Affirmed and Opinion filed June 25, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00134-CR

RICHARD GENE SOLOMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 13CR1457

O P I N I O N

Appellant, Richard Gene Solomon, appeals his conviction for aggravated 

robbery with a deadly weapon. In his sole issue, appellant contends the trial court 

erred by denying appellant’s motion to suppress the results of a pretrial 

photographic-identification procedure and an in-court identification. We affirm.
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I. BACKGROUND

According to the State’s evidence, appellant asked his friend where he could 

obtain marijuana. The friend directed appellant to the friend’s cousin, Aousha 

Merchant. Appellant called Merchant, identified himself, and inquired about 

marijuana. On the night of November 1, 2012, Merchant and appellant met outside 

a home in La Marque, Texas. Merchant entered the back seat of the car in which 

appellant had arrived. After Merchant showed appellant his marijuana, appellant

exited the car and, holding a revolver, came around to where Merchant was seated. 

Merchant grabbed appellant’s arm, they struggled, and Merchant was shot in the 

abdomen. Merchant attempted to run to his own friend’s car, but appellant also 

pointed the gun toward that man. Merchant threw the marijuana toward appellant, 

who picked it up. Merchant’s friend drove him to the hospital, and he survived his 

wound.

About three months after the incident, Merchant viewed a police 

photographic array. Of six photos, he identified appellant as the shooter. 

Appellant filed a pre-trial motion to suppress the results of that procedure and any 

intended in-court identification on the ground the procedure was impermissibly 

suggestive and thus tainted an in-court identification. After a hearing, the trial 

court denied the motion. Evidence regarding Merchant’s pre-trial identification of 

appellant was then admitted at trial. At trial, Merchant also identified appellant as 

the shooter. Merchant testified he got a “good look” at the shooter the night of the 

incident, he knew appellant because they were both part of a group that had 

socialized a few months before, and the shooter had distinctive facial and neck 

tattoos, including a cross under his eye, which were present on appellant at trial.
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A jury convicted appellant of aggravated robbery with a deadly weapon. 

After appellant pleaded “true” to two enhancement paragraphs, the trial court 

sentenced him to thirty-eight years’ confinement.

II. MOTION TO SUPPRESS

In his sole issue, appellant contends the trial court erred by denying 

appellant’s motion to suppress the pre-trial photographic identification and the incourt identification. We review a trial court’s ruling on a motion to suppress 

under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007). We give almost total deference to the trial court’s findings of 

historical fact that are supported by the record and its application of the law to facts 

if the resolution of those questions turns on an evaluation of credibility and 

demeanor. Id. We review de novo the trial court’s application of the law to the 

facts when the issue does not turn on credibility and demeanor. Id. The trial court 

is the sole trier of fact and judge of the credibility of the witnesses and the weight 

to be given to their testimony relative to a motion to suppress. State v. Ross, 32 

S.W.3d 853, 855 (Tex. Crim. App. 2000). In reviewing a trial court’s ruling on a 

motion to suppress, we must view the evidence in the light most favorable to the 

ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

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. Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App.

1995). Similarly, an in-court identification is inadmissible when it has been tainted 

by an impermissibly suggestive pretrial photographic identification. Luna v. State,

268 S.W.3d 594, 605 (Tex. Crim. App. 2008). We employ a two-step analysis to 

test the admissibility of an identification: “1) whether the out-of-court 

identification procedure was impermissibly suggestive; and 2) whether that 
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suggestive procedure gave rise to a very substantial likelihood of irreparable 

misidentification.” See Barley, 906 S.W.2d at 33 (internal footnote omitted). An 

appellant must establish both elements by clear and convincing evidence. Santos 

v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) 

(citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)).

Appellant argues the identification procedure in this case was impermissibly 

suggestive because (1) the officer who prepared the array removed facial tattoos 

from appellant’s photo, (2) the detective who administered the procedure informed 

Merchant that facial tattoos had been removed from the suspect’s photo, thereby 

indicating his photo was included in the array, and (3) the detective raised his voice 

when presenting appellant’s photo, thereby signaling it depicted the suspect. We 

conclude appellant failed to establish the procedure was impermissibly suggestive; 

thus, we need not decide whether any impermissibly suggestive procedure gave 

rise to a very substantial likelihood of irreparable misidentification. See Barley,

906 S.W.2d at 33; Santos, 116 S.W.3d at 451. 

A. The Evidence

The two officers involved in the procedure testified at the suppression 

hearing. The trial court also admitted an audio/video recording of the procedure, a 

police-department form completed for the procedure, and the six photos included 

in the array. This evidence collectively showed the following:

