in the Matter of M. I. S., a Juvenile ( 2015 )

ACCEPTED
01-14-00684-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/21/2015 2:55:32 PM
No. 01-14-00684-CV CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN -
At Houston 1st COURT OF--APPEALS
- ----
HOUSTON, -
--- TEXAS
 - - ----ID K ------
10/21/2015
- - 2:55:32 -- PM
---- VO ------
CHRISTOPHER -- A. PRINE
----
No. 2013-05802J ---- Clerk
In the 313th District Court
Of Harris County, Texas
 FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE MATTER OF M.I.S.
10/21/2015 2:55:32 PM
Appellant
CHRISTOPHER A. PRINE
V. Clerk
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
DAN MCCRORY
Assistant District Attorney
Harris County, Texas
mccrory_daniel@dao.hctx.net
MARTINA LONGORIA
RYAN MCLEAREN
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT GRANTED
STATEMENT REGARDING ORAL ARGUMENT
This Court has granted oral argument.
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ..................................................i
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE................................................................................... 1
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENTS ....................................................................... 4
REPLY TO POINT OF ERROR ONE ....................................................................... 5
REPLY TO POINTS OF ERROR TWO AND THREE .......................................... 11
REPLY TO POINT OF ERROR FOUR .................................................................. 27
CONCLUSION ........................................................................................................ 34
CERTIFICATE OF SERVICE ................................................................................. 35
CERTIFICATE OF COMPLIANCE ....................................................................... 35
ii
INDEX OF AUTHORITIES
CASES
Baird v. State,
398 S.W.3d 220 (Tex. Crim. App. 2013) ....................................................... 12, 19
Barley v. State,
906 S.W.2d 27 (Tex. Crim. App. 1995)................................. 16, 17, 23, 24, 25, 26
Blackshear v. State,
385 S.W.3d 589 (Tex. Crim. App. 2012)..............................................................30
Brown v. State,
64 S.W.3d 94 (Tex. App.--Austin 2001, no pet.)..................................................26
Broxton v. State,
909 S.W.2d 912 (Tex. Crim. App. 1995) ..............................................................30
Burkett v. State,
127 S.W.3d 83 (Tex. App.--Houston [1st Dist.] 2003, no pet.) .................... 20, 21
Cantu v. State,
738 S.W.2d 249 (Tex. Crim. App. 1987) ..............................................................25
Cienfuegos v. State,
113 S.W.3d 481 (Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) ......................21
Dewberry v. State,
4 S.W.3d 735 (Tex. Crim. App. 1999) ..................................................................30
Gil v. State,
No. 08-05-00108-CR, 2007 WL 926470 (Tex. App.--El Paso
Mar. 29, 2007, no pet.) (not designated for publication) .......................................9
Grace v. Duke,
54 S.W.3d 338 (Tex. App.--Austin 2001, pet. denied) .................................. 29, 30
Hahn v. Love,
394 S.W.3d 14 (Tex. App.--Houston [1st Dist.] 2012, pet. denied) .......................8
iii
Harrison v. State,
187 S.W.3d 429 (Tex. Crim. App. 2005)..............................................................31
In re D.B,
594 S.W.2d 207 (Tex. App.--Corpus Christi 1980, no writ) ................................29
In re D.J.C.,
312 S.W.3d 704 (Tex. App.--Houston [1st Dist.] 2009, no pet.)..........................12
In re F.L.R.,
293 S.W.3d 278 (Tex. App.--Waco 2009, no pet.) .................................................8
In re I.L.,
389 S.W.3d 445 (Tex. App.--El Paso 2012, no pet.) ..............................................8
In re I.P.,
No. 04-98-00588-CV, 1999 WL 191589 (Tex. App.--San
Antonio Apr. 7, 1999, no writ) (not designated for publication) .........................29
In re J.H.C.,
No. 08-02-00244-CV, 2003 WL 1948985 (Tex. App.--El
Paso Apr. 24, 2003, no writ) (not designated for publication) ...................... 29, 30
Kelly v. State,
No. 14-13-00087-CR, 2014 WL 2446616 (Tex. App.--Houston [14th Dist.]
May 29, 2014, no pet.) (not designated for publication) .....................................18
Leza v. State,
351 S.W.3d 344 (Tex. Crim. App. 2001)................................................................9
Martinez v. State,
190 S.W.3d 254 (Tex. App.--Houston [1st Dist.] 2006, pet. ref’d)........................9
Mims v. State,
434 S.W.3d 265 (Tex. App.--Houston [1st Dist.] 2014, no pet.)................... 18, 20
Molandes v. State,
571 S.W.2d 3 (Tex. Crim. App. 1978) ....................................................................9
Mungia v. State,
911 S.W.2d 164 (Tex. App.--Corpus Christi 1995, no pet.) .................................21
iv
Neil v. Biggers,
409 U.S. 188 (1972) .............................................................................................16
Rocha v. Faltys,
69 S.W.3d 315 (Tex. App.--Austin 2002, no pet.)................................................31
Rodriguez v. State,
No. 07-11-00270-CR, 2013 WL 3355724 (Tex. App.--Amarillo
June 26, 2013, no pet.) (not designated for publication) .....................................18
Rojas v. State,
171 S.W.3d 442 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) ...................26
Tamez v. State,
205 S.W.3d 32 (Tex. App.--Tyler 2006, no pet.) ....................................................9
United States v Watson,
12-4012, 540 Fed. Appx. 512, 515, 2013 WL
5508874 (6th Cir. Oct. 4, 2013) ............................................................................18
Walker v. State,
No. 13-11-00225-CR, 2011 WL 6916545 (Tex. App.--Corpus
Christi Dec. 29, 2011, no pet.) (not designated for publication) ..........................22
Watts v. Watts,
396 S.W.3d 19 (Tex. App.--Houston [1st Dist.] 2012, no pet.) .............................8
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006) .............................................31
TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006) .............................................30
TEX. FAM. CODE ANN. § 51.17 (West 2014).............................................................28
v
RULES
TEX. R. APP. P. 39.7 .................................................................................................... i
TEX. R. CIV. P. 251....................................................................................................29
TEX. R. CIV. P. 252....................................................................................................29
TEX. R. CIV. P. 286................................................................................................8, 10
vi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State filed a petition alleging that appellant, a juvenile, engaged in
delinquent conduct by committing the offense of aggravated robbery. (CR 6).
