Johnson, Ronald v. State

Affirmed and Opinion filed December 22, 2005 Affirmed and Opinion filed December 22, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00979-CR ____________ RONALD JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 973,124 O P I N I O N Appellant Ronald Johnson appeals his conviction for burglary of a habitation.[1] In two points of error, appellant contends that (1) the trial court erred by failing to bar evidence about a camera police found in appellant=s pocket when he was seized and (2) the trial court erred by refusing to suppress testimony about appellant=s identification at the Ashow up@ at the complainant=s house. Appellant argues that the elimination of the challenged evidence renders the remaining evidence legally insufficient to support his conviction. We affirm. Background Around 2:30 a.m. on January 6, 2004, eighty-two-year-old complainant Myrtis Perkola awoke to strange noises in her house. Thinking that her grandson was making the noises, Perkola got out of bed to investigate. When she turned on the lights and entered the family room, Perkola noticed a pile of clothes on the floor. However, when she poked the clothes with her cane, she realized that a person was lying on the floor. Afraid that her grandson might be sick, Perkola spoke, and the person on the floor mumbled in response. Perkola told the person to get up, which he did, but he kept his face covered. Perkola then realized that the person was an intruder. Perkola pushed her alarm button and reported that a burglar was in her house. Meanwhile, the intruder escaped. A few minutes later, three police officers arrived at Perkola=s house. Perkola described the intruder as a large, stocky black man wearing a tan or gray hooded fleece jacket. Officers O=Leary and Sanderson then began to canvass the neighborhood for the burglar while Sergeant Milligan remained at Perkola=s house. About a quarter mile from Perkola=s house, O=Leary noticed appellant riding a bicycle. Appellant matched the description of a large black man wearing a tan fleece and was the only person in the area. When appellant saw O=Leary=s patrol car, he tried to turn around but fell off the bicycle and dropped a bag he was carrying. When O=Leary made a u-turn, appellant remounted the bicycle and eventually entered a Phillips 66 convenience store. While appellant was inside, O=Leary radioed that he had located a person matching the description of the burglar. Sanderson joined O=Leary just as appellant was coming out of the convenience store and told him to approach the patrol car. Sanderson told appellant that he was not under arrest; Sanderson also informed appellant that he was conducting a robbery investigation and needed appellant to accompany him for identification purposes. Sanderson handcuffed appellant and performed a pat-down search for weapons, during which he recovered a small 35-mm camera from appellant=s jacket pocket. Sanderson put appellant in the back seat of the car and proceeded to Perkola=s house to determine whether she could identify appellant as the burglar. Meanwhile, O=Leary retrieved the bag appellant had dropped and discovered that it contained paper towels and toilet paper. When Sanderson arrived at Perkola=s house, he parked the patrol car at the curb, turned on the dome light, and partially rolled down the window. Sanderson then asked if Perkola was missing a camera. Perkola went to retrieve her camera and realized that it was indeed missing. Sanderson showed Perkola the camera he had discovered and told her that he had found it in appellant=s pocket.[2] Perkola stated that the camera looked just like her own Canon Sure Shot camera. As Sanderson and Milligan escorted Perkola to the patrol car, Perkola asked them to roll down the car window. She then called out to appellant and asked if he had broken into her home. When appellant mumbled in reply, Perkola said that he sounded exactly like the burglar. Because of her poor eyesight, Perkola stood close to the car in order to see appellant.[3] When the officers shined their flashlights inside the car, Perkola identified appellant=s jacket as the one the intruder had been wearing. At that point, Sanderson arrested appellant for burglary of a habitation. At the suppression hearing, the parties stipulated that the police did not have a warrant and did not observe appellant committing a felony at the time of the encounter. Sanderson also identified appellant as the person he had detained. The trial judge denied defense counsel=s motions to suppress evidence of the camera and the identification. At trial, Perkola testified about the show-up but did not identify appellant in court.