### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03 -06 - 00378- CR

F loy d Re e d , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-06 -90 4038 , HO NORAB LE JO N N. WISSER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ury convicted a

ppellant Floyd Reed of a g g ravated robbe ry , a first-de g ree felony requiringa dea dly

wea pon finding
. See Tex. P enal Code A nn. § 29.03 (West 2007). The tr ial court fo un d thre e e nh anc e me nt a llegati ons tr ue and a sse sse d p un ish me nt at tw e nty -f ive y e a rs ’ imp ri so nme nt. Ap pe lla

nt a pp e a ls the tr ia l c ourt ’s jud g me nt, arguin g that th e e vid e nc e is f a c tua lly and leg ally

insufficient to support his conviction and that the trial court err ed in admitting in-c ourt identifications of him made by ey ewitnesses to the c rime. We aff irm the trial cour

t’s judgme nt.
BACK GR OUND The evidenc e at trial showed that at approximately 1:00 pm on J anuar

y 13, 2005, a
man wa lke d int o B ank of Am e ri c a on Ai rp or t B ou le va rd in Aus tin we ari nga pa ir of sh e e r p anty

ho se over his fa ce, a

beanie hat on his head, a nd a tan jac ket. Afte r ente ring the bank, he pushed aside a customer standingat the counte r and a pproac hed one of the bank’s tellers, Ana Ceballos. Three bank2

customers testified that the man had his a rms crosse d over his c hest and held a g un in his right hand. One of the bank customers specific ally testified that the man he ld the g un under his lef t elbow. The man stood about two or thre e fe et from Ceba llos in front of her station and said, “ You know what this is. You know what’s g oing on. Put y o u r h u n d re d s an d fifties in the bag . Nothing e lse. No funny stuff. No dy e pac ks or any thing.” He then handed her what appea red to be a pillowcase , and she followed his instructions, taking the hundred- and f ifty -dollar bills from her

draw er a nd putting them into the pillowcase. He then instructed he r to g ive him her twe nty -d o llar bills, and she complied, placingthe bi lls and a “ rat pa ck”—a trac king de vice hidden be tween two twe nty -dollar bills—i nto the pillowcase. When she finished empty ing her draw er, he instructed her to e mpty the draw er ne x t to he r, which she did, including plac ing a second r at pac k into the pillowcase a long with the money
.

Ceballos did not see a gun in the man’s hand, but she tes t i fi ed t h at “he ma de [her] believe” he had a

g un and that she f

ollowed his instr u ct i o n s ca ref ully beca use she wa s afr aid he would use a gun if he ha d it. During the robbe ry , the bank teller to Ceballos’s left obser

ved the man from the f ront but did not se e a g un. The bank teller to the rig ht of Ceballos, who was on the phone at the time of the r obbery , also observe d the man fr om the front and did not see a g un.

When Ceballos finished empty ing the s e c o n d d r awe r, she ha

nded the pillowca se bac k to the man, and he turned a nd walked out of the bank. As soon a s he wa s g one, she trig g ere d an
a larm loc a te d und e r t he draw er of a no the r b ank

te lle r. Me anw hil e , o ne of the ba nk c us tom e rs , Dar ren N ewby , had alr eady

left the ba

nk an d ca l l ed 9 -1-1 at a nea rby Walgr eens a s soon as he
rea liz ed a robbery was taking plac e. In his call to police, he de scribed the robber as a bla ck man, a3

descr iption that conflicted with those g iven by the other ey ewitnesses at trial. Ceballos and the two other bank tellers testified that the robbe r wa s white, one of the bank customer s testified the robbe r
wa s e ith e r a

wh ite or lig ht- sk inn e d H isp anic man, and ano the r bank c us tom e r t e sti fi e d th a t sh e c ou ld not identify

the robbe r’s ra ce but obse rved he was lig ht-skinned. At trial, Ne wby explained that he had bee n standing in line at the bank when he first noticed the man at the counter in front of him and that he had the ref

ore vie wed the ma

n only from the ba ck and r ight side. F rom wher e he w as standing , he thoug ht the robber was a light-c omplex ioned black ma n. Wit hin minutes of the robbe ry , the rat packs hidden in the stolen money beg an emitting sig nals to law enf orce ment office rs. P atrol Off icer Tony Thornton re ceive d signa ls from the rat packs, whic h wer e transmitted to a specia l r ece iver he had on the dashboar d of his patrol car
. He a lso rece ived a c all over his r ad i o about the robbe ry that, based on N ewby ’s desc ription, char acte rized the suspect a s a blac k male. The signa ls on his dashboard re ceive r led him to a laundromat located about 175 to 200 y ards f rom t h e bank. When he sa w New by walking in the p ar k i n g l o t i n front of the laundromat, he took Newby into custody

