Rodney James Harris v. State

Affirmed and Memorandum Opinion filed September 13, 2007 Affirmed and Memorandum Opinion filed September 13, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-01091-CR ____________ RODNEY JAMES HARRIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 14 Harris County, Texas Trial Court Cause No. 1410959 M E M O R A N D U M   O P I N I O N A jury convicted appellant Rodney James Harris of burglary of a motor vehicle, and the trial court assessed punishment at one year=s confinement. In three issues, appellant complains that the evidence is legally and factually insufficient to support his conviction and that the trial court erred in admitting an eyewitness=s in-court identification. We affirm. I. Factual and Procedural Background Around 8:00 p.m. on October 19, 2006, Matthew Tanner went to his friend Toby Melton=s house for band practice and parked his truck in the driveway. George Kienast, who lived across the street from Melton, testified that he went outside the garage door of his house around 11:00 p.m. to smoke a cigarette and observed an interior light on in Tanner=s truck. Kienast saw an individual inside the truckCwho was not Tanner and who he did not recognizeCunplugging items, taking them out of the truck, and placing them on the ground near the rear passenger-side tire. Kienast, who stood about thirty yards away, described the individual as an approximately six-foot-tall African American male with a large build and wearing a red t‑shirt and blue windbreaker pants. Kienast, however, could not see the individual=s face. Kienast called out to the individual and asked him what he was doing. Rather than responding, Kienast stated that the individual began speaking as though someone else were inside the truck, but Kienast could tell no one else was inside. Kienast stated that the individual then got out of the truck, picked up some of the items he had taken from the truck, and began walking across Melton=s yard. Kienast again asked the individual what he was doing, and he said he was installing speakers in the truck. When Kienast asked the individual why he was walking away from the truck rather than going inside Melton=s house, he became agitated and began cursing and yelling at Kienast. Before the individual reached the nearest street corner, Kienast testified that both streetlights and a neighbor=s porch light illuminated Kienast=s view, and he could now see that the man Awas a big, big guy.@ Kienast also noted that nothing distracted his attention from observing the individual=s actions, as it was late at night and nothing was going on in the neighborhood. About two minutes later, when the individual had turned the corner, Kienast knocked on Melton=s door and told Melton and Tanner he had seen a man rummaging through and taking items out of Tanner=s truck. Tanner and Melton checked the truck, and Tanner confirmed that his interior light was on and his stereo amplifiers, the face of his CD player, and his CD case were missing. Melton and Tanner thereafter set out in Tanner=s truck to find the individual, and Kienast called the police. After a few minutes, Melton and Tanner encountered an individual standing on the side of a mini-mall in a business park who said something to them, and Tanner stopped the truck to talk with the individual. The individual, who Melton described as an African American male wearing dark blue or black jogging-style pants and no shirt and who both Melton and Tanner identified in court as appellant, asked if the men were looking for something, and they informed him a neighbor had witnessed someone breaking into Tanner=s truck. Tanner testified that when he asked appellant if he had seen anyone in a red shirt running with stereo equipment, appellant responded that he had bought stereo equipment from a man fitting that description named Marcus about thirty minutes earlier in the evening and brought it to his apartment. Tanner described the amplifiers, and appellant confirmed that those were the exact items he had purchased from Marcus. Appellant also handed Tanner a receipt purportedly for the sale of the items, but, according to Tanner, the receipt was for a type of wire and contained none of the items missing from his truck. At this point, Deputy Alvin Antoine of the Harris County Constable=s Office, who had previously responded to Kienast=s suspicious person call, arrived at the scene. Deputy Antoine testified that Kienast had informed him of the events, described the perpetrator as a black male wearing a red shirt and black to dark-colored pants, and described the direction in which the perpetrator had gone. Less than two to three minutes after talking with Kienast, Deputy Antoine located Tanner, Melton, and appellant. Deputy Antoine stated that appellant, who he described as wearing black-colored exercise sweatpants but no shirt, volunteered that someone he knew tried to sell him stereo equipment. In response to Deputy Antoine=s questioning about the sale, appellant repeatedly interrupted Antoine and stated that he wanted to leave and get a beer, which Antoine described as Adeceptive.@ As Deputy Antoine interrogated appellant, Tanner testified that he pulled his truck, which was parked in the street, into a nearby driveway, and his headlights revealed that his amplifiers and his CD case were laying by a wheelchair ramp, covered by a red t-shirt. After verifying that the items were in fact those missing from his truck, Tanner immediately informed Deputy Antoine. In describing the placement of the items, Deputy Antoine stated that it Alooked like someone had stashed them there trying to get rid of them in a hurry.