COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00279-CR

TRAYSON L. WOODEN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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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 

testified that she arrived home from work at around 1:00 a.m. on April 24, 2008, 

 

1See Tex. R. App. P. 47.4.
2

and parked in her usual spot near the well lit 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 the engine running and the passenger door 

open.‖ Whitus 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 

pounds2 with a bushy hairdo or ―an Afro‖ and a splotchy complexion. 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, 

Wooden’s cousin, at Wofford’s home for a parole violation. They found Wooden 

inside the house along with several of Whitus’s personal belongings, 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 interviewed Whitus and showed 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 

 

2Whitus noted that it was hard to tell exactly because he was wearing a

large shirt and it was windy.
3

photospread on which her identification would be based was unduly suggestive 

because Wooden’s photograph had a green background, while the others had 

blue or gray backgrounds.

During the hearing, Detective Randolph testified that he created the 

photospread by selecting photographs of six individuals, including Wooden, with 

similar height, weight, gender, race, hair color, and eye color characteristics. 

Detective Randolph also testified that, before revealing the photospread to 

Whitus, he advised her that it would contain 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 changed. 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 photograph had a 

different background 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 that Wooden had a missing tooth.
4

Whitus testified during the hearing that she identified Wooden almost 

instantly but selected Wooden’s photograph between thirty and sixty seconds 

later to ―look at the pictures carefully‖ and ―ma[k]e sure to look over all of them, 

even though [her] eyes were drawn to the familiar face.‖4 Whitus then identified 

Wooden in open court 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 his request for a running objection to 

the in-court identification.

At trial, the jury viewed the photospread and heard testimony from Whitus, 

Detective Randolph, other police officers, and Mason, the hairdresser, before 

Wofford testified pursuant 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 rob a woman, and that he saw her identification card among 

the items that Wooden stole from her. A jury found Wooden guilty and assessed 

 

4During 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 hair returns to an Afro style.

5After the trial court admitted Whitus’s in-court identification, Whitus 

testified that, during her interview with Detective Randolph, she described her 

assailant as weighing about 200 pounds, having a ―bushy Afro‖ and freckles, and 

missing a tooth.
5

twenty-five years’ confinement as his punishment, and the trial court 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 pretrial identification because the 

photospread 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 

photospread.

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 twoprong test. Barley 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 pretrial identification procedure 

was impermissibly suggestive, and, if so, we will reverse only if the 

suggestiveness gives rise to a very substantial likelihood of misidentification. Id.

at 33–34 (considering the totality of the circumstances).

Under the first Barley prong, suggestiveness may be created by the 

manner in which the pretrial identification procedure is conducted if, for example, 

a police officer suggests that the suspect’s photograph is included in the 
6

photospread, or it may be created by the content of the photospread itself ―if the 

suspect is the only individual closely resembling 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 some manner from the defendant’s.‖).

Under the second Barley prong, we weigh the following five nonexclusive 

Biggers factors against the corrupting effect of a suggestive identification 

procedure: (1) the opportunity of the witness to view the criminal at the time of 

the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s

prior 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. denied, 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 the 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 of fact)).
7

A. First Barley Prong—Suggestiveness

Wooden asserts that his photograph’s green background was markedly 

different from the blue or gray backgrounds of the other photographs and, thus,

attracted a level of attention that rendered the photospread impermissibly 

suggestive. We have reviewed the photospread, which shows that the 

background of Wooden’s photograph is green and that the backgrounds of the 

other photographs are different shades of blue or gray. However, this 

discrepancy is slight. See Barley, 906 S.W.2d at 33–34 (holding that a 

photospread containing a photograph 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) (―Slight 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) 

(concluding 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 description.‖ See Barley, 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 photograph was the only one with a height indicator in the 

background because this did not suggest that he had a characteristic that the 
8

other subjects did not share). Instead, Detective Randolph ensured that the 

content of his photospread featured six individuals with similar characteristics

with regard 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 characteristics, and he directed 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 

photograph, not based on its background, but because her eyes were drawn to 

his familiar face. See Doescher, 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 the photospread); Bethune v. State, 821 S.W.2d 222, 229 (Tex. App.—

Houston [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 the defendant’s facial features set his photograph

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 photographs for thirty to sixty seconds before 
9

finally choosing Wooden’s. See Smith 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). 

Finally, Detective Randolph advised Whitus that her assailant might not be 

pictured at all. See Mata, 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).

Considering the totality of the circumstances, including the content of the 

photospread itself and the manner in which Detective Randolph conducted the

pretrial 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 Barley, 906 S.W.2d at 33–34.

B. Second Barley Prong—Likelihood of Misidentification

Even 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 Conner, 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 Luna, 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 her 
10

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

Antonio 1998, pet. ref’d) (deferring 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 detail that she recalled demonstrated that she was very 

attentive during the robbery. See Delk 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 (1993). For example, 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 getaway 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 Luna,

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 these 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, as the trial court heard 
11

Detective Randolph state, hair styles are susceptible to change. See Loserth,

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 

day of the incident, when viewed in the appropriate light, this 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 Wooden’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 

inconsistency 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 had observed. As further evidence of reliability, the trial 
12

court had an opportunity to review the photograph that Whitus later testified 

showed that Wooden’s face was darker in some areas and lighter in others.

Turning to the fourth Biggers factor, Whitus exhibited a high level of 

certainty when she selected Wooden’s photograph 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 

testimonies was whether she pointed to Wooden’s photograph at that moment or 

took additional time to carefully examine each photograph. Either way, viewing 

the evidence in the appropriate light, the trial court could have found that this 

evidence supported a finding 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 strengthened 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 crime and 

the viewing of the photograph.‖).

In sum, we conclude that Wooden has not shown by clear and convincing 

evidence that the photospread was impermissibly suggestive, and the trial court 

could have reasonably found that each Biggers factor weighed in favor of 

reliability even if the photospread was impermissibly suggestive. See Biggers,

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, see Biggers, 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, Wooden complains that, absent the impermissibly 

suggestive photospread and the tainted in-court identification, insufficient 

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 incourt identification. However, we will still address the sufficiency in light of our 

decision on Wooden’s first two points. See Green v. State, No. 07-00-0586-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 incourt identification, 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, 332 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, 

corroborating Wofford’s testimony at trial was Whitus’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 missing or rotten tooth, and had a splotchy

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. The only contradicting 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 

this inconsistency and not independently construe the evidence. See id. We 

conclude 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 officers, and the evidence that police found Wooden and 

Whitus’s identification card in Wofford’s house—tended 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 affirm 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