beca use Ne wby , a blac k man,
ma t c h e d t h e g e n e r a l d e s c r i p t i o n o f t h e s u s p e c t
. T h o r n t o n d i d n o t f

i n d e i t h e r o f t h e r a t p a c ks in Newby ’s possession. Newby was ang ry at beingtaken into custody and informe d Thornton that he was the pe rson who ca lled 9-1-1 to repor t the robbery
. Neve rtheless, Thornton handcuff ed Ne wby and put him into a patrol car until he could confirm his story
. Meanwhile, another patrol off icer had
a lso f o l l o w e d t h e s i g n a l s o nh i s d a s hb o ar d r e c e i v e r an d e n t e r e d th e l a u n dr o m a tw i t h a

h a nd -h e ld
re c e ive r t o s e arc h f

or the rat pa c ks . H e no tic e d a wh ite man s tand ingne ar t he fr on t door but

pa id4

no attention beca

use he w as still under the impression that the suspec t was blac k. I n his searc h of the laundromat, he found a rat pa ck in one of

the trash c ans. J ohn Gomez, who was a ssisti ng his wife in running the laundromat on the day of the robber y , testified that a man w ho he identified at trial as a ppellant enter ed the laundr omat looking “lost or ner

vo u s . ” Gomez noticed a

ppellant moving ba ck and f orth and looking out the side door of the la un dr omat. Whe n Go me z a sk e d if he c ou ld h e lp a pp e lla nt, a pp e lla nt a sk e d if

Go me z wo uld cal l hi m a cab. Gom ez agreed to d o s o an d as keda fri endto bri ng hi m a n earb y cord les s p ho ne. By the ti me th e f

r ie n d r e tu r n e d w it h th e p h o n e , a

p p e ll a n t h a d c h an g e d h is mi n d an d a s k e d if Gomez could take him to M cDona lds, which was a cross the stre et. Gomez ag ree d, and appe llant then asked if he could use the bathroom. Gomez dir ecte d him to the bathroom, where appellant r emained f or a fe w moments. By

the time appellant c ame out of the bathroom, G o m ez an d others in the laundromat ha d noticed a commotion and several police car s outside in the parking lot. Gomez saw a blac k man beingtaken into custody and testi fi ed at t rial that the man ha d not been in the laundromat. Gome z saw appellant look out the fr ont wi n d o ws for a fewminutes while the man outside was beingtaken into custody and then wa lk out the front door. By that time, Thornton was in his patrol ca r with New

by , and his dashboar d rec eiver was still issui ng a sig nal from at least one of t he rat packs. He a lso rece ived a r adio communication
corr ectingthe desc ription of the suspect, stating that the suspect wa s a whit e male, not a black male. Thornton noticed that the sig nal on his dashboar d beca me strong er w hen a white male who he identified at trial a s appellant wa lked out of the laundromat. He observe d that appellant wa s wea ring a lig ht brown jacket and holding a plastic bagin his hand. When appellant wa lked past the c ar, theAltho u gh t h e third bank teller te stified that she identified a ppellant on the day

of the 1 ro bb e ry , th e pr os e c uto r n e ve r a sk e d h e r t o ma ke an in -c ourt

ide nti fi c a tio n o f a

pp e lla nt. 5 arr owon Th or nto n’ s d a sh

bo ard re c e ive r fo llo we d him
. At thi s, Th or nto n im me diate ly

g ot o ut o f h is
car and approa ched appellant, calling out to him. When a ppellant spun around, his jac ket opene d,
and Th or nto n s aw a

g un ins ide . H e g ra

bb e d th e g un and too k a

pp e lla nt int o c us tod

y . At the tim e the g un was re cover ed, it was found to be a B B g un that was not loade d and did not contain a c arbondiox ide ca

rtridg e, which is used to pr opel the proje ctiles from the gun. Detec tive Br ian Miller ar rived at the scene afte r appe llant was in custody . He
sear ched the plastic bagcar ried by appellant a