The procedure was a “double-blind” photographic line-up—in which the 

officer administering the procedure does not know the identity of the suspect or 

whether his photo is in the array. Officer Brian Auzston, who was quite 

experienced in assembling such arrays, assembled this one, at the request of the 

investigating detective, Sergeant Spruill. Officer Auzston was informed that 

appellant was the suspect, so Officer Auzston obtained and included a photo of 
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appellant in the array. Officer Auzston explained that, in general, he tries to 

include photos of six persons with a similar appearance. That proved difficult in 

this case because appellant had distinctive facial tattoos, including on his 

cheekbone and under his eyes. Officer Auzston believed those characteristics 

would make the viewer more likely to choose appellant by focusing solely on the 

tattoos. Thus, Officer Auzston photo-shopped out the tattoos in appellant’s photo, 

such that none of the six photos depicted persons with facial tattoos. Officer 

Auzston opined that it would have been unfair to leave in the tattoos and his 

actions worked to appellant’s advantage by removing distinctive marks. Officer 

Auzston’s involvement ended at that point.

Detective Chris Kelemen then administered the procedure, which was 

recorded in its entirety. He had no previous involvement in the case, did not know 

the identity of the suspect, and was merely given the photos by Sergeant Spruill. 

Detective Keleman first read Merchant the instructions on the police-department 

form, which included: “You should not guess or attempt to conclude that the 

person who committed the crime is present.”; and “Remember, it is just as 

important to clear innocent persons from suspicion as it is to identify the guilty 

parties.” Keleman then handed Merchant, sequentially, six separate folders, each 

containing a photo.

When viewing photo number 5 (appellant’s photo), Merchant stated it “looks 

like him.” After viewing the last photo in the array and an earlier photo again, he 

chose number 5. He was asked to write in his “own words” how certain he was of 

the identification. While pondering that request, he remarked, “I know he had 

tattoos, but I don’t see the tattoos on his face.” He then wrote next to photo 

number 5, “I’m a hundred percent sure this is the person that shot me.” Merchant 
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completed the portion of the form for recording the results, identifying photo 

number 5 and writing the same words quoted above.

B. Analysis

1. Alteration of the photo

Appellant first argues that the removal of facial tattoos from appellant’s 

photo rendered the procedure impermissibly suggestive. In its written findings of 

fact and conclusions of law, the trial court found Officer Auzston was credible and 

concluded the procedure was “not suggestive” or “not so impermissibly suggestive 

as to give rise to a very substantial likelihood of irreparable misidentification.” 

The fact that Officer Auzston removed the tattoos was undisputed; thus, we review 

de novo whether that action rendered the procedure impermissibly suggestive. See 

Amador, 221 S.W.3d at 673; Loserth v. State, 963 S.W.2d 770, 772–73 (Tex. Crim.

App. 1998). 

We conclude that action did not render the procedure impermissibly 

suggestive. If anything, that action was favorable to appellant by removing 

distinguishing characteristics. Cf. Barley, 906 S.W.2d at 33 (recognizing 

suggestiveness may be created by the content of the array itself if the suspect is the 

only individual closely resembling the pre-procedure description). Appellant cites 

no authority that an officer is precluded from removing distinguishing features 

when preparing a photo array, and Officer Auzston was unaware of any department 

protocol forbidding such action.

Appellant suggests that Officer Auzston should have instead added tattoos to 

the other photos. Appellant emphasizes the officer’s testimony when asked why he 

did not take that action—that such process would be time-consuming. However, 

appellant fails to demonstrate how removing his tattoos to give all persons a 
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similar appearance made the process any less fair than adding tattoos to the other 

photos to give all persons a similar appearance. Consequently, appellant fails to 

show that removal of the tattoos somehow suggested to Merchant that appellant’s 

photo depicted the suspect.

2. Whether Detective Keleman suggested the suspect’s photo was 

included

We turn to appellant’s contention that the procedure was impermissibly 

suggestive because Detective Keleman informed Merchant the suspect’s photo was 

included in the array. Suggestiveness may be created by the manner in which the 

pre-trial identification procedure is conducted; for example, by police pointing out 

the suspect or suggesting he is included in the photo array. See id. In this case, 

there was no evidence presented at the suppression hearing reflecting that any 

officers informed Merchant (1) the suspect’s photo was included, or (2) tattoos had 

been removed from the suspect’s photo, thereby indicating his photo was included. 

Instead, appellant relies on testimony provided by Merchant at trial—after the 

motion to suppress was overruled. 

In particular, on direct examination, Merchant was asked the difference 

between appellant’s appearance in the photo array and at trial. Merchant 

responded, “when I did the photo lineup, the detective told me that they was going 

to remove all the tattoos from his face and neck.” At that point, appellant re-urged 

his motion to suppress because this new testimony was not elicited at the 

suppression hearing, but the trial court continued to deny the motion.

