NO. 07-06-0059-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B DECEMBER 29 , 2006

______________________________ DAVID FLORE S, JR., Appellant

v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 251 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 50,428-C; HON. JACK D. YOUNG, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. David Flores, Jr. (Flores) appeals his conviction for aggravated robbery. Via a single argument, he asks “[w ]hether the Cour

t p roperlyallowed an admission in-court [sic] identification of the Defendant.” Appar ently, he bel ieves that

the out-of-court

identification of him as the robber

impermissibl y tainted his subsequent i n-court ident ification. The i ssue was raised below

via a moti on to suppress, which moti on the trial court denied. We affirm the decision.2

Background Flores was indi cted for robbing at knife point an e mployee of a Famil y Dollar Store. According to the record , he entered thestore and beg an to act “mysterious.”This caught the eye of the employee, who beg an watching him for approx imately ten minute s. S he described him as wearing “khak i colored pants and a white t-shirt and, like, a light yellow shirt.” Eventually , Flores w alked up be hind her , br andi shed a kn ife and d ema nde d mo ney. The employee did not acqui esce. Instead, she cont inued to operate t he cash regi ster and assistcustomer

s who were p aying for their purchas es. But, as sh e did so, she tu rned momentarily to see that the per son whohad been acting mysteriou sly was the one wi th the knife. Flores remained behind t he employee for abou t ten minutes before acus to mer (Carter) approached the empl oyee and Flor es and inqui red about the si tuation. Flor es stated that the employee o wed h im mo ney. Even tuall y, C arter handed Flor

es some mon ey, and he left the store. Carter des cribed Flor es as “about five-four, maybe, fiv e-five. About145 p oun ds, m aybe 135, some wh ere arou nd in t here, brow n hair ,” w ith a n ame tattooed on his ne ck, w hich n ame started w ith a “D” and possibly spelled “D ebbie.” Flo res had a name tattooed on hi s neck but it spelled “Da vid.” Athird witness, a 12-year-old boy, also saw the in cident. He, however , had difficulty describing the assailant other than by

stating tha t he had a knife and wore a shirt over another shirt

. About30 minutes after the robbery, t he police broug ht Flores bac k to the store in handcuff s. Each of the threewitness es mentioned identi fied him as the ass ailant. The t wo3

adults later confirmed th eir identification with another but in court this time. The 12 year old could not do likewi se. O th er testimony received at the suppression hearing cam e from appellant’s neighbor who lived behind the Famil y Dollar store. He observed appellant walking tow ards the store between five and six o’clock i n the evening . At the time, appellant was weari ng two shir ts (one orang e and one white) and khaki pa nts. Approx imately 30 to 45 minutes later, appellant retu rned to his apartment but later left wearing only

one shirt, t he whiteone. Shortly t hereafter, the neig hbor saw t he police appear at the apartment. Law Determining the admissibility of an in-court id en tification inv olves a tw

o-step process. First, t he court must ass ess whether the out-of-court

identification procedure was impermissibly suggesti ve and then w hether that sug ges ti ve procedure created a very substantial likelihood of irreparabl e misidentificat ion. Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 ( 1968); Ibarra v. Sta te , 11 S.W.3d 189, 195-96 (Tex. Crim. App. 1999); Barley v. State , 906 S.W .2d 27, 33 (Tex. Crim. App.199 5). The accused has the burd en to prove b oth prongs of the te st and must do so b y clear and convinci ng evidence. Barley v. State , 906 S.W.2d a t 33-34; Del k v. State, 855 S.W.2d 700, 706 (Te x. C rim. A pp.1993 ). And , all dependson the totali ty of t he cir cums t ances, Los eth v. State , 963 S.W .2d 770, 772 (Tex. Crim. App. 19 98), for there is n o bright lin e rule. Rather, each case turns on i ts own facts and circumstances. Simm ons v. United States , 390 U.S. at 384, 88 S.Ct. at 967, 19 L.Ed.2d at 1247.4

