### In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_________________________ No. 06

- 11

- 00217

- CR

______________________________
LEMURIA TAFAWN MCKNIGHT , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas Trial Court No. 22610

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley2 MEMORANDUM OPINION Lemuria Tafawn McKnight was convicted of robbery in a trial to the bench

. The trial court found him guilty and sentenced him to ten years’ incarceration. McKnight’s appeal claims the evidence was insufficient to support the verdict , and the procedure by which police showed the victim photo graphs of possible suspects was imperm issibly suggestive

. We affirm. Sufficiency of the Evidence We begin with McKnight’s second point of error, claiming the evidence was insufficient 1 to support his conviction. Three and one - half years elapsed between the robbery and the trial. Leslie Da vis testified at trial, in September 2011, that it was raining late morning or midday March 3, 2008, when she stopped at a convenience store in Paris, Texas. Davis testified that she got out of her car, turned to lock it, and a black man, “a little over” six feet in height, of medium build, hit her in the face, “[s]everal” times. The robber called her a “ bitch ” and told her to give him her keys. He grabbed the keys, but when Davis held on to them , he hit her again and grabbed her neck or her necklace (wh ich was found on the ground a short distance away) and asked Davis, “ [W] hat else you got.” In the fracas , Davis’s shir t and jacket pocket were torn

–– she said the pocket was torn when the robber tried to reach into it. The robber ran away, and

1 In evaluating the legal sufficiency of the charged offense, we review all the evidence in the light most favorable to the trial court ’ s judgment to determi ne whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)); Hartsfield v. State , 305 S.W.3 d 859, 863 (Tex. App.

— Texarkana 2010, pet. ref ’ d). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks , 323 S.W.3d at 917

– 18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Br ooks opinion, while giving deference to the responsibility of the jury “ to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. ” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. A pp. 2007) (citing Jackson , 443 U.S. at 318

– 19); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). L egal sufficiency is measured by the elements of the offense as defined by a hypothetically

- correct jury charge. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)

.3

Davis calle d 9

- 1

- 1 and then her fiancé. Davis said the robber was “clean shaved,” and had a
tattoo on his neck , which she described as “cursive [writing], with a name.” The tattooed name was a “whole word, in black.” The assailant wore “dark clothing. I remember, like, a green shirt, long sleeve, blue jeans a nd some kind of boots.” At trial, Davis identified McKnight as the robber. 2 Paris police officer Doug Murphy responded to the scene. He said Davis was crying and visibly upset; she had a torn shirt; she he ld a broken necklace; her coat pocket was ripped; and her face was red, “puffy, the beginning of swelling.” Davis described her attacker to Murphy as a black male between six foot, one inch to six foot, three inches tall; of “thin build.” 3 Davis told
Mur phy the robber “had very dark evil

- looking eyes and had a tattoo on his neck that was in cursive writing.” She described the attacker as wearing a green jacket, jeans, and black tennis shoes. Jeff Springer was the Sergeant Detective assigned to the cas e; he met with Davis the day of the attack at the police station. He described Davis as “very upset,” with redness in the face, “like bruising, like she’d been in a struggle,” with a torn shirt. Springer said Davis described her
assailant as a black male of slender build with short hair; she said he had “a tattoo on the left side of his neck, cursor

- type writing” with letters about an inch tall. As for the robber’s clothing,

2 Davis also testified a woman identifying herself as McKnight’s mother called her a few days after the robbery, saying that if Davis did not “drop it, they don’t know what’s going to happen.” The caller said she knew Davis’s v ehicle and where she lived; Davis said she was frightened by the call. McKnight’s mother acknowledged calling Davis, but denied threatening her.

3 Initially, under cross

- examination from McKnight’s attorney, Murphy said that Davis described the robber as between “190 to 210,” presumably pounds. When Murphy reviewed his written report, though, he acknowledged Davis had not given a weight. A constant theme throughout trial was the length of time between the offense and trial.4

Springer said Davis described him as wearing a green jacket, blue jeans, and som e dark colored shoes. 4 Springer showed Davis two photo graphic line

- ups, which had six pictures each: Davis did not identify any of those persons as her robber. Three days later , Springer showed Davis sixteen photographs he had collected of black males w ho had previously been arrested in Lamar County. 5 Davis identified one of these, a photo graph of McKnight, as her attacker. Specifically, Davis told Springer she was “99.99 percent” sure of her identification. Springer then showed
Davis a driver ’s license photo graph of McKnight, and she said , “ [Y] es, that’s definitely him.” The set of sixteen photo graph s, from which Davis selected McKnight, are included in the appellate record

