1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-12-00119-CR

____________________

FARRAIN JOSEPH COMEAUX A/K/A FARRAIN J. COMEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Cause No. 10-08719

__________________________________________________________________

OPINION

A jury found Farrain Joseph Comeaux1 guilty of burglarizing a habitation. 

See Tex. Penal Code Ann. § 30.02(a)(1), (c)(2) (West 2011). Comeaux raises five 

issues in his appeal. We conclude that none of Comeaux’s issues entitle him to 

receive a new trial or require his acquittal. We affirm the trial court’s judgment.

 1

The indictment alleges that Comeaux is also known as Farrain J. Comeaux. 
2

Jury Selection

In issue one, Comeaux complains that the trial court erred by denying the 

challenge for cause that he lodged against prospective juror 23 (PJ 23). During jury 

selection, PJ 23 informed Comeaux’s attorney that he had been burglarized. 

When Comeaux’s attorney asked PJ 23 if he could nevertheless be fair, PJ 23

stated: “I don’t think you’d want me on there. I have real strong feelings about it.” 

When Comeaux’s attorney concluded, he asked the prospective jurors to indicate 

whether they might not be appropriate jurors for a case involving an alleged 

burglary; PJ 23 raised his hand. At that point, the trial court excused the other 

prospective jurors, and allowed the attorneys to ask PJ 23 more questions. 

Outside the presence of the other prospective jurors, the prosecutor asked 

whether PJ 23 could set aside his experience and make a decision in the case based 

on the evidence. PJ 23 responded: 

[PJ 23]: I don't think -- I’d glad[l]y serve on a jury. I don’t think this 

one --

[Prosecutor]: Do you already feel like he’s guilty?

[PJ 23]: No, I don’t feel that way. I just don’t feel I can be fair.

[Prosecutor]: You feel like you’d be leaning toward the State?

[PJ 23]: Probably lean more toward him.
3

[Prosecutor]: Oh, okay. I guess I was confused. Sorry. You don’t feel 

like you’d be able to make a decision in the case based on the 

evidence and facts of this case alone and put you[r] prior experience

aside and follow the law the Judge gives you?

[PJ 23]: Honestly, no.

After the prosecutor finished questioning PJ 23, Comeaux’s attorney asked: 

[Defense]: Why do you feel you would be leaning toward Mr. 

Comeaux? Everything you’ve told me was that you’ve been -- you 

had -- you’ve been burglarized yourself --

[PJ 23]: I said wrong -- I put it the wrong way.

[Defense]: What did you mean?

[PJ 23]: I’d be more against him. Sorry.

[Defense]: Okay. And that was because the conversation we’d had 

about the fact that you’d been burglarized in the past and --

[PJ 23]: Uh-huh.

[Defense]: -- you just don’t think you could be fair and, to be on the 

safe side, you’d -- you think you shouldn’t be on a -- you shouldn’t 

judge a person who’s accused of a burglary case because -- since you 

were burglarized, you’d be more likely or -- to have that information 

you -- irrespective of the evidence that you saw.

[PJ 23]: Right. When I got burglarized, it changed a bunch of things in 

me. My whole lifestyle changed. They -- because the one guy that did 

it, I think there was more than one involved.

[Defense]: Okay. I just move to strike for cause, Judge.

THE COURT: [Prosecutor]?
4

[Prosecutor]: I don’t know, Judge.

THE COURT: Here’s what it all boils down to: Are you going to let 

that experience cause you to violate the law and write down false 

answers?

[PJ 23]: I’m not trying to violate the law. It will be in the back of my 

mind.

THE COURT: It doesn’t -- if it’s in the back of your mind -- it’s okay 

to be in the back of your mind out here; okay? Just because you’ve

experienced life and I’ve experienced life, that doesn’t mean that we 

don’t get to serve as a juror.

[PJ 23]: Right.

THE COURT: The question is this: Can you sit and listen to the 

evidence -- and you’re going to have to raise your right hand; you are 

going to have to swear or affirm to God that you’re going to answer 

the questions truthfully. If [the prosecutor] does her job and proves to 

you beyond a reasonable doubt that that man’s guilty, are you going to 

go back down there and write down that he’s not guilty?

[PJ 23]: No.

THE COURT: Okay. On the other side of that, if she doesn’t do her 

job and she doesn’t prove this case to you beyond a reasonable doubt 

and you know that she hasn’t done her job, are you going to go back

there and find him guilty and help her just to hurt this man?

[PJ 23]: I could be fair.