nd found the sec ond rat pa ck, which he deac tivated. He a lso found a pillowcase containing $6,441 in cash. Counting the four twe nty -dollar bills in the tw o r a t pa c ks , th e tot a l amou nt o f m on e y

re c ov e re d w a s $ 6, 52 1, the same a mou nt st ole n in t h e r o b b e r

y. Af te r a pp e lla nt w a s ta ke n in to c us tod

y , o ff ic e rs too k him an d Ne wb y to t he ba nk to deter mine whether

the ey ewitnesses c ould identify either of them. The thre e bank te llers who saw the robber identified a

ppellant as the ma

n who robbe d the bank. At tria l, two of the three bank teller s ag ain identified a

ppellant as the r obber. 1

STA ND AR

DS O F RE VI EW I n d e te rm ini ng

the le g a l su ff

ic ie nc y of the e vid e nc e , w e mus t vi e w t he e vid e nc e in the lig h t mo s t f

a v o r a b le to th e v e r d ic t an d d e te r mi n e w h e th e r an y r a ti o n a l tr ie r o f f a c t c o uld have found the e ssential elements of the offe nse beyond a reas o n ab l e doubt. Swe ar inge n v . S tat e , 101 S.W .3d 89, 95 (Tex. Crim. App. 2003). When face d with conflicting evidenc e, we presume the6

trier o f fa ct resolved c onflicts in favor of the ver dict. Fu e nte

s v . S tat e , 991 S.W .2d 267, 271 (Tex. Crim. App. 1999).

I n revie wing fac tual sufficie ncy , we must weig h all the evidence in a neutral light a nd set the finding aside only if the evide nce is so we ak that the ve rdict see ms clear ly wrongor
man if e s tl y u n ju s t, o r th e v e r d ic t is a g a in s t th e g r e a t w e igh t an d p r e p o n d e r an c e o f the evidenc e. W ats on v . S

tat e , 204 S.W .3d 404, 414-15 (Te x . Crim. App. 2006). An appe llate co u rt m u s t be appropr iately

defe rential to the jury ’s ver dict in order to avoid s ubstitut ing its own judg ment for that of the fa ctfinder
. Va sq ue

z v . S tat e , 6 7 S. W.3 d 2 29 , 236 (T e x. Cr im. Ap p. 20 02 ). Th e jur y is the so le judge of the c redibility

of the witnesse s and the we ight to be a ccor ded their te stimony
. Id
. I n d e te rm ini ngthe a dmi ssi bil ity of an in -c o u r t ide nti fi c a tio n w he n a

de fe nd ant c la ims that th e pre tr ial id ent if

ica ti on pro cedu re was im perm is si bl y su gg est iv e in vi ol ati on of h is du e pr oc e ss rig hts, we must apply

the Guzman standard. Se e Los e rth v . S tat e , 9 63 S.W. 2d

77 0, 77 1 ( Te x. Cr im. Ap p. 19 98 ); Guzm an v . S tat e , 9 5 5 S. W. 2 d

8 5 , 8 8

- 8 9 ( T e x. Cr im
. A p p . 1 9 9 7 )
. Wh e th e r a p r e tr ia l i d entification procedur e wa s so impermissibl y sug g estive as to g ive rise to a ve ry substantial likelihood of misidentification is a mix ed question of law and fac t that doe s not tur n on an eva luation of credibility and demeanor. Los e rth , 963 S.W .2d at 772-73. Ac cording ly , we will apply a de novo standard. Id. at 773.
DISCUSSIO N Suf fic ie nc y of Ev ide nc efo r “

De ad ly We ap on”

Find ing I n his f irst issue, appellant challeng es the leg al and fa ctual suff iciency of the e vidence that the B B gun he wa s car rying during the robbery was a “dea dly wea pon.” See Tex. P enal Code7

Ann. § 2 9. 03 (a )( 2)
. A “ de a dly we a po n” is “ any

thi ngthat in

the mann e r o f i ts u se or

int e nd e d u se is capable of ca

using de ath or ser ious bodily injury .” See id . § 1.07(a) (17)( B) (West 2007). Appellant conte nd s that there was insuffic ient evidenc e to prove that the B B gun was c apable of
c a us ingde a th o r s e ri ou s b od ily inj ur y be c a us e the g un wa s not l oa de d a nd re qu ir e d a

too l to loa d it , and he did not point it at any one, use it to hit any one, or thre aten to use it i n any way . We disag ree with his contention.

