Brian Kevin Lee v. State

Affirmed and Memorandum Opinion filed February 9, 2006 Affirmed and Memorandum Opinion filed February 9, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00216-CR ____________ BRIAN KEVIN LEE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 995,717 M E M O R A N D U M   O P I N I O N Appellant Brian Kevin Lee was found guilty by a jury of aggravated robbery with a deadly weapon, and he was sentenced by the trial court to twenty-five years= confinement in the Texas Department of Criminal Justice, Institutional Division. In points of error one through six, appellant contends the trial court erred in failing to suppress the out-of-court and in-court identifications of the complainant and three other witnesses in violation of his due process rights. In points of error seven and eight, appellant contends the evidence is legally and factually insufficient to corroborate the testimony of an accomplice because the only other evidence of guilt is the allegedly tainted identifications. We affirm. Factual Background On July 28, 2004, Casheen Haynes, Lauren Hamilton, Britania Lubbing and Jason Brousard finished eating at a Houston IHOP restaurant at approximately 1:00 a.m. As they were leaving, four men in a station wagon drove by the group in the restaurant=s parking lot, and one of the men said something to them. The station wagon then parked near them as the group was standing by Hamilton=s truck. Two men got out of the station wagon and walked towards the group. The men were later identified as Jerry Williams and appellant. Williams carried a shotgun and appellant carried a handgun. Appellant demanded that Haynes give him his money, and when Haynes hesitated, appellant hit Haynes two or three times in the head with his gun. Haynes gave appellant his money while Williams robbed the other members of the group. As appellant and Williams walked back to the station wagon, Williams fired two shots toward the group; one shot hit Hamilton=s truck. After the station wagon pulled away, Haynes called the police on his cell phone. He provided a description of the men, Brousard provided the make and model of the car, and Hamilton gave the license plate number. The police arrived at the IHOP approximately fifteen minutes later and obtained more information from the group. After Haynes left the IHOP, the police called him and asked him if he could come and identify some suspects they believed they had found. Haynes drove to the apartment complex where the station wagon was located and four men who were standing nearby, one of whom was appellant, had been detained.[1] Hamilton and Lubbing were also brought to the apartment complex by police officers to make identifications. Haynes, Hamilton, and Lubbing were each escorted to separate police cars. Each of the four suspects was then brought in front of the police cars one at a time. All three witnesses identified appellant and Williams as the men who had robbed them. All three also identified appellant at trial. Before trial, appellant filed a motion to suppress the in-court identifications because of an impermissibly suggestive pretrial identification procedure. Haynes, Hamilton, and Lubbing testified at the suppression hearing. After the hearing, the trial court found that, based on the totality of the circumstances, the pretrial and subsequent in-court identifications were not suggestive, and he allowed the identifications to be introduced at trial.[2] Analysis of Appellant=s Points of Error I. Points of Error One Through Six: The Out-of Court and In-Court Identifications In his first through sixth points of error, appellant contends that the trial court committed reversible error by denying his motion to suppress the out-of-court and in-court identifications by the complainant, Casheen Haynes, Lauren Hamilton, and Britania Lubbing. Appellant contends that the procedure used during the out-of-court identifications was highly suggestive in violation of his federal due process rights because the police told Haynes, Hamilton, and Lubbing that they Abelieved that they had the suspects,@ or because the three witnesses could infer this from the amount of time that passed between the offense and the identifications. Appellant further contends that the three witnesses= in-court identifications also violated his federal due process rights because they were tainted by the allegedly unduly suggestive pretrial identification procedure. A. The Applicable Law A pretrial identification procedure may be so unnecessarily suggestive and conducive to mistaken identification that to use that identification would deny the accused due process of law. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (citing Stovall v. Denno, 388 U.S. 293, 301B02 (1967)). Nevertheless, even if the pretrial procedure is impermissibly suggestive, the subsequent identification testimony will be deemed reliable if the totality of the circumstances reveals no substantial likelihood of misidentification. A[R]eliability [is] the linchpin in determining the admissibility of identification testimony.@ Id. (citing Manson v. Brathwaite, 432 U.S. 98, 113B14 (1977)). We therefore perform a two‑step analysis to determine whether the trial court erroneously admitted in‑court identification testimony, inquiring: (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). It is appellant=s burden to prove the in‑court identification is unreliable by proving both of these elements by clear and convincing evidence. See id. If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the identification testimony is admissible. Id. The admissibility of an identification is a mixed question of law and fact that we review de novo. See Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). B. Was the Pretrial Procedure Impermissibly Suggestive? While an on-scene confrontation procedure has some degree of suggestiveness, in many situations its use is necessary. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh=g). By viewing the alleged perpetrator of the offense immediately after the commission of the offense, the witness is allowed to test his recollection while his memory is still fresh and accurate. Id. The quick confirmation or denial of identification also expedites the release of innocent suspects, and enables the police to release innocent suspects and continue their search for the criminal while he is still within the area and before the criminal can substantially alter his looks and dispose of evidence of the crime. Id. Finally, any possible prejudice resulting from such a confrontation can be exposed by rigorous cross-examination of the witness. Id. Here, the on-scene procedure used could be considered necessary. First, the witnesses had given the police a description of appellant=s appearance and the station wagon, as well as the station wagon=s license plate number. The on-scene identification, which took place within two hours of the crime, enabled the witnesses= memories to be tested while they were fresh and accurate. Second, while the police originally detained four possible suspects, only two were identified by the witnesses. Finally, all three witnesses were cross-examined at the suppression hearing and at trial, which allowed appellant to expose any possible prejudice resulting from the confrontation. Appellant contends that, because the police had him in custody at the time he was identified and thereby suggested that he was a suspect, the witnesses inferred his guilt. However, a suspect shown in custody at the time of the on-scene identification does not necessarily indicate an impermissible identification. See Powell v. State, 837 S.W.2d 809, 811B12 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (holding on-scene identification of appellant shortly after robbery when appellant was in custody as a suspect and handcuffed did not result in irreparable misidentification under totality of circumstances); Lewis v. State, 751 S.W.2d 895, 897B98 (Tex. App.CHouston [14th Dist.] 1988, no pet.) (holding on-scene identification by complainant of appellant and three others detained shortly after burglary of complainant=s car was not so unnecessarily suggestive as to deny appellant due process). Here, the witnesses were shown the suspects one at a time, and all three positively identified appellant and Williams as the robbers. The identification procedure took place approximately two hours after the robbery. Moreover, appellant was found in the immediate vicinity of the station wagon displaying the identified license plate. See Louis v. State, 825 S.W.2d 752, 756 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d) (on-scene identification was not impermissibly suggestive when confrontation occurred an hour after offense, defendant was immediately identified, and any possible prejudice resulting from the confrontation could have been exposed from the cross-examination of the witnesses). Therefore, under these circumstances, we do not find the on-scene identification procedure to be unnecessarily suggestive. C. Did the Allegedly Suggestive Pretrial Procedure Give Rise to a Very Substantial Likelihood of Irreparable Misidentification at Trial? Even if the on-scene identification of appellant was impermissibly suggestive, appellant must still show that the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. See Delk, 855 S.W.2d at 706; Garza, 633 S.W.2d at 512B13. Turning to this second step in the analysis, we look to whether the subsequent identification testimony at trial is reliable under the totality of the circumstances. See Webb, 760 S.W.2d at 269. In assessing reliability under the totality of the circumstances, the following five non‑exclusive factors should be weighed against the corrupting effect of any suggestive identification procedure: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness=s degree of attention; (3) the accuracy of the witness=s 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. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). These factors and other relevant factors that are issues of historical fact will be considered deferentially in the light most favorable to the trial court=s ruling. See id. The factors viewed in this light are then weighed de novo against the corrupting effect of the suggestive pretrial identification procedure. Id. at 195B96 (citing Loserth v. State, 963 S.W.2d 770, 773B74 (Tex. Crim. App. 1998)). Here, Haynes testified that he first observed four men in the station wagon as it drove by the group in the restaurant parking lot. Haynes then watched the station wagon park in a nearby parking space, and saw appellant and Williams walk towards him from the station wagon. At this point, Haynes realized that the men were carrying guns. Appellant then demanded Haynes=s money and hit Haynes with his gun. Haynes testified that he was Afocused on the person with the gun@ and got a good look at him. Haynes also testified that the parking lot was well lit and that appellant was not wearing a disguise. Haynes then watched appellant walk away and saw Williams fire at the group with a shotgun. When he arrived at the apartment complex for the identification procedure, the police separated him from the other witnesses, and he was not allowed to talk to them. He testified that the officers never suggested to him who he should pick and that he was Acertain@ of his identification of appellant and Williams. Approximately two hours passed between the time of the robbery and the identification. Lauren Hamilton testified that she first saw appellant when he and Williams walked toward the group carrying guns. Appellant was standing approximately four feet away from her when she gave her purse to Williams. When appellant began to hit Haynes with the gun, he was within arms= reach of her and she got a good look at him. She watched appellant hit Haynes with the gun for approximately ten to fifteen seconds. She testified that the lighting was Aactually very bright@ in the restaurant parking lot and was adequate for her to get a good look at appellant. When Williams fired the gun at Hamilton=s truck, she ducked behind the truck=s door. As the station wagon drove away, she was able to write down the license plate number. Britania Lubbing first noticed appellant and Williams when they came within Atouching distance@ demanding that the group give them their belongings. She saw that one