Nathan Leon Pylant v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00289-CR Nathan Leon Pylant, Appellant v. The State of Texas, Appellee From the 54th District Court McLennan County, Texas Trial Court No. 2004-196-C MEMORANDUM Opinion A jury convicted Nathan Leon Pylant of two counts of robbery and assessed his punishment at ninety-nine years’ confinement for each count. Pylant contends in two points that: (1) the evidence is legally insufficient to prove identity because the State’s witnesses identified him from an impermissibly suggestive photographic line-up; and (2) the court abused its discretion by admitting photographs of injuries one of the complainants sustained in the robbery because the probative value of the photographs was substantially outweighed by the danger of unfair prejudicial. We will affirm. Pylant contends in his first point that the evidence is legally insufficient to prove identity because each of the State’s witnesses identified him from an impermissibly suggestive photographic line-up. When conducting a legal sufficiency review however, we consider both admissible and inadmissible evidence. See Moff v. State, 131 S.W.3d 485, 488-90 (Tex. Crim. App. 2004). Therefore, a determination that the witnesses’ identification testimony is inadmissible will not render the evidence legally insufficient. Accordingly, we will treat Pylant’s first point as presenting two sub-issues: (1) whether the evidence is legally insufficient to prove identity; and (2) whether the court abused its discretion by permitting the witnesses’ in-court identification of Pylant because the photographic line-ups were impermissibly suggestive. See Tex. R. App. P. 38.1(e) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”). The two complainants and two other witnesses identified Pylant as the robber. Thus, the evidence is legally sufficient to prove identity. A pretrial identification procedure involving a photographic line-up violates the due process rights of a defendant if: (1) the line-up is impermissibly suggestive; and (2) the suggestive nature of the line-up “give[s] rise to a very substantial likelihood of irreparable misidentification.” See Simmons v. U.S., 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968); Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Wilson v. State, 15 S.W.3d 544, 552 (Tex. App.—Dallas 1999, pet. ref’d). Pylant contends that the photographic line-ups used in his case are impermissibly suggestive because he is the only person without facial hair depicted in the line-ups. The State challenges Pylant’s characterization of the facial hair of those depicted. In any event however, it has been consistently held that such a disparity in facial hair standing alone does not render a photographic line-up impermissibly suggestive. See Wilson, 15 S.W.3d at 553 (defendant was only person in line-up without facial hair); Mallard v. State, 661 S.W.2d 268, 277 (Tex. App.—Fort Worth 1983, no pet.) (same); see also Turner v. State, 600 S.W.2d 927, 932 (Tex. Crim. App. [Panel Op.] 1980) (only 2 others with beard in 5-person line-up were not similar to defendant in size and hair color). Thus, we overrule Pylant’s first point. Pylant contends in his second issue that the court abused its discretion by admitting photographs of injuries one of the complainants sustained in the robbery because the probative value of the photographs was substantially outweighed by the danger of unfair prejudicial. Under Rule of Evidence 403, photographic evidence must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. “In deciding whether photographs are unfairly prejudicial, we must . . . consider the following factors: the number of photographs, the size, whether they are in color or black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether a body has been altered by autopsy.” Prible v. State, 2005 WL 156555 at *8 (Tex. Crim. App. Jan. 26, 2005). The four black-and-white photographs at issue include: a photograph of the complainant’s face; two close-ups of bruising on the side of her face; and a close-up of bruising on her shoulder. These photographs are probative of the fact that Pylant caused the complainant to suffer bodily injury as alleged in the indictment. They are few in number; they are 8x10 in size; they are black and white; and they are not particularly gruesome. We also note that Pylant did not offer to stipulate to the complainant’s injuries. Cf. Prible, 2005 WL 156555 at *9 (probative value of photographs diminished because defendant offered to stipulate to cause of death). Accordingly, the court did not abuse its discretion by admitting the photographs. Thus, we overrule Pylant’s second point. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed October 19, 2005 Do not publish [CRPM]