First, the c ourt of cr iminal appea ls has concluded t hat t he is sue of whe ther a BB g un
was loaded is not signific ant in our ana ly sis. Se e Ad am e v . S tat e , 6 9 S. W.3 d 5 81 , 5 82 (T e x. Cr im. App. 2002). What is signific ant i s that the B B gun was c apable of ca using se rious bodily

injury
. Id
. Wit h testimony

that a B B g un is c apable of ca using se rious bodily

injury , it is reasonable for a jury to make a deadly wea

pon finding
. Id . Her e, a f

irea rms expert, GregKar im, testified that the BB g un
re c ov e re d fr om ap pe lla

nt wa s re a dy to fi re and c a pa ble of c a us ingse ri ou s b od ily

inj ur y or de a th i f it was loaded a

nd contained a

car bon-diox ide ca

rtridg e. Ka

rim also rea d to the jury

a wa rning label
on the gun s tating that “misuse or car elessness may cause serious injury

or death.” Althoug h the g un
was no t l o a d e d

an d d id n o t c o n ta in

a c ar b o n - d io xid e c artr id g e a t t h e ti me it w a s r e c o v e r e d , the evidenc e at tria l showed a g ap in time betwee n the robbe ry and appe llan t ’s ca pture in which appellant would have had an opportunity to dispose of the pellets and c artridg e. In fac t, the evidenc e showed that a

ppellant did d i s p ose of one of the ra t packs in a tra sh can in the ne arby laundromat during the time betwee n the robbe ry and his captur e. Appe llant also argues that Ka rim’s testimony that a tool was re quired to load the gun, combined with the fa ct that a tool was not re cover ed fr om appellant whe n he wa s arr ested, shows that the gun was n o t capable of c ausing death or serious bodily injury during the robber

y . Howeve r, Kar im’s te stimony that the g un showed e vidence of a8

tool alrea dy

having been use d to load it supports an infere nce that appellant used a tool to load the g un befor e the r obbery . Fur ther, a s previously

stated, the g ap in t i m e b et ween the robbe ry and
a pp e lla nt’ s c a ptu re no t on ly

pr ov ided a

pp e lla nt t he op po rt un ity to d isp os e of

on e of the ra t pa c ks , wh ic h h e did , but i t a lso pr ov ide d a n o pp or tun ity fo r h im t o d isp os e of

nume ro us oth e r i te ms, inc lud inga

too l. There is a lso the po ssi bil ity that he us e d a

too l to loa d th e g un

be fo re he le ft

his home and ne ver br oug ht the tool with him to the robber y . Se c on d, duri ngthe ro bb e ry , a pp e lla nt h e ld the g un in su c h a wa y a s to dis pla

y it t o thr e e ba nk c us tom e rs . I t is re a so na ble fo r a jur

y to inf e r that de fe nd ants us e loa de d gun s to fa c ili ta te bank robbe ries. Se e id
. Third, althoug h appellant did not point the g un at any one or threaten any one with it, the mere c arr

y ing of the g un during a bank r obbery was leg ally

suffic i en t ev idence for a fa c tf ind e r t o c on c lud e that a

pp e lla nt i nte nd e d to us e the g un a s a we a po n c a pa ble of c a us ingde a th
or ser ious bodily

injury
. Se e Mc Cai n v . S

tat e , 22 S.W .3d 497, 503 (Tex. Crim. App. 2000) (holding evidenc e leg ally

sufficie nt for dea dly

wea pon fi n ding w here victim saw knife sticking out of d ef en dant’s bac k pocket dur ing a ttack but def

endant ne ver touc hed, bra ndished, ref

err ed to, or overtly display ed knife ). Viewing the evidenc e in the light most favor able to the ve rdict, we conclude that the
e vid e nc e is le g a lly su ff

ic ie nt to su

pp or t the jur y ’s de a dly we a

po n f ind ing . V ie wi ngthe e vid e nc e in
a ne utr a l lig ht, we a lso c on c lud e that the e vid e nc e is fa c tua lly su ff ic ie nt t o s up po rt

the jur y ’s de a dly
wea pon finding . Acc ording ly , we ove rrule a ppellant’s first issue. Suf fic ie nc y of Ev ide nc efo r “ Us e d o r Ex hib ite d” Find ing I n his second issue, appe llant contends that t h e ev i d en ce at trial was leg ally and fac tually insuffi ci en t t o prove that he “use d or exhibit ed” the g un. See Tex. P enal Code9

