc e in the light mo s t fa v o ra b l e to the verdic t, we conclude that any

ra tional trier of fac t could have found the essential elements of the offe nse bey ond a reas o n ab l e doubt and there fore the evidenc e is leg ally sufficie nt. See Hooper , 214 S.W .3d at 13. We overrule I ssue Two a nd aff irm the judg ment of the trial c ourt.

J anuar y 5, 2011 ANN CRAWFORD McCL URE, J usticeBe fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)