@ Deputy Antoine subsequently detained appellant. Kienast testified that he went to the scene of appellant=s detention for an identification, and, when he arrived, an individual was sitting in the back of a patrol car. The individual got out of the vehicle handcuffed, and a backup deputy placed a spotlight on him. Kienast testified that the individual was a six-foot black male with a large build wearing the same blue windbreaker pants as he had seen on the man breaking into Tanner=s truck, but the man was now shirtless. Deputy Antoine asked Kienast if he could identify the individual, and Kienast explained he could not identify his face, which Kienast had not seen, but could identify him by voice. Deputy Antoine instructed the man to say his name, which he did in a soft voice. Kienast then requested that the man say it loudly because Kienast had heard the perpetrator yell. When the individual yelled his name, Kienast identified his voice as that of the man who yelled at Kienast earlier and who Kienast had seen taking items out of Tanner=s car. Kienast explained that, based on the man=s race, his build, his blue windbreaker pants, and his voice, he was able to identify the man standing before him to Deputy Antoine as the man who he saw break into Tanner=s car and who had yelled at him. At a motion in limine hearing outside the presence of the jury to determine the admissibility of Kienast=s anticipated in-court identification of appellant as the man he identified at the scene, Kienast told the trial court that about ten or fifteen minutes elapsed between the time Kienast witnessed the incident and when he made the on-scene identification. He also stated that he was one hundred percent sure of his identification at the scene. Kienast admitted to appellant=s counsel, however, that his in-court identification would be based on his recognition of appellant=s face as that of the man he identified at the scene. After overruling appellant=s motion, Kienast testified before the jury that the man he identified at the scene was appellant. The jury subsequently convicted appellant of burglary of a motor vehicle. II. Admissibility of In-Court Identification In issue one, appellant contends the trial court erred in admitting Kienast=s in-court identification of appellant as the perpetrator because it was based on an impermissibly suggestive Ashow-up@ identification procedure[1] at the scene, which thus gave rise to a substantial likelihood of misidentification at trial. The admissibility of an identification is a mixed question of law and fact that we review de novo. See Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998)). We conduct a two‑step analysis in determining whether the trial court erroneously admitted in‑court identification testimony by evaluating (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. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). A claimed violation of due process in the conduct of an identification confrontation depends on the totality of circumstances surrounding it. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982). When determining whether an identification gives rise to a very substantial likelihood of misidentification, a reviewing court must consider the following non‑exclusive 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, and (5) the time between the crime and confrontation. Barley v. State, 906 S.W.2d 27, 34B35 (Tex. Crim. App. 1995) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). Biggers factors constitute issues of historical fact, which a court should view deferentially in a light favorable to the trial court=s ruling. Loserth v. State, 963 S.W.2d 770, 773B74 (Tex. Crim. App. 1998). The court then should weigh these factors de novo against the corrupting effect of the suggestive pretrial procedure. Id. We conclude that, even if the show-up procedure was impermissibly suggestive, such procedure did not give rise to a substantial likelihood of irreparable misidentification at trial under the Biggers factors. First, Kienast had ample opportunity to see and hear the perpetrator. He testified that he observed the perpetrator taking items out of Tanner=s car while standing directly across the street about thirty yards away and that the truck=s interior light aided his viewpoint. Moreover, both streetlights and a neighbor=s porch light allowed Kienast to better view the perpetrator=s physical characteristics as he left the scene of the offense. That Kienast failed to see the perpetrator=s face at the time of the offense goes only to the weight of his identification, not its admissibility. See Garza, 633 S.W.2d at 513. Further, because he heard the perpetrator yell at him, Kienast specifically requested that the suspect yell his name; upon hearing the suspect yell, Kienast immediately identified the suspect=s voice as that of the perpetrator=s. See McInturf v. State, 544 S.W.2d 417, 419 (Tex. Crim. App. 1976) (holding that voice identification constitutes direct evidence); Ward v. State, 505 S.W.2d 832, 834B35 (Tex. Crim. App. 1974) (upholding in-court identification where, at pretrial identification lineup, after victim heard appellant=s voice, she Abroke down and started crying because she stated that she knew that was the man who raped her@); Johnson v. State, No. 14‑04‑00979‑CR, 2005 WL 3489702, at *7 (Tex. App.CHouston [14th Dist.] Dec. 22, 2005, no pet.) (not designated for publication) (holding that eyewitness had ample opportunity to observe burglar visually and aurally inside her house where witness saw person hunched on her floor and heard him speaking in mumbled speech, and, although person covered his face, eyewitness had several minutes to observe his clothing, race, and body type at close range). Second, the evidence shows Kienast was attentive throughout his observation of the offense. He testified that nothing distracted him because it was late at night and nothing else was going on in the neighborhood. Moreover, Kienast asked the perpetrator a question, elicited a response, and alerted Melton and Tanner of the crime shortly after the perpetrator left the scene, which demonstrate that Kienast more than passively observed the offense. See Johnson, 2005 WL 3489702, at *7 (holding that eyewitness victim was attentive during burglary where she poked burglar, asked him question, and elicited response