Hudson, Kenneth James v. State

Affirmed and Memorandum Opinion filed January 6, 2005 Affirmed and Memorandum Opinion filed January 6, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-01253-CR ____________ KENNETH JAMES HUDSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 939,735 M E M O R A N D U M   O P I N I O N Appellant, Kenneth James Hudson, was convicted by a jury of aggravated robbery and sentenced to sixty years= incarceration in the Texas Department of Criminal Justice, Institutional Division. In this appeal, appellant claims the trial court erred in admitting the photo spread into evidence because it was unduly suggestive and in allowing a witness, who was present in the courtroom during opening statements, to testify. We affirm. A little after 12:30 p.m., on December 9, 2002, the complainant, Gwendolyn Stephenson, went into the Super Value store on Tidwell and Homestead in Houston. When Stephenson left the store, she walked to her car, with the umbrella up. When she reached the front of her car, another car pulled up two spaces away from her car. The appellant got out of the car and asked Stephenson, ADon=t I know you?@ Stephenson said he did not know her. She proceeded to unlock her car, let her umbrella down, and get in. When Stephenson started to close her car door, appellant, who was squatting down between the open door and the car, blocked her from doing so. Appellant again asked Stephenson if he knew her; she repeated that he did not know her. Appellant then said, AWell, this is a robbery,@ pulled a gun out of his pocket, and demanded Stephenson=s cell phone and purse. Stephenson complied with appellant=s demand. Appellant backed away to his car and drove away. During the robbery, Stephenson never took her eyes off of appellant. She Ahad a good look at his face.@ Stephenson was also able to get the license plate number of the car appellant drove. According to Stephenson, after the robbery, appellant did not try to speed out of the parking lot. Stephenson looked at the license plate, memorized the number, ran into the store, and wrote down the number. Stephenson also observed that the license plates were from another state because they were not the same color as Texas license plates. Photo Spread In his first issue, appellant asserts that because Sergeant Madden told Stephenson that a suspect was arrested in a similar vehicle with the same license plate number, she knew the alleged suspect=s photo was included in the photo spread, making the photo spread unduly suggestive. AA pretrial identification procedure may be so unnecessarily suggestive and conducive to mistaken identification that to use that identification at trial would deny the accused due process of law.@ Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). The two-step test to determine the admissibility of an in-court identification is (1) whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive, (2) whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001). An analysis under this test is conducted by using Aa totality of the circumstances@ approach. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted, such as the police pointing out the suspect or suggesting that a suspect is included in the line-up or photo array. Id. Sergeant Bill Madden of the Houston Police Department investigated this robbery. On January 21, 2003, Madden received information the suspect involved in this case was stopped, driving a car with the same license plate number that Stephenson had reported. Madden then ordered the photo of the suspect who had been arrested in that unrelated incident. Madden testified that he told Stephenson that someone had been stopped driving a vehicle with a similar license plate and that he would like her to come in and look at a photo spread to see if that person was the same suspect. Stephenson similarly testified that Madden asked her to look at a photo spread because on the day she was robbed, the license plates to the car she described fit the description of someone they had picked up for something else. However, before showing Stephenson the photo spread, Madden admonished her that the suspect may or may not be in the photo spread, told her to take into account that hairstyles, mustaches, and beards my change, and cautioned that she was not obligated to pick out anyone if she did not recognize anyone. Madden did not indicate to Stephenson which photo to choose. Stephenson also testified that Madden told her not to be concerned if she did not see the person who robbed her in the photo spread, and Madden never told her the person who robbed her was in the photo spread. Stephenson explained that Madden wanted to make sure that she understood that she should not feel compelled to pick out anyone. Stephenson picked appellant out of the photo spread A[r]ight off the bat,@ and then sat back in her chair and started shaking. We conclude the procedure may have been suggestive, but not impermissibly suggestive. Assuming arguendo that the procedure used in the photo spread was impermissibly suggestive, we next must determine whether this created a very substantial likelihood of irreparable misidentification. To determine whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification, the court considers the following factors: (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. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). After considering the above five factors, we conclude the pretrial identification procedure, if impermissibly suggestive, did not give rise to a very substantial likelihood of irreparable misidentification. First, Stephenson had a significant opportunity to view appellant at the time of the robbery. Appellant spoke to Stephenson before the robbery and was physically very close to her at the time of robbery. Second, Stephenson was focused on appellant. She never took her eyes off of him and she Ahad a good look at his face.