Carl Leonard Lively v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00101-CR
______________________________
CARL LEONARD LIVELY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 20,292-2008
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
A small fender bender in a Wal-Mart parking lot led to the fortuitous discovery of evidence
connecting Carl Leonard Lively to a gas station armed robbery. He was convicted of aggravated
robbery by a jury, sentenced by the trial judge to forty years‘ imprisonment, and was ordered to
pay a $10,000.00 fine. Lively appeals the judgment of the trial court on grounds that the evidence
was insufficient to support his conviction, his counsel rendered ineffective assistance, and the trial
court erred in denying his motion to suppress. He also argues that the trial court abused its
discretion in overruling Rule 404(b) objections to testimony and evidence obtained from his
vehicle after the accident. We affirm the trial court‘s judgment.
I. Factual and Procedural History
Barbara Ann Bryant worked as a clerk for J&J Fastop located in an Exxon gas station in
Hawkins, Texas. There were no customers in the store around 8:28 p.m. when she ―saw a
dark-colored SUV pull up.‖ ―[A] white man came in with a camouflage hat and a bandana . . .
covering up his nose.‖ The tall, slender man was in his late forties or early fifties, had uneven
ears, with one sitting higher than the other, ―salt-and-peppered colored hair, and bushy eyebrows
of the same color.‖ He was wearing sunglasses, blue jeans, dark work-style boots, and a black
belt with a rectangular metal buckle. The man wielded a gun in Bryant‘s direction and
commanded her to ―[o]pen the drawer and give me your money.‖ A shocked Bryant frantically
placed the money from the cash register on the counter. She complied with the robber‘s requests
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to retrieve more money from underneath the counter and stuff all the cash in a bag. While
grabbing the money and pointing the gun at Bryant, he said, ―Go to the back of the store and don‘t
look back.‖
Bryant ran to the back of the J&J Fastop and called the police as soon as she was sure the
robber had left. Officer A. J. Randell and Officer Eileen Standfield arrived to find Bryant in a
hysterical, hypoglycemic state. Bryant calmed down after drinking a soft drink and told the
officers the man was in a dark-colored blue or black Chevy Tahoe. 1 The gas station was
monitored by several surveillance cameras placed at different angles both inside and outside the
J&J Fastop. Review of the video recordings confirmed the description given by Bryant. The
only car seen arriving and leaving the Exxon parking lot immediately before and after the robbery
was a dark blue Chevy Tahoe with a luggage rack, trailer hitch, bug shield, and brake light at the
top back of the vehicle. Randell took pictures from the surveillance cameras to a local mechanic
who identified the vehicle as a 2002 model. The officers issued a broadcast advising fellow law
enforcement to be on the lookout for a 2002 or newer model Suburban driven by a white male in
his late forties with gray hair. The broadcast described the man as five foot and ten or eleven
inches tall weighing approximately 190 to 200 pounds. Unfortunately, the robber absconded and
three months passed without leads on a suspect.
Fortuitously, Sergeant Damon Boswell experienced a breakthrough on the case while
1
Although Officer Standfield‘s report said, ―Barbara, the lady who worked at the store, told me he left in a two-tone,
brown and white Suburban,‖ Bryant denied identifying the vehicle as anything other than a dark-colored SUV.
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monitoring the handicapped zones in a Wal-Mart parking lot in Gun Barrel City. He heard the
crash of a minor collision between a small white vehicle and dark blue 2002 Tahoe with a luggage
rack, trailer hitch, bug shield, and brake light at the top back of the vehicle. Lively, who was
driving the Tahoe, ―was outside of the vehicle and shaking, visibly nervous.‖ Boswell radioed the
Tahoe license plate to dispatch and asked for Lively‘s driver‘s license. The license plate did not
match the Tahoe and Lively‘s driver‘s license was expired. Boswell received reports that a blue
Tahoe had been involved in a robbery. He noted that the Tahoe ―had Scotch tape on the outside of
the windshield over the registration certificate where the license number is and VIN number.‖
Boswell knew Scotch tape is used to blur numbers so they cannot be captured by surveillance
cameras. He asked for consent to search the Tahoe. Lively asked why Boswell wanted to
search, and Boswell stated it was due to the way Lively was acting. Lively then responded,
―[W]ell, if you feel like looking in there, look in there.‖
Boswell found a loaded and chambered gun in the Tahoe, along with bandanas, four or five
license plates, and hats, including a camouflage hat. He took pictures of the evidentiary items and
of Lively, who was wearing blue jeans, sunglasses, dark work-style boots, and a belt with a
rectangular metal buckle. He radioed the license plate to dispatch again. This time, the license
plate matched the Tahoe and confirmed Boswell‘s suspicions that Lively switched the license
plates while Boswell was speaking with the owners of the other car involved in the accident.
Lively was arrested for his expired driver‘s license.
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Randell travelled to Gun Barrel City, saw that the evidence from the Wal-Mart stop
matched the description of the gun, person, and vehicle involved in the J&J Fastop robbery, and
obtained a warrant for Lively‘s arrest.
