Moses Barracks v. State

Affirmed and Memorandum Opinion filed July 22, 2008 Affirmed and Memorandum Opinion filed July 22, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-07-00625-CR MOSES BARRACKS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1057725 M E M O R A N D U M   O P I N I O N Moses Barracks appeals his robbery conviction in two issues, contending that the trial court erred in (1) permitting an in-court identification of appellant based upon an assertedly improper out-of-court show-up identification; and (2) admitting testimony about appellant=s alleged gang membership during the trial=s punishment phase. We affirm. Background At about 11:30 p.m. on February 13, 2006,[1] Julius Williams was robbed by two men while Williams was entering his car in the parking lot of a video store. The two men both had dreadlocks and were wearing clothing with a camouflage pattern. Williams testified that appellant and the other man Arushed him from behind;@ while the second man stood in front of Williams=s car with a pistol-grip shotgun, appellant got in the passenger seat and pointed a black revolver at Williams. Williams testified that while he sat in the driver=s seat, appellant told him to turn off the alarm and start the car. Williams testified that appellant asked about the working condition of the car. Williams testified he was able to run from the car when appellant looked away. Williams heard four shots as he fled. He further testified that appellant then drove off in Williams=s car. Williams testified the whole event took about seven minutes. Williams notified police within minutes of the robbery. Williams gave police a description of both assailants, telling police they were African-American males with dreadlocks wearing camouflage shirts and blue jeans; Williams described the assailant inside the car as being about 20 years old. Williams also provided a description of his car, but he could not provide the license plate number because the car was newly purchased and had no plates. Police located the car within 45 minutes at a nearby apartment complex. The car was surrounded by four African-American males wearing camouflage clothing, and a female. Appellant was one of the African-American males surrounding the car. The police approached and told them to lie down. One male and the female attempted to escape but were apprehended in a nearby field. Appellant surrendered at the scene. A revolver matching the description of the one used by appellant in the robbery was located in bushes close to where appellant lay on the ground. An assault rifle was located in the field where the two persons who had fled the scene were apprehended. Police took Williams to the apartment complex. They presented four individuals to Williams at the apartment complex, asking him if he could identify any of them as the men who robbed him. At least three of these men had camouflage jackets and dreadlocks. Each of the men, including appellant, had been standing around Williams=s car when police arrived at the apartment complex. Williams identified appellant as one of the men who had robbed him outside the video store. He later identified appellant at a police line up at the station. Williams identified appellant again during trial Abased on [his] recollection of what took place on February 14, 2006.@ The investigation also recovered (1) a number of guns near Williams=s car, one of which was introduced at trial as the revolver used by appellant; and (2) a roll of duct tape in the car matching the duct tape found on the recovered pistol, which had appellant=s fingerprints on it. Williams identified the revolver as being similar to the like the one used by appellant during the robbery. Appellant was convicted and elected to have the jury assess punishment. At the punishment phase of the trial, the prosecution offered into evidence photos showing appellant making hand gestures; these photos had been found in appellant=s residence. Prosecutors introduced testimony that the hand gestures appeared to be gang-related. On July 13, 2007, appellant was sentenced to confinement for 10 years. He timely filed this appeal on July 24, 2007. Analysis Identification 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 if the procedure used was unnecessarily suggestive so as to render that identification unreliable. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Crim. App. 1998) (en banc). For the identification to be deemed unreliable, the defendant must demonstrate by clear and convincing evidence that the unnecessary suggestiveness created a very substantial likelihood of misidentification. See Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995) (en banc). Even if the procedure is found to be unnecessarily suggestive, it will be deemed reliable if there is no substantial likelihood of misidentification under a totality of the circumstances test. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (en banc); see also Barley, 906 S.W.2d at 33; In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (under the first prong, a procedure may be suggestive and still not be impermissibly so). In assessing likelihood of misidentification, we consider the reliability factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). See also Loserth, 963 S.W.2d at 771-72; Santos v. State, 116 S.W.3d 447, 455 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). We defer to the trial court=s determinations of historical facts, if supported by the record, when they are contingent upon the credibility or demeanor of witnesses. Loserth, 963 S.W.2d at 773-74. However, in interpreting mixed questions of fact and law that do not depend upon the credibility or demeanor of witnesses, we apply a de novo standard of review. Id. at 774. Appellant contends that the show-up identification was unduly suggestive because he was taken out of a squad car in handcuffs at the scene where Williams=s car was recovered, and shown to Williams for identification. This court has found that a one-man show-up is not impermissibly suggestive when a potential suspect is brought to the scene of the crime for victims to positively identify him as the suspect. See In re G.A.T., 16 S.W.3d at 827.