Next, should it bed etermined that the initial i dentification pr ocedure was impermissibly suggesti ve, then various other ind icia should be considered to assess the likelihood that it woul d tai nt a s ubse quen t in-c ourt iden tif icat ion. A non -exc lus ive lis t of those indicia i nclude 1) the opp ortunity of the witnes s to view

the criminal at the scene of the cri me, 2 ) th e wi tnes s'sdeg ree of a ttention, 3) th e accuracy of the witnes s's prior description of the criminal , 4) the level of certainty demonstrated at theconfrontation, and 5) the length of time bet ween the crime and the confrontation. Loseth v. State , 963 S.W.2d at772. And, given that the standard of review applicable her

e is that espous ed in Guzman v. State , 955 S.W .2d 8 5 (Te x. Crim . App . 199 7), we defer to the tri al court’s assessment of those factors, Loseth v. State , 963 S.W .2d at 771, and view the evidence in a light most favorab le to that assess ment. Ibarra v. Sta te , 11 S.W.3d at 195-96. Yet, that d oes no t prevent us from assessin g de novo the propensity of those factors ( as present in the case) to corrupt a l ater in-cour t identificati on. Loseth v. State , 963 S.W.2d at 773-74. Application of

Law According to the record, the police apprehended Flores, returned him to the store in handcuffs, and asked the w itnesses w hether he was the assailant

. This occurr ed within 3 0 minutes of the robbery. For purpose s of this opinio n, we assume arguendothat this identification procedure may have been impermissibly suggesti ve. So, nex

t we gaug e whether it had a ve ry substa ntial like lihood of causing a later misi dentification. I n doing so,
we note that both the s tore employee, Carter, and the boy had opportunity to and actually ob served appe llan t fo r an e xtend ed pe riod of t ime. This oppo rtun ity to obse rve wa s no t always from afar; rat her, Flores eventually

stood in clos e proximit y to them w hen he1 The neigh bor descri bed the sh irt s as one bei ng orange and the ot her whi te. The cler k descri bed

them as y el lo w an d whit e. I t i s conceiv able t hat one co uld reasonabl y conf use cert ain sha des of y ell ow as orange and v ice- versa. 5 stepped behind the counter and received the monies from the man. And, itwas during this period that Car

ter and appellant

spoke for about thr

ee minutes. N ext, both the employee and boy descr ibed Flores as weari ng two s hirts, a description later confirm ed by Fl ores’ neighbor. 1 And, whil e Carter’s descriptio n of the clothes differed from that of the others, he, nonet heless, recal led Flores’ physical weight , height and color

of hair. So too did he spy atattoo of a name on Flo res’ neck and noticed tha t the name s tarted wi th a “D,” t hough he initi ally thoug ht it read “ Debbie” ins tead of “David. ” Next, only 30 minutes lapsed between the tim e of the robbery and Flores’ r eturn to the store in the back of the squad car. Moreover, w hen asked if they identified Flores as the culprit because he was in the custody of the police or be cause of their r ecollection of the robbery, both the employeeand Carter s aid it was based on the latter. They confirmed the ir identifica tion in open cour t and assured thetrial judg e that they had no doubt that Flores (the person t hey identified ) committed thecrime. On the other hand, the boy was around “70 percent sure” Fl ores wasthe robber w hen asked at the scene. Fur

thermore, he could not identify Flores at trial. Given the close pr

oximity between the employee, Ca rter and Fl ores, the rath er long time Carter

and the employee had to observe Fl ores, Carter ’s opportunit

y to converse wi th Flores, the existence of a tattoo beginni ng wit h the letter “ D” on Flor es’ neck as C arter described, the accuracy of the clothing descriptio n p r ovided by the boy, emplo yee and6

neighbor, the passage of 30 minutes between the crime an d Flores’ return to the store, and the certa inty e xpres sed b y th e em ploye e and Carte r in th eir id enti fica tion of Fl ores , we conclude thatthere does not exi st a substanti al likeli hood that the out-of-court identifica tion tainted the later in -court ident ification. Consequently, the trial court did not err in denying the motion to suppress. The judgment is affirmed.

Brian Quinn Chief Justice Do not publish

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