Ann. § 29.03(a )(2) . I n support of his contention, he a rg ues t h at h e d i d n o t use or exhibit t he g un be c a us e he did no t fi re , br and ish , o r r e fe r t o it in a ny wa y . H ow e ve r, the wo rd

“ us e d” re fe rs no t on ly to the wielding of a firear m with eff

ect, but it also extends to any employ ment of a de adly

wea pon, even its simple possession, if such posses s i o n fac ilitates the associate d felony
. See P atterson
v . S tat e , 769 S.W .2d 938, 941 (Tex. Crim. App. 1 9 8 9 ). A j u ry could re asonably

infer that appellant’ s simple possession of the g un in such a wa y as to d i s play

it to three bank c ustomers showed that a

ppellant both exhibi ted the g un and used it t o fac ilitate the bank r obbery by instil ling appre hension in the customers a round h i m , reducing the likelihood of resistanc e duringthe
e n c o u n te r. See M

cC ain , 22 S.W .3d at 503 (pa rtial exposure of knife in back poc ket of de fenda nt d u r i n g a t t a c k s u f

f i c i e n t t o s h o w kn i f

e “ e xh i b i t e d ” an d “ us e d” ); Patterson , 769 S.W .2d at 941-42 (g un n ex t t o defe ndant on couc h during execution of sear ch wa rra nt sufficient to show def

endant

“ us e d” g un

to f a c ili ta te pr ote c tio n o f c on tr a ba nd ). F ur the r, the ve rb “ us e ” is de fi ne d a s “ to p ut i nto action or service : have rec ourse to or enjoy ment of: employ
. . . to car ry out a purpose or

action by
m eans of: make instrumental to an e nd or proc ess: apply to advantag e: turn to ac count: utiliz e.” Patterson , 769 S.W .2d at 941 (c iting Webster’ s T h ir d N e w I nte r n a ti o n a l D ic ti o n a

ry 2523-24 (1976) ). Her e, a jur

y could re asonably

infer that appellant held the gun in his hand during the robbe ry so as to “have rec ourse to” it if the need a rose. Vie wing the evidenc e in the lig ht most favorable to the
ve rd ic t and

in a ne utr a l li g ht, we c on c lud e that th e e vidence is leg a lly and fa c tua lly su ff ic ie nt t o support the jury ’s finding that appellant “used or exhibi ted” the g un during the robbe ry . Thus, we
overr ule appe llant’s second issue.10

Admiss ibi

lit y of In- Cour t Id e ntif ic ations I n his final issue, appellant a rg ues that the trial c ourt err ed i n ad mitti ng in-court identifications of him by

two of the ba

nk tellers beca

use the pre trial identification proc edure —a oneman s ho w- up —w a s im

pe rm iss ibl y

su g g e sti ve. A pr e tr ia l id e nti fi c a tio n p ro c e dure may be so sug g estive and c onducive to mistaken identification that subsequent use of that identification at trial would deny

the ac cused due proce ss of law. W e bb v . S tat e , 760 S.W .2d 263, 269 (Tex. Crim. App. 19 88 ); Br own v . S

tat e , 64 S.W .3d 94, 99 (Tex. A pp.—Austin 2001, no pet.). T o re n d er an ide n ti f ic a ti o n in a d mi s s ib le , a d e f e n d an t mu s t p r o v e b y c le ar an d c o n v in c in g e v id e n c e both that (1 ) t he ou t- of -c ou rt ide nti fi c a tio n p rocedu re was im perm is si bl y su gg est iv e, an d (2 ) t he i mp erm is sib ly sug g estive proce dure g ave rise to a very substantial likelihood of irrepara b l e m isidentification. Br own , 64 S.W .3d at 99. Eac h case must be considere d on its own facts. Id . F ur the r, the ana ly sis require s an examination of the totality of the c ircumstance s surrounding the identification. Id
. The pre trial identification in this case w as a one -man show-up. After appellant wa s
arr ested, off

icer s took him t o the bank. De tective Richa rd Gujar do was at the bank w hen off icer s
arr ived with appellant. Guja rdo testified that he made sure all the witnesses we re se parated from
eac h other a

nd knew they

should not talk to each other . When office rs brought appellant, who was handcuf fed, to the f

ront of the parking lot, Gujardo took eac h witness separ ately to view appe llant
an d d et er m i n e whether

