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

No. 06

- 19

- 00091

- CR

MICHAEL FRED HOUSTON, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 46857

- B

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### MEMORANDUM OPINION
A Gregg County jury found Michael Fred Houston guilty of aggravated robbery. See T EX
. P ENAL C ODE A NN
. § 29. 03. After it found the State’s punishment enhancement allegations true, the jury assessed Houston a sentence of life imprisonment. In his sole point of error on appeal, Houston argues that the trial court erred in overruling his motion to suppress because an impermissibly suggestive pretrial identification procedure should have barred the victim’s in

- court identification of Houston as the perpetrator. We conclude that the trial court did not abuse its discretion in finding that the impermissibly suggestive pretrial identification procedure did not g i ve rise to a substantial likelihood of irreparable misidentification by the victim of the crime. As a result, we overrule Houston’s sole point of error.
I. Factual and Procedural Background The Longview Police Department (LPD) dispatched officer Fernando Nino to the scene of an aggravated robbery conducted in daylight at a local Dollar General store. Nino spoke with the victim, Eleanor Joyce Brown, to obtain details about the crime. Brown told Nino that the perpetrator exited a black Chrysler, opened Brown’s vehicle’s door, and grabbed her purse. Brown said that the man pointed a gun at her and instr ucted her several times to hand over her cell phone , which was already in her purse. According to Nino, the only description of the man was that he was African American. As a result, LPD focused on the description of the perpetrator’s vehicle. Christopher Byrdsong, another LPD officer, testified that dispatchers told him to be on the lookout for a black Chrysler passenger car. Byrdsong believed he had located the suspect’s vehicle3 and initiated a traffic stop of the car. According to Byrdsong, while the car was only occupied by Houston’s wife and four small children, it was registered to Houston. Byrdsong located a photograph of Houston and asked Nino to show it to Brown to see if she recognized him as the perpetrator. Nino showed the photo graph to Brown, who identified Houston as the robber. The single photograph of Houston was not part of a line

- up , and Nino admitted that showing Brown only one suspect violated LPD policy. Although the photograph of Houston showed him with face tattoos

a nd gold teeth, Brown never told Nino that the perpetrator had th o se features. Several days after the robbery, LPD D etective Armando Juarezortega questioned Brown again on her description of the perpetrator. Juarezortega testified that Brown had about ten to twelve seconds to identify the suspect, which was as an “[e]xtremely short” amount of time. Juarezortega said that, after Brown had seen Hou ston’s photograph, she added details to her description, including that the perpetrator was wearing a white t

- shirt and had short hair, a slim build, and no facial hair. Although the photo of Houston depicted him with face tattoos and gold teeth, Brown to ld Juarezortega that the perpetrator did not have facial tattoos , and she never mentioned gold teeth. Brown also said that the perpetrator was in his early to mid

- twenties, but Houston was thirty

- six at the time of the offense. Brown provided a detailed description of the items in her purse and the handgun carried by the robber.
Houston moved to suppress evidence of Brown’s pretrial identification, as well as her in

court identification, because LPD’s use of a single photograph of Houston was impermiss ibly suggestive. At the suppression hearing, the State conceded that the use of a single photograph was4 improper and agreed not to use evidence of Brown’s pretrial identification of Houston. 1 As a result, the suppression motion addressed only the issue o f whether Brown would be allowed to make an in

- court identification of the robber. Brown, who was eighty

- five at the time of the suppression hearing, identified Houston as the perpetrator. She testified that Houston pulled his vehicle close to the pass enger side of her car while she was parked at the Dollar General. Brown said she made eye contact with Houston as she put her purse in the passenger seat because she believed Houston was going to tell her that he had bumped her car. Instead, Houston open ed the passenger side door, grabbed Brown’s purse, pushed a gun in her face, and told her to give him her cell phone. Brown testified that she never looked away from Houston. Brown said Houston took the purse, closed her door, and kept pointing the gun a t her through the window as he left in a black , four

- door sedan. Brown testified that she identified Houston as the perpetrator when Nino showed her
Houston’s photograph. Yet, Brown said she was thinking about the event in making her in

- court identifica tion, not the photograph. Brown added that she did not even remember what the photograph looked like and maintained that she did not notice any gold teeth or tattoos on
Houston. 2 In sum, Brown testified that viewing Houston’s photograph did not influence her identification of Houston as the robber. She explained , “ [W] hen someone points a gun at you, you remember that face.”