[2] In this case, seven individuals were assembled to be shown to Williams. Four were brought before Williams individually in handcuffs. Williams identified appellant as being one of the men who had robbed him. At that point, the officers on the scene ended the show-up, and took all of the assembled individuals to the station for further identification procedures. Because Williams was presented with a group of individuals, we do not find the procedure to be impermissibly suggestive. It is not enough to condemn a procedure as impermissibly suggestive because of an inherent presumption that at least one of the individuals in the line-up is a guilty party. AIt is undoubtedly the case that in a substantial number of live lineups the identification witness will presuppose that police have some reason to believe one of the participants is the perpetrator. Were this fact alone sufficient to render the lineup impermissibly suggestive, however, precious few lineups would meet constitutional muster.@ Webb, 760 S.W.2d at 272. Therefore, appellant does not satisfy the first prong of the test addressing unnecessary suggestiveness. Even if we were to reach the second prong addressing likelihood of misidentification, we still would conclude that the challenged procedure did not give rise to a very substantial likelihood of irreparable misidentification. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (en banc). The second prong is conducted under a totality of the circumstances test, and includes the following considerations: (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. Delk, 855 S.W.2d at 706; Biggers, 409 U.S. at 199-200. According to Williams=s testimony, he got a good look at appellant during the seven-minute duration of the confrontation. Williams also testified that he engaged in conversation with appellant as appellant sat next to him in the front seat of the car. Immediately following the robbery he gave an accurate enough description of appellant to allow the police to locate and detain appellant. Williams did not hesitate to identify appellant accurately on each occasion he was called upon to do so. Less than an hour after the robbery, while his memory was still fresh, he picked out appellant as the assailant. About 90 minutes later at the police station, he again selected appellant from among an array of individuals through a one-way mirror.[3] At trial, Williams identified appellant twice; he testified that he identified appellant based upon his recollections of the events on February 14, 2006, and that he had no doubt concerning his identification. Given the opportunities provided to Williams to identify his assailants, and the consistency and firmness of his identification, there is no substantial likelihood appellant was misidentified. See Biggers, 409 U.S. at 201 (identification upheld where seven months elapsed between rape and confrontation); Webb, 760 S.W.2d at 273 (identification determined valid where five months elapsed between the crime and victim=s first identification of accused). Appellant has failed to demonstrate by clear and convincing evidence that unnecessary suggestiveness created a very substantial likelihood of misidentification. See Barley, 906 S.W.2d at 33-34. Even if the procedure was unnecessarily suggestive, there is no substantial likelihood appellant was misidentified under a totality of the circumstances test. See Webb, 760 S.W.2d at 269; see also Barley, 906 S.W.2d at 33. Appellant=s first issue is overruled. Gang Membership In appellant=s second issue he contends that the trial court erred in admitting testimony regarding appellant=s alleged gang membership during the punishment phase of the trial. A trial court may admit any evidence that is relevant at the sentencing stage of the trial, including a defendant=s gang membership, as a basis for assisting the jury to determine the character of the accused and assess a proper punishment. See Beasley v. State, 902 S.W.2d 452, 456-57 (Tex. Crim. App. 1995) (en banc); Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (gang membership is admissible at punishment phase of trial as character evidence); see also Tex. Code Crim. Proc. Ann. art. 37.07 ' 3(a)(1) (Vernon Supp. 2007); Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004) (Awe have explained that relevance during the punishment phase of a non-capital trial is determined by what is helpful to the jury@) (emphasis in the original). We review the admission of the evidence under an abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). The relevance of gang membership depends upon whether the jury receives enough information to make evidence about such membership useful to its determination. To prove relevance of a defendant=s membership in a gang, the State must offer proof of (1) the gang=s violent and illegal activities; and (2) defendant=s membership in the gang. See Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995) (en banc); see also Beasley, 902 S.W.2d at 457. The Texas Court of Criminal Appeals has held: Although relevant, gang membership alone would be meaningless to a jury which has no knowledge of the gang=s purpose or activities. For the jury to assess a defendant=s character based on his gang membership, not only should the jury know of the defendant=s gang membership, but also of the activities and purposes of the gang to which he belongs. Without this additional information, the jury has nothing to conclude whether membership in this gang is a positive or negative character trait of the defendant. Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995) (en banc); see also Reyes v. State, No. 14-03-00414-CR, 2004 WL 1171766, at *5 (Tex. App.CHouston [14th Dist.] May 27, 2004, no pet.) (requiring, at a minimum, evidence of defendant=s membership in the gang and evidence of the gang=s character and reputation). In the present case, Officer Croas testified at the trial=s punishment phase concerning photographs found in appellant=s apartment following his arrest. The photographs were admitted into evidence and Officer Croas testified, in pertinent part, as follows: State: Without going into what anyone told you, was there any particular reason you collected these particular photographs? Officer: Appeared to have gang signs on it, and may be related to an individual case. State: Let me talk with you a little bit about those gang signs. Do you have any training as a police officer in gang activity or gang investigation? Officer: Yes, sir. * * * State: Okay. It is your expert opinion that what is being displayed within State=s Exhibit 23 and 24 are, in fact, gang signs? Officer: Yes, sir. * * * State: Now, looking at the gang signs B what you have testified are gang signs depicted within State=s Exhibit 23 an 24, are you able to identify if they belong to a particular set or particular gang? Officer: I cannot. Appellant objected to the relevance of the photos at trial, and contends that Officer Croas= testimony was not probative of appellant=s character because it provided no information to the jury about any particular gang, or any particular gang=s activities, so as to assist the jury in tailoring an appropriate sentence. See Beasley, 902 S.W.2d at 457; Erazo, 144 S.W.3d at 491 (a photograph should be admitted only where it will provide information that logically assists the jury in determining either guilt or punishment). We agree that the trial court erred in admitting the gang-related evidence. We turn to the harm analysis. Nonconstitutional errors that do not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the entire record, is assured the error did not influence the jury=s decision or only influenced it slightly. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If there is no influence or only a slight effect on the finder of fact, reversal is not required. See Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001) (en banc). AIn assessing the likelihood that the jury=s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error, and how it might be considered in connection with other evidence in the case.@ Motilla, 78 S.W.3d at 355; see also Reyes, 2004 WL 1171766, at *7 (AIn considering whether inadmissible evidence prejudiced appellant during the punishment phase, we also look to the other evidence presented, such as prior convictions, bad acts, and the nature of the crime committed@). In this case, the State established that appellant committed a violent act by holding Williams at gunpoint and forcing Williams to surrender his car. The State proffered evidence that shots were fired behind Williams as he fled the car; one of the guns used was linked to appellant via fingerprints and duct tape. Among the others detained at the apartment complex, at least three were also armed. Likewise, evidence of appellant=s daily drug use and ownership of firearms was presented to the jury. This evidence provides assurance that the admission of testimony regarding gang membership did not influence the jury=s decision. See Thorton v. State, 925 S.W.2d 7, 13-14 (Tex. App.CTyler 1994, pet. ref=d) (any alleged error in admitting gang evidence was rendered harmless in light of evidence demonstrating violent circumstances of the crime and appellant=s prior convictions). The jury in this case assessed punishment at 10 years _ far less than the 25 years the State sought, and close to the minimum in a range of 5-99 years or life imprisonment the jury considered.[4] Viewing the entire record, we conclude that the gang-related evidence did not affect the appellant=s substantial rights. Appellant=s second issue is overruled. Conclusion The trial court=s judgment is affirmed. /s/ William J. Boyce Justice Judgment rendered and Memorandum Opinion filed July 22, 2008. Panel consists of Chief Justice Hedges, and Justices Brown and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] In the complaint the aggravated robbery is detailed to have occurred on or about February 14, 2006. Likewise, some of the testimony refers to February 14th. [2] While a one-man show-up has been criticized, Aadmission of evidence of a one man show-up without more does not violate due process.@ Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982). [3] There is some uncertainty in the record about whether Williams also picked appellant out of a photo array. At one time his testimony indicates he selected both appellant and the other individual who robbed him from a photo array. He indicates later that he never picked appellant out of a photo array. This uncertainty is not material to the resolution on appeal because there is ample evidence regarding Williams= identification of appellant even if the photo array evidence is disregarded. [4] The jury also had the option, if it found that appellant had never been convicted of a felony in this or any other state, to recommend community supervision. In addition, a fine of up to $10,000 was available for assessment. The jury here did not assess a fine.