## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 10 - 00 279 - CR

TRAYSON L. WOODEN APPELLANT V. THE STATE OF TEXAS STATE

------------ FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

------------ 

### MEMORAN DUM OPINION 1

------------ I. Introduction In three points, Appellant Trayson L. Wooden appeals his conviction for robbery by threats . We affirm.

II. Factual and Procedural Background The State indicted Wooden for the robbery of Jennifer Whitus , who tes tified that she arrived home from work at around 1:00 a.m. on April 24, 2008,

1 See Tex. R. App. P. 47.4.2

and parked in her usual spot near the well li t entrance to her apartment. When she exited her car, a man approached her ―very quickly, very purposefully , ‖ and aggressively

. He said, ―Give me your purse, bitch, or I will shoot you

. ‖ Whitus testified that she was frozen as the man jerked her purse from her and shoved her down and that she saw him get into the passenger side of a four

- door sedan ―that had been waiting there with t he engine running and the passenger door
open

. ‖ Whit us got a ― good look ‖ at his face and described him to the responding police officers as an African American man over six feet tall and about 180 pounds 2 with a bushy hairdo or ―an Afro ‖ and a splotchy co mplexion. She also described him as having either a wide gap between his teeth or a missing or rotten tooth

. On April 28, 2008, Fort Worth police officers arrested Gregory Wofford, Wo oden’s cousin, at Wofford’s home for a parole violation. They found Woo den inside the house along with several of Whitus’s personal belonging s , including her identification card, and when Wooden failed to properly identify himself, officers arrested him as well. That same day, Fort Worth Police Detective Billy Randolph inter view ed Whitus a nd show ed her a photographic lineup from which Whitus identified Wooden as her assailant

. The trial court held a pretrial hearing after Wooden moved to suppress Whitus’s upcoming in

- court identification of Wooden , claiming that the

2 Whitus noted that it was hard to tell exactly because he was w earing a large shirt and it was windy.3

photospre ad on which her identification w ould be based was unduly suggestive because Wooden’s photo graph had a green background , while the others had blue or gray backgrounds

. D uring th e hearing, D etective Randolph testified that he created the photospread by selec ting photographs of six individuals, including Wooden, with similar height, weight, gender, race, hair color, and eye color characteristics

. Detective Randolph also testified that, b efore revealing the photo spread to Whitus, he advised her that it would c ontain photographs of individuals with similar characteristics, that her assailant may or may not be pictured, and that she should concentrate on facial features because hair styles and clothing could have change d

. According to Detective Randolph , Whitus pointed to Wooden’s photograph within five to ten seconds , and Detective Randolph wrote ― [ p ] icked immediately‖ on the photospread

. Detective Randolph testified that the background of Wooden’s photograph was green but that each photo graph had a different b ackground color, which he could not adjust

. For purposes of the hearing, the trial court admitted the photospread and photospread data , which listed the photographed individuals’ weight, ranging from 160 to 180 pounds, and height, ranging from five feet , nine inches to six feet , three inches. 3

3 The trial court also admitted a photograph that, according to Whitus’s testimony, showed that Wooden’s face was lighter in some areas and darker in others, and a photograph that showed th at Wooden had a missing tooth

.4

Whitus testified during the hearing that she identified Wooden almost instantly but selected Wooden’s photo graph between thirty and sixty seconds later to ―look at the pictures carefully ‖ and ―ma[k] e sure to look ove r all of them, even though [her] eyes were drawn to the familiar face.‖ 4 Whitus then identified Wooden in open cour t as the person who robbed her and stated that she based her identification, not on the photospread, but on her ― observations of him at the time of the offense.‖ 5 At the conclusion of the hearing, the trial court denied Wooden’s motion to suppress but granted hi s request for a running objection to the in

- court identification. At trial, the jury viewed the photo spread and heard testimony from Whitus, Detective Randolph, other police officers, and Mason, the hairdresser, before Wofford testified p ursuant to a plea bargain with the State

. Wofford said that he drove Wooden to and from the scene of the robbery , that he remembered watching Wooden r ob a woman , and that he saw her identification card among the items that Wooden stole from her. A jury found Wooden guilty and assessed

4 During trial, Whitus testified that, because she recognized Wooden’s face, she was able to identify him even though he had a different hair style in the photospread than she had originally described. Geleatha Mason, a hairdresser, testified that Wooden ’s hair in the photospread was in ―cornrows or braids ‖ and estimated that it takes approximately twenty minutes to break down cornrows such that the h air returns to an Afro style.