. On McKnight’s neck is a mark that appears to be a tattoo; the one pho tographic subject bearing no facial hair also has marks on his neck , which look very much like a tattoo. In his defense, McKnight presented testimony from four family members. His parents both testified McKnight had been home the entire day of March 3, 2008, specifically during lunch time. Both said he could not have left the house and been away during the time of the robbery. Two of McKnight’s sisters also testified that although they were at work or school on the date in question, they saw McKnight at the family home in the morning and after 5:00 p.m. when they returned from work or school. Several of the family members testified they had never seen McKnight in a green shirt; that he seldom if ever wore jeans; nor had they ever seen him

4 In cross

- examination Mc Knight made much of the fact police never sought a search warrant to look for clothing in McKnight’s possession that matched Davis’s description given in trial and to the officers. Springer said he felt the description was too generic to justify a search warrant. Had the description included “some kind of identifying mark on the jacket or a logo,” a search warrant might have been sought. The only witness who said Davis described the shirt as having lettering was Danny Huff, who made the composite drawing . This description was also in Huff’s report, entered into evidence as defense exhibit 3. Davis’s trial testimony, and her descriptions at the time of the offense, as related by Springer and Murphy, did not include reference to lettering on the robber’s shirt front.

5 The photographic lineups are addressed in our discussion of McKnight’s first point of error.5

wear black t hick

- soled boots. His sisters testified McKnight only owned one pair of shoes, which were white Reebok tennis shoes . McKnight’s father testified that McKnight did not have a driver ’s license

–– testimony inconsistent with Detective Springer’s testimony tha t he had shown Davis McKnight’s driver ’s license photo graph

. In rebuttal, the State played recordings of two tele phone calls made from the police station to the McKnight family home. The first was McKnight calling home after his arrest. His mother ans wered, and he told her he was being held for a robbery charge. When speaking with Springer, Mrs. McKnight assure d him that McKnight had been home all day Monday , the third. She stated twice that a plumber was at the home that day. The second call is Det ective Springer calling McKnight’s father; the senior McKnight assure d Springer he, his wife, and daughters were all home and could attest that McKnight was home that day; but the father said no visitors were present

. When Springer advised Mr. McKnight th at Mrs. McKnight indicated a plumber was at the home the day in question, Mr. McKnight stated the plumber was there on Tuesday. At this point, Mr. McKnight was silent f or several seconds, and then stated , “Well . . . ” and abruptly told Springer he would h ave to get back with him. Based on the labeling of the exhibit , this tele phone call seems to have occurred March 10

. Mr. McKnight indicated he would come to the police station the next day to complete a statement. However, the written statements provided by the family members were not provided until April 3 (from the two parents) and April 8 (from McKnight’s sisters).
The trier of fact resolves con flicts in testimony and determines the credibility of witnesses. See Hooper , 214 S.W.3d at 13 (citing Jackson , 443 U.S. at 318

– 19). Here, the trial6

court was free to disbelieve or discount McKnight’s alibi witnesses and believe Davis’s
identification. T he evidence is sufficient to prove McKnight, in the course of committing theft of property, 6 with intent to maintain control of that property, intentionally, knowingly , or recklessly caused bodily injury to Davis. The evidence is sufficient to support the conviction. We overrule McKnight’s second point of error.
Photo graph s Shown to Victim McKnight complains that when Detective Springer showed a stack of sixteen photographs of possible suspects to Davis, the submitted photo graph s were “overly suggestive , ” which tainted Davis’s trial identification of McKnight as the man who robbed her. When faced with a challenge to an out

- of

- court identification, a trial court must look to the totality of the circumstances surrounding the identification to de termine if a procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Webb v. State , 760 S.W.2d 263, 272 (Tex. Crim. App. 1988). In the first step in this analysis, t he trial court determines whether the identification procedure was impermissibly suggestive. Barley v. State , 906 S.W.2d 27, 33

– 34 (Tex. Crim. App. 1995). If the trial court determines the identification is impermissibly suggestive, the court must then c onsider the factors enumerated in Neil v. Biggers 7 to determine whether the suggestive procedure gave

6 “‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” T EX
. P ENAL C OD E A NN
. § 29.01(1) (West 2011).

