Jeffrey Lynn Carter v. State

Affirmed and Memorandum Opinion filed January 9, 2007 Affirmed and Memorandum Opinion filed January 9, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00115-CR ____________ JEFFREY LYNN CARTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 993,049 M E M O R A N D U M   O P I N I O N Appellant, Jeffrey Lynn Carter, appeals following his conviction of aggravated robbery and sentence of forty years imprisonment. In his first point of error, appellant challenges the sufficiency of the evidence. In appellant=s second point of error, he contends that the trial court erred in admitting evidence of an alleged extraneous offense two days prior to the charged offense. In his final point of error, appellant complains that certain pretrial identification procedures tainted the witnesses= in-court identification of appellant as the robber. We affirm the trial court=s judgment. I.  BACKGROUND On the morning of July 2, 2006, Giac Nguyen (ANguyen@), the owner of John=s Grocery in Houston, Texas, was making coffee in his store when he was robbed at gunpoint. The coffee was located near a check cashing booth which was secured by bulletproof glass. Nguyen testified that the robber demanded money and threatened him with a black .45 caliber handgun. Confronted by the robber, Nguyen fled into the secured booth. After a brief period of time in which the robber paced back and forth in front of the booth demanding money, Nguyen observed the robber leave the store and ride away on a bicycle. Nguyen testified that during most of the robbery, the robber concealed the lower part of his face by pulling his shirt over it. As the robber left the store, however, his shirt fell from his face allowing Nguyen to see his entire face. Nguyen recognized the robber as appellant because appellant visited the store on a daily basis and had distinctive facial characteristics. At some point during the robbery, Nguyen=s wife, Le Hong Dinh (ADinh@), who also operated the store, came into the front part of the store. Dinh testified that she recognized appellant as the robber because of his frequent visits to the store and because of his distinctive characteristics. She reiterated her husband=s testimony that although the robber covered the lower part of his face with his shirt, his face was fully exposed as he left the store. Morris Long, a security guard at a labor hall across the street from John=s Grocery, testified that he walked to the store after learning from a woman that the store had been robbed. After visiting with Nguyen and Dinh, Long stepped outside where he encountered appellant. Appellant was on a bicycle and offered to help search for the robber. Following this encounter, Nguyen pointed out to Long that appellant was the robber. Officer Craig Kivela responded to the robbery call from John=s Grocery. Officer Kivela interviewed Nguyen, Dinh, and Morris Long for a brief period of time at the store. As Officer Kivela was interviewing Long, appellant rode by on his bicycle. Officer Kivela testified that appellant matched the description given by Nguyen and Dinh. Officer Kivela handcuffed appellant and brought him to Nguyen and Dinh. Both Nguyen and Dinh immediately identified appellant as the robber. Dinh also testified at trial about a prior encounter with appellant on June 30, 2006, two days before the charged robbery occurred. She testified that on the morning of June 30, she was filling the coffee pot next to the cash booth at the store when a man approached her with a black gun demanding money. Because Dinh was unable to secure herself inside the booth, she complied with the robber=s demands by giving him a few hundred dollars. Dinh testified that, despite the robber=s having covered the lower part of his face with his shirt, she recognized him as appellant because of his daily visits to the store and his unique facial characteristics. Officer John Clinton testified that as part of an identification procedure, he presented a photographic array to Dinh. Officer Clinton testified that after giving his instructions regarding the procedure, he showed the photo spread to Dinh. She was able to immediately identity appellant from the array. Appellant testified that on July 2, 2004, he awoke at about 4:30 a.m. and rode his bicycle to the labor hall located across the street from John=s Grocery. He stated that after visiting the labor hall, he walked across the street to an open field where a group of people was gathered. Appellant testified that a lady from the group walked across the street to John=s Grocery. After several minutes, the woman exited and said that the store had been robbed. Appellant stated that after learning of the robbery, he began riding his bicycle around the neighborhood looking for the robber. Appellant later returned to the store where he was arrested. No witnesses were offered to verify appellant=s version of the events. At trial, Nguyen and Dinh identified appellant as the robber after the trial court conducted hearings on the admissibility of appellant=s in-court identification. Appellant denied being the robber and cross-examined the State=s witnesses regarding the credibility of their identification. After hearing this evidence, the jury found appellant guilty of aggravated robbery. II.  