We recognize this testimony, in isolation, may be construed as suggesting 

Merchant was informed appellant’s photo would be in the array, albeit with tattoos 

removed. However, on cross-examination, after first reiterating that he was told 

tattoos were removed from appellant’s photo, Merchant clarified he was not told 
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appellant’s photo was included but rather tattoos had been removed from all

persons in the array who had such features: 

Q. Now, I’m going to go back to that comment about this lineup. You 

said -- if I understood you correctly, you said the officer said that he 

had removed -- the officer had removed the tattoos from the

photograph?

A. Yes.

Q. From whose photograph?

A. Richard Solomon [Appellant].

Q. Okay.

A. From everybody on the lineup.

. . .

Q. Did the officer who was showing you these lineup photos, did he 

tell you or suggest to you that [appellant’s] photo was in there 

somewhere either with or without the tattoos?

A. No.

Q. But he did tell you some tattoos had been removed, correct?

A. He told me when I -- when I see the photos that every person in 

the photo that I see, their tattoos wouldn’t be on there if they had a 

facial or any other type of tattoo on their body, that I wouldn’t be able 

to see them.

To the extent that informing Merchant tattoos had been removed from any

photos would suggest the suspect’s photo was included or otherwise render the 

procedure impermissibly suggestive, the trial court did not err by denying the 

motion to suppress. In its findings (issued after trial), the trial court concluded the 

officers “did not point out the suspect or suggest that the suspect was included in 

the line-up or photo array.” That conclusion, including whether Detective 

Keleman made any of the above-cited statements mentioned by Merchant, was a 

matter within the trial court’s discretion because it turned on the credibility and 

demeanor of witnesses. See Amador, 221 S.W.3d at 673; Loserth, 963 S.W.2d at 
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772–73. The trial court was free to disbelieve Merchant’s testimony or at least

conclude he was mistaken, even if not deliberately untruthful. See Ross, 32 

S.W.3d at 855. Viewing the evidence in the light most favorable to the ruling, the 

record supports such a determination. See Kelly, 204 S.W.3d at 818.

At the suppression hearing, Detective Keleman, whom the trial court 

expressly found to be credible, testified he did not have any contact with Merchant 

until the procedure started and that the entire procedure was recorded. The 

recording demonstrates that Detective Keleman did not make any statements 

regarding alterations to the photos or otherwise indicate the suspect’s photo was in 

the array. Detective Keleman testified he did not even know the identity of the 

suspect or whether alterations had been made. Detective Keleman’s trial testimony 

(after Merchant provided the testimony at issue) reiterated that he had no contact 

with Merchant before the procedure and did not know the identity of the suspect or 

the persons included in the array. Additionally, department protocols were 

followed, such as reading the instructions, to ensure Merchant did not know 

whether the suspect’s photo was included.

Moreover, the recording shows Merchant (while pondering his degree of 

certainty) studied appellant’s photo and said “I don’t see the tattoos on his face” in 

such a manner that he appeared slightly confused because he was certain the photo 

was the suspect but he knew the suspect also had tattoos. Consequently, the trial 

court acted within its discretion by determining (1) that point was the first time 

Merchant realized any photos may have been altered, and (2) he was mistaken at 

trial when stating Detective Keleman informed him photos had been altered 

because Merchant actually realized that fact himself when viewing the photos.1

 

1 As mentioned above, another detective, Sergeant Spruill, investigated the incident. 

Officer Auzston gave the array he compiled to Sergeant Spruill, who then gave it to Detective 
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3. Complaint that Detective Keleman raised his voice

Finally, appellant suggests Detective Keleman raised his voice when 

handing appellant’s photo to Merchant and stating “number 5,” thereby signaling 

that photo depicted the suspect. The trial court found Detective Kelemen’s voice 

“did not get higher” as he placed that photo in front of Merchant. The recording

supports that Detective Keleman did not raise his voice relative to number 5 in a 

manner that would suggest it depicted the suspect, especially considering the 

detective did not know it depicted the suspect.

In summary, because the procedure was not impermissibly suggestive, the 

trial court did not err by denying appellant’s motion to suppress. We overrule 

appellant’s sole issue and affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Publish — Tex. R. App. P. 47.2(b).

 

Keleman. Officer Auzston testified that he told Sergeant Spruill about the alterations. However, 

appellant is clear in his brief that he complains about the actions of Detective Keleman (not 

Sergeant Spruill) in allegedly informing Merchant about the alterations, and Merchant claimed

(even if not found credible) it was Detective Keleman who informed him about the alterations. 

Nonetheless, even if appellant contends that Sergeant Spruill informed Merchant of the 

alterations, there is no supporting testimony, much less clear and convincing evidence. To the 

extent Merchant’s testimony may be construed as referring to Sergeant Spruill, again, the trial 

court was free to disbelieve the testimony. Further, Sergeant Spruill did not testify at the 

suppression hearing. And, he testified at trial after Merchant revealed he was informed of the 

alterations, yet appellant did not elicit any testimony from Sergeant Spruill on whether he 

informed Merchant of the alterations.