THE COURT: That’s what we need to know. The bottom line to it is, 

is that you can either be fair or you cannot be fair. You will either 

follow the law and your oath as a juror or you won’t. And, you know, 

I’ve listened to it. I know you don’t mean to confuse, but I think she 

was a little confused. I think he’s been a little confused. The bottom 

line to it is all we want is 12 people that can do the right thing. But, 
5

it’s -- some people say, Judge, I will not follow the law. I will go back 

there, and I will hurt this guy no matter what I have to do. She could 

not put on any evidence, but I’m so mad at people that burglarize 

houses I’m going to punish this man as a result of my anger.

[PJ 23]: No.

THE COURT: We don’t want those folks.

[PJ 23]: Right.

THE COURT: But the bottom line to it is, I know you’ve had bad 

experiences. Other jurors have had bad experiences. You don’t have 

to leave that outside. That’s stuff that you can take in there and you 

can consider all that. But at the end of the day, you can’t help her do 

her job, and you can’t punish this man if she doesn’t do her job. So, 

my question, again: Can you follow the law and render a fair and

impartial verdict, or are you going to violate the law, are you going to 

violate your oath as a juror and go against this man just because 

you’ve been a victim in the past?

[PJ 23]: No. I can do what’s right.

Because the trial court refused to strike PJ 23 for cause, Comeaux’s attorney 

used one of his peremptory strikes to strike him. Then, Comeaux’s attorney 

requested an additional peremptory strike, informing the trial court that if given 

another strike, he would use it on PJ 27. The trial court refused to give Comeaux 

an additional strike. The record also shows that Comeaux used his strikes on 

prospective jurors 2, 5, 10, 13, 20, 23, 24, 26, 31, and 34. Subsequently, PJ 27, the 

prospective juror that Comeaux identified as objectionable, was seated as the 

twelfth juror. 
6

The record shows that Comeaux used all ten of his peremptory challenges.

In non-capital felony cases, the State and the defendant are each allocated ten 

peremptory challenges. Tex. Code Crim. Proc. Ann. art. 35.15(b) (West 2006). The

State also used all ten of its peremptory challenges, striking prospective jurors 3, 8, 

10, 13, 14, 16, 18, 19, 20, and 21. 

Under the Code of Criminal Procedure, a defendant may challenge a 

prospective juror for cause if the juror has “bias or prejudice in favor of or against 

the defendant[,]” or “a bias or prejudice against any of the law applicable to the 

case upon which the defense is entitled to rely[.]” Id. art. 35.16(a)(9), (c)(2) (West 

2006). “A challenge for cause is an objection made to a particular juror, alleging 

some fact which renders the juror incapable or unfit to serve on the jury.” Id. art. 

35.16(a). Bias against the law includes a potential juror’s refusal to consider or 

apply the relevant law because the potential juror’s beliefs or opinions would 

prevent or substantially impair the performance of the juror’s duties. Sadler v. 

State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). The test of whether the juror 

should be dismissed is whether the bias or prejudice would substantially impair the 

juror’s ability to carry out his oath and instructions in accordance with the law. 

Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009); Feldman v. State, 

71 S.W.3d 738, 744 (Tex. Crim. App. 2002).
7

Because the trial judge is in a better position than an appellate court to 

evaluate a prospective juror’s demeanor and response, the trial court’s decision to 

deny a challenge for cause is reviewed with considerable deference. Gardner, 306 

S.W.3d at 295-96. “A trial judge’s ruling on a challenge for cause may be reversed 

only for a clear abuse of discretion.” Id. at 296. We review the entire record of the 

voir dire to determine whether sufficient evidence supports the trial court’s ruling. 

Feldman, 71 S.W.3d at 744.

Comeaux argues that PJ 23’s answers demonstrate his bias. The State 

contends that PJ 23’s answers to the trial court’s questions show that PJ 23 could 

set aside his prejudice and follow the law. And, the State contends that even if the 

prospective juror’s answers do not show that the prospective juror could set aside 

his bias, Comeaux failed to use all of his strikes on prospective jurors in the “strike 

zone.”2 By failing to use all of his strikes on jurors in the strike zone, the State 

concludes that Comeaux failed to use his strikes to prevent any harm which 

occurred from the trial court’s refusing to grant his request for an additional strike.

 2

There were thirty-six members of the venire. Given that each party had ten 

peremptory strikes and that none of the prospective jurors were excused for cause, 

PJ 32 was the last prospective juror subject to being seated on Comeaux’s jury.