they thought he was the ma

n who robbe d the bank. Guja rdo testified that appellant wa s about fifteen to eig hteen f eet a way from the witnesse s during the identifications. He also testified that he told ea ch of the witnesses that the man in fr ont of them may or may not be the pe rs on wh o r ob be d th e ba

nk
. He ins tr

uc te d the m th a t if

the y did no t r e c og nize the man, the y sh ou ldAlthough one of the ba nk tell ers testified that police offic ers told her befor e her 2 identification that the suspec t was ca ug ht with a bagfull of money , she cor rec ted herself on redirec t examination, st ating that th e o ff i cer s never

told her about the r ecove red ba g direc tly but that she overhe ard the information. 11 say so beca use he did not w ant to de tain a person who had nothing to do with the robbery . Gujardo testified that New

by was a lso placed a lone i n front of e ach of the witnesses sepa

rate ly for identification. The three bank tellers all identified appellant as t he man who robbe d the bank. One of the ba nk customers thoug ht appellant looked similar to t he bank r obber but c ould not be cer tain. An oth e r b ank

c us tom e r c ou ld n e ith e r i de nti fy a pp e lla nt a s th e ro bb e r n or

ru le him ou t. A ce rtain amount of sug g estiveness is inhere nt in any “on the sc ene” confr ontation in the prese nce of

police off

icer s. See Stov all v. Denno , 3 88 U. S. 2 93 , 3 02 (1 96 7) ; Ga rza v . S tat e , 633 S.W .2d 508, 512 (Tex. Crim. App. 1 9 8 2 ) (op. on reh’g ). Howe ver, e vidence of a one -man show-up alone does not violate due pr ocess. Se e Ga rza , 63 3 S.W. 2d a t 51 2. I n f a c t, i n ma ny c a se s, the use of on- the-sce ne conf rontations is nece ssary . Id
. Considering the t otality of the c ircumstance s
surr ou nd ingthe ide nti fi c a tio n in thi s c a se —in c lud ingthat G uja rd o s e pa ra te d th e wi tne sse s b oth befor e and dur ing the identification and instructed them that they wer e fr ee to identify

or not identify the suspect—we do not f

ind that the identification proce dure used here involved any more than the inhere nt sugg estiveness a ssociated with a one -man show- up. 2

Even a ssu m i n g the identification procedur e wa s impermissibly sug g estive, if the
overa ll circumstance s reve al no substantial likelihood of misidentification, the identification will be d ee m ed “r el i able” and ther efor e admissible. W ebb , 7 60 S.W. 2d

a t 26 9; se e Ib arra v . S tat e , 11 S.W .3d 189, 195 (Tex. Crim
. Ap p . 1 9 9 9 ). Reliability is the “linchpin” in dete rmining the12

a d mi s s ib il it

y o f id e n ti f

ic a ti o n te stimony
. Manson v . B ra thw ait e , 4 3 2 U
. S
. 9 8 , 1 1 4 ( 1 9 7 7 )
. In assessing reliability under the totality of the c ircumstance s, we c onsider the f ollowing none x clusive fac tors: (1) the oppor

tunity of the wi t n es s t o view the c riminal at the time of the c rime, (2) the wi tne ss’ s d e g re e of

a tte nti on , ( 3) the a c c ur a c y of the wi tne ss’ s p ri or

de scr ip tion o f t

he c ri min a l, (4) the le vel of c erta inty demonstrated by the witness at the c onfrontation, and ( 5) the time betwe en the cr ime and conf

rontation. Ib arra , 11 S.W. 3d at 19 5; W

ebb , 760 S.W. 2d a t 269. We v ie w the se five fa ctors in the l i gh t m ost favora ble to the trial cour

t’s ruling
. Los e rth , 963 S.W .2d at 773; Br own , 64 S.W. 3d

a t 99 . T he fa c tor s, vie we d in thi s li g ht, sh ou ld t

he n b e we ig he d d e no vo a g a ins t “the c orrupting eff

ect” of the sugg estive pre trial identification proc edure
. Los e rth , 963 S.W .2d at 77 3- 74 ; Br own , 64 S.W .3d at 99.

