Terrance Caesar v. State ( 2014 )

NUMBER 13-13-00197-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TERRANCE CAESAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 403rd District Court
of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Terrance Caesar challenges his conviction for burglary of a habitation,
a first-degree felony. See TEX. PENAL CODE ANN. § 30.02(a), (d) (West, Westlaw through
2013 3d C.S.). By two issues, appellant argues that: (1) the trial court erred in failing
to find that an impermissibly suggestive photo array created a substantial likelihood of
misidentification; and (2) the judgment nunc pro tunc in this case mistakenly states that
appellant pleaded true to the first enhancement paragraph in the indictment. We affirm
as modified.
I. Background
At the trial in this case, Jennifer Pinkston testified that on the morning of Sunday,
July 22, 2012, she was returning home from church when she noticed a man in the front
yard of her Austin, Texas home carrying a reusable grocery bag Pinkston recognized.1
Pinkston asked the man if she could help him, but the man replied that he was merely
looking for someone and then ran away. As Pinkston walked toward her home, she
found a pair of socks on her front porch, which she testified was unusual. Finding the
front door unlocked, Pinkston became alarmed and went to her neighbor's home to call
the police. After the police arrived and confirmed that there was no one in the home,
Pinkston went inside and discovered that the home had been burglarized. Pinkston and
her roommates testified that the house had obviously been searched and that many
belongings had been taken, including three laptops and a tablet computer.
Franck Tappa testified that on July 24, 2012, he met up with a man at a Dairy
Queen in South Austin to complete the purchase of a laptop that he had arranged online
through Craigslist, an online classifieds service. Tappa testified that he was purchasing
the laptop for his sister who was about to begin college. When Tappa was paying the
man for the computer, he noticed another man, dressed in black and wearing a hat,
1This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
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standing in the foyer of the Dairy Queen; Tappa later identified that man as appellant.
After completing the purchase, Tappa took the laptop to a local Apple Store for repair,
and it was there discovered that the computer was one of the computers stolen from
Pinkston's home.
Finally, there was testimony at trial that immediately after the suspicious man ran
away from Pinkston's home, the Austin police received a series of 911 calls reporting a
suspicious person hopping over fences and running through backyards. The officer who
initially responded to Pinkston's call was dispatched to investigate the calls. He
questioned people in the area about the suspicious person, who responded that they had
seen a man they knew as Terrance Caesar running through the area. The officer then
researched that name in his patrol car computer and found a mug shot of Caesar and
learned that Caesar had family in the area. When the officer went to the family's home,
he encountered a male that matched Pinkston's description in the front yard; the man
immediately fled. The officer pursued the man, but was unable to apprehend him.
During his pursuit, the officer found an empty bag, like the one Pinkston described.
Using a photo array arranged by the police, Pinkston identified appellant as the man in
her front yard that day, and Tappa identified appellant as the man with the hat standing
inside the Dairy Queen.
Based on the chase incident and Pinkston's identification, appellant was arrested
shortly after the computer was discovered to be stolen. He was indicted on one count of
burglary of a habitation. See id. The indictment also included two enhancement
paragraphs based on two prior felonies committed by appellant. Appellant pleaded not
guilty to the charged offense.
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Before trial, appellant filed a motion objecting to the identification testimony of any
witness unless the trial court conducted a hearing, outside the presence of the jury, to
determine whether, in relevant part, appellant's rights were violated by the identification
procedures used by police. The trial court held the hearing immediately before trial
commenced. At the hearing, Detective Eric Cleveland of the Austin Police Department
testified about the procedure he used to compile the photo array shown to Pinkston and
Tappa. Detective Cleveland testified that he was able to create an array with appellant's
photo plus five additional photos of men who were approximately the same age as
appellant and had similar skin tones, builds, and hair. Detective Cleveland testified that,
of the six photos, only appellant had a distinctive birth mark on his forehead.
Next, Pinkston testified specifically about her identification of appellant in the array
and her memories of the man in her front yard on the day of the incident:
[Prosecutor]: Okay. Now, were all the individuals in the photos
males?
[Pinkston]: Yes, they were.
[Prosecutor]: Were they all African-American males?