5 After the trial court admitted Whitus’s in

- court identification, Whitus tes tified that, during her interview with Detective Randolph, she described her assailant as weighing about 200 pounds, having a ―bushy Afro‖ and f reckles, and missing a tooth.5

twenty

- five years’ confinemen t as his punishment , and the trial cou rt sentenced him accordingly. This appeal followed. III. Identification In his first point, Wooden complains that the trial court erred by denying his motion to suppress evidence relating to his pretr i al identification because the photo spread from which Whitus identified him was impermissibly suggestive. In his second point, he argues that the trial court erred by overruling his objection to the in

- court identification because it was tainted by the impermissibly suggestive photo spread

. A pretrial identification procedure may be so suggestive and conducive to mistaken identification that use of that identification at trial would deny the accused of due process. Conner v. State , 67 S.W.3d 192, 200 (Tex. Crim. App. 2001). When examining a pretrial or an in

- court identification, we use a two

prong test. Bar

ley v. State , 906 S.W.2d 27, 33 (Tex. Crim. App. 1995 ) , cert. denied , 516 U.S. 1176 (1996) . First, we determine whether the defendant has shown by clear and convincing evidence that the pre trial identification procedure was impermissibly suggestive , and , if so, we will reverse only if the suggestiveness gives rise to a very substantial l ikelihood of misidentification. Id. at 33

– 34 (considering the totality of the circumstances )

. Under the first Barley prong, s uggestiveness may be created by the manner in which the pre trial identific ation procedure is conducted if, for example, a police officer suggests that the suspect’s photo graph is included in the6

photospread, or it may be created by the content of the photospread itself ― if the suspect is the only indi vidual closely resemblin g the pre

- procedure description

. ‖ Id. at 33 ; see Mungia v. State , 911 S.W.2d 164, 168 (Tex. App.

— Corpus Christi 1995, no pet.) (― [ A ] photo spread is not improperly suggestive merely because each photograph can be distinguished in s ome manner from the defendant ’ s.‖)

. Under the second Barley prong, we weigh the following five non exclusive Biggers factors against the corrupting effect of a suggestive identification procedure: (1) the opportunity of the witness to view the criminal at t he time of the crime , (2) the witness ’s degree of attention, (3) the accuracy of the witness ’s
pr ior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Luna v. State , 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) ( ― Reliability is the linchpin in determining the admissibility of identification testimony. ‖) ( citing Neil v. Biggers , 409 U.S. 188, 199

– 200, 93 S. Ct. 375 , 382 (1972) ) , cert. de nied , 130 S. Ct. 72 (2009)

. We review de novo whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, but we view historical issues of fact in the light most favorable to t he trial court ’s ruling

. Cienfuegos v. State , 113 S.W.3d 481, 491 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’d) (citing Loserth v. State , 963 S.W.2d 770, 773

– 74 (Tex. Crim. App. 1998) (stating that the Biggers factors are treated as historical issues o f fact))

.7

A. First Barley Prong
— Suggestiveness Wooden asserts that his photo graph ’s green background was markedly different from the blue or gray backgrounds of the other photo graph s and , t hus , attracted a level of attention that rendered the photospr ead impermissibly suggestive. We have reviewed the photospread , which shows that the background of Wooden’s photo graph is green and that the backgrounds of the other photo graph s are different shades of blue or gray

. However, this discrepancy is slight. S ee Barley , 906 S.W.2d at 33

– 34 (holding that a photospread containing a photo graph that was ―obviously taken in a different setting‖ was not impermissibly suggestive) ; Page v. State , 125 S.W.3d 640, 647 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’ d) (―Slig ht differences in the background color and brightness of photographs are insignificant.‖) ; see also Mata v. State , No. 04

- 07

- 00146

- CR, 2008 WL 2715869, at *4 (Tex. App.

— San Antonio July 9, 2008, pet. ref’d) (mem. op., not designated for publication) (concl uding that a gray background was permissible even though the other backgrounds were light blue) . This difference in background color does not create a photospread in which ―the suspect is the only individual closely resembling the pre

- procedure descriptio n.‖ See B arley , 906 S.W.2d at 33; see also Doescher v. State , 578 S.W.2d 385, 387 (Tex. Crim. App. [Panel Op.] 1978) (concluding that the photographic spread was not impermissibly suggestive when appellant’s photo graph was the only one with a height indic ator in the background because this did not suggest that he had a characteristic that the8

other subjects did not share). Instead, Detective Randolph ensured that the content of his photospread featured six individuals with similar characteristics with re g ard to height, weight, gender, race, hair color, and eye color. See Barley , 906 S.W.2d at 33. Indeed, our review of the photospread and the photospread data confirms that the six African American males pictured have similar height and weight, black hair of a similar style, brown eyes, and similar facial features. Further, Detective Randolph ensured that the pretrial identification procedure was not suggestive by advising Whitus that the photospread would include six individuals with similar characteristic s , and he direct ed Whitus to focus on facial features because , unlike hair and clothing, those are unlikely to change with time

. See id. And Whitus testified that she selected Wooden’s photo graph , not based on its background , but because her eyes were dr awn to his familiar face

. See D oescher , 578 S.W.2d at 387 (noting that part of the totality of the circumstances included testimony that the witnesses’ identification of appellant was primarily based on their observations during the crime rather than on t he photospread); Bethune v. State , 821 S.W.2d 222 , 229 (Tex. App.