@ Third, Stephenson accurately described appellant. She described appellant as a 35 to 40 year-old black male with a short to medium length afro, 5'7" to 5'9" in height, and weighing 160 to 180 pounds. Appellant is 5'9" tall and weighs 190 pounds. Fourth, Stephenson identified appellant as the robber with a great deal of certainty when shown the photo spread and again at trial. Fifth, although ten months time elapsed between the robbery and the trial, this had no significant effect on Stephenson=s recollection of the events or identification of appellant at the time of trial. Appellant=s first issue is overruled. In his second issue, appellant further complains the photo spread was unduly suggestive because his afro was the longest pictured, where as all the afros were short, not medium in length. Suggestiveness may be created by the content of the line-up or photo array itself if the suspect is the only individual closely resembling the pre-procedure description. Barley, 906 S.W.2d at 33. While the better practice is to utilize individuals with features matching the accused, that is not always practical, and neither due process nor common sense requires such a procedure. Turner v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980). Moreover, there is no standard concerning the similarities required of the persons used in the pretrial procedure. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.CDallas 1999, pet. ref=d). Thus, the fact that participants do not perfectly match the witness= prior physical description of the accused does not render the procedure impermissibly suggestive. Cooks v. State, 844 S.W.2d 697, 732 (Tex. Crim. App. 1992); see also Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.CCorpus Christi 1995, no pet.) (explaining that photo spread is not impermissibly suggestive merely because each photo can be distinguished in some manner from photo of accused). The photo spread at issue in this case shows six black males with similar features. While appellant=s hair appears to be slightly longer than three of the others pictured, it appears to be about the same length as two of the others. Moreover, Stephenson testified that she did not pick out appellant because his hair was the longest; instead, it was because she Anever for[got] his face.@ We do not find that with regard to hair length, the photo spread was impermissibly suggestive. Even if the photo spread were impermissibly suggestive due to the length of appellant=s hair as compared to the other men included in the photo spread, as analyzed above, this did not create a very substantial likelihood of irreparable misidentification. Appellant=s second issue is overruled. Rule 614 In his third issue, appellant claims the trial court erred in allowing Sergeant Madden to testify because he was present in the courtroom during the State=s opening statement and part of appellant=s opening statement, even though Texas Rule of Evidence 614, known simply as Athe rule,@ had been invoked. Appellant objected to Madden=s testimony on the ground that he was present in the courtroom during opening statements when the rule had been invoked. See Tex. R. Evid. 614 (providing that at request of party, trial court shall order witnesses excluded from courtroom so that they cannot hear testimony of other witnesses). The trial court overruled appellant=s objection, stating that the lawyers= statements were not evidence. Rule 614 of the Rules of Evidence provides that at the request of a party, the trial court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. Tex. R. Evid. 614. The purpose of placing witnesses under the sequestration rule is to prevent the testimony of one witness from influencing the testimony of another witness. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). Thus, it is well settled that this rule does not apply to the exclusion of witnesses during voir dire, opening statements, or before there has been any testimony. Creel v. State, 493 S.W.2d 814, 820 (Tex. Crim. App. 1973); Price v. State, 626 S.W.2d 833, 834 (Tex. App.CCorpus Christi 1981, no pet.); see also Hinojosa v. State, No. 03-01-00663, 2002 WL 31026643, at *1 (Tex. App.CAustin Sept. 12, 2002, pet. ref=d) (not designated for publication); Hernandez v. State, No. 04-98-00959, 1999 WL 418117, at *1B2 (Tex. App.CSan Antonio June 23, 1999, no pet.) (not designated for publication); Jacobs v. State, No. 01-86-0136-CR, 1987 WL 10540, at*3 (Tex. App.CHouston [1st Dist.] May 7, 1987, no pet.) (not designated for publication). Therefore, Madden=s presence in the courtroom during opening statements prior to the commencement of any testimony did not violate Rule 614. Appellant, however, complains that Madden, by being present during the opening statements, heard what the testimony of the other witnesses was going to be. A review of the record reveals that in the State=s opening statement, the prosecutor described the testimony Stephenson would give regarding the events of the robbery and that the evidence would show that after looking at the photo spread, there was no doubt in her mind that appellant was the person who robbed her. Before the trial court requested that Madden leave the courtroom, appellant=s attorney stated in his opening statement that the evidence would show that Stephenson did not accurately identify the make and model of automobile that appellant was actually driving when he was stopped two days after the robbery and that she was not certain of the license plate state or number. We fail to see how hearing these opening statements could have influenced Madden=s testimony. Therefore, the trial court did not abuse its discretion in allowing Madden to testify. See Cooks, 844 S.W.2d at 733 (stating enforcement of Rule 614 falls within discretion of trial court and its action will not be disturbed in absence of abuse of discretion or injury to defendant). Appellant=s third issue is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed January 6, 2005. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).