Comeaux used one of his strikes on PJ 34, a member of the venire who was outside 

the strike zone. 
8

PJ 23’s answers do not reflect that he could follow the law he would be 

given in the charge, as that question was not asked. Additionally, had PJ 23 served 

on the jury, he would have been instructed not to consider facts not in evidence and 

not to consider legal principles not contained in the charge. He would also have 

been instructed not to discuss or consider anything he knew or learned outside the 

testimony presented in court. However, the record shows that in attempting to 

rehabilitate PJ 23, the trial court told PJ 23 that he could consider his experiences, 

stating: “That’s stuff that you can take in there and you can consider all that.”

When we consider the record and PJ 23’s answers as a whole, we conclude 

that PJ 23 did not represent to the court that he could honestly make a decision in 

the case based on the evidence and facts of the case alone, that he would commit to 

putting aside his prior experience if chosen to serve on the jury, or that he would 

disregard his prior experience and follow the trial court’s instructions to do so. See

id. at 744 (stating that “[t]he test is whether the bias or prejudice would 

substantially impair the prospective juror’s ability to carry out his oath and 

instructions in accordance with law”). Because bias was established, and the juror 

was not rehabilitated, we conclude the trial court erred by failing to grant 

Comeaux’s motion to strike. See Sosa v. State, 769 S.W.2d 909, 918-19 (Tex. 

Crim. App. 1989) (prospective juror’s indication that she could not be fair and 
9

impartial due to her views on the death penalty supported the trial court’s ruling 

striking the prospective juror for cause); see also Vaughn v. State, 833 S.W.2d 180, 

185 (Tex. App.—Dallas 1992, pet. ref’d) (when juror stated unequivocally that she 

could not be fair and impartial, bias was established as a matter of law). We hold 

the trial court abused its discretion by denying Comeaux’s request to excuse PJ 23 

for cause.

To demonstrate that he was harmed by the trial court’s denial of his motion 

to strike and his request for an additional peremptory strike, Comeaux must 

demonstrate that he exhausted all of his peremptory strikes and asked for more. See

Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 7 (Tex. Crim. App. 2001)

(noting that the defendant must exhaust his peremptory challenges to show harm 

due to the trial court’s erroneous denial of a challenge for cause); Jones v. State, 

833 S.W.2d 118, 123 (Tex. Crim. App. 1992) (noting that error arising from the 

trial court’s failure to grant a challenge for cause requires the defendant to show 

harm by demonstrating that he used a peremptory strike to remove the 

objectionable potential juror). Although Comeaux used all of his strikes in jury 

selection, he used one of his strikes on a prospective juror who, because of his 

placement on the panel of prospective jurors, was not exposed to serving on 

Comeaux’s jury. In this case, we must decide whether the rules of error 
10

preservation require that Comeaux show that all of his strikes were used on 

prospective jurors who were exposed to serving on Comeaux’s jury—the 

prospective jurors in the strike zone.

Generally, attorneys use peremptory strikes to remove potential jurors who 

are perceived as being potentially biased in an effort to obtain a trial by an 

impartial jury. However, even “the right to trial by impartial jury, like any other 

right, is subject to waiver (or even forfeiture) by the defendant in the interest of 

overall trial strategy.” State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 

2008) (citing Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992)). The 

record contains nothing to explain why Comeaux wasted a peremptory strike on a 

potential juror who was not in the strike zone. And, without diminishing the 

relative strength of his ten peremptory challenges, Comeaux could have removed 

PJ 27, the juror he identified as objectionable.

In our opinion, defendants that complete jury selection without using all 

peremptory strikes and defendants who allow objectionable jurors to remain on the 

jury because they employ strikes outside the strike zone should be treated in the 

same manner for purposes of the rules of error preservation. In both situations, the 

potential juror the party is complaining about on appeal is a potential juror that the 

party could have chosen to remove from the panel without diminishing the relative 
11

strength of the peremptory challenges allocated to the defendant by statute. 

Because Comeaux failed to use all ten of his strikes on prospective jurors in the 

strike zone, we conclude that Comeaux has not shown that he exhausted his 

peremptory challenges. Consequently, Comeaux’s complaint that the trial court 

refused his request for an additional strike resulting in an objectionable juror being 

seated on the jury is not preserved for purposes of appellate review. See Tex. R. 

App. P. 44.2(b); Johnson, 43 S.W.3d at 7 n.9 (explaining that harmless error can 

occur even when the procedural steps outlined by the Court are followed in cases 

involving challenges of jurors for cause). We overrule issue one.

Opening Statement

In issue two, Comeaux complains that the prosecutor improperly mentioned

an extraneous crime in opening statement when she mentioned that after 

attempting to commit a burglary of the residence at issue he went to another 

residence. As the prosecutor was about to mention that Comeaux committed 

another burglary at the second residence, Comeaux’s attorney lodged an objection 

to the prosecutor’s mentioning “any other alleged criminal activity[,]” and moved 

for a mistrial. The trial court denied the request. 