[Pinkston]: Yes, they were.
[Prosecutor]: And were these photos handed to you one by one?
[Pinkston]: They were given to me stacked and, yes, that was a lot
of work going one by one.
[Prosecutor]: Okay. So as opposed to being shown them in a group
of six, you were given them in a stack and allowed to
look at one at a time?
[Pinkston]: Yes, that's correct.
....
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[Prosecutor]: Tell me how you went through this process. So if you
are being shown photos and you have got these six
photos in front of you, kind of walk us through the
process of how you went through deciding if there was
the suspect in this particular lineup.
[Pinkston]: I remember seeing six photos, and the first four I
eliminated quickly because either their skin was too
dark or because their body type looked like they were
too heavyset.
[Prosecutor]: After you eliminated those four, what did you do next?
[Pinkston]: Then I had two photos remaining and I looked at them
side by side. I noticed there was an unusual birthmark
on one; and since I didn't notice whether there was a
birthmark that day or not in the yard, I covered up the
foreheads of both men with my hands like this
(indicating) and I just looked at the rest of their faces.[2]
And then I noticed they were making very different
facial expressions from each other. One man looked
extremely angry, where the other man was making a
smirk on his face, kind of a smug look, and kind of
looking off to the side a little bit with his eyes and that
looked like the look that the man was making that day
in the yard to me, that smug smirk facial expression.
[Prosecutor]: Okay. And you said that you covered up their
foreheads. Did you observe a birthmark on the
forehead of the individual that was in your yard that
day, or did you have an opportunity to do so?
[Pinkston]: I didn't notice one, but it was hard to have an
opportunity to because of the shade, the shadows from
the tree that he was underneath. There may have
been one. I didn't notice.
[Prosecutor]: Did he look at you straight on? Was his face at an
angle as he was talking to you? Do you remember?
And if you don't, that's okay.
2 Detective Cleveland testified that he observed Pinkston's photo array identification and confirmed
that Pinkston was attempting to take the birth mark out of consideration as she examined the photos.
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[Pinkston]: I'm trying to remember. I looked at him slightly at an
angle, just slightly, but mostly I saw him straight on
because I turned my head to the side to look at him.
[Prosecutor]: So is it fair to say that you were not able to determine
that day whether or not there was a birthmark on the
head?
[Pinkston]: Yes, that would be fair to say.
[Prosecutor]: Okay. And so is that why you covered up the
foreheads?
[Pinkston]: Uh-huh.
[Prosecutor]: Did an officer ever insinuate to you that there may have
been a birthmark?
[Pinkston]: Yes. I got a call the day of the burglary, over the
course of the next maybe hour or so, saying — asking
did the man that you saw have an unusual birthmark.
And I said, I don't know. . . . And I wanted to make my
decision independent of that conversation.
[Prosecutor]: Okay. And so when you covered up their foreheads,
were you trying to eliminate that kind of idea in your
head that there may have been a birthmark?
[Pinkston]: Yes, that's exactly what I was trying to do.
[Prosecutor]: I believe you said that their expression, the expression
of the individual that you picked out matched the
expression of the individual you saw in your yard.
Describe that expression for me.
[Pinkston]: Well, I do photography on the side and so I study
people's faces and their facial expressions, kind of
what story they are telling through their faces, what
feelings they are conveying. The feeling he seemed
to be conveying to me was almost going to use the
phrase like pull the wool over your eyes. It seemed
like he was making this smirk, almost like a—kind of a
smart-aleck sort of expression.
At this point, the prosecutor asked Pinkston if she could identify in the courtroom the man
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she saw that day in her front yard, and she pointed to appellant. Pinkston confirmed that
her identification was "based upon [her] observations of him at the time of the offense."
At the conclusion of the hearing, the trial court ruled that the photo array shown to
Pinkston was impermissibly suggestive but then concluded, "[T]he next question is
whether [Pinkston's] identification is made independent of [the suggestive birth mark], and
I think that the evidence indicates that, in fact, she went to some length to make sure that
happened." In short, the trial court ruled that the suggestive nature of the array was not
the basis for Pinkston's identification of appellant. The case then proceeded to trial.
