Albie Eugene Hopkins v. State

Affirmed and Memorandum Opinion filed March 3, 2009 Affirmed and Memorandum Opinion filed March 3, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-07-00531-CR ____________ ALBIE EUGENE HOPKINS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1091076 M E M O R A N D U M   O P I N I O N Appellant Albie Eugene Hopkins challenges his conviction for aggravated robbery following a jury trial. The jury assessed punishment as confinement for 25 years. Appellant contends that (1) the trial court erred by admitting out-of-court and in-court identifications by the complainant; and (2) the evidence is legally and factually insufficient to support the jury=s finding that appellant committed the charged offense. We affirm. Background Juan Javier Hidalgo was robbed at approximately 8:15 p.m. on October 30, 2006, while walking across a parking lot to his gym on Fannin Street in Houston. Hidalgo was approached by an African-American male who asked him for a cigarette and then asked him for money. After Hidalgo refused both requests, the man pushed him to the ground and began choking him with one hand while holding a knife to his throat with the other. Hidalgo relinquished his wallet, cell phone, and gym bag to his assailant. During the attack, Hidalgo and his assailant noticed an African-American couple watching them from the other side of a fence. Hidalgo=s assailant dropped Hidalgo=s wallet and cell phone as he fled, and then stopped to pick them up. Hidalgo=s assailant then approached the African-American couple and spoke to them. Hidalgo could not hear what his assailant told the couple, who then walked away. Houston Police Officer Jonathan Halliday responded to the robbery and interviewed Hidalgo at the scene. Hidalgo described his assailant as a six-foot-tall, muscular African-American male with short hair, wearing a white muscle shirt and dark pants. Officer Halliday=s police report included this description and stated that the assailant had no facial hair. Houston Police Officer E.W. Walker was patrolling the area near the crime scene on October 31, 2006 when Raylon Shelton and Erica Manning flagged him down. Shelton and Manning told Officer Walker that they witnessed Hidalgo being robbed and described his assailant as an African-American male with an Afro hairstyle, who was wearing a white muscle shirt and dark pants. Officer Walker encountered appellant nearby and arrested him for public intoxication. Appellant had a light mustache and goatee. At the time of his arrest, appellant was wearing a white muscle shirt and otherwise matched Shelton=s and Manning=s description. Officer Walker found a kitchen knife in appellant=s back pocket during a pat-down search for weapons. Officer Walker then transported appellant to a Houston police station to meet with Houston Police Officer William Cowles, Jr. Officer Cowles determined that appellant was too combative to be placed in a live line-up for identification purposes, so he took a digital photograph of appellant. Officer Cowles placed appellant=s photo in a photo array with other muscular African-American males with mustaches and goatees. Appellant was the only individual whose photo showed him wearing a white muscle shirt. Hidalgo met with Officer Cowles on November 1, 2006 to make a written statement and to view multiple photo arrays. Hidalgo positively identified appellant from the photo arrays as his assailant. Appellant=s jury trial for aggravated robbery began on June 20, 2007. Appellant moved before trial to suppress the photo array procedure and Hidalgo=s identification of appellant. Appellant argued that the procedure was impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. Appellant largely based his argument on the fact that appellant was the only person on his page of the photo array wearing a white muscle shirt like the one Hidalgo described his assailant as wearing. The trial court held a hearing on appellant=s motion before trial outside the jury=s presence. During this hearing, Officer Cowles testified that he used photographs of five other individuals closely resembling appellant in hairstyle, complexion, and facial hair in the photo array to make the procedure Aas fair as possible.@ Officer Cowles testified that he admonished Hidalgo before viewing the photo array that he was not required to choose someone in the array and should point someone out only if it was the person who robbed him. Hidalgo testified during the hearing that he felt no pressure from Officer Cowles to identify anyone; Officer Cowles did not suggest he should choose appellant=s photo; and he had no trouble recognizing appellant as his assailant. When first asked if he saw the person he identified in the photo array in the courtroom, Hidalgo said he did not. Hidalgo clarified his response when asked the question again, identifying appellant while explaining Athat day he was wearing shorter hair.