— Hous ton [14th Dist.] 1991 ) (concluding that photospread was not impermissibly suggestive when complainant testified that her selection was based solely on her memory of her attack and that t he defendant’s facial features set his photo graph apart from the others), aff ’ d , 828 S.W.2d 14 (Tex. Crim. App. 1992)

. Also, even if the green background caught Whitus’s attention initially, she stated that she made sure to look over all of the photo graph s for thirty to sixty seconds before9

f i nally choosing Wooden’s

. S ee S mith v. State , No. 05

- 02

- 01886

- CR, 2003 WL 22962434, at *4 (Tex. App.

— Dallas Dec. 17, 2003, pet. ref’d) (not designated for publication) (deciding that the identification was reliable in part because the witness looked at the lineup for several seconds before choosing a photograph). F inally , Detective Randolph advised Whitus that her assailant m ight not be pictured at all

. See M ata , 2008 WL 2715869, at *4 (noting that the police officer never suggested that the suspect was included in the photospread) (citing Barley , 906 S.W.2d at 33). C onsidering the totality of the circumstances, including the content of the photospread itself and the manner in which Detective Randolph conducted the
pr etrial identification procedure, Wooden has not shown by clear and convincing evidence that the in

- court identification was tainted by an impermissibly suggestive identification procedure. See B arley , 906 S.W.2d at 33

– 34

. B. Second Barley Prong
— Likelihoo d of Misidentification E ven if the pretrial identification procedure was impermissibly suggestive under the first Barley prong , it must also give rise to a very substantial likelihood of misidentification to deny Wooden of due process

. See C onner , 67 S.W .3d at 200; Barley , 906 S.W.2d at 33

– 34. Turning to the first and second Biggers factors , Whitus’s description of the incident shows that she had a sufficient opportunity to view and pay close attention to her assailant during and after the incident

. See L una , 268 S.W.3d at 605. First, Whitus testified that the area in which she was attacked was well lit, so she was able to get a ―good look‖ at her10

assailant’s face. See Loserth v. State , 985 S.W.2d 536, 544 (Tex. App.

— San Antonio 1998, pet. ref’d) (defe rring to trial court’s finding that witness had adequate opportunity to observe the defendant when the area was well lit and the victim testified about seeing the defendant’s face)

. Further, even though she

was ― frozen, ‖ the level of detai l that she recal led demonstrated that she was very attentive during the robbery

. See D elk v. State , 855 S.W.2d 700, 706 (Tex. Crim. App.) (using the level of detail recalled by the witness as a measure of her attentiveness) , cert. denied , 510 U.S. 982 ( 199 3) . For exampl e, Whitus observed that her assailant’s approach was quick, purposeful, and aggressive , and she distinctly remembered what he said to her before he jerked her purse from her shoulder and pushed her down. Additionally, Whitus had the wherewithal to observe her assailant as he escaped and was able to describe the type of get

away vehicle, where it was parked, that its engine was running, and that its passenger door was open

. Turning to the third Biggers factor, Whitus’s prior description of her assailant was precise and added to the reliability of her identification

. See L una , 268 S.W.3d at 605. Her description of her assailant as being an African American male over six feet tall with a missing or rotten tooth was accurate in all three respects. Beyond the se characteristics, although Whitus described Wooden ’s hair as bushy or ―an Afro‖ and the photograph shows Wooden’s hair in

cornrows , viewing the evidence in the light most favorable to the trial court’s ruling , Whitus’s description was accurate because, a s the trial court heard11

Detective Randolph state , hair styles are susceptible to change. See L oserth , 963 S.W.2d at 773

– 74 (instructing that we view these factors with deference in the light most favorable to the trial court’s ruling). Moreover, another witness testified that it only takes about twenty minutes to convert cornrows back into an Afro hair style. Next, even though Whitus’s estimation of Wooden’s weight was slightly different when she spoke with Detective Randolph from her description on the d ay of the incident, when viewed in the appropriate light, thi s discrepancy did not render Whitus’s description inaccurate

. See id. at 773

– 74. Indeed, as Whitus testified, the difficulty of gauging someone’s weight was compounded by her assailant’s baggy clothes blowing in the wind. The trial court could have reasonably put more weight on Whitus’s first and more accurate estimate the night of the attack that her assailant weighed approximately 180 pounds

. In addition, even though Whitus’s description of W ooden’s complexion varied between ― splotchy ‖ and ― freckled, ‖ Whitus’s description was still accurate in this respect when viewed in the appropriate light