Article 36.01 of the Code of Criminal Procedure allows the prosecutor to 

make an opening statement by stating “the nature of the accusation and the facts 
12

which are expected to be proved by the State in support thereof.” Tex. Code Crim. 

Proc. Ann. art. 36.01(a)(3) (West 2007). The record reflects that the State 

introduced evidence during the trial to show that on the same evening Comeaux

was attempting to burglarize a garage attached to J.S.’s residence, Comeaux 

attempted to burglarize B.P.’s garage. The trial court admitted all of B.P.’s 

testimony about the attempted burglary of his garage without objection. 

The prosecutor’s comments in opening statement about the attempted 

burglary that occurred in B.P.’s garage concern a matter on which evidence was 

later admitted during Comeaux’s trial. Comeaux did not complain during trial nor 

has he complained on appeal that the evidence regarding the extraneous burglary 

was improperly admitted. When evidence about a matter mentioned in opening is 

properly admitted in a trial, the prosecutor’s mention of the evidence in opening 

statement is not error. See Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 

1982). The trial court did not abuse its discretion by overruling Comeaux’s motion 

for mistrial. We overrule issue two.

Sufficiency of the Evidence

In issue three, Comeaux argues the evidence is insufficient to prove that he 

attempted to burglarize the habitation where J.S. was living. We review a challenge 

to the legal sufficiency of the evidence in the light most favorable to the verdict to 
13

determine if a rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

see also Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). In 

reviewing the evidence from a trial, we do not substitute our judgment for that of 

the factfinder’s; instead, we give deference to the jury to exercise its responsibility 

to fairly resolve any conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from the facts. See Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007).

Under the charge submitted to the jury in Comeaux’s case, the State was 

required to prove beyond reasonable doubt that Comeaux entered a habitation 

owned by J.S., without his effective consent, intending to commit a theft. See Tex. 

Penal Code Ann. § 30.02(a)(1). Comeaux argues that “[t]he fact that the [State’s] 

two witnesses were unable to see the perpetrator’s face establishes reasonable 

doubt as to the identity of the perpetrator of the burglary charged against 

[Comeaux].” Comeaux concludes that the “identity evidence of [Comeaux] as the 

alleged perpetrator was legally insufficient for the State to prove the element of 

identity.” 

In reviewing challenges that concern the sufficiency of evidence, we 

consider both properly and improperly admitted evidence. See Clayton v. State, 
14

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“Our review of ‘all of the evidence’ 

includes evidence that was properly and improperly admitted.”) (citing Conner v. 

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001)). J.S. pointed to Comeaux in the 

courtroom when asked to identify who he saw in his garage on the evening of 

March 16, 2010. J.S. also explained that approximately one hour after seeing a 

person run from his garage, police took him to another location where Comeaux 

was being detained, and a policeman asked: “Is that him[?]” J.S. stated that he 

explained to the policeman that he had not gotten a clear look at the person’s face; 

nevertheless, J.S. also told the police that the person they had detained was the 

individual he had seen in his garage. At trial, J.S. explained that he based his 

identification of Comeaux on “the clothes that he was wearing and the specific 

emblem on his jacket.” According to J.S., the denim jacket the person in his garage 

wore had a round emblem of a mountain on the back of the jacket. J.S. also 

testified that the person he saw and later identified was wearing blue jeans and 

white sneakers. 

B.P., who testified without objection, also identified Comeaux as the person 

he had seen in his garage around ten o’clock at night on March 16, 2010. Less than 

an hour later, the police took B.P. to a location where they had detained Comeaux.

B.P. identified Comeaux as the person he had seen in his garage that evening. B.P. 
15

explained that he identified Comeaux based on Comeaux’s clothing, his hairstyle, 

and because he had been able to see Comeaux in the garage that night from a side 

profile. B.P. testified that he was confident that the person he identified the night of 

the burglary was the person who he saw in his garage. Additionally, B.P. identified 

Comeaux in court as the person that he had seen in his garage on the evening of 

March 16. Viewed in the light most favorable to the verdict, B.P.’s testimony 

places Comeaux in the neighborhood on the evening at issue, puts Comeaux in 

similar if not identical clothing, and establishes that Comeaux had attempted to 

commit another burglary of a garage that same evening. As such, the testimony 

provides support for the jury’s conclusion that Comeaux was the person that J.S. 

had seen in his garage. See Brooks, 323 S.W.3d at 899.