After finding that appellant had engaged in the alleged delinquent conduct and
further finding that he was in need of rehabilitation, the trial judge committed
appellant to the custody of the Texas Juvenile Justice Department for ten years.
(CR 47-48).
STATEMENT OF FACTS
The complainant, Orlando Caval, drove to pick up his wife from her job at
Marshalls at about 10:40 p.m. (RR III 23). He parked near the store in an area lit
by light poles. (RR III 27-29; RR VIII – SX 136; RR IX – SX 140). The
complainant remained in his car as he waited for his wife to get off work. (RR III
32).
A small sedan containing two males and a female pulled up next to the
complainant’s passenger side. (RR III 32-34, 46). The complainant rolled down
his passenger window and the female driver asked for directions to a particular
street. (RR III 33). The complainant offered to look up the street on his cell phone
and began browsing his phone. (RR III 33-34).
While focusing on his phone, the complainant heard one of the males,
appellant, try to open his locked driver’s side door. (RR III 34-35, 48). The
complainant told appellant to remain where he was while the complainant
concentrated on retrieving the requested information from his phone. (RR III 35,
141-142). Appellant walked away. (RR III 141-142).
Appellant walked to the complainant’s rolled-down passenger window and
pointed a shotgun at the complainant’s face. (RR III 41, 142-144). The shotgun’s
barrel was actually inside the complainant’s car and appellant had his finger on the
trigger. (RR III 41-42). The gun was within 12 inches of the complainant’s head.
(RR III 43-44).
While the gun was pointed at the complainant’s head, the female ordered
him to exit his car and to leave his wallet and other belongings behind. (RR III 44).
The complainant complied and began walking toward Marshalls. (RR III 49). As
he walked away, the complainant heard someone slam his door shut and speed
away in his car. (RR III 49-50). Once the robbers were gone, the complainant
called 911 and an officer arrived. (RR III 51). The complainant gave the officer a
description of the robbers. (RR III 51).
Sergeant Scott Ashmore was the lead investigator assigned to this case. (RR
IV 21, 44). The day after the robbery, a witness told Sergeant Ashmore that Brenda
Flores was a possible suspect in the robbery. (RR IV 26, 126-127). Sergeant
2
Ashmore obtained a photograph of Flores and placed it in a photospread with the
images of five other women. (RR IV 26-27, 127; RR VIII – SX 120). A short time
later, the complainant viewed the photospread and positively identified Flores as
the female driver from the robbery. (RR III 57-58; RR IV 26-28).
After the complainant identified Flores as one of the robbers, Sergeant
Ashmore went to the district attorney’s office and secured a warrant for her arrest.
(RR IV 28). As he headed home from the district attorney’s office, Sergeant
Ashmore happened to overhear some “radio traffic” that prompted him drive to a
house that had just been burglarized. (RR III 225-226, 241-242; RR IV 29). When
he arrived, he found appellant, Flores, and Neiman Gasper in custody for the
commission of the burglary. (RR III 228-232, 241-246; RR IV 29-30). This
incident occurred about 18 hours after the robbery. (RR IV 67).
Sergeant Ashmore transported the three suspects to a substation, where he
placed appellant in a juvenile holding tank and then interviewed the other two
suspects. (RR IV 30-31). Flores and Gasper both identified appellant as the
gunman in the complainant’s robbery. (RR IV 31-32). Later, the complainant
identified appellant in a photospread as the gunman who robbed him. (RR III 61-
62; RR IV 37-40).
3
SUMMARY OF THE ARGUMENTS
Point one: The trial judge correctly instructed the jurors to answer the second
question in appellant’s favor if they were not unanimous because a verdict
favorable to the defendant may be returned by a non-unanimous verdict.
Furthermore, Rule 286 of the Texas Rules of Civil Procedure permitted the judge,
on his own motion, to submit the instruction after the jury began deliberations
since the instruction related to a matter of law, not fact. Namely, the instruction
addressed the legal issue of how the jurors were to answer the second question in
the face of their inability to unanimously agree on an answer.
Points two and three: The trial judge did not abuse his discretion by denying
appellant’s motion to suppress the complainant’s out-of-court and in-court
identifications of appellant. Of the five circumstances that appellant identifies as
rendering the photospread identification procedure impermissibly suggestive, the
only one that possibly actually was impermissibly suggestive was the officer’s
confirmation to the complainant that he had picked the correct suspect. But this
suggestiveness did not give rise to a substantial likelihood of irreparable
misidentification because the complainant had a good opportunity to see appellant
during the robbery, the complainant paid attention to appellant during this time, the
complainant was certain of his identification of appellant, and the time passage
between the crime and the confrontation did not have a detrimental effect on the
4
identification. Moreover, the complainant testified that would have been able to
identify appellant in court even if he had not viewed the photospread.
Point four: The trial judge did not err in denying appellant’s motion for
continuance because (assuming the civil rules apply) the motion was not supported
by the requisite affidavit, or (assuming the criminal rules apply) the motion was
unsworn. Furthermore, appellant did not demonstrate that Funk’s testimony was
material since appellant’s failure to be in the company of his two accomplices 2.5
hours after the charged robbery has very little bearing, if any, on whether he
participated in the robbery.
REPLY TO POINT OF ERROR ONE
In his first point of error, appellant contends the trial judge erred by
submitting a supplemental instruction after the jurors had begun their deliberations.
Appellant maintains that the judge lacked authority to submit such an instruction
and that the instruction harmed him.