At trial, Pinkston testified similarly about the method she used to identify appellant.
Tappa also testified about his identification of appellant. On direct examination, Tappa
testified that he was able to identify appellant with eighty-percent certainty because of
what Tappa characterized as a scar; Tappa testified that the man he saw standing outside
the Dairy Queen the night he bought the laptop had a distinctive scar on his forehead.
On cross-examination, Tappa testified that he passed right by the man on his way out the
door and that the man's demeanor intimidated him, so he walked quickly to his car and
drove away. Tappa testified that when he looked back as he was leaving the restaurant,
the man had walked inside and was interacting with the person who sold Tappa the
laptop. The following exchange then occurred between Tappa and defense counsel:
[Defense counsel]: Do you think that [the birthmark] was the primary thing
that identified the individual to you when you were
looking through the array?
[Tappa]: That was, yes, and also the—I was going to say the
look, his face, the eyes.
[Defense counsel]: The eyes. The shape of the eyes?
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[Tappa]: Yeah, the shape of the eyes, the way he—you know,
just the way he is staring. That is kind of what it was.
[Defense counsel]: Okay. When you saw him for that brief moment, that
suspect going through the foyer, how long was your
interaction? How long were you face-to-face with
him?
[Tappa]: I was going out, he was standing there, just sitting and
standing and staring, and then I walked by and I looked
at him. You know, I looked at him and walked out until
I was about 20, 30 feet away and then looked back and,
you know, that was about it.
[Defense counsel]: Okay. But I'm trying to figure out the amount of time
that you were in the foyer with him?
[Tappa]: I would say 10, 20 seconds max.
[Defense counsel]: So less than 10 seconds?
[Tappa]: I would say — yeah, I'm not sure.
Finally, Tappa confirmed to defense counsel that the man's hat had not obscured the scar
or mark on his forehead.
The State presented the remainder of its evidence, including testimony by an
expert that the socks found on Pinkston's front porch were tested for DNA and that
appellant could not be ruled out as a source of the DNA. The parties then presented
their closing arguments. The State made the following statements specific to the
identification issue:
And so [Pinkston] tells you, you know, it was—the sun was high up
that day, I remember that the sun was kind of coming through the trees, the
canopy there; and I didn't get a very clear view of his face, but, I mean, I
knew what he looked like, I could give a description of him.
....
So then we hear that [the initial investigating officer] calls Jennifer
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Pinkston later on and he says, hey, this guy, do you remember if he had a
birthmark on his head? And she says, it's possible. She doesn't say no
and she doesn't say yes. She told you, I really couldn't tell. I mean, I
couldn't tell based on the sun, the way that the light was that day. I really
couldn't tell so I wasn't going to say yes, but I couldn't say no. I couldn't
rule it out.
And the Defense is going to argue, I anticipate, that that's the big
sticking point here, that she didn't see the birthmark; the birthmark is
predominant, she should have seen it; if she didn't see it, then there is no
way it could be him. I would suggest to you that the evidence shows
otherwise.
....
We heard also from Detective Cleveland who told you that he started,
you know, piecing the evidence together, he went through [the initial
investigating officer]'s report, and he was able to put a lineup together. He
calls Jennifer Pinkston in the next day. So July 23rd, the very next day,
she comes in, she looks at the lineup and—which was given to her by a
different officer, Detective Crozier, so there was no suggestion. And she
tells you . . . . She looks through the lineup, and she picks out Terrance
Caesar. The important thing is that Jennifer told you, yes, I knew that
Borunda had told me that there was a particular—there was a possibility
there might be a birthmark. And she said, I didn't want that to influence me
in any way so I put my hands over the foreheads of the individuals and that's
how I determined, and I determined based on the expression on his face.
Who else did you hear that from? Franck Tappa. He said he had
that smug, smirkness [sic] on his face and that's what made me pick him
out of the lineup. Because that's what he looks like when he is involved in
criminal activity, he's got that smirk, that smug look on his face, like you're
not going to catch me, you can't do anything to me. And they both picked
him out of the lineup based on that. I think that is really interesting.
....