Sergeant David Odom’s testimony offers additional support for the jury’s 

verdict. Sergeant Odom, an employee of the Nederland Police Department, spoke 

to J.S. approximately twenty minutes after the burglary in his garage occurred. 

According to Sergeant Odom, J.S. described the person he saw in his garage as “a 

white male wearing blue jeans and a blue jean jacket[.]” Sergeant Odom began 

driving around in an effort to locate a person matching J.S.’s description of the 

burglar. A few minutes later, Sergeant Odom learned that another burglary had 

been reported in the same neighborhood. According to Sergeant Odom, the two 
16

residences involved in the attempted burglaries are approximately nine blocks 

apart. After learning of the second burglary, Sergeant Odom spoke to B.P., who 

told him what happened at his residence. 

Shortly after speaking to B.P., Sergeant Odom was driving around in the 

neighborhood where the burglaries had been reported when he saw a red truck pull 

into the driveway of a residence whose garage door was open. The passenger in the 

truck, Comeaux, then began walking toward the garage. Sergeant Odom testified 

that when Comeaux saw his patrol vehicle, he “immediately turned to the right and 

proceeded up the walkway to the front door.” By the time Sergeant Odom turned 

his car around, Comeaux was getting back into the red truck. When the truck 

attempted to back out of the driveway, Sergeant Odom “pulled up behind them in 

the driveway.” 

After approaching the truck, Sergeant Odom asked the two men what they 

were doing. The driver told him that he was dropping Comeaux off at his friend, 

Jason Simino’s, house. Comeaux told Sergeant Odom that his friend was Jason

Simino, but that “Jason wasn’t at home.” According to Sergeant Odom, the owner 

of the residence adjacent to the driveway where the truck was parked stated that he 

was not Jason Simino and that he did not know Comeaux. 
17

Sergeant Odom explained that Comeaux’s clothing matched J.S.’s and 

B.P.’s description of the clothes the suspect was wearing at the time the attempted 

burglaries occurred, so he detained Comeaux while other officers picked up J.S. 

and B.P. to determine if they could identify Comeaux. After J.S. and B.P. 

identified Comeaux, Sergeant Odom placed Comeaux under arrest. Sergeant Odom 

identified Comeaux in court as the person he saw approaching the open garage of a 

residence on the evening of March 16. Sergeant Odom’s testimony lends support to 

the jury’s conclusion that Comeaux was the person who burglarized J.S.’s and 

B.P.’s garages on the evening of March 16, 2010. 

Although there are conflicts in the testimony, in a legal sufficiency review 

we are required to defer to the jury’s determinations regarding which witnesses 

were credible and how the jury weighed various parts of the evidence. See Brooks, 

323 S.W.3d at 899. J.S. identified Comeaux as the person who committed the 

attempted burglary within approximately one hour of the time the burglary 

occurred. Comeaux was wearing clothes that the jury could conclude closely 

matched the clothes being worn by the burglar. B.P.’s testimony identifying 

Comeaux as the person who burglarized his garage on the same evening and in the 

same neighborhood also supports the jury’s conclusion that Comeaux was the 

person who burglarized J.S.’s habitation. See Lane v. State, 933 S.W.2d 504, 519 
18

(Tex. Crim. App. 1996) (stating that extraneous-offense evidence may be 

admissible to show identity where extraneous offense is shown to be sufficiently 

similar to the charged offense by proximity in time and place). Finally, the 

evidence that Comeaux attempted to mislead police about what he was doing in the 

area allowed the jury to infer that Comeaux lied to avoid being arrested for the 

burglaries at issue. See Tex. R. Evid. 404(b); Guevara v. State, 152 S.W.3d 45, 50 

(Tex. Crim. App. 2004) (noting that a defendant’s implausible explanations to 

police are probative of wrongful conduct and are also circumstances of guilt); 

Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on reh’g)

(explaining that any extraneous conduct which tends to show consciousness of 

guilt may be deemed relevant); Ross v. State, 154 S.W.3d 804, 812 (Tex. App.—

Houston [14th Dist.] 2004, pet. ref’d) (noting that making false statements to 

police indicates a consciousness of guilt). In measuring the sufficiency of the 

evidence, “[e]very fact need not point directly and independently to the 

defendant’s guilt.” Conner, 67 S.W.3d at 197. And, a conclusion that a defendant 

is guilty “can rest on the combined and cumulative force of all incriminating 

circumstances.” Id. 

