Reed, Courtney Scott v. State

Affirmed and Memorandum Opinion filed July 31, 2003 Affirmed and Memorandum Opinion filed July 31, 2003. In The Fourteenth Court of Appeals _______________ NOS. 14-02-00671-CR 14-02-00672-CR & 14-02-00673-CR _______________ COURTNEY SCOTT REED, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________ On Appeal from 178th District Court Harris County, Texas Trial Court Cause Nos. 878127, 878130 & 891915 __________________________________________ M E M O R A N D U M   O P I N I O N Appellant, Courtney Scott Reed, was convicted by a jury of aggravated robbery. In this appeal, he contends the trial court erred by (1) denying his motion to suppress in-court identifications and (2) denying his motion to strike the testimony of a witness who violated Rule 614 of the Texas Rules of Evidence. We affirm. Background Four men, Malik Mott, Kwame McGlory, Marshall Sumrall, and John Bumpass were visiting the townhouse of a friend, Dana Hall, when two unmasked men broke in through a window. Sumrall, fearing that his personal belongings would be stolen, hid them in another room. Sumrall recognized appellant as a former co-worker when he entered the room, holding a gun. Appellant instructed Sumrall not to tell anyone that he had seen him, and he exited the room. Appellant then went into the kitchen, pointed his gun at Malik Mott, and pulled the trigger. When the gun failed to discharge, the second intruder demanded the gun and used it to shoot John Bumpass in the chest. During the robbery investigation, Dana Hall informed police about several possible suspects. Appellant was one of the suspects she identified. Officers assembled a photographic lineup, and based on positive identification by several witnesses, arrested appellant. After his arrest, appellant was included in a videotaped lineup. Following review of either the photo array or video, six witnesses identified appellant as one of the robbers. These same witnesses also identified appellant in court. In-Court Identification The trial court denied appellant’s motion to suppress the in-court identifications. Appellant contends the out-of-court identification procedures were impermissibly suggestive and tainted the six in-court identifications. Whether the trial court erred in admitting a witness’s identification involves a mixed question of law and fact. Loserth v. State, 963 S.W.2d 770, 772–73 (Tex. Crim. App. 1998). We extend great deference to the trial court’s resolution of historical facts. Id. at 773. However, the consequences arising from those historical facts are reviewed de novo. Id. at 773–74. Thus, we will review de novo the trial court’s decision to deny the motion to suppress the in-court identifications, which appellant claimed were based on an impermissibly suggestive lineup. There are two steps to determine whether a trial court erred in admitting an in-court identification. First, we consider whether the pretrial identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Second, upon the finding that the procedure was impermissibly suggestive, we determine whether the procedure gave rise to a substantial likelihood of irreparable misidentification. Id. First, appellant contends the six-man photo array was unduly suggestive because (1) two of the five other men’s eyes were closed; (2) he was the only person with braided hair; and (3) his hairline was different. A photo array must contain individuals who fit the rough description of a suspect; however, it is not essential that all individuals be identical. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.—Dallas 1999, pet. ref’d); see also Tapley v. State, 673 S.W.2d 284, 286 (Tex. App.—San Antonio 1984, pet. ref’d) (photo spread impermissibly suggestive with defendant as only white male in the array). In reviewing the photo array, two of the five men’s eyes are closed or half-way closed, two men’s eyes are turned sharply to the left, and the other two men’s eyes are open. We do not find this to be impermissibly suggestive. Although appellant claims that he is the only person pictured with braided hair, none of the men depicted in the photographs has braided hair. Appellant also claims that his hairline is very different. We disagree; the men in the photo array have reasonably similar hairlines. Accordingly, we find the photo array was not impermissibly suggestive. Second, appellant contends the video lineup was impermissibly suggestive because (1) he was the only person with braided hair and (2) there were extreme height/weight variances. Again, we conducted a careful review of the videotape. Although appellant’s hair is braided, the sixth man had a similar hair style. Further, all six men in the lineup were required to pose with a bandana covering their hair. Consequently, we find the hair styles of the men depicted in the videotape were not impermissibly suggestive. Lastly, the video illustrated a height variance ranging from five feet five inches to six feet one inch and a weight difference from 145 to 198 pounds. At the time of the lineup, appellant was five feet nine inches and weighed 165 pounds; he was not the tallest or shortest, and he did not weigh the most or the least. Certain variances in a lineup are acceptable. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985) (finding no suggestive procedure even though men ranged in height from five feet nine inches to six feet two inches, in weight from 175 pounds to 210 pounds); Garcia v. State, 563 S.W.2d 925, 929 (Tex. Crim. App. 1978) (finding no impermissibly suggestive procedure even though the suspect was several inches taller than the others in the lineup). Accordingly, we do not find the above variances to be unduly suggestive. Suggestiveness, however, may also be created by the manner in which the police show an array to a witness, such as pointing out the suspect or suggesting that a suspect is included in the photo array. Rogers v. State, 774 S.W.2d 247, 260 (Tex. Crim. App. 1989). Appellant contends the procedure police used was impermissibly suggestive because (1) several witnesses viewed the video lineup together; (2) several witnesses viewed both the video lineup and photo array; and (3) he was the only person appearing in both the video lineup and photo array. We have previously held that multiple witnesses may view a video lineup together. See Burns v. State, 923 S.W.2d 233, 237–38 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Further, in this case, the witnesses watching the video were not allowed to speak while it was played. They were called individually into a separate room and asked to identify a suspect. Next, appellant contends he was depicted in both the photo array and videotape viewed simultaneously by the witnesses. This is yet another misstatement of the record. The record reflects that those witnesses who viewed the photo array did not view the video lineup. Neither the photo array, the video lineup, nor the procedures used to present them were impermissibly suggestive. Therefore, we hold that the in-court identifications were not tainted. We overrule appellant’s first issue. Violation of “The Rule” In appellant’s second issue, he contends the trial court erred in failing to strike the testimony of Sumrall after he violated Rule 614 of the Texas Rules of Evidence (“the Rule”). The Rule provides: “At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses . . . .” Tex. R. Evid. 614. The Rule does not prescribe the type of sanction that may be imposed for a violation. Although it is well established that we review the trial court’s decision to allow testimony after a violation of the Rule for an abuse of discretion, it is presumed that the trial court properly exercised its discretion until the contrary has been shown. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). Two criteria used to determine whether improper injury or prejudice to the defendant resulted are (1) whether the defendant actually conferred with or heard other witness testimony and (2) whether the witness contradicted testimony of a witness from the other side or corroborated testimony of a witness he had heard. Id. The record indicates Sumrall and other witnesses discussed the case in the witness room. However, none of the witnesses had testified before this discussion. They had not heard any in-court testimony and did not have opportunity to discuss their in-court testimony with other witnesses. Further, there is nothing in the record indicating that their discussion about facts of the case colored any witness’s testimony. Id. at 51. After violation of the Rule was exposed, the trial court again admonished Sumrall in front of the jury and allowed opposing counsel to cross-examine him about the violation and the witnesses’ discussion. Therefore, we find the trial court did not abuse its discretion in allowing Sumrall’s testimony. We overrule appellant’s second point of error. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed July 31, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b).