Relevant facts
The jury charge posed two questions to the jury. First, it asked the jurors to
determine whether appellant committed the charged offense (as either a principal
or a party). (RR V 9-11; CR 43). The second questions asked: “Do you find from
the evidence beyond a reasonable doubt that the respondent, [appellant], did then
and there use or exhibit a deadly weapon, namely a firearm, during the commission
5
of or during the immediate flight from the commission of the aggravated robbery
alleged in the petition?” (CR 44). The verdict form allowed the jury to answer this
second question either “WE DO” or “WE DO NOT.” (CR 44).
After deliberating a number of hours, the jurors sent the judge a note
indicating that they were “hopelessly deadlocked” on the second question and
sought advice on how to proceed. (RR V 13). The judge directed the jury back to
the submitted jury charge. (RR V 14).
The next day, the prosecutor proposed providing the jury a supplemental
instruction for the second question. (RR VI 12-13). She recommended adding the
following sentence to the original version of the second question: “You are further
instructed that if you cannot unanimously agree on an answer to this question, then
you will state in your answer for Question No. 2, We do not.” (RR VI 13, 30). The
prosecutor explained that this instruction “clarifies for the jury the exact question
they had.” (RR VI 13). She further explained that the additional instruction
benefitted appellant because it directs the jury to resolve the deadly weapon issue
in his favor if the jurors were not unanimous in their answer. (RR VI 14).
Following appellant’s objections to the submission of the proposed
supplemental instruction, the judge agreed that the instruction would benefit
appellant on the deadly weapon issue. (RR VI 14-23). The judge then announced
that he would allow the jurors to continue deliberations “a little while longer”
6
before providing them with the proposed supplemental instruction. (RR VI 25).
Shortly thereafter, the jurors sent out a second note stating that they had exhausted
all discussions and were still unable to reach a unanimous decision on the second
question. (RR VI 33). The judge then provided the jury with the proposed
supplemental instruction that directed the jurors to answer “we do not” on the
second question if they could not unanimously agree on an answer to the question.
(RR VI 36-37).
About fifteen minutes later, the jury returned with an answer to both
questions. The jurors replied “we do” in response to the first question, finding
appellant engaged in delinquent conduct by committing the charged offense. (RR
VI 39). The jurors answered “we do not” to the second question. (RR VI 39).
The judge polled the jury. (RR VI 39-41). All twelve jurors confirmed “we
do” was their verdict on the first question. (RR VI 39-40). Regarding the second
question, only one juror confirmed that “we do not” was his or her verdict. (RR VI
40-41). In other words, only one juror determined that appellant did not use or
exhibit a deadly weapon during the offense’s commission. The eleven other jurors
disavowed this verdict, evidently believing appellant used a deadly weapon. (RR
VI 40-41). Given the language of the supplemental instruction, the single juror’s
belief that appellant did not use a weapon was enough to prevent the entry into the
judgment of a deadly weapon finding. (CR 47).
7
Argument and analysis
As mentioned, appellant argues the trial judge erred by submitting the
supplemental jury instruction pertaining to the second question after the jury had
already begun deliberating. The Rules of Civil Procedure govern the charge in a
juvenile proceeding. In re I.L., 389 S.W.3d 445, 451 (Tex. App.--El Paso 2012, no
pet.); In re F.L.R., 293 S.W.3d 278, 281 (Tex. App.--Waco 2009, no pet.). The
standard of review for alleged error in the jury charge is abuse of discretion. Hahn
v. Love, 394 S.W.3d 14, 37 (Tex. App.--Houston [1st Dist.] 2012, pet. denied).
Rule 286 of the Texas Rules of Civil Procedure addresses the issue of
supplemental instructions. It provides: “After having retired, the jury may receive
further instructions from the court touching any matter of law, either at their
request or upon the court’s own motion.” TEX. R. CIV. P. 286. Issues involving the
submission of supplemental instructions under this rule are reviewed for an abuse
of discretion. Watts v. Watts, 396 S.W.3d 19, 21-22 (Tex. App.--Houston [1st Dist.]
2012, no pet.).
Appellant raises several complaints about the judge’s submission of the
supplemental instruction. First, appellant appears to claim the instruction was
improper because it allowed the jury to return a non-unanimous answer to the
second question. Generally, the Texas Constitution and the Texas Code of
Criminal Procedure require a unanimous verdict in all felony cases. Leza v. State,
8
351 S.W.3d 344, 356 (Tex. Crim. App. 2001). This unanimity requirement applies
to the elements of an offense. Tamez v. State, 205 S.W.3d 32, 44 (Tex. App.--Tyler
2006, no pet.); Martinez v. State, 190 S.W.3d 254, 258 (Tex. App.--Houston [1st
Dist.] 2006, pet. ref’d).
A deadly weapon affirmative finding allegation is not an essential element of
a charged offense. See Tamez, 205 S.W.3d at 45. Therefore, a lack of unanimity
on the deadly weapon issue does not produce a lack of jury unanimity on an
element of the offense. Id. As such, unanimity is not required in the jury’s answer
to the deadly weapon question.
Furthermore, a defendant’s right to a unanimous verdict applies only to a
verdict adverse to the defendant; a verdict favorable to a defendant may be
returned on a non-unanimous agreement. Molandes v. State, 571 S.W.2d 3, 4 (Tex.
Crim. App. 1978). As observed by the trial judge, the jury’s answer to the second
question benefitted appellant because it resulted in there being no deadly weapon
finding. (RR VI 22-23). Since the verdict for the second issue benefitted appellant,
unanimity was not required. Id.; see also Gil v. State, No. 08-05-00108-CR, 2007
WL 926470, at *6 (Tex. App.--El Paso Mar. 29, 2007, no pet.) (not designated for
publication) (“the deadly weapon special issue was not an element of the offense;
therefore, there is no issue of the jury’s not having returned a unanimous verdict.”).
Accordingly, the content of the supplemental instruction was proper.