After reviewing the evidence in the light most favorable to the verdict, we 

conclude that a rational trier of fact could have found that Comeaux burglarized 
19

J.S.’s habitation beyond a reasonable doubt. We hold that the combined cumulative 

force of all of the incriminating evidence and the incriminating circumstances is 

legally sufficient evidence that supports the jury’s verdict; we overrule Comeaux’s 

third issue. 

Identification Evidence

In issue four, Comeaux argues the showup that the police arranged created 

suggestive circumstances leading J.S. and B.P. to identify Comeaux as the 

perpetrator of the burglaries. A showup has been defined as a “pretrial 

identification procedure in which a suspect is confronted with a witness to or the 

victim of a crime. Unlike a lineup, a showup is a one-on-one confrontation.” 

BLACK’S LAW DICTIONARY 1506 (9th ed. 2009). 

We previously noted that B.P.’s testimony was admitted without objection.

In his motion to suppress, Comeaux did not complain about B.P.’s identification of 

him as the person who B.P. saw in his garage. Because Comeaux failed to object at 

trial regarding the admission of B.P.’s testimony, his complaint about the 

admission of that testimony has not been preserved for our review on appeal. See 

Tex. R. App. P. 33.1(a) (preserving error for appellate review requires the 

complaining party to show that he presented his complaint to the trial court in a 

timely request, objection, or motion and that the trial court ruled on the request). 
20

To address Comeaux’s complaint that the trial court improperly allowed J.S. 

to identify Comeaux in the courtroom as the person who attempted to burglarize 

his garage, we first evaluate whether the showup procedure at issue was 

unnecessarily suggestive. See Perry v. New Hampshire, 132 S.Ct. 716, 722-23 

(2012). The record reflects that police called J.S. around an hour after the 

attempted burglary of his garage, telling him that they wanted him to come see if a 

man they had detained was the man he had seen in his garage. When J.S. viewed 

the man approximately one hour after the attempted burglary occurred, the man 

was standing and talking to other officers; he was not in handcuffs; and, J.S. denied 

that police suggested that the man they had was the burglar. When asked if the man 

being detained was the man that J.S. had seen in his garage, J.S. told the police that 

while he did not get a clear look at the man’s face, he did see the man’s clothing. 

J.S. also testified that he felt confident the man police had detained was the same 

person he saw attempting to steal something from his garage. J.S. testified that his 

identification was based on the man’s clothing and a specific emblem containing a 

mountain located on the back of the man’s jacket. 

There are certainly reasons the jury could have questioned the accuracy of 

J.S.’s identification. Although the light in the garage was on, J.S. testified that he 

was startled when he saw a man in his garage, and he stated the man immediately 
21

ran out of the garage. Additionally, J.S. identified Comeaux based on his clothing, 

not his physical features, J.S. did not see Comeaux’s face when he was in the 

garage, and Comeaux was being detained by police when J.S. was asked if the 

person they had detained was the person he saw in his garage. Nevertheless, while 

on-scene confrontations between an alleged perpetrator and the victim have a 

degree of suggestiveness, the credibility of and the weight to be given 

identification testimony where time is of the essence in catching the suspect are

matters that are generally left to juries. See Fite v. State, 60 S.W.3d 314, 318 (Tex. 

App.—Houston [14th Dist.] 2001, pet. ref’d).

Here, the evidence tends to suggest the showup procedure was necessary. 

J.S. was the only witness who could identify or exonerate Comeaux as the person 

he saw in his garage; the burglary had occurred about an hour earlier that evening, 

but J.S. had only a brief opportunity to view the perpetrator, limiting the time the 

police had to use J.S.’s recollection while his memory remained fresh.

Additionally, the record does not indicate that Sergeant Odom knew of Comeaux’s 

prior criminal record when he detained Comeaux, so nothing indicates that the 

officer who arranged the showup knew that police had a mug shot of Comeaux in 

their possession. And, when police detained Comeaux, they had not yet developed 

probable cause for his arrest; a brief detention to allow a victim of a crime to view 
22

a suspect allows the police to quickly clear an innocent person while only briefly 

detaining the suspect to investigate a suspected crime. See Garza v. State, 633 

S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh’g). Also, there was no 

evidence introduced in the hearing showing that Sergeant Odom had better 

alternatives than a showup to further the investigation at issue.

Although a police showup is suggestive, with respect to J.S’s identification 

of Comeaux, nothing suggests that Sergeant Odom or the other police officers 

involved in handling Comeaux’s showup engaged in any improper conduct. See 

Perry, 132 S.Ct. at 726 (noting that in past cases, “the Court has linked the due 

process check, not to suspicion of eyewitness testimony generally, but only to 

improper police arrangement of the circumstances surrounding an identification”).