. See id. Indeed, Whitus testified that she used the term ―freckles‖ on one occasion to describe an i nconsistency or unevenness in her assailant’s face. The trial court could have interpreted this testimony to indicate not that she was inconsistent in her description but merely that she struggled with how to convey the physical characteristic that she ha d observed. As further evidence of reliability , the trial12

court had an opportunity to review the photograph that Whitus later testified showed that Wooden’s face was darker in some areas and lighte r in others. Turning to the fourth Biggers factor, Whitus exhibited a high level of certainty when she selected Wooden’s photo graph at the confrontation. See Luna , 268 S.W.3d at 605. Both she and Detective Randolph testified that she recognized her assailant instantly; the only discrepancy between their testimo nies wa s whether she pointed to Wooden’s p hotograph at that moment or took additional time to carefully examine each photo graph . Either way, viewing the evidence in the appropriate light, the trial court could have found that this evidence supported a fin ding that Whitus was highly confident in her identification of Wooden. See Loserth , 963 S.W.2d at 773

– 74. Finally, turning to the fifth factor, the length of time between the April 24 robbery and the April 28 confrontation was four days , which strengthen ed the reliability of Whitus’s identification. See Manson v. Brathwaite , 432 U.S. 98, 116, 97 S. Ct. 2243, 2253

– 54 (1977) (―The photographic identification took place only two days later. We do not have here the passage of weeks or months between the cri me and the viewing of the photograph. ‖). In sum, we conclude that Wooden has not shown by clear and convincing evidence that the photospread was impermi ssibly suggestive, and the trial court could have reasonably found that each Biggers factor weigh ed in f avor of reliability even if the photospread was impermissibly suggestive. See B iggers , 409 U.S. at 199

– 200, 93 S. Ct. at 382; Loserth , 963 S.W.2d at 773

– 74; Barley ,13

906 S.W.2d at 33

– 34. Therefore, we hold that any suggestiveness did not deprive Wooden of due process by giving rise to a very substantial likelihood of misidentification, s ee B iggers , 409 U.S. at 199

– 200, 93 S. Ct. at 382; Conner , 67 S.W.3d at 200, and we overrule Wooden’s first and second points

. IV. Accomplice Witness In his third point, W ooden complains that , absent the impermissibly suggestive photo spread and the tainted in

- court identification, in sufficient evidence existed to corroborate Wofford ’s accomplice testimony. Wooden implicitly concedes that sufficient evidence would exist if, as we have determined, the photospread was not impermissibly suggestive and, thus, did not taint the in

court identification

. However , we will still address the sufficiency in light of our decision on Wooden’s first two points

. See Green v. State , No. 0 7

- 00

- 0586

- CR, 2002 WL 31084674, at *2

– 3 (Tex. App.

—Amarillo Sept. 17, 2002, no pet.) (not designated for publication) (addressing the accomplice testimony issue even though appellant only based this claim on the alleged inadmissibility of the in

court iden tification, which the trial court held to be admissible). The code of criminal procedure provides that a conviction cannot be based upon the testimony of an accomplice unless other evidence tending to connect the defendant with the offense corroborates the testimony

. Tex. Code Crim. Proc. Ann. art. 38.14 ( West 2005 ). ―[N]on

- accomplice evidence is sufficient corroboration if it shows that rational jurors could have found that it sufficiently tended to connect the accused to the offense.‖ Smith v. State , 3 32 S.W.3d 425,14

442 (Tex. Crim. App. 2011) (―Therefore, it is not appropriate for appellate courts to independently construe the non

- accomplice evidence.‖). In addition to Whitus’s pretrial and in

- court identification of Wooden,

c orroborating Wofford’s test imony at trial was W hit us’s testimony that , in the well lit parking lot, she got a ―good look‖ at her attacker , who she initially told police

was an African American male who stood over six feet tall, had a bushy hairdo, weighed about 180 pounds, had a mis s ing or rotten tooth, and had a sp lotchy complexion. Also corroborating Wofford’s testimony was evidence that Fort Worth police officers found Wooden in the same house as the one from which they recovered Whitus’s identification card. T he only contradict ing evidence was Whitus’s statement during a subsequent interview with police that her attacker weighed about 200 pounds. However, we must defer to the jury’s resolution of th is inconsistenc y and not independently construe the evidence. S ee id. We concl ude that rational jurors could have found that the combined weight of the

non - accomplice evidence

— including Whitus’s almost instantaneous pretrial identification , her in

- court identification, the detailed description that she gave to responding police offi cers , and the evidence that police found Wooden and Whitus’s identification card in Wofford’s house

— tend ed to connect Wooden to the offense

. See id. Thus, we overrule Wooden’s third point.15 V. Conclusion Having overruled all of Wooden’s points, we af firm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ

. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: December 8, 2011