9
Second, appellant argues the submission of the supplemental instruction was
error because the jury did not request such an instruction. Rule 286, however,
allows further instructions at the jury’s request or “upon the court’s own motion.”
TEX. R. CIV. P. 286. Therefore, as occurred in this case, the trial judge may provide
the jury a supplemental instruction without a request from the jury. The absence of
a jury request did not render the submission of the instruction erroneous.
Third, appellant claims Rule 286 does not warrant the submission of the
supplemental instruction because the rule authorizes only additional instructions
“touching any matter of law.” TEX. R. CIV. P. 286 (italics added). Appellant
maintains that rule 286 is inapplicable because the jury was deadlocked on a
question of fact, namely, whether appellant used or exhibited a deadly weapon.
While the jurors may have disagreed about the fact of whether appellant used a
deadly weapon, the supplemental instruction addressed the legal issue of how such
a disagreement ought to be resolved for purposes of answering the second
question. In other words, the instruction directed the jurors how to proceed, as a
“matter of law,” in the face of their inability to agree. Accordingly, Rule 286 was
applicable and authorized the judge’s submission of the supplemental instruction.
Fourth, appellant claims the judge erred by submitting the supplemental
instruction because the jury may have interpreted it as applying to the first question
as well, causing the jurors to believe unanimity was not required for the first
10
question. The judge, however, instructed the jury in very clear terms that the
supplemental charge was applicable only to the second question. (RR VI 36-37).
There was no basis, therefore, for the jury to believe that the content of this
instruction touched upon the first question. In any event, the post-verdict polling
of the jury confirmed that the jurors were in fact unanimous on the first question.
(RR VI 39-40). Accordingly, there was no error.
Even assuming the judge did err by submitting the instruction, any error was
harmless because, as the judge observed (RR VI 22-23), the supplemental
instruction benefitted appellant since it authorized a negative finding on the deadly
weapon special issue even if only a single juror voted against the finding. As such,
it disabused the jury of any notion that a negative finding required a unanimous
vote on the issue. Since the instruction made it much easier for appellant to obtain
a favorable verdict on the second question, he was not harmed by its submission.
Accordingly, appellant’s first point of error is meritless and should be
overruled.
REPLY TO POINTS OF ERROR TWO AND THREE
In his next two points of error, appellant contends the trial judge erred by
denying his motion to suppress the complainant’s identifications of appellant. (RR
III 70, 118). In his second point, appellant claims the judge erred in admitting
evidence of the complainant’s out-of-court identification of appellant. In his third
11
point, appellant argues the judge erred in admitting evidence of the complainant’s
in-court identification of appellant. In both points of error, appellant asserts that
the pretrial identification procedure was impermissibly suggestive and rendered the
identification unreliable.
1. Standard of review
A trial judge’s ruling on a motion to suppress in a juvenile case is reviewed
under the same standard as used in adult criminal proceedings. In re D.J.C., 312
S.W.3d 704, 711 (Tex. App.--Houston [1st Dist.] 2009, no pet.). An appellate court
reviews a trial judge’s suppression ruling under a bifurcated standard. Baird v.
State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). Almost total deference is
afforded to the trial judge’s determination of fact. Id. The trial judge is the sole
arbiter of questions of fact and of the weight and credibility to give testimony. Id.
In this capacity, the judge is free to believe or disbelieve any part of any witness’s
testimony. Id. The trial judge’s determination of the legal significance of the facts,
however, is reviewed de novo. Id.
2. The facts relating to appellant’s suggestiveness claims
The trial judge conducted a midtrial hearing on appellant’s motion to
suppress the complainant’s identifications of appellant. (RR III 69-118). The
complainant testified that he went to the police station the day after the robbery
and Sergeant Ashmore showed him a photospread containing six males of similar
12
appearance. (RR III 52-53, 59-62). The complainant picked appellant from the
photospread. (RR III 62, 110, 113-114). He was “very positive” of his
identification of appellant. (RR III 80). Regarding the identification, the
complainant explained that appellant’s nose “really stands out.” (RR III 86).
On appeal, appellant contends the identification procedure that led to this
out-of-court identification was impermissibly suggestive, which rendered it
unreliable. Appellant argues the procedure was impermissibly suggestive because:
(1) Sergeant Ashmore did not employ a double-blind process when he administered
the photospread identification procedure; (2) Sergeant Ashmore sat directly across
from the complainant which allowed him to see the photospread (resulting in the
possibility that the officer inadvertently relayed visual clues to the complainant);
(3) after the complainant identified appellant, Sergeant Ashmore told him he had
picked the right person and provided him appellant’s name; (4) appellant’s
photograph was the only one in which the person was wearing a striped shirt; and
(5) two of the remaining five fill-in photographs depicted the same person.
(appellant’s brief, pp. 13-14).
Regarding appellant’s first claim, Sergeant Ashmore explained that, with
regard to the administration of photospread identification procedures, a “blind
administrator” procedure involves having one officer create the photospread and
having a second officer (who does not know the suspect’s position in the
13
photospread) show the photospread to the witness. (RR III 93; RR IV 48-49). This
procedure avoids the possibility that the officer who shows the photospread to the
witness might subconsciously provide the witness subtle clues about the suspect’s
position. (RR III 94). It is undisputed that Sergeant Ashmore did not employ a
blind administrator; he alone created the photospread and administered it. (RR III
95-96; RR IV 49).
Regarding appellant’s second claim, the complainant testified that he and
Sergeant Ashmore were sitting at a desk across from one another so that the officer
could see the photospread while the complainant examined it. (RR III 73-74, 79-
80, 172). However, Sergeant Ashmore testified that he was behind the complainant
while the complainant viewed the photospread. (RR III 113). He was not in front
of the complainant where he would have been able to see the photospread. (RR III
113-114).