In Perry, the United States Supreme Court concluded that “[t]he fallibility of 

eyewitness evidence does not, without the taint of improper state conduct, warrant 

a due process rule requiring a trial court to screen such evidence for reliability 

before allowing the jury to assess its creditworthiness.” Id. at 728. 

Additionally, we note that Comeaux did not obtain a hearing on his motion 

to suppress J.S.’s testimony, nor did he request that the trial court allow him to take 

J.S. on voir dire before J.S. identified him in the courtroom. As the party 

complaining of an in-court identification, Comeaux was required to show by clear 
23

and convincing evidence that J.S.’s in-court identification was tainted by an 

improper pretrial identification procedure.3 See Jackson v. State, 628 S.W.2d 446, 

448-49 (Tex. Crim. App. 1982). The record does not show that Comeaux made the 

necessary showing before the trial court admitted the testimony at issue, nor does it 

demonstrate that Comeaux met his burden to show that police used a tainted 

procedure based on the testimony as a whole.

Based on all of the evidence in the record, we conclude that Comeaux has 

not met his burden to prove that the showup was unnecessarily or impermissibly 

suggestive. We overrule Comeaux’s fourth issue.

 3

The record reflects that J.S. was the first witness who testified during the 

trial; he identified Comeaux in court shortly after explaining that he had seen a 

man in his garage on the evening of March 16, 2010. At that point, the trial court 

had not heard any testimony regarding the circumstances surrounding the showup, 

nor had J.S. testified that he had not seen the suspect’s face or that he subsequently 

identified Comeaux by the clothes that he was wearing. Later, when J.S. explained 

the basis on which he identified Comeaux, Comeaux did not ask that the trial court 

strike J.S.’s in-court identification as unreliable. Nevertheless, the State has not 

suggested that Comeaux was required to do more than file a motion to suppress 

and object to preserve his complaint. Dix and Schmolesky suggest that in handling 

suppression issues, trial courts should hear evidence on the issue of admissibility 

before determining whether the evidence is admissible and before submitting the 

evidence to the jury. 41 George E. Dix & John M. Schmolesky, Texas Practice: 

Criminal Practice and Procedure § 18:4 (3d ed. 2011) (discussing the trial court’s 

obligation to independently and definitively resolve a defendant’s exclusionary 

rule objections). Comeaux has not asserted that the trial court, without a request to 

do so, was required to conduct a pretrial hearing to address the reliability of J.S.’s 

identification testimony.
24

Speedy Trial

In his fifth issue, Comeaux contends that he was denied his constitutional 

right to a speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. In 

determining whether a defendant has been denied this right, the reviewing court 

balances four factors: (1) length of the delay, (2) reason for the delay, (3) assertion 

of the right, and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530

(1972); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). No single 

factor is either a necessary or a sufficient condition to justify a finding that a 

defendant has been deprived of his speedy trial right, and courts must engage in a 

balancing process in each individual case. Barker, 407 U.S. at 530, 533; Zamorano 

v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). The application of these 

factors is a legal question that is subject to de novo review. Johnson, 954 S.W.2d at 

771. 

Comeaux’s trial began on March 5, 2012, eleven days before the two year 

anniversary of his arrest. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 

2003) (noting that length of delay is measured from the time the defendant is 

arrested or formally accused). Generally, courts have considered delays 

approaching one year to be “‘presumptively prejudicial’” and sufficient to trigger a 

speedy trial inquiry. See Doggett v. United States, 505 U.S. 647, 651-52 & n.1
25

(1992); Shaw, 117 S.W.3d at 889. Consequently, the first Barker factor favors

Comeaux. See Zamorano, 84 S.W.3d at 649.

Once it has been determined that a presumptively prejudicial delay has 

occurred, the State bears the initial burden of explaining the delay. Emery v. State, 

881 S.W.2d 702, 708 (Tex. Crim. App. 1994). In Comeaux’s case, the State

contends that the delay is due to “far too many cases impacting the trial court’s 

docket.” But, the record contains no evidence to support that suggestion. The State

also contends there “is no indication of bad faith on the part of the State or defense 

counsel” with respect to the delay at issue. We agree that nothing in the record 

shows that bad faith contributed to any of the delays in the court’s reaching 

Comeaux’s case for trial.