1 See Delk v. State , 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (finding the use of only one photograph during a pretrial identification impermissibly suggestive), overruled on other grounds by Ex parte Moreno , 245 S.W.3d 419, 425 (Tex. Crim. App. 2008)

.
2 During closing, the trial court commented, “ You can ’ t see any of the tattoos [on Houston]. ”5 After the suppression hearing, the trial court found that showing one photo of Houston to Brown was impermissibly suggestive. Eve n so, it concluded that Brown’s in

- court identification was not based on the photograph, but on her “opportunity to view [Houston] and her own independent recollection.” As a result, it denied Houston’s motion to suppress Brown’s in

- court identification. At trial, Brown identified Houston as the person who robbed her. During cross

examination, Houston attempted to impugn Brown’s in

- court identification by questioning Nino and Juarezortega about the impermissibly suggestive pretrial identification procedur e. Houston established that Brown only identified him after Nino showed him the single photograph and that her only description of the perpetrator before she viewed the photo was that he was an African

American male. During re

- direct examination, Nino testified that Brown “was certain” she was robbed by Houston after seeing his photograph. Besides Brown’s in

- court identification, significant other evidence at trial established Houston as the perpetrat or. Brown’s purse and cell phone were found on the roof of Building 8 of the Parkway Gardens Apartments. Joe Trevino, an employee of the apartment complex , testified that Houston lived in Building 8. Kirby DeLoach, a detective with LPD, testified that t wo fingerprints found on Brown’s interior passenger

- side window, two fingerprints from her cell phone, and a fingerprint from her insurance card all matched Houston’s known fingerprints. Clare Moyers, a forensic DNA analyst, compared DNA recovered from a buccal swab of Houston to swabs of Brown’s purse. Moyers testified that6 for the swabs of the strap from the victim’s purse, the DNA profile that was obtained was interpreted as a mixture of four individuals. Obtaining this mixture profile is 943 billion t imes more likely that the DNA came from Michael Houston and three unknown individuals, than if the DNA came from four unrelated, unknown individuals. And based on this likelihood ratio, Michael Houston cannot be excluded as a possible contributor to the pr ofile. Houston’s wife testified that Houston had taken the vehicle during the time of the robbery. After hearing the evidence, the jury convicted Houston.
II. Applicable Law A. Motion to Suppress Standard of Review We must affirm the trial court’s rul ing on a suppression issue “ if it is correct on any theory of law that finds support in the record. ” Carrillo v. State , 235 S.W.3d 353, 355 (Tex. App.

— Texarkana 2007 , pet. ref’d ) (citing Osbourn v. State , 92 S.W.3d 531, 538 (Tex. Crim. App. 2002)). This i s because “[a] trial court ’ s ruling on a motion to suppress is reviewed for abuse of discretion. ” Kelly v. State , 529 S.W.3d 504, 508 (Tex. App.

— Texarkana 2017 , no pet.) (citing Oles v. State , 993 S.W.2d 103, 106 (Tex. Crim. App. 1999 ) ). “ In performing th is review, we apply ‘ a bifurcated standard of review. ’ ” Id. (quoting Myrick v. State , 412 S.W.3d 60, 63 (Tex. App.