Regarding appellant’s third claim, the complainant testified that after he
picked appellant’s picture out of the photospread, Sergeant Ashmore told him
appellant’s name. (RR III 85). The complainant stated the officer “might have”
also told him that he “got [the identification] right.” (RR III 85). Sergeant
Ashmore testified that he told the complainant he had picked the right person and
provided him appellant’s name. (RR III 114; RR IV 79). Sergeant Ashmore
admitted that it was a violation of his department’s policy to provide a witness
14
feedback about his selection. (RR III 101, 107-108). The officer explained that he
violated the policy in this instance because the complainant feared the robbers
would visit his home because they had his keys and his identifying information.
(RR IV 42). Sergeant Ashmore wanted to ease the complainant’s concerns by
letting him know he had picked the right suspects and, therefore, he could carry on
his life without fear that the robbers would harm him. (RR IV 42-43).
Regarding appellant’s fourth claim, it is undisputed that appellant’s
photograph was the only one in the photospread in which the subject was wearing
a striped shirt; the other subjects were wearing solid-colored shirts. (RR III 81,
112, 174; RR VIII – SX 116).
Regarding appellant’s fifth claim, there is no evidence that the same person’s
photograph appears twice in appellant’s photospread. The record reflects that
appellant’s attorney stated he thought the person depicted in positions three and six
in the photospread were the same person. (RR III 111; RR IV 74). The attorney’s
statements, of course, do not constitute evidence. When defense counsel asked
Sergeant Ashmore whether the two photographs were in fact of the same person,
the officer replied he did not know. (RR III 111-112; RR IV 74-75). The record,
therefore, does not affirmatively establish that the same person’s photograph
appears twice in the photospread.
3. Argument and analysis
15
3.1. Applicable law
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the defendant due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex.
Crim. App. 1995). A two-step analysis is used to determine the admissibility of an
in-court identification: (1) whether the out-of-court identification procedure was
impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a
very substantial likelihood of irreparable misidentification. Id. at 33. An analysis
under these steps requires an examination of the totality of the circumstances
surrounding the particular case and a determination of the reliability of the
identification. Id. This test is applicable to the admissibility determination of both
in-court and out-of-court identifications. Neil v. Biggers, 409 U.S. 188, 198
(1972).
Under the first prong, the identification procedures employed might be
suggestive, but not impermissibly so. Barley, 906 S.W.2d at 33. Suggestiveness
may be created by the manner in which the officer conducts the pretrial
identification procedure or by the content of the photospread itself. Id.
Under the second prong, even assuming the identification procedure is
impermissibly suggestive, it must be determined whether a very substantial
likelihood for irreparable misidentification has been created. Id. at 34. Reliability
16
is the linchpin in determining admissibility of identification testimony. Id. If
indicia of reliability outweigh suggestiveness, an identification is admissible. Id.
To obtain a reversal, the defendant must show by clear and convincing evidence
that the identification has been irreparably tainted. Id.
In determining whether a very substantial likelihood for irreparable
misidentification has been created, the following nonexclusive factors are
considered: (1) the witness’s opportunity to view the criminal act; (2) the witness’s
degree of attention; (3) the accuracy of the suspect’s description; (4) the level of
certainty at the time of the confrontation; and (5) the time between the crime and
the confrontation. Id. at 34-35. These factors are weighed against the corrupting
effect of any suggestive identification procedure. Id. at 35.
In light of this guiding case law, it must be determined whether the five
circumstances cited by appellant: (1) render the out-of-court identification
procedure impermissibly suggestive; and (2) if it is impermissibly suggestive,
whether that suggestive procedure gave rise to a very substantial likelihood of
irreparable misidentification. Barley, 906 S.W.2d at 33.
3.2. The identification procedure was not impermissibly suggestive
As mentioned, appellant first claims the identification procedure was
impermissibly suggestive because Sergeant Ashmore did not employ a double
blind process when he administered the photospread identification procedure.
17
However, while such a procedure may be preferable, failure to employ it does not
make a pretrial identification procedure impermissibly suggestive per se. Kelly v.
State, No. 14-13-00087-CR, 2014 WL 2446616, at *4 (Tex. App.--Houston [14th
Dist.] May 29, 2014, no pet.) (not designated for publication); Rodriguez v. State,
No. 07-11-00270-CR, 2013 WL 3355724, at *5 (Tex. App.--Amarillo June 26,
2013, no pet.) (not designated for publication); see also United States v Watson, 12-
4012, 540 Fed. Appx. 512, 515, 2013 WL 5508874, at *3 (6 th Cir. Oct. 4, 2013)
(finding non-blind lineups are not inherently suggestive).
Furthermore, the defendant bears the burden of establishing by clear and
convincing evidence that the procedure was impermissibly suggestive. Mims v.
State, 434 S.W.3d 265, 272 (Tex. App.--Houston [1st Dist.] 2014, no pet.). While
the double blind procedure is designed to prevent the possibility that an officer
might knowingly or inadvertently send clues about the suspect’s position in the
photospread to an identification witness, appellant has not presented any evidence
that such clues actually were sent in this case. There is no evidence that Sergeant
Ashmore, despite the absence of a double-blind procedure, engaged in any conduct
whatsoever that might have suggested to the complainant that he pick any
particular person out of the photospread. As such, appellant has not carried his
burden of proof with regard to his first claim.
18
Second, appellant claims the identification procedure was impermissibly
suggestive because Sergeant Ashmore positioned himself so that he could see the
photospread while the complainant viewed it. Appellant argues this positioning
allowed the possibility that the officer inadvertently sent the complainant visual
clues regarding the suspect’s photograph.
Although the complainant testified at the suppression hearing that Sergeant
Ashmore sat across a desk from him so that the officer could see the photospread
(RR III 73-74, 79-80, 172), Sergeant Ashmore testified that he was behind the
complainant while the complainant viewed the photospread where he would have
been unable to see the photospread. (RR III 113-114). As such, the relevant
testimony on this issue was conflicting.