@ Hidalgo also testified during the suppression hearing that he identified appellant=s photo based on his facial appearance, and that he had not noticed until the hearing that appellant was wearing the same type of shirt as his assailant. The trial court denied appellant=s motion to suppress. The testimony of Hidalgo and Officer Cowles at trial was largely repetitive of their testimony during the suppression hearing. When questioned about the statement in Officer Halliday=s report that Hidalgo=s assailant did not have facial hair, Officer Cowles testified Athat=s not unusual@ and said victims do not typically review the initial officer=s report for accuracy. Hidalgo testified at first that he told Officer Halliday that his assailant had a goatee, but later stated that he was unsure whether he mentioned facial hair to Officer Halliday. Hidalgo also testified that he did not mention any facial hair in his written statement but remembered his assailant as having a goatee once he saw appellant=s photo. Hidalgo identified the knife appellant had in his pocket when he was arrested as the one used in the robbery. At trial, Officer Walker testified that Shelton and Manning described the details of the robbery as well as Hidalgo=s assailant. Officer Walker further testified that Shelton told him he could see the robber=s face, that the robber was holding a shiny object to Hidalgo=s throat, and that the object appeared to be a weapon. Officer Walker testified that Shelton and Manning pointed out appellant as Hidalgo=s assailant; appellant was sitting across the street at the time he was pointed out. Officer Walker also testified that appellant got up and started walking away upon seeing Shelton and Manning speaking to him. Shelton testified that he likely was under the influence of drugs when he spoke to Officer Walker, and that he did not get a good look at Hidalgo=s assailant and could not identify him. Shelton also testified that he did not point out appellant to Officer Walker; gave Officer Walker only a vague description of Hidalgo=s assailant; and was unsure who he saw rob Hidalgo. Shelton denied telling Officer Walker that Hidalgo=s assailant had a shiny object in his hand, or that the assailant spoke to him while fleeing. Shelton further testified that he was currently jailed for selling crack; had been placed in a holding cell with appellant; and was worried about being called a Asnitch.@ Tonya Davis testified that she was appellant=s common-law wife, and that they were attending a church revival at the time of the robbery. Davis also testified that she was currently in jail on an aggravated assault charge for which she was arrested on November 3, 2006 _ the same day appellant was arrested. Davis further testified that she assaulted her complainant on November 3 because she was upset and angry that someone had turned appellant in to the police. The jury convicted appellant for the aggravated robbery of Hidalgo. The jury assessed appellant=s punishment as confinement for 25 years. Appellant appeals his conviction. Analysis Appellant contends that the trial court erred by admitting Hidalgo=s out-of-court and in-court identifications of appellant because they were based on an impermissibly suggestive pre-trial identification procedure. Appellant also contends that the evidence is legally and factually insufficient to support the jury=s finding that appellant committed the aggravated robbery of Hidalgo. I. Pre-Trial Identification Procedure Appellant argues that the photo array procedure used by Officer Cowles was impermissibly suggestive because (1) appellant=s photograph showing him with facial hair was placed in a photo array even though Officer Halliday=s police report described Hidalgo=s assailant as not having facial hair; (2) appellant was the only person featured in the photo array wearing a white muscle shirt like the one Hidalgo=s assailant was described as wearing; (3) Hidalgo was led to believe police had captured his assailant; and (4) Officer Cowles did not explain to Hidalgo that the photo array might not contain a photo of his assailant. A pre-trial identification procedure may be so suggestive and conducive to misidentification that it would deny the defendant due process of law if the out-of-court identification is used at trial. See Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995) (en banc). Similarly, an in-court identification is inadmissible if tainted by such an unduly suggestive pre-trial identification procedure. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Crim. App. 1998) (en banc). The test is whether, considering the totality of the circumstances, the procedure (1) was impermissibly suggestive; and, if so, (2) gave rise to a very substantial likelihood of irreparable misidentification. Id. at 772; Barley, 906 S.W.2d at 33. Whether a pre-trial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of witnesses= credibility and demeanor. See Loserth, 963 S.W.2d at 773. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. at 772-73. To challenge a trial court=s ruling allowing the identification, an appellant must show by clear and convincing evidence that the identification is unreliable. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (en banc). When parties re-litigate during trial the issue addressed by a pre-trial suppression hearing, we consider all of the evidence from trial and the hearing in reviewing the trial court=s decision. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). To establish error by the trial court in admitting Hidalgo=s identifications, appellant first had to prove by clear and convincing evidence that the photo array procedure used was impermissibly suggestive. See Loserth, 963 S.W.2d at 772-73; Barley, 906 S.W.2d at 33; Delk, 855 S.W.2d at 706. Appellant concedes that the individuals in the photo array were similar in appearance to himself except for their clothing. Appellant nonetheless asserts that the pre-trial identification procedure was impermissibly suggestive because he had facial hair and Hidalgo=s assailant was described in Officer Halliday=s report as not having facial hair. A photo array should depict persons of the same age, race, general skin color, and height as the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.BDallas 1999, pet. ref=d). The fact that participants in the array do not perfectly match the physical description of the suspect does not render the lineup impermissibly suggestive. See id. Therefore, the procedure used in this case was not impermissibly suggestive because it included photographs of appellant and other individuals similar in appearance who had facial hair when Officer Halliday=s report described Hidalgo=s assailant as not having facial hair. Appellant also contends that the photo array was impermissibly suggestive because his picture showed him wearing a white muscle shirt like the one the suspect was described as wearing. It is permissible to use a photo in an identification procedure showing a defendant wearing the same or similar clothing to that described as being worn by the suspect. See Hudson v. State, No. 14-07-00888-CR, 2009 WL 196060, at *5 (Tex. App.BHouston [14th Dist.] Jan. 29, 2009, no pet. h.) (mem. op., not designated for publication) (defendant pictured wearing dark-colored hooded sweatshirt similar to those worn by robbers; photo held not impermissibly suggestive); see also Smith v. State, 930 S.W.2d 227, 228-29 (Tex. App.BBeaumont 1996, pet. ref=d) (defendant was only person pictured wearing street clothes similar to those robber was described as wearing); Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.BCorpus Christi 1995, no pet.) (defendant was only person pictured wearing dark shirt and robber was described as wearing black shirt). Therefore, the procedure used in this case was not impermissibly suggestive because appellant was pictured wearing a white muscle shirt like the one Hidalgo described his assailant as wearing. Appellant further contends that the photo array procedure was suggestive because (1) Hidalgo was led to believe police had captured his assailant; and (2) Officer Cowles did not explain to Hidalgo that the photo array might not contain his assailant. However, Hidalgo and Officer Cowles both testified that Officer Cowles placed no pressure on Hidalgo to identify anyone in the photo array and did not suggest appellant over any other individuals featured in the array. Hidalgo testified that he had no trouble recognizing appellant in the photo array as his assailant. Hidalgo also testified that he identified appellant=s photo based upon appellant=s facial appearance and not his clothing. This testimony provided the trial court with an adequate basis for overruling appellant=s objections to Hidalgo=s identifications of appellant as his assailant. See Harris v. State, 827 S.W.2d 949, 960 (Tex. Crim. App. 1992) (en banc). In light of the established case law addressing each of appellant=s arguments, we conclude that appellant has failed to produce clear and convincing evidence that the pre-trial identification procedure used to identify appellant as Hidalgo=s assailant was impermissibly suggestive. See Loserth, 963 S.W.2d at 772-73; Barley, 906 S.W.2d at 33; Delk, 855 S.W.2d at 706. Because appellant is unable to satisfy this prong of the two-part test outlined in Loserth, we need not and do not address the second prong of the test. See Loserth, 963 S.W.2d at 772-73; Barley, 906 S.W.2d at 33. We overrule appellant=s issue regarding admission of Hidalgo=s out-of-court and in-court identifications of appellant as his assailant. II. Legal and Factual Sufficiency of Evidence Appellant also contends that the evidence was legally and factually insufficient to support the jury=s finding that he was the person who committed the charged offense. A. Legal Sufficiency In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Our legal sufficiency review considers evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Reconciliation of conflicts in the evidence is within the fact finder=s exclusive province. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume _ even if not obvious from the record _ that the finder of fact resolved any such conflicts in favor of the prevailing party, and must defer to that resolution. Jackson, 443 U.S. at 326. Officer Cowles testified that Hidalgo identified appellant from a photo array as the man who robbed him after being admonished that he should point someone out only if that person was the robber. Hidalgo testified that he had no trouble recognizing appellant as his assailant when looking at the photo array. Hidalgo also testified that he identified appellant based on his facial appearance rather than his clothing. Hidalgo identified appellant in court as his assailant. Officer Walker testified that Shelton and Manning identified appellant as Hidalgo=s assailant. Viewing this evidence in the light most favorable to the jury=s verdict, a rational fact finder could have found beyond a reasonable doubt that appellant is the individual who committed the aggravated robbery of Hidalgo. See Jackson, 443 U.S. at 319; Dewberry, 4 S.W.3d at 740. B. Factual Sufficiency When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We view the evidence in a neutral light in a factual sufficiency review. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc). An appellate court should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Due deference still must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). In cases based upon circumstantial evidence, it is not required that all facts point to a defendant=s guilt; it is sufficient if the combined and cumulative force of all of the incriminating circumstances warrants the conclusion of guilt. See Courson v. State, 160 S.W.3d 125, 128 (Tex. App.BFort Worth 2005, no pet.) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (en banc)). Appellant highlights the following evidence in support of his contention that he is not the individual who committed the aggravated robbery of Hidalgo: (1) Officer Halliday=s police report describing Hidalgo=s assailant as having no facial hair; (2) Shelton=s testimony that he likely was under the influence of drugs when he spoke to Officer Walker and could not identify appellant as Hidalgo=s assailant; and (3) Davis=s testimony that she and appellant were attending a church revival at the time of the robbery. Appellant also reiterates his argument that Hidalgo=s out-of-court and in-court identifications were impermissibly tainted and unreliable. However, the jury heard considerable testimony regarding whether the photo array and subsequent identifications were fair and reliable, and it was free to make its own determination regarding the weight and credibility of that evidence. See Vasquez, 67 S.W.3d at 236. In addition, the record also contains considerable evidence to support the jury=s finding that appellant committed aggravated robbery: (1) Hidalgo positively identified appellant in a photo array and in court as his assailant; (2) Officer Cowles testified that Hidalgo identified appellant from a photo array as the man who robbed him after being admonished that he should point someone out only if that person was the robber; (3) Hidalgo testified that he had no trouble recognizing appellant as his assailant when looking at the photo array and that he identified appellant based on his facial appearance rather than his clothing; (4) Officer Walker testified that Shelton and Manning pointed out appellant as Hidalgo=s assailant; and (5) Officer Walker found a kitchen knife in appellant=s back pocket, which Hidalgo identified in court as the one his assailant used. Viewing the evidence in this case in a neutral light, we conclude that it is factually sufficient to justify the jury=s finding that appellant committed the aggravated robbery of Hidalgo. See Johnson, 23 S.W.3d at 11. The jury=s finding is neither clearly wrong nor manifestly unjust. See Watson, 204 S.W.3d at 414-15; Martinez, 129 S.W.3d at 106. We overrule appellant=s issue regarding legal and factual sufficiency of the evidence to support the jury=s finding that he was the person who committed the charged offense. Conclusion The trial court=s judgment is affirmed. /s/ William J. Boyce Justice Panel consists of Justices Frost, Brown, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b).