[4] However, the officers testified that Perkola had identified appellant as the burglar out of court. The trial judge denied defense counsel=s motion for a directed verdict at the end of trial. The jury convicted appellant of burglary of a habitation and sentenced him to fifty years= confinement after finding enhancement allegations in the indictment to be true. Appellant now argues that the trial court=s denial of the motions to suppress violated his right to due process under the Texas and United States constitutions. First, appellant argues that the trial court erred by failing to suppress evidence concerning the camera because it was the fruit of an arrest that lacked probable cause. Alternatively, appellant argues that even if the encounter with Sanderson did not rise to the level of an arrest, it was an invalid Terry stop because (1) the officers lacked reasonable suspicion to detain appellant, and (2) the search was overly broad. Secondly, appellant argues that the trial court erred by failing to suppress testimony about the show-up at Perkola=s house because the procedure was impermissibly suggestive and conducive to a serious risk of misidentification. Standards of Review We review a trial court=s ruling on a motion to suppress under an abuse of discretion standard. Gaines v. State, 99 S.W.3d 660, 665 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (citing Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)). Under this standard, we give almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We give the same amount of deference to a trial court=s ruling on Aapplication of law to fact questions@Calso known as Amixed questions of law and fact@Cif the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. at 665-66. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. at 666. When, as in this case, the trial court makes no explicit findings of historical fact, we presume that it made those findings necessary to promote its ruling, provided that they are supported in the record. Id. (citing Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000)). When reviewing a trial court=s ruling on mixed questions of law and fact, we view the evidence in the light most favorable to the trial court=s ruling. Guzman, 955 S.W.2d at 89. We review a trial court=s decisions regarding detention, probable cause, and reasonable suspicion de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). We also review a trial court=s ruling on the admissibility of an out-of-court identification de novo. Santos v. State, 116 S.W.3d 447, 455 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); Vasquez v. State, 101 S.W.3d 794, 796 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Arrest v. Detention Appellant argues that his encounter with Sanderson was an arrest because Sanderson handcuffed appellant before searching him and failed to question him. Appellant claims that this arrest was unconstitutional because Sanderson lacked probable cause. Alternatively, appellant argues that even if the encounter did not rise to the level of an arrest, it was an invalid investigatory stop because Sanderson did not have reasonable suspicion to detain him. We disagree with both contentions and hold that the encounter constituted a valid investigatory stop supported by reasonable suspicion. Whether a detention is an investigative detention or an arrest depends upon the facts and circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991). Although appellant argues that the use of handcuffs transformed his encounter with Sanderson into an arrest, handcuffing alone does not necessarily convert a temporary detention into an arrest. Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); Nargi v. State, 895 S.W.2d 820, 822 (Tex. App.CHouston [14th Dist.] 1995, pet. dism=d) (citing Hilla v. State, 832 S.W.2d 773, 778 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d)). Instead, courts look to the reasonableness of the officer=s actions, judged from the perspective of a reasonable officer at the scene. Goldberg, 95 S.W.3d at 360 (citing Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997)). Factors to consider include: (1) the need to gain control over the suspect; (2) the use of force, including the display of weapons; (3) use of handcuffs; (4) length of detention; (5) admonitions of the detaining officer; (6) reasonable perception of the detainee as to his status; (7) movement of the detainee; (8) the overall intrusiveness of the detention; and (9) the opinion of the detaining officer as to the status of the detention. Nargi, 895 S.W.2d at 822. Police may use such force as is reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Goldberg, 95 S.W.3d at 360 (citing Rhodes, 945 S.W.2d at 118)). An investigative detention implies that the obtrusive act is for the purpose of actually investigating; where no investigation occurs, the detention cannot be considered investigatory and therefore rises to the level of an arrest. Goldberg, 95 S.W.3d at 360 (citing Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991)). Ultimately, the focus is not whether a less intrusive means of gaining control of the situation was available, but whether the police officer was unreasonable in failing to use it. Nargi, 895 S.W.2d at 822. We hold that Sanderson=s actions were reasonable and that his encounter with appellant was an investigatory detention, not an arrest. When Sanderson saw appellant, he simply asked him to approach the patrol car; there is no evidence that Sanderson drew his weapon at any time during the encounter. Additionally, before handcuffing appellant, Sanderson explained that he was conducting a burglary investigation and that he needed appellant to accompany him for identification purposes. Sanderson also informed appellant that he was not under arrest; in fact, Sanderson did not arrest appellant until after Perkola had identified him