was armed with a shotgun and one was armed with a handgun. She testified that she got a good look at appellant and watched him as he was hitting Haynes. She also testified that the parking lot was very well lit. The police brought Hamilton and Lubbing to the apartment complex for identification. They testified that the police told them that they had found the car with the license plate number and wanted to see if Hamilton and Lubbing could identify any of the suspects they had detained. When Hamilton and Lubbing arrived at the apartment complex, the police separated them and showed each of the four suspects, one at a time. Both women were able to identify appellant and Williams. Reviewing the totality of the circumstances, we find that each witnesses= identification was sufficiently reliable to be admissible. Therefore, we overrule appellant=s points of error one through six. II. Corroboration of Accomplice Witness Testimony In his seventh and eighth points of error, appellant contends the State failed to present legally or factually sufficient evidence to corroborate the testimony of the accomplice, Jerry Williams. Specifically, appellant contends that the identification testimony of Haynes, Hamilton, and Lubbing cannot be used to corroborate William=s testimony because it was Afatally tainted@ and Asimply not credible enough.@ Appellant also contends that no other corroborating evidence exists.[3] A. The Accomplice Witness Rule and the Applicable Standard of Review Article 38.14 of the Texas Code of Criminal Procedure states that A[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed.@ Tex. Code Crim. Proc. art. 38.14. The corroboration is not sufficient if it merely shows the commission of the offense. Id. The accomplice witness rule is a legislative creation not required by common law or federal constitutional law. Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001). The rule reflects a legislative determination that accomplice testimony should be viewed with a measure of caution. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The accomplice witness rule imposes a sufficiency review that would not otherwise be conducted by appellate courts. Taylor v. State, 10 S.W.3d 673, 684 (Tex. Crim. App. 2000). In conducting a sufficiency review under the accomplice witness rule, the reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to ascertain if there is any evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). ATendency to connect@ rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt. Solomon, 49 S.W.3d at 361; Cathey v. State, 992 S.W.2d 460, 462B63 (Tex. Crim. App. 1999). Rather, if the combined weight of the non‑accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Cathey, 922 S.W.2d at 462.[4] All the facts and circumstances in the case may be considered when determining whether the accomplice testimony was properly corroborated. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). Even apparently insignificant evidence of incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999). B. Application of the Law to the Facts After eliminating the testimony of Jerry Williams, we find numerous facts and circumstances tending to connect appellant with the crime. We have already determined that the identification testimony of Haynes, Hamilton, and Lubbing was admissible, and each of these witnesses testified that appellant and Williams approached them carrying weapons and demanding their belongings and appellant struck Haynes with a gun. In addition, while still at the restaurant parking lot, Haynes and the others in the group provided descriptions of the individuals who robbed them and the station wagon they used to flee the scene. Hamilton provided the license plate number of the station wagon, and appellant was found near this vehicle in the apartment complex where the vehicle was registered, along with Williams and the other suspects. One of the suspects present with appellant was found with Haynes=s stolen cell phone in his pocket, and the shotgun and handgun used in the crime were found inside the apartment unit near where appellant was arrested. Under the accomplice witness rule, it is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; the State needs only to show that other evidence tends to connect the defendant to the offense Solomon, 49 S.W.3d at 361. We find that the combined weight of the non-accomplice evidence tends to connect appellant to the offense. See id. Appellant=s own testimony is the only contradicting evidence, and his credibility, like that of the State=s witnesses, was a matter for the jury to decide. See Wesbrook v. State, 29 S.W.3d 103, 111B12 (Tex. Crim. App. 2000) (discussing appellate review of jury=s resolution of weight and credibility of witness testimony under legal and factual sufficiency standards). We therefore overrule appellants points of error seven and eight. Conclusion The trial court=s judgment is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed February 9, 2006. Panel consists of Justices Fowler, Edelman, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] When the first police officer arrived at the apartment complex where the station wagon was found, he saw three men standing near the station wagon. A fourth man was found a little further away in front of his apartment. All four men acknowledged knowing each other. [2] Among the circumstances the trial court cited were the witnesses= opportunity to witness the event, their level of certainty, and the length of time that had passed between the offense and the subsequent identification. [3] For example, appellant suggests the State could have, but did not, examine the handgun appellant allegedly used for fingerprints, ask either appellant or Williams to identify the weapons that were recovered even though they were introduced into evidence, or test the shotgun to confirm it had been fired. [4] For this reason, we decline appellant=s request that we apply a legal and factual sufficiency review to his complaint that no evidence corroborates the accomplice=s testimony other than the allegedly tainted identification testimony of the complainant and two witnesses. See Cathey, 992 S.W.2d at 462B63.