So [Tappa and the Craigslist contact] meet up . . . at the Dairy Queen
and, you know, Mr. Caesar has somebody else do his dirty work for him.
He has a younger kid go in, meets with Mr. Tappa, makes the exchange,
but Mr. Tappa sees Mr. Caesar. [Appellant] kind of gives [Tappa] that
weird feeling. [Tappa] says, I just—I don't know what it was, I looked back
at him. And he got a good look at him. He saw he had that hat on with
the flipped up bill and he saw the birthmark on his head, and it stuck out to
him. He thought, man, you know, that look on his face. And, yes, he
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picked him out of the lineup.
In his argument, defense counsel called into question the reliability of Pinkston and
Tappa's identifications of appellant. Counsel also emphasized appellant's birthmark.
He pointed out that appellant was the only person in the photo array who had a birthmark.
He argued that appellant's birthmark was his most distinguishable feature, and because
appellant was the only person in the array with such a mark, Pinkston and Tappa's
identifications were irreparably tainted by that fact.
Finally, in its closing response, the State emphasized that the jury must consider
the totality of the circumstances. It then made the following statement about the
identification issue:
What's the first thing we have? We have a man matching Mr.
Caesar's description in that front yard with a bag that came from inside the
house. [Defense counsel] is making this huge deal about Jennifer
Pinkston's—how she viewed him, what angle was it, this, that, or the other,
and then the birthmark. And she told you how she covered up their
foreheads because she didn't want it to factor in. She said, I didn't describe
him with a birthmark; I'm not saying yes or no, but I'm going to eliminate that
in my choice.
And it is real interesting, you didn't hear it from us, you didn't hear it
from [defense counsel], you heard it from both civilian witnesses how they
identified him, that unique look on his face.
The jury then returned a verdict of guilty and sentenced appellant to eighteen
years' incarceration. This appeal followed.
II. Photo Array
By his first issue, appellant argues that the trial court erred in refusing to find that
the impermissibly suggestive photo array shown to Pinkston and Tappa created a
substantial likelihood of misidentification. We disagree.
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We review de novo the question of whether a pretrial identification procedure was
impermissibly suggestive. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App.
2009). Reliability is the linchpin in determining the admissibility of an identification.
Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). In our review, our first
inquiry is whether the pretrial identification procedure was impermissibly suggestive.
Gamboa, 296 S.W.3d at 581. If we conclude that the procedure was impermissibly
suggestive, we then determine if the impermissibly suggestive nature of the pretrial line-
up gave rise to a substantial likelihood of irreparable misidentification. Id. at 581–82. In
other words, if the pretrial procedure is found to be impermissibly suggestive,
identification testimony would still be admissible where the totality of the circumstances
shows no substantial likelihood of misidentification. See Luna v. State, 268 S.W.3d 594,
605 (Tex. Crim. App. 2008) (citing Ibarra, 11 S.W.3d at 195). Appellant must show by
clear and convincing evidence that the identification has been irreparably tainted before
his conviction can be reversed. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App.
1995).
In this case, the trial court determined at a pretrial hearing that the photo array
shown to Pinkston and Tappa was impermissibly suggestive. Therefore, the only
question before us is whether appellant has shown by clear and convincing evidence that
these procedures gave rise to a substantial likelihood of irreparable misidentification.
We consider the following factors when determining the likelihood of irreparable
misidentification: (1) the witness's opportunity to view the perpetrator at the time of the
offense; (2) the witness's degree of attention during the offense; (3) the accuracy of the
witness's prior description of the perpetrator; (4) the witness's level of certainty regarding
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the identification at the time of confrontation; and (5) the lapse of time between the offense
and the subsequent confrontation. Gamboa, 296 S.W.3d at 582; Luna, 268 S.W.3d at
605. Here, there were sufficient indicia of reliability in Pinkston and Tappa's
identifications such that we cannot conclude there was a substantial likelihood of
irreparable misidentification in this case. See Ibarra, 11 S.W.3d at 195; see also Luna,
268 S.W.3d at 605.
As to the first factor, Pinkston's interaction with the man outside her home that she
later identified as appellant was not insubstantial. She had a brief conversation with him
about his purpose in her yard. Although it is true that the man was standing in the shade
of a tree, Pinkston testified that he was only a short distance from her, ten to twenty feet
away. Tappa testified that he walked quickly by the man in the Dairy Queen foyer he
later identified as appellant. However, Tappa passed very closely to the man when he
did so.