— Texarkana 2013, no pet.) ). We give “ almost total deference to the trial court ’ s determination of historical facts that turn on credibility and demeanor while reviewing de novo other application

- of

- law

- to

- fact issues. ” Carrillo , 235 S.W.3d at 355 (citing Johnson v. State , 68 S.W.3d 644, 652

– 53 (Tex. Crim. App. 2002) ; Carmouche v. St ate , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) )

. We “ also afford nearly total deference to trial court ’s rulings on application

- of

- law

- to

- fact questions, also known as mixed7 questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. ” Id . (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ). We “ review de novo mixed questions of law and fact not falling within this category. ” Id

. (citing Guzman , 955 S.W.2d at 89 ).
B. Law Related to In
- Court Identification After Impermissibly Suggestive Pre t rial Identification Procedures “We have previously held that ‘ [a] pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. ’ ” Kelly , 529 S.W.3d at 511 (alteration in original) (quoting
Jones v. State , 944 S.W.2d 50, 51 (Tex. App.

— Texarkana 1997, pet. ref’d) (citing Stovall v.
Denno , 388 U .S. 293, 294 (1967) , abrogated on other grounds by Griffith v. Kentucky , 479 U.S. 314, 326 (1987) ). “[D] etermining the admissibility of an in

- court identification involves a two

step analysis : (1) whether the out

- of

- court identification procedure was imp ermissibly suggestive, and (2) whether the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. ” Id. (quoting Mayfield v. State , 152 S.W.3d 829, 831 (Tex. App.

— Texarkana 2005, pet. ref ’ d) (citing Simmons v. United States , 390 U.S. 377 (1968)).

“ The defendant has the burden to establish by clear and convincing evidence that the pretrial procedure was impermissibly suggestive .” Balderas v. State , 517 S.W.3d 756, 792 (Tex. Crim. App. 2016) . Here, the trial co urt ruled that LPD’s use of only Houston’s photograph during the pretrial identification process was impermissibly suggestive, but “ an unnecessarily suggestive8 pretrial identification procedure does not, in itself, intrude upon a constitutionally protected interest. ” Id. Instead, the trial court moves to the second step in the analysis. Id. The trial court “ assesses the reliability of the identification under the totality of the circumstances . . . by weighing five non

- exclusive factors against the cor rupting effect of any suggestive identification procedure .” Id. (footnote omitted) (citation omitted). These factors include (1) the opportunity of the witness to view the suspect at the time of the crime; (2) the witness ’ s degree of attention; (3) the a ccuracy 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. Id. (referring to these factors, established by Neil v. Biggers , 409 U.S. 188, 199 (1972 ), as the

“ Biggers factors” ). In reviewing the trial court’s assessment of reliability on appeal , “ we consider these factors, which are issues of historical fact, deferent ially in a light favorable to the trial court ’ s ruling .” Id. “ We then weigh them de novo against any ‘ corrupting effect ’ of the suggestive pretrial identification procedure. ” Id. (citing Loserth v. State , 963 S.W.2d 770, 773

– 74 (Tex. Crim. App. 1998) )

. Typically, we “ only consider the evidence before the trial court at the time of its ruling on the motion to suppress .” Oringderff v. State , 528 S.W.3d 582, 585 (Tex. App.

— Texarkana 2017 , no pet. )

. But, where the admissibility of an in

- court ide ntification is concerned, “[w] e review the evidence adduced at the admissibility hearing as well as the evidence adduced at trial. ” Balderas , 517 S.W.3d at 792 (citing Webb v. State , 760 S.W.2d 263, 273 (Tex. Crim. App. 1988) ). In Webb , the Texas Court o f Criminal Appeals explained,9 In Hardesty v. State , 667 S.W.2d 130, at 133, n.6 (Tex. Crim. App. 1984), we observed that “ where the ground of error complains of the admission of evidence at trial, and the issue has been consensually relitigated by the par ties during the trial on the merits, consideration of relevant trial testimony is appropriate. ” It is true appellant “ relitigated ” facts surrounding the pretrial identification procedure only in context of trying to impugn the weight the jury should accor d [the victim’s] identification of appellant at trial, and was not attempting specifically to retry the legal question of its admissibility, vel non , as a function of due process analysis. To hold that appellate review is limited to facts adduced at the p retrial hearing under circumstances such as these, however, could place the appellate court in the untenable position of having to reverse a conviction in the face of a record which supports, albeit belatedly, the trial court ’ s ruling. In scrutinizing tri al determinations of admissibility of identification testimony, this Court has not so limited its review. See , e.g. , Jackson v. State , 657 S.W.2d 123 (Tex. Crim. App. 1983). Webb v. State , 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988) . Because the trial transcript showed that Houston relitigated facts surrounding the pretrial identification procedure to impugn Brown’s in