before he escaped). Third, Kienast consistently described the perpetrator as a six-foot tall African American male with a large build and wearing a red shirt and blue windbreaker-type pants, which largely matched the description of the suspect given by Melton and Deputy Antoine. Fourth, Kienast testified that he was one hundred percent certain of his identification at the scene. See Brown v. State, No. 01‑03‑00098‑CR, 2004 WL 1282294, at *2 (Tex. App.CHouston [1st Dist.] June 10, 2004, pet. ref=d) (not designated for publication) (upholding court=s admission of show-up identification where eyewitness stated she was Aone hundred percent positive@ of identification). Fifth, Kienast testified that he identified appellant only ten or fifteen minutes after the offense. See Lewis v. State, 751 S.W.2d 895, 897 (Tex. App.CHouston [14th Dist.] 1988, no pet.) (upholding court=s admission of show-up identification where identification took place approximately twenty minutes after witness had observed crime). Therefore, under the totality of the circumstances, we do not find that the show-up identification procedure gave rise to a substantial likelihood of irreparable misidentification. As such, the trial court did not err in admitting Kienast=s in-court identification of appellant. We overrule issue one. III. Legal and Factual Sufficiency In issues two and three, appellant contends the evidence was legally and factually insufficient to support his conviction for burglary of a motor vehicle. Specifically, appellant claims that the in-court identification was insufficient to support the conviction because it was based upon an impermissibly suggestive out-of-court identification. In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we give great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). In conducting a factual sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Rather, we consider all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or, (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006). However, it is not enough that we may harbor a subjective level of reasonable doubt to overturn a finding that is founded on legally sufficient evidence. See id. at 417. We cannot conclude that a finding is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted differently had we been the factfinder. See id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we may disagree with the factfinder=s resolution of that conflict. See id. Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the verdict. See id. A person commits burglary of a motor vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. Tex. Penal Code Ann. ' 30.04(a) (Vernon 2003). In a burglary of a motor vehicle prosecution, intent to commit theft may be inferred from the circumstances. See Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. 1979). After reviewing the record, we conclude the evidence was both legally and factually sufficient to support appellant=s conviction for burglary of a motor vehicle. Kienast, through his in-court identification, testified that he saw appellant taking items from Tanner=s car and absconding with them.[2] Moreover, Tanner, Melton, and Deputy Antoine later found appellant in possession of Tanner=s amplifiers and CD case. See id. at 138 (holding evidence was sufficient to support burglary of vehicle conviction where eyewitnesses testified that appellant leaned into open vehicle belonging to another at night and removed property from vehicle and appellant was later apprehended with property belonging to owner of vehicle). Although appellant claimed he had purchased the items from someone else and produced a receipt purportedly reflecting such purchase, Tanner testified that the receipt did not show any of the items taken from his car. See Callahan v. State, 502 S.W.2d 3, 6 (Tex. Crim. App. 1973) (noting that jury is generally not bound to accept appellant=s explanation of possession of recently stolen property). Appellant=s only witness, Deputy Larry Umfrid of the Harris County Sheriff=s Office property room, testified that appellant did not wear or possess a red t-shirt when brought into custody. However, given that appellant was shirtless when confronted by Tanner, Melton, and Deputy Antoine, the jury could have reasonably inferred that the red t-shirt Tanner testified he saw covering the stolen items was appellant=s. See Clewis, 922 S.W.2d at 133. Thus, we hold that a rational trier of fact could have found the essential elements of burglary of a motor vehicle beyond a reasonable doubt and that the evidence is not so weak that the jury=s verdict is clearly wrong and manifestly unjust or was against the great weight and preponderance of the evidence. We overrule issues two and three. Having overruled each of appellant=s issues, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Judgment rendered and Memorandum Opinion filed September 13, 2007. Panel consists of Justices Yates, Seymore, and Edelman.* Do Not Publish C Tex. R. App. P. 47.2(b). * Senior Justice Richard H. Edelman sitting by assignment. [1] A show‑up is a pretrial 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. See Johnson v. State, No. 14‑04‑00979‑CR, 2005 WL 3489702, at *2 n.4 (Tex. App.CHouston [14th Dist.] Dec. 22, 2005, no pet.) (not designated for publication). [2] As noted, appellant largely bases his legal and factual sufficiency challenges on his assertion that the in-court identification was insufficient to support the conviction due to the impermissibly suggestive nature of the out-of-court identification. We have already held that the trial court properly admitted the in-court identification because there was no substantial likelihood of misidentification at trial, and, in any case, we consider all the evidence actually admitted at trial, whether properly or not, in our legal and factual sufficiency review. See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004); Powell v. State, 219 S.W.3d 498, 506 (Tex. App.CFort Worth 2007, pet. ref=d).