As to the second factor, the testimony of both Pinkston and Tappa showed that
their degree of attention during their initial interactions with appellant was heightened.
Both recalled specific details concerning the man they later identified as appellant. While
Tappa did home in on what he believed was a scar on the man's forehead, both witnesses
were particularly struck by the man's overall demeanor. Tappa felt intimidated by the
man in the foyer, noting, in particular, the man's "look, his face, the eyes" and "just the
way he [was] staring." Pinkston testified that the man in her front yard had a "smug smirk
facial expression," "kind of a smart-aleck sort of expression." Pinkston testified that the
man in the photo array that she chose had that same expression.
As to the third factor, the record shows that Pinkston's initial description of the man
12
later identified as appellant was accurate but not specific. When the initial investigating
officer asked Pinkston to describe the man in her front yard, she stated he was an African-
American male in his thirties with short hair and wearing a white t-shirt and black shorts.
Although it is true that appellant is an African-American male and at the time of the offense
was in his thirties and had short hair, we cannot conclude that these unspecific
characteristics are relevant. Tappa gave no initial description of the man in the Dairy
Queen foyer; his first identification of the man occurred during the photo array procedure
at the police station. In short, we cannot conclude that this third factor weighs in favor of
reliability.
As to the fourth factor, Pinkston testified that she was ninety-percent certain that
her identification was correct, explaining that this was "as sure as [she was] going to get"
because she believed "nothing is ever 100 percent." Tappa testified that he was eighty-
percent certain.
Finally, as to the fifth factor, Pinkston's identification of appellant in the photo array
happened on the same day, during the evening after the early-afternoon offense. Tappa
identified appellant in the photo array the day after he bought the computer at the Dairy
Queen.
Considering the witnesses' identifications under the totality of the circumstances,
we cannot conclude that appellant proved by clear and convincing evidence a substantial
likelihood of misidentification from the use of the suggestive photo array. Most notably,
the testimony of both witnesses shows a high degree of attention to detail. Pinkston
gave a detailed description of the man in her front yard that focused specifically on his
demeanor and facial expression; she then used a meticulous procedure to ensure that
13
her view of the photos in the array did not give undue weight to unusual physical features,
i.e., the birthmark, and instead focused on the expression she saw on the day of the
offense. Although Tappa gave more weight to the birthmark in his identification, we
believe his identical description of appellant's demeanor served mainly to increase the
reliability of Pinkston's identification. Both witnesses had a good opportunity to view the
perpetrator: Pinkston in a prolonged interaction in her front yard, and Tappa by passing
very close to the man in the Dairy Queen foyer. Both witnesses testified as to a high
degree of certainty and both made their photo-array identifications soon after their initial
observations. Finally, having reviewed the closing arguments in their entirety, we cannot
say that the State particularly emphasized appellant's birthmark; the State specifically
exhorted the jury to consider the totality of the circumstances and gave equal, if not
greater weight, to the witnesses' descriptions of appellant's demeanor and facial
expressions.
In short, the record does not show that the identification of appellant was
irreparably tainted by the impermissibly suggestive photo array shown to Pinkston and
Tappa. The trial court did not err in concluding as much. Appellant's first issue is
overruled.
III. Modification of Judgment Nunc Pro Tunc
By his second issue, appellant complains that, although the State abandoned the
first enhancement paragraph and proceeded only on the second, his judgment of
conviction incorrectly notes that he pleaded true to both enhancement paragraphs. The
State concedes that this is true, and our review of the record confirms this. Appellant's
second issue is sustained. Because we have the necessary data and evidence for
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reformation, we modify the trial court's nunc pro tunc judgment to reflect that the State
abandoned the first enhancement paragraph. See TEX. R. APP. P. 43.2; Bigley v. State,
865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc).
IV. Conclusion
We affirm the judgment as modified.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
12th day of June, 2014.
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