- court identification, our analysis is not limited to the evidence presented at the suppressi on hearing.
III. The Trial Court Did Not Abuse Its Discretion In Denying the Suppression Motion We begin with a deferential review of the trial court’s findings on the Biggers factors. First, the trial court found that Brown “obviously had an opportuni ty” to view the suspect at the time of the crime . The trial court determined that the ten

- to twelve

- second encounter was long enough to identify Houston because the crime occurred in daylight and Brown maintained good eye contact with him throughout the encounter. Second, the trial court found that Brown maintained a good degree of attention . She testified that she was focused on Houston, even as he left her vehicle. Brown also described the criminal event in detail in the same manner several times , provided a good description of the car10 and gun used to commit the crime, and remembered the words used by Houston during t he encounter. The level of detail used by Brown in describing the incident showed her heightened level of awareness. See Delk , 855 S.W.2d at 707. Third, before Nino’s use of Houston’s photograph, Brown had only described the robber as an African

- Americ an male. The prior description, while insufficient, was not inaccurate. Even so, Brown described Houston’s car in sufficient detail for officer Byrdsong to locate it shortly after the crime. Her ability to recall details and unwillingness to waiver from her testimony that the robber did not have tattoos or gold teeth as depicted in the photograph lent credibility to her testimony that she did not rely on the photograph in identifying Houston, but instead relied on her memory of the event. As for the las t two Biggers factors, Brown’s first interview with Nino occurred at the scene , shortly after the crime , when the incident was fresh in Brown’s memory. Brown provided details of the encounter to Nino before Nino showed her the photograph. T he trial court found a high level of certainty demonstrated by Brown during her identification. The court noted that Brown was not relying on the photograph and that she testified, “When somebody points a gun at you, you remember that face.” From the totality of this evidence, the trial court could reasonably conclude that Brown’s testimony “was reliable despite the unnecessarily suggestive pretrial occurrence.” Id. at 707

– 08. Brown said the photograph did not influence her in

- court identification , which was based on her memory of the criminal event. Although the photograph showed that Houston had face tattoos and gold teeth, Brown was consistent in not including th o se features when describing the11 perpetrator. Moreover, the evidence at trial showed that Houston’s fingerprints were found inside Brown’s vehicle, on her recovered cell phone, and on her insurance card , which was located inside her purse, which also contained Houston’s DNA. This evidence minimized the corrupting effect of the suggestive pretrial identification procedure by showing that Brown’s in

- court identification was reliable. In other words, even though the pretrial identification was impermissibly suggestive, Brown’s testimony showed that her “prior observations were sufficient to serve as an independent origin for the in

- court identification.” Kelly , 529 S.W.3d at 512 (quoting Jones , 944 S.W.2d at 52); see Mayfield v. State , 152 S.W.3d 829, 832 (Tex. App.

— Texarkana 2005 , pet. ref’d )

. We find no abuse of discretion in the trial court’s finding that Houston failed to show by clear and convincing evidence that the in

- court identification was unreliable. See Delk , 855 S.W.2d at

. at 707. As a result, we overrule Houston’s sole point of error. IV. Conclusion We affirm the trial c ourt’s judgment.

Scott E. Stevens Justice Date Submitted: December 27, 2019 Date Decided: January 10 , 2020 Do Not Publish