7 409 U.S. 188 (1972). The Bigge rs factors are: (1) the witness ’ s opportunity to view the criminal act, (2) the witness ’ s degree of attention, (3) the accuracy of the suspect ’ s description, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and c onfrontation. Barley , 906 S.W.2d at 34

– 35.7

rise to a substantial likelihood of irreparable misidentification. Throughout this process, the burden is on the movant to show impermissible suggestion and substantial likelihood of misidentification by clear and convincing evidence. See Barley , 906 S.W.2d at 33

– 34. As mentioned above, the day of the robbery , Davis was shown two photo graphic line

ups, each having six photographs : Davis did not identify any of those persons as her attacker. About three days later, she returned to the police station. Springer had obtained about twenty

five photographs of possible suspects, meeting the description of a black male, six feet tall, with

a tattoo on the left side of the neck. Springer culled this selection down to sixteen, eliminating those where the tattoo lettering was “too big” to correspond with Davis’s description, and those persons who were incarcerated at the time. Springer t ook Davis to Huff, a police officer who made a composite image of a suspect based on Davis’s description. Springer then gave the stack
of sixteen photographs 8 to Davis and told her, “ [I] f you see the person

. . . point them out to me.” Springer said he h anded the photographs to Davis in a stack , and she looked at them one at a time. At the time, Springer did not know any of the persons in the photo graphs by name; he had contact with McKnight in years past, but at the time of the Davis investigation , McKn ight was not a person of interest in the case. Davis looked through the stack; when she came to McKnight’s photograph , her “hand started trembling, [her] voice started shaking, and she said, this is him.” Springer asked Davis how sure she was of her iden tification; she said , “99.99 percent.” Springer then showed Davis McKnight’s driver’s l icense photo graph , and Davis said, “[Y] es, that’s definitely him.”

8 These photographs were obtained from book

- in photographs at the sheriff’s office; they were too large to fit in the usual six

- picture format used for photographic line

- ups.8

We have reviewed the sixteen photo graph s shown Davis. All of the photo graph s show African

- America n men, perhaps in their twenties or thirties. While the photographs of McKnight and one other man are the only ones with out facial hair , several of the photographs show men with very thin moustaches and/or beards. Some of the photographs depict men with tattoos on their necks . I n some of the photographs , however, it cannot easily be determined if there is a tattoo on the subject’s neck; if a shadow or trick of light suggests a tattoo; or if there is
no tattoo or mark on the neck at all. We do not find the photo graph s shown to Davis were impermissibly suggestive. The differences in facial hair among the subjects does not render the line

- up impermissibly suggestive. In Withers v. State , 902 S.W.2d 122, 125 (Tex. App.

— Houston [1st Dist.] 1995, pet. ref’ d), the defendant was clean shaven at the time of his identification, but two of the four others in the nonphotographic line

- up had beards. This dissimilarity did not render the line

- up unduly suggestive. 9 Further, simple minor discrepancies between line up participants will not render a lineup unduly suggestive. Partin v. State , 635 S.W.2d 923, 926 (Tex. App.

— Fort Worth 1982, pet. ref’d ). As for the tattoos on the pictured subjects, the trial court had great difficulty even seeing the neck tattoo in McKnight’s photograph . Reviewing, in the totality of the circumstances, the sixteen photographs presented Davis, we do not find the proced ure used by Springer to be unduly suggestive.

9 There were several other dissimil arities present in Withers : the other subjects ranged in age from twenty

- one to forty

- one, had heights of 5’9” to 6’1” , and weighed between 155 to 205 pounds. Withers was thirty

- nine, 5’8” , and weighed 160 pounds. See also Turner v. State , 600 S.W.2d 92 7, 932 (Tex. Crim. App. [Panel O p.] 1980) (line

- up of five persons, two of whom ha d beards and not physically close to defendant in size and hair color, not impermissibly suggestive)

.9

The line

- up procedure not being unduly suggestive, it is not necessary for us to consider the reliability of Davis’s in

- court identification. See Barley , 906 S.W.2d at 34 (where photographic line

- up procedure not impermissibly suggestive, court need not examine record to determine if substantial likelihood of misidentification present). McKnight’s first point of error
is overruled. We affirm t he trial court’s judgment and sentence.

Bailey C. Mos eley Justice Date Submitted: June 25, 2012 Date Decided: July 11 , 2012 Do Not Publish