Willie Charles Wyatt v. State

11th Court of Appeals Eastland, Texas Opinion Willie Charles Wyatt Appellant Vs. No. 11-02-00170-CR B Appeal from Taylor County State of Texas Appellee The jury found appellant guilty of sexual assault of a child (first count) and indecency with a child (second count). The trial court assessed appellant=s punishment for each offense at 18 years confinement. Appellant appeals. We affirm. The record reveals that appellant performed oral sex and other unlawful sexual acts on the victim who was a 16-year-old, mentally retarded male child. At the time of the sexual assault, appellant, a male, was a cross-dresser and was dressed, as he was frequently dressed, as a female. Appellant testified that he did not commit the offenses. The sufficiency of the evidence is not challenged. In his first issue, appellant contends that the trial court erred in denying his motion to suppress evidence of a suggestive pretrial identification procedure and an in-court identification that was impermissibly tainted. We disagree. An in-court identification is inadmissible if tainted by an unduly suggestive pretrial photographic identification. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Cr.App.1998). The appropriate rules to be followed are stated in Ibarra v. State, 11 S.W.3d 189, 195-96 (Tex.Cr. App.1999): The test is whether, considering the totality of the circumstances, Athe photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.@ Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991). Reliability is the critical question: [I]f the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed Areliable,@ Areliability [being] the linchpin in determining the admissibility of identification testimony.@ Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989)(quoting Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). The following five non-exclusive factors should be Aweighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances@: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness= degree of attention; (3) the accuracy of the witness= 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. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); see also Brathwaite, supra; Webb, supra. We consider the five Biggers factors, all issues of historical fact, deferentially in a light favorable to the trial court=s ruling. The factors, viewed in this light, are then weighed de novo against Athe corrupting effect@ of the suggestive pretrial identification procedure. Loserth v. State, 963 S.W.2d 770, 773-74 (Tex.Crim.App.1998). The victim testified that, when he was in the Wal-Mart parking lot, appellant, who was dressed like a woman, gave the victim $10 and asked the victim if he wanted to have sex. The victim went with appellant to an upstairs apartment. During the sexual activities, the victim discovered that appellant was male, not female. When he left the apartment, the victim returned to the Wal-Mart parking lot. The victim=s mother testified that the victim was A[t]rainable mentally retarded.@ She stated that she got worried about the victim on October 6, 2001, because he had not come home. The mother went to the Wal-Mart parking lot, and she saw the victim who Awas white as a ghost@ coming across a pasture toward the parking lot. The victim told his mother that a Ablack woman raped [him].@ The victim did not tell anyone that the Awoman@ was a Aman@ until shortly before trial when the victim told his counselor. The victim stated that he was afraid to tell that the woman was in fact a man because he did not want to be called a Aqueer.@ At trial, the victim identified appellant as the person who performed the various sexual acts on the victim. James David Atkins, a detective with the Criminal Investigation Division of the Abilene Police Department, testified that on October 24, 2001, at the time of the photo lineup, he was focusing on appellant and that he attempted to find photographs of people that looked similar to appellant. Detective Atkins testified that he only showed the lineup one time to the victim. Appellant=s picture was Photograph No. 3. Detective Atkins testified: Q: Do you recall if he initially focused on picture number three or if he looked at all of the pictures or how that went? A: He took time by looking at the entire line up before he made the identification that the person in number three was the person that he was accusing of the offense. Q: And as far as you can recall did he seem to be sure? A: Yes, sir. Q: And did he indicate that any of the others might be the person? A: No, sir. Photographs Nos. 1 and 3 were police booking photographs of men who were cross-dressers and were dressed as women. Photograph No. 3 was a photograph of appellant. The other four people in the lineup were women dressed as women. Detective Atkins explained that it would not have been fair to put appellant=s picture in a lineup with men and that he put appellant=s picture in a Aline up with women because that=s what he was dressed as at the booking time. That is what our victim knew him as was a woman.