The record before us shows that the trial court reset Comeaux’s case nine 

times between his arrest and his trial. The record does not reflect whether one of 

the parties requested the court to reset the case, or whether the court reset the case 

sua sponte. The record shows that three different attorneys were appointed to 

represent Comeaux before his case was reached for trial. However, the record is 

silent regarding the reasons that Comeaux changed counsel. With respect to the 

delay and the absence of explanation for it, this factor weighs against the State. See 

Zamorano, 84 S.W.3d at 649-51. However, there is also no evidence that the State 
26

attempted to deliberately delay Comeaux’s trial. Therefore, while we weigh the 

second Barker factor against the State, it is given less weight than the remaining 

three factors in our analysis. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. 

App. 2003).

The third Barker factor requires that we determine when the defendant 

asserted his right to a speedy trial. Barker, 407 U.S. at 528-29, 531-32; see also 

State v. Munoz, 991 S.W.2d 818, 825 (Tex. Crim. App. 1999) (placing the burden 

on the defendant to assert or demand his right to a speedy trial). Comeaux first 

asserted his right to a speedy trial by filing a writ of habeas corpus on October 3, 

2011. The trial court denied the petition on October 4, 2011.4 As of October 2011, 

the trial court and the State were aware of Comeaux’s complaint that he was not 

getting a speedy trial. See Zamorano, 84 S.W.3d at 651 n.40. Comeaux’s attempt to 

obtain a speedy trial weighs in his favor.

The fourth Barker factor is whether the defendant suffered prejudice from 

the delay. Prejudice is assessed in light of the interests the right to a speedy trial is 

designed to protect: (1) preventing oppressive pretrial incarceration, (2) 

 4

Comeaux appealed from the trial court’s decision denying his writ; we 

affirmed the order on the ground that Comeaux could not use a pretrial writ to 

assert his constitutional right to a speedy trial. See Ex parte Comeaux, No. 09-11-

00566-CR, 2012 Tex. App. LEXIS 396, at *2 (Tex. App.—Beaumont Jan. 18, 

2012, no pet.) (mem. op., not designated for publication).
27

minimizing the anxiety and concern of the accused, and (3) limiting the possibility

that the defense will be impaired. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 

826. The last of these interests is the most serious “because the inability of a 

defendant adequately to prepare his case skews the fairness of the entire system.”

Barker, 407 U.S. at 532.

Concerning the first interest, preventing oppressive pretrial incarceration, 

Comeaux’s incarceration during the approximate twenty-four months before his 

case was reached represents a presumptively prejudicial delay under the first 

Barker factor. See Munoz, 991 S.W.2d at 821-22. However, the record fails to 

show that Comeaux’s pretrial incarceration was used as an instrument of 

oppression. The record does not reflect whether Comeaux requested his release on 

bond, and it does not show that he was denied bond. Without evidence of 

oppression, we do not consider this interest as one that weighs in favor of finding 

prejudice. 

With respect to the second interest, minimizing anxiety and concern, 

Comeaux has not argued that the delay caused him “any anxiety or concern beyond 

the level normally associated with being charged with a felony . . . .” See Shaw, 

117 S.W.3d at 890. The record is silent regarding whether Comeaux experienced 

any abnormal level of anxiety or distress due to the delays in reaching his case for 
28

trial. Because Comeaux failed to show that the delay caused him an abnormal level 

of anxiety or concern, the evidence with respect to this interest does not support a 

finding that Comeaux was prejudiced. 

The third interest requires that we examine whether the delay impaired 

Comeaux’s ability to present a defense. See Barker, 407 U.S. at 532. Comeaux has 

neither shown that he attempted to call witnesses but could not because they were 

unavailable, nor has he shown that the delays deprived him of evidence that would 

have been material to his defense. See Harris v. State, 489 S.W.2d 303, 308 (Tex. 

Crim. App. 1973); Marquez v. State, 165 S.W.3d 741, 750 (Tex. App.—San 

Antonio 2005, pet. ref’d). Additionally, the record does not reflect that Comeaux 

attempted to subpoena or call witnesses to testify for him during his trial, such as

the person who was driving the truck he was in when stopped by Sergeant Odom.

With respect to the witnesses who did testify, the record does not suggest that the 

delay adversely affected their ability to recall what occurred. After weighing all 

three interests that relate to the fourth Barker factor, we conclude that the fourth 

factor weighs heavily in the State’s favor. 

Considering all four of the Barker factors as a whole, we conclude that 

Comeaux has failed to establish that the State violated his right to a speedy trial. 
29

See Barker, 407 U.S. at 533-34. Comeaux’s fifth issue is overruled. Having 

overruled all of Comeaux’s issues, we affirm the trial court’s judgment.

AFFIRMED. 

___________________________

 HOLLIS HORTON

 Justice

Submitted on March 1, 2013

Opinion Delivered September 18, 2013

Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.