I n consideringthe first fa ctor, w e co n cl ude that both bank teller s who identified appellant at trial had sufficient opportunity to view the robber dur ing the robber y . The man r obbing t h e b an k w a l k e d u p t o t h e s t a t i o no f

t h e f i r s tb an k t e l l e r an d s t o o d f a c i n g h e r a b o u tt w o f

e e ta w a y. Al t h o u gh t h e m an wo re p an t y h o s e o v er h i s fa ce , t h e b an k t el l er n o t i ce d h i s fa ci al fe at u re s t h ro u gh the pan t y h o s e, i n cl uding his nose a nd ey es. The se cond bank te ller wa s on the phone whe n the robber approa ched the station next to him. The bank teller testified that he was less than four f eet from the r obber a

nd that the panty

hose over the robbe r’s fa ce w ere sheer and ea s y t o s ee thr oug h. The ba nk teller looked at the robbe r while he was on the phone and continued looking at him after he hungup a nd

un til the ro bb e r l oo ke d b a c k at hi m. The sec ond fac tor is a lso met. Both bank teller s who identified appe llant at trial wer e more than just ca sual observ er s o f t h e robbery and ther efor e had mor e re ason to be attentive.13

S e e Ba rle y v . Stat e , 9 06 S.W. 2d

27 , 3 5 ( Te x. Cr im. Ap p. 19 95 ). Th e fi rs t ba nk te lle r w a s w ith in three fee t of the robbe r, who wa s order ing he r to e mpty her dr awe r and the draw er ne x t to hers, and she fe are d he had a

g un. The second bank teller was within f our fee t of the man and watche d as the robber y occur red. B oth witnesses had a vested intere st in pay ing c are ful attention to the robber
. Reg ardingthe third fac tor, the re cord is almost silent as to the witnesses’ descr iptions of the ba nk robber

befor e they

identified appe llant in the show-up. The only evidenc e of a de sc ri pti on

g ive n to po lic e ma tc hin g tha t of a pp e lla nt i s th a t a ft e r Of

fi c e r Th or nto n too k Ne wb y

int o
c us tod y , h e re c e ive d a ra dio c omm un ic a tio n c ha

ng ingthe su sp e c t’ s d e sc ri pti on fr om a bla c k ma le to a wh ite ma le . T hu s, a t le a st o ne wi tne ss f ro m th e ba

nk mus t have de sc ri be d the su sp e c t a s a wh ite male bef ore a ppellant was taken to the bank f or identification. The re co rd i s also silent as to the fourth fa ctor: the witnesse s’ deg ree of ce rtainty during the show-up. Reg ardingthe fifth fa ctor, the amount of time that pa ssed betwee n the robbe ry and the conf rontation, the re cord shows that it w as s o m ew here betwee n ten and twe nty minutes, an amount of time similar to that deemed a cce ptable in other c ases. Se e Hu ds on v . S tat e , 675 S.W .2d 50 7, 51 0 ( Te x. Cr im. Ap p. 19 84 ) (l e ss tha n te n min ute s b e tw e e n c ri me and

c on fr on ta tio n) ; Ga rza , 63 3 S.W. 2d a t 51 3 (l e ss tha n on e -h a lf ho ur be tw e e n c ri me and con fr on ta tio n) ; Po we ll v . S tat e , 837 S.W .2d 809, 812 (Tex. A pp.—Houston [1st Dist.] 1992, pet. ref ’d) ( no more than te n minutes betwee n crime a

nd confr ontation). Considering the five f

actor s in the l ight most favor able to the verdict and we ighing them ag ainst the “cor

rupting eff

ect” of the sug g estive pre trial identification proc edure , we c oncludeAppellant also argues that the pre trial identification wa s tainted bec ause of fice rs did not 3 take wr itten descriptions from the w itnesses until after the identi fi ca t i o n . Howeve r, the wr itten statements ar e not i n evidenc e, and a ppellant does not explain how the statements, which oc curr ed afte r the pre trial identification, ar e re levant to the conditions prese nt during the robbe ry and the i dentification. Further , he cites no c ase la w in support of his contention. See T e x. R. A p p. P. 38.1(h). 14 that th e ide nti fi c a tio n p ro c e dure di d no t g ive ri se to a su bs tanti a l li ke lih oo d o f i rr e pa ra ble misidentification. We theref ore ove rrule a

ppellant’s third issue. 3
CONCLUSION B e c a us e we have c on c lud e d th a t th e e vid e nc e is l e g a lly and fac tua lly su ff ic ie nt t o support appellant’ s conviction and that the trial court did not err in a dmitti ng in-court identific ations of appe llant, we af

firm the trial c ourt’s judg ment.

_______________

_ _ _ _ _ _ _ _____________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: De cembe r 17, 2008 Do No t Pu

bli sh