@ Detective Atkins, who had known appellant for four or five years, stated that, in the photo identification, he had appellant in Athe same form of dress that you would have seen him out in the public.@ Detective Atkins stated that they did not have enough photographs of cross-dressers to make a lineup of just cross-dressers. Tamara Claybrook testified that the victim had physical defects and that, when the victim was attempting to describe the height of appellant, the victim was just trying to guess between the heights of two people. The record reflects that the trial court looked at the photo lineup and asked: AWhich one is a man?@ We hold that no substantial risk of irreparable misidentification was created so as to deny appellant due process. Appellant=s contention that the lineup violated the 14th Amendment of the U.S. Constitution and Article I, ' 13 of the Texas Constitution is overruled. Appellant=s first issue is overruled. Appellant asserts in his second issue that the trial court erred in permitting the State to present evidence of an extraneous bad act to impeach appellant on a collateral matter. Appellant testified that he had had oral sex with partners but that he had always made them aware of his HIV high risk infection. Appellant stated that, while in jail, he performed oral sex on a person named AChuck@ but that he explained his condition to the person. Appellant stated that he always warned his sexual partners. The State, on rebuttal, called Ryan Roberts, who went by the name of AChuck,@ who testified that, while he shared a jail cell with appellant in December of 2001, appellant performed oral sex on Roberts. Roberts stated that appellant did not tell him that he might be HIV positive or that appellant had hepatitis. Before Roberts testified, the trial court instructed the jury, at the request of appellant, that the testimony of the next witness, Roberts, was being offered by the State solely to impeach the testimony given by appellant. Appellant cites Ramirez v. State, 802 S.W.2d 674, 676 (Tex.Cr.App.1990), and argues that whether or not appellant advised his sexual partners about his HIV status was a collateral matter and that the trial court erred in permitting the State to impeach appellant on a collateral issue. The court in Ramirez noted the exception to the general rule prohibiting impeachment on a collateral matter. The court said: There is, however, an exception to the general rule that a party is not entitled to impeach a witness on a collateral matter. When a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression. Appellant gratuitously offered the testimony that he always warned his sexual partners regarding his HIV status. The State did not Abootstrap@ its right to impeach appellant by eliciting from appellant his statement regarding his warnings to his sexual partners. Appellant gratuitously made the statement and presented a false impression. The court in Hammett v. State, 713 S.W.2d 102, 105-06 (Tex.Cr.App.1986), stated: [T]he Court has essentially fashioned a rule that when an accused testifies gratuitously as to some matter that is irrelevant or collateral to the proceeding, as with any other witness he may be impeached by a showing that he has lied or is in error as to that matter....Should the accused nevertheless falsely insinuate during his direct examination that he has never been Ain trouble,@ the State may expose that falsehood just as it may any other falsely asserted collateral matter. The inference that is permissible from such exposure is that if the accused lied or was in error as to a collateral matter (especially one implicating his aptitude for getting in trouble with the law), he is likely to have lied or been in error in the balance of his testimonyBthose aspects of his testimony that are relevant to material issues in the case. This is a proper impeachment function. (Emphasis in original) See also Delk v. State, 855 S.W.2d 700 (Tex.Cr.App.1993); Turner v. State, 4 S.W.3d 74 (Tex.App. - Waco 1999, no pet=n); R.X.F. v. State, 921 S.W.2d 888 (Tex.App. - Waco 1996, no pet=n); House v. State, 909 S.W.2d 214 (Tex.App. - Houston [14th Dist.] 1995, no pet=n); Cunningham v. State, 815 S.W.2d 313 (Tex.App. - Dallas 1991, no pet=n). The testimony of Roberts was relevant to appellant=s credibility as a witness. Appellant=s second issue is overruled. The judgment of the trial court in each offense is affirmed. AUSTIN McCLOUD SENIOR JUSTICE January 30, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCloud, S.J.[1] [1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.