as the burglar. Therefore, although he did not question appellant, Sanderson clearly expressed that he initially had detained appellant for investigatory purposes. Furthermore, although Perkola did not mention that the burglar had been armed, Sanderson testified that he had handcuffed appellant out of concern for his own safety. We believe that this is a reasonable precaution for an officer who is transporting a suspect unaccompanied by other officers. Finally, while appellant likely did not feel free to leave while in the back of Sanderson=s car, the detention was short-lived; Sanderson drove immediately to Perkola=s house, which was only a quarter-mile away. Therefore, we hold that Sanderson did not act unreasonably in handcuffing appellant and that the encounter was an investigative detention, not an arrest. Reasonable Suspicion We also hold that Sanderson had a reasonable suspicion to detain appellant. A police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity might be afoot. Goldberg, 95 S.W.3d at 360 (citing Terry v. Ohio, 392 U.S.1, 30 (1968)). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Id. (citing Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)). A temporary detention is justified when the detaining officer has specific, articulable facts at the time of the detention which, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id. A reasonable suspicion means more than a mere hunch or suspicion. Id. (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. Id. Perkola described the burglar as a large, stocky black man wearing a gray or tan hooded fleece jacket. Only several minutes after the incident, Sanderson saw appellant roughly a quarter-mile away from Perkola=s house. Appellant, who matched Perkola=s description of the burglar, was the only person in the vicinity. When appellant saw Sanderson=s car, he appeared startled, fell off his bike, and headed in the opposite direction. In light of the totality of the circumstances, these facts objectively support a reasonable suspicion that appellant had been involved in criminal activity, namely the burglary of Perkola=s house. See, e.g., White v. State, 695 S.W.2d 799, 801-802 (Tex. App.CAmarillo 1985, no pet.) (holding that officers had reasonable suspicion to detain black men wearing white shirts who were near crime scene late at night and ran when they saw police, when robbery victim had described perpetrators as black men wearing yellow shirts); see also Foster v. State 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (stating that inference of guilt may be drawn from evidence of flight). Appellant argues that Sanderson could not have had a reasonable suspicion to detain him simply because appellant matched a general description of the burglar, was in Perkola=s neighborhood in the middle of the night, and made a u-turn when he noticed Sanderson=s patrol car. Appellant relies on Gamble v. State, where the court held that officers did not have a reasonable suspicion that the defendant possessed drugs simply because (1) the area had a history of drug sales; (2) the police had answered frequent calls to the area over the last year; (3) it was 3:00 a.m.; (4) appellant was standing near a residence to which the officers had been called in the past, but at which they had never made arrests for drugs or weapons; and (5) appellant watched the marked police car and walked away from it when it turned around. 8 S.W.3d 452, 454 (Tex. App.CHouston [1st Dist.] 1999, no pet.). However, unlike in appellant=s case, the officers in Gamble were simply performing a routine patrol; they did not have a description of any particular suspect and were not canvassing the neighborhood for the perpetrator of a recently-committed crime. Id. at 453. We find this to be an important distinction in determining that Sanderson had a reasonable suspicion to detain appellant. Appellant also relies on Sims v. State to support his position that a general description cannot give rise to a reasonable suspicion. 84 S.W.3d 805, 810 (Tex. App.CHouston [1st Dist.] 2002, no pet.). However, we also find that case to be distinguishable. In Sims, the witnesses described the suspect as a black male, Ayounger in age,@ walking around an apartment complex. Id. at 807. The detaining officer testified that he stopped the defendant because the defendant, who was a black man in his early twenties, matched this general description. Id. at 809. The court held that there were not sufficient articulable facts to connect appellant with the offense. Id. at 810. However, Perkola=s description of appellant is more specific than the description of the suspect in Sims. Although appellant argues that he simply happened to match the vague description of a Alarge, black male,@ officers were actually looking for a large, stocky black man wearing a hooded gray or tan fleece jacket. In light of the totality of the circumstances, this description was sufficiently specific to give rise to a reasonable suspicion that appellant had burglarized Perkola=s house. Overly Broad Search Appellant also argues that evidence concerning the camera should have been suppressed because Sanderson=s search was overly broad. However, because appellant did not object on these grounds during the suppression hearing or at trial, he cannot raise the issue on appeal. Tex. R. App. P. 33.1(a) (stating that the record must show that the complaint was made to the trial court by timely request, objection, or motion that states grounds with sufficient specificity).