A ruling on a suppression motion is reviewed on appeal in the light most
favorable to the trial judge’s determination. State v. Story, 445 S.W.3d 729, 732
(Tex. Crim. App. 2014). And the trial judge is entitled to believe or disbelieve any
part of any witness’s testimony. Baird, 398 S.W.3d at 226.
Viewing the record in the light most favorable to the trial judge’s ruling
mandates an appellate determination that the trial judge found Sergeant Ashmore’s
account of his position credible. Given Sergeant Ashmore’s description of his
being positioned behind the complainant (and therefore out of the complainant’s
19
sight), the office’s position did not render the identification procedure
impermissibly suggestive.
Moreover, even assuming Sergeant Ashmore actually did sit across from the
complainant (thereby creating the possibility of him sending subconscious clues),
appellant has not carried his burden of establishing by clear and convincing
evidence that the procedure was impermissibly suggestive. Mims, 434 S.W.3d at
272. Specifically, there has been no showing that Sergeant Ashmore actually did
send any clues to the complainant. Accordingly, regardless of the officer’s
position, there is no evidence of an impermissibly suggestive identification
procedure.
Third, appellant claims the identification procedure was impermissibly
suggestive because, after the complainant identified appellant in the photospread,
Sergeant Ashmore told him he had picked the correct suspect. (RR III 79, 85, 101,
107-108, 114, 174-175; RR IV 42-43, 56-57, 79). The officer’s confirmation to the
complainant that he had correctly identified a suspect did not affect the
admissibility of the pretrial identification because Sergeant Ashmore made the
comment only after the complainant had already made the identification quickly
and with great certainty. (RR III 80, 113, 178; RR IV 77-78). Burkett v. State, 127
S.W.3d 83, 87-88 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (officer’s
confirmation of witness’s identification was not impermissibly suggestive as to the
20
pretrial identification since the confirmation occurred after the pretrial
identification).
It is possible, however, that Sergeant Ashmore’s confirmation could
influence the complainant’s in-court identification. Id. at 88. The State will
address this issue below when it examines the second prong of the applicable test,
i.e., whether any impermissibly suggestive procedure was so suggestive that it
gave rise to a very substantial likelihood of irreparable in-court misidentification.
Id.
Fourth, appellant argues the content of the photospread was impermissibly
suggestive because appellant was the only person in it who was wearing a striped
shirt. (RR VII- SX 116). The other five subjects were wearing solid-colored shirts.
This claim is meritless because photospread subjects need not be identical in
appearance. Burkett, 127 S.W.3d at 87. Neither due process nor common sense
require such exactitude. Id. As such, a photospread is not impermissibly
suggestive simply because the defendant’s shirt is different than the shirts worn by
the other five men in the photospread. Cienfuegos v. State, 113 S.W.3d 481, 492
(Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) (mere fact that defendant was
only person in lineup wearing red shirt did not render it impermissibly suggestive);
Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.--Corpus Christi 1995, no pet.);
Walker v. State, No. 13-11-00225-CR, 2011 WL 6916545, at *11 (Tex. App.--
21
Corpus Christi Dec. 29, 2011, no pet.) (not designated for publication)
(photospread was not impermissibly suggestive even though defendant was only
person who was not wearing a solid-colored shirt).
In this case, the six males in the photospread share very similar physical
features and their shirts, while different, are not prominently displayed in the
photographs. Accordingly, a subtle difference in appellant’s shirt did not render the
photospread impermissibly suggestive.
Fifth, appellant claims the photospread is impermissibly suggestive because
the same person appears in the third and sixth position. (RR VII- SX 116). The
record, however, does not support this allegation. Admittedly, the defense attorney
stated he thought the person depicted in positions three and six in the photospread
were the same person. (RR III 111; RR IV 74). The attorney’s statements,
however, do not constitute evidence. When defense counsel asked Sergeant
Ashmore whether the two photographs were in fact of the same person, the officer
replied he did not know. (RR III 111-112; RR IV 74-75). The record, therefore,
does not affirmatively establish that the same person’s photograph appears twice in
the photospread. Absent evidence that the same person appears in the two
photographs, appellant has not shown that the photospread was impermissibly
suggestive. In any event, assuming the same person appears twice, appellant has
22
not cited any authority describing such a circumstance as impermissibly
suggestive.
Therefore, only one of the five circumstances appellant cites as purportedly
rendering the photospread impermissibly suggestive might actually render it as
such, namely, Sergeant Ashmore’s confirmation of the complainant’s identification
of appellant. At most, this confirmation potentially could affect only the
complainant’s in-court identification of appellant since the officer’s confirmation
occurred after the complainant had made his out-of-court identification.
Accordingly, the second prong of the Barley test must be examined.
3.3. Any suggestive procedure did not give rise to a substantial likelihood of
irreparable misidentification
The second prong of the Barley test asks whether the suggestive procedure
gave rise to a very substantial likelihood of irreparable misidentification. Barley,
906 S.W.2d at 33. Five factors are considered in addressing this issue.
The first factor examines the witness’s opportunity to view the defendant
during the commission of the offense. Id. at 34. The circumstances of the robbery
provided the complainant a good opportunity to see appellant commit the offense.
Although the robbery occurred at night, the complainant recalled that the area in
which he parked was well lit by light posts. (RR III 27-29, 158). When appellant
approached the driver’s side of the complainant’s car, the complainant looked at
appellant and could “clearly see his face.” (RR III 36, 83, 133). The complainant
23
explained that appellant was close to him so that the complainant “had both [sic]
angle of his face.” (RR III 178). The complainant had an additional opportunity to
see appellant when he approached the car a second time. (RR III 40-41, 144). The
complainant’s observations of appellant were detailed enough to allow him to
notice that appellant’s nose and lips stood out as features. (RR III 61, 86). There
was no evidence of anything obstructing the complainant’s view of appellant.
The record, therefore, demonstrates that the complainant had a very good
opportunity to see appellant during the commission of the robbery. The
complainant looked at appellant from a close distance in a well-lit area on two
occasions with sufficient attention to discern details about his facial features.