ANALYSIS A. Sufficiency of the Evidence In his first point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for aggravated robbery. Appellant specifically attacks the sufficiency of the evidence proving his identity as the robber. In evaluating the legal sufficiency of the evidence, we determine whether, when viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). This standard of review applies to both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Although we consider all of the evidence presented at trial, we may not substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In this case, both Nguyen and Dinh testified that they recognized the robber as appellant because he was a frequent visitor of the store and because of his distinctive facial characteristics. In fact, appellant acknowledged daily visits to the store. Nguyen and Dinh also testified that they were able to recognize appellant because only the lower half of his face was concealed during most of the robbery (and his face was wholly visible the remaining time). Additionally, Nguyen, Dinh, and Morris Long, observed appellant outside of the store immediately after the robbery. Both Nguyen and Dinh identified appellant as the robber within thirty minutes after the robbery to the police and again at trial. Dinh also was able to identify appellant from a photographic array. Officer Kivela testified that appellant matched the descriptions given by Nguyen and Dinh before the arrest. Viewing the evidence in the light most favorable to the verdict, the evidence regarding the identity of the robber is legally sufficient. When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder=s determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because we would have voted to acquit. Watson, 204 S.W.3d at 414. In other words, we may not simply substitute our judgment for the fact‑finder=s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the fact-finder=s determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Appellant argues that the evidence is factually insufficient to prove his identity as the robber. As mentioned above, the State offered evidence from multiple witnesses proving the identity of appellant as the robber. Appellant attempted to contradict the State=s proof by questioning the witnesses= ability to determine the identity of the robber during the robbery and by highlighting alleged inconsistencies in some of the witnesses= statements, thereby attacking the credibility of the witnesses offered by the State. Courts have clearly held that we must give due deference to the fact-finder=s determinations, Aparticularly those determinations concerning the weight and credibility of the evidence.@ Johnson, 23 S.W.3d at 9. In accordance with such due deference, we cannot say that the jury=s determination that the State=s evidence was credible regarding the identity of appellant as the robber was Aclearly wrong@ or Amanifestly unjust.@ In addition to attacking the credibility of the State=s evidence, appellant denied that he committed the robbery and testified about his alibi during the robbery. Appellant claimed that he was across the street from the store when the robbery occurred. He stated that immediately after he learned of the robbery, he rode his bicycle around the neighborhood looking for the robber. No evidence was offered to substantiate appellant=s alibi during the time of the robbery. The State attacked appellant=s credibility by (1) pointing out this absence of substantiation, (2) offering evidence of seven prior felony offenses, and (3) pointing out inconsistencies in appellant=s own statements. After weighing this evidence against the proof in support of the jury verdict, we cannot say that the jury=s verdict is against the great weight and preponderance of the evidence. Therefore, after a neutral review of the evidence, we find that the evidence is factually sufficient to support the jury=s findings. We overrule appellant=s first point of error. B. Extraneous Robbery In appellant=s second point of error, he argues that the trial court erred in admitting evidence of an alleged extraneous robbery two days before the charged offense. Appellant contends that the extraneous robbery is not sufficiently similar to the charged offense and that the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to him. Texas Rule of Evidence 404(b) prohibits the introduction of extraneous Acrimes, wrongs or acts@ to show character conformity but allows for such evidence to show Amotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.@ Tex. R. Evid. 404(b). We review a trial court=s decision to admit evidence per Rule 404(b) under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The record shows that the prosecutor offered the extraneous robbery to confirm the identity of appellant as the perpetrator of the charged robbery. An extraneous offense may be admissible to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). In addition, to be admissible to show identity, an extraneous offense must be so similar to the charged offense that the offenses are marked as the defendant=s handiwork. Id. Appellant does not dispute, and the record clearly shows, that identity was an issue in this case. Instead, appellant argues that the extraneous offense was not sufficiently similar to the charged offense. Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Id. In determining similarity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002). In this case, there were several similarities between the offenses indicating the defendant=s handiwork. In both instances, the robber concealed his face by covering it with his shirt and attacked the individuals while they filled a coffee pot next to the cash booth inside the store. Both Nguyen and Dinh testified that the robber threatened them with a black gun. Both of the robberies occurred early in the morning when the store opened for business. Nguyen and Dinh recognized appellant at the time of the robberies as a frequent visitor of the store. Finally, the robberies occurred at the same store only two days apart. See Johnson, 68 S.W.3d at 651 (finding that less similarity is needed when the offenses are committed Awithin a very short period of time@). We find that the trial court did not abuse its discretion in concluding that the two offenses were sufficiently similar such that the offenses are marked as the defendant=s handiwork. Compare Johnson, 68 S.W.3d at 651 (finding that offenses which were committed within a few hours of each other, both involving lone women and the same car, were sufficiently similar to be the appellant=s handiwork); Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (finding sufficiently similar offenses where: (1) both offenses were robberies, (2) both offenses were committed at gunpoint, (3) the appellant was aided by a confederate in both instances, and (4) the offenses occurred three days apart); Davis v. State, 180 S.W.3d 277, 285‑86 (Tex. App.CTexarkana 2005, no pet.) (holding that evidence of extraneous offense was admissible to prove identity based on similar modus operandi in aggravated robbery and aggravated kidnaping prosecution, when all of the offenses occurred at the same time of night, in the same location and the attacker in all offenses wore the same type of clothing); Harvey v. State, 3 S.W.3d 170, 175 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (finding sufficiently similar offenses when: (1) all the offenses were burglaries that turned into robberies when the victims interrupted the appellant, (2) all the offenses occurred at gunpoint, (3) the perpetrator was aided by a confederate, (4) the offenses occurred within the space of an hour, (5) the offenses were committed in the same area, and (6) the perpetrator used the same procedure in each offense). Appellant also complains that the probative value of the extraneous robbery is substantially outweighed by the danger of unfair prejudice to him. Texas Rule of Evidence 403 states that A[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.@ Tex. R. Evid. 403. Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990). We will only reverse a trial court=s decision regarding the admissibility of evidence upon a clear abuse of discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). We hold that the trial court did not abuse its discretion in finding that the danger of unfair prejudice did not substantially outweigh the probative value of the extraneous robbery. Evidence that appellant robbed the store in a similar manner to the charged offense two days before the charged offense occurred is highly relevant as support for the identification of appellant as the perpetrator in this caseCidentity being a central issue. Appellant=s only argument supporting unfair prejudice is that the similarity between the two offenses was insufficiently distinctive. We have already rejected that argument. Moreover, any prejudice was substantially attenuated by the trial court=s instruction to the jury to consider the evidence only for purposes of identity. For these reasons, we overrule appellant=s second point of error. C. Tainted In-Court Identifications In his third point of error, appellant complains that the trial court erred in allowing the in-court identification of appellant by the witnesses. He argues that certain pretrial identification procedures were so unduly suggestive that they tainted his in-court identification. A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32‑33 (Tex. Crim. App. 1995). We apply a two‑step analysis to determine the admissibility of an in‑court identification and ask: (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the impermissibly suggestive procedure created a very substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33. In looking at the first prong of the analysis, it is important to note that even if a pretrial procedure is suggestive, it is not necessarily impermissibly so. See id. Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted, or it may be created by the content of the line‑up or photo array itself. Id. at 33‑34. If we find that a pretrial identification procedure was impermissibly suggestive, we must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. 409 U.S. 188 (1972). These nonexclusive factors are: (1) the witness= opportunity to view the criminal, (2) the witness= degree of attention, (3) the accuracy of the witness= description of the suspect, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and confrontation. Id. at 199-200. If we find that no impermissibly suggestive procedure was utilized, we need not assay whether it created a substantial likelihood of misidentification. Barley, 906 S.W.2d at 34; Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure (1) was impermissibly suggestive (2) thereby creating a very substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 34; Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). The admissibility of an identification is a mixed question of law and fact that we review de novo. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). However, we review the fact-based Biggers factors deferentially in a light favorable to the trial court=s ruling. Id. at 773. Viewing the factors in this light, we then weigh them de novo against Athe corrupting effect@ of the suggestive pretrial identification procedure. Id. at 773-74. Appellant first argues that Officer Kivela=s Aconfrontation identification@ procedureCwhen Officer Kivela brought appellant to the store to determine if Nguyen or Dinh could identify himCwas impermissibly suggestive in that a proper line-up procedure was not conducted. The Texas Court of Criminal Appeals has held that an Aon-the-scene confrontation@ is not necessarily impermissibly suggestive and is often a necessary part of an investigation. 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 continue their search for the criminal while he may still be within the area and before he can substantially alter his looks and dispose of evidence of the crime. Finally, any possible prejudice resulting from such a confrontation can be exposed by rigorous cross‑examination of the witness. Id. In this case, Nguyen and Dinh were able to view appellant within thirty minutes after the robbery, allowing them to test their recollection of appellant immediately after they observed him during the robbery. This abridged identification procedure, as opposed to a formal line-up, minimized the amount of time that appellant would be held in custody if he had not been the identified suspect. Finally, both Nguyen and Dinh testified at trial and were cross-examined by defense counsel allowing appellant the opportunity to challenge any prejudicial effect accruing from the identification procedure. Appellant contends that his guilt was implicated during the confrontation because he was brought before the witnesses in handcuffs. However, several courts have held that a suspect in handcuffs during an on-the-scene confrontation is not enough, in and of itself, to be considered impermissibly suggestive. See Powell v. State, 837 S.W.2d 809, 811‑12 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (holding on‑scene identification of the appellant shortly after robbery when appellant was in custody as a suspect and handcuffed did not result in irreparable misidentification); Payne v. State, 838 S.W.2d 668, 669 (Tex. App.CDallas 1992, no pet.) (finding the identification procedure was not impermissibly suggestive even though defendant was handcuffed and alone in police custody when the witness identified him); Lee v. State, No. 14‑05‑00216‑CR, 2006 WL 300419 (Tex. App.CHouston [14th Dist.] 2006) (not designated for publication) (finding on-scene identification of handcuffed appellant was not unnecessarily suggestive). Appellant offers no other proof of an unnecessarily suggestive procedure besides his being handcuffed and alone when the witnesses identified him; therefore, we find that this on-the-scene confrontation was not impermissibly suggestive. As such, we need not reach the issue of whether there was a likelihood of misidentification. See Barley, 906 S.W.2d at 34 (holding that there is no need to determine whether there was a likelihood of misidentification when a court finds that the procedure was not impermissibly suggestive); Webb, 760 S.W.2d at 269. Appellant also complains that the photographic array presented to Dinh was impermissibly suggestive and tainted his in-court identification. He points to three facts to support his argument: (1) an officer other than Officer Clinton (the officer who presented the photo spread to Dinh) prepared the photo spread, (2) Officer Clinton did not have Dinh answer, in writing, a series of questions listed on the back of the photo spread,[1] and (3) Officer Clinton conducted the photographic array without an interpreter despite Dinh=s using an interpreter at trial. Appellant fails, however, to explain how any of these facts lead to the conclusion that the photographic array was impermissibly suggestive. As for fact (1), we cannot imagine how this would implicate appellant=s identity. With respect to fact (2), Dinh initialed one of the photos in the array indicating whom she recognized, and Officer Clinton=s testimony shows that Dinh orally provided the information sought by the remaining questions. Therefore, Dinh made it apparent which individual she was identifying and why she was identifying that personCwhich was the purpose of the questions. The fact that this information was not recorded in writing does not support the conclusion that the photo array was suggestive. As for fact (3), while it might be possible that a language barrier could affect an identification procedure, such a problem is not present here. While English is not Dinh=s first language, she testified at trial that she understood and could speak and read English, and she also gave part of her testimony in English. Officer Clinton testified that he believed Dinh understood him during the photo array and that he was able to communicate with Dinh. Consequently, neither the on-the-scene confrontation nor the photographic array was impermissibly suggestive creating the likelihood of misidentification of appellant. We overrule appellant=s third point of error. The trial court=s judgment is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed January 9, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The questions asked: (1) Do you see anyone you recognize? (2) If the answer to question #1 was yes, identify by number, the photo or photos you recognize. (3) From where do you recognize the person(s) identified? (4) Do you have any additional comments?