[5] An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Therefore, we will not address whether the search that uncovered the camera was overly broad. Because appellant=s encounter with Sanderson constituted an investigatory detention supported by reasonable suspicion, and appellant failed to preserve the issue of whether the search was overly broad, we hold that the trial court did not err by failing to bar evidence about the camera found in appellant=s pocket. Accordingly, we overrule appellant=s first point of error. Identification In his second point of error, appellant contends that Perkola=s out-of-court show-up identification should have been suppressed. Appellant argues that the identification was impermissibly suggestive and created a very substantial risk of misidentification in violation of his right to due process. Appellant also asserts that the elimination of the challenged evidence renders the remaining evidence legally insufficient to support his conviction. When faced with a challenge to an out-of-court identification, courts must look to the totality of the circumstances surrounding the identification to determine whether the procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Vasquez, 101 S.W.3d at 796 (citing Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1988)). First, we must determine whether the pretrial identification procedure was impermissibly suggestive. Santos, 116 S.W.3d at 455; Vasquez, 101 S.W.3d at 796 (citing Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995)). Secondly, if the procedure was impermissibly suggestive, we must examine the reliability factors enumerated in Neil v. Biggers to determine whether the procedure gave rise to a very substantial likelihood of misidentification. 409 U.S. 188, 198 (1972); see also Santos, 116 S.W.3d at 455; Vasquez, 101 S.W.3d at 796. The party challenging the identification must show impermissible suggestion and a very substantial likelihood of misidentification by clear and convincing evidence. Barley, 906 S.W.2d at 33-34. Impermissibly Suggestive We hold that the show-up was impermissibly suggestive in this case. Although single suspect show-ups do not necessarily violate a defendant=s right to due process, courts traditionally have viewed them with suspicion. Biggers, 409 U.S. at 198; Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982); see also Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (holding that use of photo was impermissibly suggestive when police presented it as a photo of the person who was in custody and under indictment for committing the offense); Santos, 116 S.W.3d at 453 (holding that home video was impermissibly suggestive when defendant was the only person who appeared in both the video and the line-up); Pace v. State, 986 S.W.2d 740, 745 (Tex. App.CEl Paso 1999, pet. ref=d) (holding that show-up during which victim identified suspect as her attacker three hours after assault occurred was impermissibly suggestive); Loserth v. State, 985 S.W.2d 536, 543 (Tex. App.CSan Antonio 1998, pet. ref=d) (holding that showing witness a lone photograph of defendant was impermissibly suggestive). Here, appellant was the only suspect police presented to Perkola. Additionally, Perkola saw appellant handcuffed in the back of a police car after Sanderson had informed her that he had found her missing camera in appellant=s pocket. Under these circumstances, Perkola very likely thought that the officers believed appellant to be the burglar. Accordingly, we find that the show-up was impermissibly suggestive. Likelihood of Misidentification We hold that appellant failed to prove by clear and convincing evidence that the identification gave rise to a very substantial likelihood of misidentification. When determining whether an identification gives rise to a very substantial likelihood of misidentification, a reviewing court must consider the following non-exclusive Biggers factors: (1) the witness=s opportunity to view the criminal act; (2) the witness=s degree of attention; (3) the accuracy of the description of the suspect; (4) the level of certainty at the time of confrontation; (5) the time between the crime and confrontation. Barley, 906 S.W.2d at 34-35 (citing Biggers, 409 U.S. at 198)). Biggers factors are issues of historical fact, which a court should view deferentially in a light favorable to the trial court=s ruling. Loserth, 963 S.W.2d at 773-74. The court then should weigh these factors de novo against the corrupting effect of the suggestive pretrial procedure. Id. First, the record indicates that Perkola had ample opportunity to observe the burglar both visually and aurally. After turning on the light, Perkola saw a person hunched on the floor and heard him speak in a mumbling type of speech. Although the burglar covered his face when he stood up, Perkola had several minutes to observe his clothing, his race, and his body type. Furthermore, since Perkola poked the burglar with her cane, her observations took place at very close range. Secondly, there is evidence that Perkola