Accordingly, this first factor supports a determination that any suggestiveness in
the identification procedure did not give rise to a very substantial likelihood of
irreparable misidentification.
The second factor considers the witness’s degree of attention. Barley, 906
S.W.2d at 34-35. The complainant testified that he looked at appellant during the
robbery and clearly saw his face from a close distance. (RR III 36, 83, 178). He
was attentive enough to appellant’s appearance to recall distinctive features about
appellant’s face. (RR III 61-62, 86). The complainant confirmed that he would
have been able to identify appellant in court as the gunman even if he had not
viewed he photospread containing appellant’s image, further demonstrating a high
24
degree of attention to appellant’s appearance. (RR III 48-49, 62-63). Furthermore,
as the victim, the complainant was more than just a casual observer of the crime.
Therefore, he had more reason to be attentive. Id. at 35 (citing Cantu v. State, 738
S.W.2d 249 (Tex. Crim. App. 1987)) (a witness who is also a victim has a greater
degree of attention than a casual bystander.) This factor, therefore, also militates in
favor of the State.
The third factor examines the accuracy of the witness’s description of the
defendant. Barley, 906 S.W.2d at 35. On the night of the offense, the complainant
told officers that the gunman was a “really young” Hispanic male who stood
between five feet and three inches and five feet and six inches tall. (RR III 86, 144,
155, 195). Appellant, a juvenile, is a young male, and he appears to be Hispanic.
(RR VIII – SX 116). At the time of trial, appellant was five feet and eight inches
tall. (RR III 149). There was no evidence of appellant’s height at the time of the
offense nor indication of whether appellant, considering his youth, may have
grown between the time of the offense and the trial. (RR III 181). Given the
general nature of the complainant’s description, this factor is only marginally
compelling.
The fourth factor concerns the witness’s level of certainty at the time of the
confrontation. Barley, 906 S.W.2d at 35. The complainant immediately identified
appellant in the photospread. (RR III 113). He was “very positive” of his
25
identification of appellant. (RR III 80). The complainant was “really sure it was
him.” (RR III 178). The complainant never wavered from this identification and
identified appellant as the gunman in court. (RR III 48). He confirmed that he
could have recognized appellant in court even if he had not previously seen
appellant in the photospread. (RR III 48-49). Since the complainant identified
appellant with a very high level of certainty, this factor favors the State.
The final factor considers the time between the crime and the confrontation.
Barley, 906 S.W.2d at 35. Only one day passed between the robbery and the
complainant’s identification of appellant in the photospread. (RR III 23; RR VIII –
SX 116). And the in-court identification occurred about nine months after the
offense. (RR III 1, 23). A nine-month passage does not have a detrimental effect
on an identification. Brown v. State, 64 S.W.3d 94, 101 (Tex. App.--Austin 2001,
no pet.) (eight months). As such, this factor also favors the State.
In addition to these five factors, the complainant confirmed that he would
have been able to identify appellant as the gunman in court even if he had not
viewed the photospread containing appellant’s picture. (RR III 48-49, 62-63).
When an in-court identification is based upon knowledge independent from an
allegedly improper pretrial procedure, it is admissible. Rojas v. State, 171 S.W.3d
442, 449 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d).
26
Considering all of these circumstances, the complainant’s in-court
identification of appellant was reliable. Therefore, even if the pretrial
identification procedure was impermissibly suggestive, there was not a substantial
likelihood for irreparable misidentification. As such, the trial judge did not err in
denying appellant’s motion to suppress the complainant’s identifications of him.
Points of error two and three are meritless and should be overruled.
REPLY TO POINT OF ERROR FOUR
In his fourth point of error, appellant contends the trial judge erred in
denying his motion for a continuance. (RR II 4-8; CR 32-33). Appellant claims he
was entitled to a continuance to allow a missing witness to testify at his trial.
Relevant facts
On the first day of trial, before the voir dire proceeding began, defense
counsel presented a written motion for continuance to the judge. (RR II 4; CR 32-
33). He explained that the State had issued a subpoena for Ms. Funk, but both the
State and appellant decided they did not require her testimony so she was excused
from testifying. (RR II 4; CR 32). However, on the Friday evening before this trial
began on a Monday, defense counsel obtained an offense report relating to an
extraneous incident that occurred about 2.5 hours after the charged robbery. (RR II
4-5).
27
Based on this development, defense counsel contacted Funk over the
weekend and “emailed her a document [], she viewed it, and based on her
information, we felt she became a necessary witness for the defense.” (RR II 5).
Funk, who lives in Austin, informed defense counsel that she was not available to
testify on the scheduled trial date. (RR II 5). Defense counsel indicated that Funk
would be available at some unspecified time in the future. (RR II 5; CR 32).
Defense counsel did not specify the anticipated content of Funk’s testimony,
but the record indicates he texted her an unidentified photospread on the Sunday
before trial. (RR II 5-8). Based on discussions at the hearing on the continuance
motion, it appears as though there was a “lack of identification” or “non-
identification” of appellant by Funk with regard to an extraneous offense that
involved three people, including appellant’s two accomplices, about 2.5 hours after
the robbery. (RR II 6-7). At the conclusion of this hearing, the trial judge denied
appellant’s motion for a continuance. (RR II 8).
Argument and analysis
In a juvenile case, the denial of a motion for continuance is examined under
the Texas Rules of Civil Procedure and civil case law. TEX. FAM. CODE ANN. §
51.17(a) (West 2014) (with few inapplicable exceptions, the Texas Rules of Civil
Procedure govern juvenile proceedings); In re J.H.C., No. 08-02-00244-CV, 2003
WL 1948985, at *2 (Tex. App.--El Paso Apr. 24, 2003, no writ) (not designated for
28
publication) (expressly holding that civil law applies in review of denial of
continuance in juvenile case) (citing In re D.B, 594 S.W.2d 207, 212 (Tex. App.--
Corpus Christi 1980, no writ) (applying civil case law in reviewing denial of
juvenile’s continuance motion)); In re I.P., No. 04-98-00588-CV, 1999 WL 191589,
at *1 (Tex. App.--San Antonio Apr. 7, 1999, no writ) (not designated for
publication) (applying civil rules to review denial of juvenile’s continuance
motion). A denial of a motion for continuance is reviewed for an abuse of
discretion. Grace v. Duke, 54 S.W.3d 338, 343 (Tex. App.--Austin 2001, pet.
denied).