was attentive during the incident. Before the burglar escaped, Perkola poked him, asked him a question, and elicited a response. Additionally, because Perkola was the victim rather than a casual observer, she likely paid close attention to the burglar=s appearance. See Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987) (stating that a witness who is also a victim normally has a greater degree of attention than a casual bystander). Third, Perkola=s description of the burglar and appellant=s appearance were consistent. Although the testimony differs about the color of the jacket, the record indicates that Perkola described the burglar as wearing a hooded jacket made of fleece or a similar soft material. Additionally, Perkola described the burglar as a large, stocky black male. Fourth, Perkola demonstrated certainty that appellant was the burglar when she saw him in the patrol car. Although she asked appellant if he had been in her house as she approached the vehicle, Perkola unequivocally identified appellant as the burglar when she stood close to the window. Perkola also stated that appellant=s mumbling speech and the burglar=s speech sounded exactly the same. Finally, very little time elapsed between the burglary and the identification. Police arrived at Perkola=s house less than five minutes after she called for assistance, and Sanderson located and brought appellant to Perkola=s house shortly thereafter.[6] This proximity of time suggests that Perkola=s memory of the intruder was still fresh when she identified appellant as the burglar; therefore, her identification was reliable. See Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (holding that under the totality of the circumstances, a photographic lineup occurring five days after the crime did not suggest a substantial likelihood of misidentification); Stokes v. State, No. 03-02-00508-CR, 2003 WL 21401267, at *3 (Tex. App.CAustin June 19, 2003, no pet.) (not designated for publication) (stating that thirty to forty-five minutes is a very short period between crime and confrontation and noting that the Court of Criminal Appeals has found confrontations that occurred five months after the crime to be sufficiently reliable). Weighing these factors against the corruptive effect of the impermissibly suggestive procedure, we hold that appellant has failed to demonstrate by clear and convincing evidence that there was a very substantial likelihood of misidentification. While the knowledge that appellant possessed her camera certainly could have influenced Perkola to identify appellant as the burglar, under the totality of the circumstances, its corruptive effect does not outweigh the substantial evidence of reliability. Therefore, we hold that the trial court did not err by refusing to suppress testimony about the show-up identification. Because we hold that the trial court did not err, we need not address whether the evidence is legally sufficient after eliminating the evidence of appellant=s identification at the show-up. We overrule appellant=s second point of error and affirm the trial court=s ruling. /s/ Adele Hedges Chief Justice Judgment rendered and Opinion filed December 22, 2005. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] A jury found appellant guilty and sentenced him to fifty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. [2] The sequence of events regarding Perkola=s identification of the camera is somewhat unclear. At trial, Sanderson testified that he showed Perkola the camera but did not tell her that he had found it in appellant=s pocket. However, testimony at the suppression hearing indicates that Sanderson told Perkola that he had recovered the camera from appellant either before or after she realized that hers was missing. The record clearly reflects that Sanderson showed Perkola the camera and that she identified it as hers before she identified appellant in the car. [3] The record reflects that Perkola suffered from macular degeneration. Perkola testified that this condition mainly affected her ability to read and that she could see things clearly up-close. [4] A show-up is a pre-trial identification procedure in which a suspect is confronted with a witness to or the victim of a crime. Unlike a lineup, a show-up is a one-on-one confrontation. Black=s Law Dictionary 645 (Second Pocket ed. 2001). [5] Although defense counsel=s cross-examination of Sanderson at the suppression hearing revealed that Sanderson recovered a camera, not a weapon, from appellant, counsel made no reference to the search as being overly broad. At the suppression hearing, counsel argued only that appellant=s encounter with Sanderson was an arrest that lacked probable cause and asked the court to Agrant the defense motion to suppress any evidence obtained as a result of this illegal detention and arrest, seizure and arrest of Mr. Johnson.@ At the beginning of trial, defense counsel objected to Athe procedure that was discussed in an earlier proceeding@ and later asserted that Athe same objections I=ve lodged previously will remain.@ [6] Although the record is somewhat inconsistent, it is clear that no more than thirty minutes elapsed between the time officers arrived on the scene and the time Sanderson returned to Perkola=s house with appellant.