Continuances should be granted only for sufficient cause supported by
affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. When
a defendant seeks a continuance for want of testimony, the motion must be
supported by an affidavit stating that such testimony is material, showing the
materiality thereof, and that he has used due diligence to procure such testimony,
stating such diligence, and the cause of failure if known; and, if it be for the
absence of a witness, he shall state the name and residence of the witness, and what
he expects to prove by the witness. TEX. R. CIV. P. 252.
Appellant failed to support his continuance motion with the required
affidavit in violation of Rules 251 and 252. (CR 32-33). A trial court does not
abuse its discretion when it denies a continuance motion submitted in violation of
29
the affidavit requirement. Grace, 54 S.W.3d at 343; J.H.C., 2003 WL 1948985, at
*2. Since appellant failed to support his motion with the requisite affidavit, the
trial judge did not abuse his discretion by denying it. J.H.C., 2003 WL 1948985, at
*2. As such, his fourth point of error is meritless and should be overruled.
Furthermore, even assuming that the criminal rules of procedure apply to
this issue, appellant’s complaint would remain meritless. The Texas Code of
Criminal Procedure provides that all motions for continuance must be sworn to by
a person having personal knowledge of the facts relied on for the continuance.
TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006). An unsworn motion
preserves noting for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim.
App. 1999). Appellant’s continuance motion is unsworn. (CR 32-33). Therefore,
even under criminal law standards, appellant presents nothing for review. Id.
Nevertheless, despite the lack of preservation, appellant argues the denial of
his continuance motion denied him due process. However, there is no due process
exception to the rule requiring motions for continuance to be written and sworn to
in order to be preserved on appeal. Blackshear v. State, 385 S.W.3d 589, 591 (Tex.
Crim. App. 2012). Further, appellant failed to raise a due process argument in the
trial court, thereby waiving such a claim. (RR II 4-9; CR 32-33). Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (failure to object waived due process
claim).
30
Additionally, appellant waived any error because, in addition to being
unsworn, appellant’s written continuance motion lacks some statutorily-required
content, including an explanation of “[t]he facts which are expected to be proved
by the witness.” (CR 32-33). TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006)
(listing required content of defendant’s first continuance motion). Accordingly, for
these various reasons, appellant failed to preserve his complaint for appellate
review, whether the civil or criminal standard is employed.
Moreover, even if appellant had preserved his complaint for review, it would
be meritless since the trial judge did not err in denying his motion for continuance.
Under both the civil and criminal standards, a defendant must show the materiality
of the missing witness’s potential testimony. Harrison v. State, 187 S.W.3d 429,
434 (Tex. Crim. App. 2005); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.--
Austin 2002, no pet.). The motion for continuance must show on its face the
materiality of the absent testimony. Harrison, 187 S.W.3d at 434. Mere
conclusions and general averments are not sufficient for the court to determination
the issue of materiality. Id.
Appellant’s written continuance motion does not identify the subject of
Funk’s anticipated testimony whatsoever; nor does it allege that her testimony
would be material in any way. (CR 32-33). And the comments made at the hearing
on the motion add only vague detail to the matter. Defense counsel simply
31
established that he texted Funk a photospread that she viewed on an iPhone. (RR II
5, 8). While defense counsel failed to explain Funk’s response after viewing the
photospread, he seemed to indicate that Funk might say that she saw “an
intervening person with” appellant’s two codefendants about 2.5 hours after the
robbery. (RR II 6-7). The prosecutor’s comments indicate that Funk made no
identification from the photospread. (RR II 6).
The record in this matter is too vague and ambiguous to establish the
materiality of Funk’s anticipated testimony. Evidently, appellant believed Funk’s
testimony would be relevant because it might establish that Funk saw appellant’s
two accomplices with a third person several hours after the robbery and, based on
Funk’s “non-identification” regarding the photospread, that third person was not
appellant. (RR II 6).
However, the record does not even establish that appellant’s picture was in
the photospread viewed by Funk, thereby failing to attach any significance to her
non-identification. And even if appellant did appear in the photospread, there is no
evidence that Funk’s inability to identify him was consistent with appellant not
being the third person present. Perhaps Funk did not see the third person very well
at the time of the encounter, which resulted in her inability to subsequently identify
anyone. Or maybe Funk may not have been able to view the photospread well
enough on the iPhone screen to make an accurate identification. In any event, the
32
appellate record is not sufficiently developed on this issue to demonstrate the
materiality of Funk’s anticipated testimony. In fact, the trial testimony from
Sergeant Ashmore establishes that Funk actually did identify a photograph of
appellant as the third person present at her encounter with the trio. (RR IV 129-
130).
Furthermore, even assuming Funk’s testimony would have indicated that
appellant was not with his two accomplices 2.5 hours after the robbery, such a fact
is hardly exculpatory or compelling since it is not uncommon for people to
separate at some point following a group activity. Appellant’s absence from the
group at a later time provided little, if any, probative evidence of whether he
participated in the charged robbery. As such, regardless of the precise content of
Funk’s testimony, it would not have been material. Therefore, the trial judge did
not abuse his discretion in denying appellant’s motion for continuance.
Point of error four is meritless and should be overruled.
33
CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
mccrory_daniel@dao.hctx.net
34
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been sent to the
following email addresses via TexFile:
Cheri Duncan
Amalia Beckner
Assistant Public Defenders
Cheri.duncan@pdo.hctx.net
Amalia.beckner@pdo.hctx.net
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 7,461 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
Date: 10/21/2015
35