II. The Evidence Was Legally and Factually Sufficient
A. Standard of Review
We review the legal and factual sufficiency of the evidence supporting a conviction under
well-established standards. In conducting a legal sufficiency review, we consider the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d
512, 517 (Tex. Crim. App. 2009). We must give deference to ―the responsibility of the trier of
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to
determine whether we believe that the evidence at trial established guilt beyond a reasonable
doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved
any such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro,
867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In conducting a factual sufficiency review, we
consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.
App. 2006). We may find evidence factually insufficient in two ways: (1) the evidence
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supporting the conviction is ―too weak‖ to support the fact-finder‘s verdict, or (2) considering the
conflicting evidence, the fact-finder‘s verdict is against the great weight and preponderance of the
evidence. Laster, 275 S.W.3d at 518. In so doing, we may only find the evidence insufficient
when necessary to prevent manifest injustice. Id. Both legal and factual sufficiency are
measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273,
280 (Tex. Crim. App. 2008).
In Lively‘s case, the State had to prove that (1) Lively; (2) committed
theft of property; (3) intended to obtain or maintain control over that property; (4) intentionally or
knowingly threatened or placed Bryant in fear of imminent bodily injury or death; (5) while
exhibiting or using a deadly weapon (here, a firearm). TEX. PENAL CODE ANN. §§ 29.02, 29.03
(Vernon 2003).
B. Analysis
Lively‘s appellate challenge to the sufficiency of the evidence focuses solely on identity
and does not challenge the remaining elements.
At trial, all of the facts above were relayed to the jury. Specifically, Bryant testified to the
robber‘s description and told the jury he was driving a dark colored SUV. Bryant identified
Lively in court and said she was certain he was the person who robbed her at the J&J Fastop. She
identified him ―from the nose up and the side of his hair,‖ by the top of his cheekbones, and
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―[b]ecause as far as his ears goes, one sits higher than the other.‖
Randell testified the pictures taken by Boswell matched the vehicle and description of the
robber at the J&J Fastop. He told the jury that he believed the gun found at Wal-Mart was the
same as the gun used in the robbery. The jury viewed the videos of the robbery, admitted without
objection, and was able to compare them to the pictures of evidence recovered by Boswell during
the Wal-Mart accident.
We conclude this evidence was legally sufficient to allow the jury, who was free to resolve
conflicts in the testimony and evidence, to determine whether Lively was the person who robbed
the J&J Fastop.
In addressing factual sufficiency, Lively points out that the robber was wearing a bandana
covering his face, that Bryant was looking at the gun in the robber‘s hands, and that Bryant may
have said initially that the robber was driving a two-tone brown and white Suburban, and
misidentified the color of the gun as black instead of blue steel. Lively also complains that
Bryant‘s in-court identification, which was not objected to at trial, was tainted by her attending
another robbery trial in which Lively was the defendant and that Bryant‘s identification of the
getaway vehicle as a dark Tahoe after viewing the surveillance videos was based on circumstantial
proof. Examining the contrary evidence in a neutral light, we cannot conclude the proof of
Lively‘s guilt was obviously weak as to undermine confidence in the verdict.
We conclude the evidence was both legally and factually sufficient to support the jury‘s
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verdict that Lively was the person who committed aggravated robbery at the J&J Fastop. Lively‘s
sufficiency points of error are overruled.
III. The Trial Court Did Not Err in Denying the Motion to Suppress
Next, Lively‘s counsel moved to suppress the pictures and evidence found in the Wal-Mart
parking lot. He argues that the trial court erred in determining Lively gave his consent to search
the Tahoe.
The trial court‘s decision to deny Lively‘s motion to suppress will be reviewed for abuse of
discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996); Maysonet v. State, 91 S.W.3d 365, 369 (Tex.
App.—Texarkana 2002, pet. ref‘d). This particular review of the motion to suppress only
involves the fact question of whether Lively gave consent to search. Because the trial court is the
exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost
total deference to its determination of facts supported by the record. State v. Ross, 32 S.W.3d
853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Since all evidence is viewed
in the light most favorable to the trial court‘s ruling, we are obligated to uphold it if that ruling was
supported by the record and was correct under any theory of law applicable to the case. Ross, 32
S.W.3d at 856; Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim.
App. 1999); Maysonet, 91 S.W.3d at 369.
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Lively‘s consent to search the vehicle, if otherwise voluntary, was effective to legalize the
search of the Tahoe if given within the scope of the accident traffic stop. See Florida v. Royer,
460 U.S. 491, 501 (1983). In Texas, the State is required to prove the voluntariness of consent by
clear and convincing evidence based on the totality of the circumstances. See Reasor v. State, 12
S.W.3d 813, 818 (Tex. Crim. App. 2000); Malone v. State, 163 S.W.3d 785, 800 (Tex.
App.—Texarkana 2005, pet. ref‘d).
Whether consent was given freely and voluntarily is to be answered by looking at the
totality of the circumstances surrounding the consent. See Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973); Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983). For consent to
be valid, the State must show by clear and convincing evidence that it was not ―coerced, by explicit
or implicit means, by implied threat or covert force.‖ Schneckloth, 412 U.S. at 228; Allridge v.
State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991) (en banc). In determining whether consent
was voluntary, courts consider various factors, including whether the consenting person was in
custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing
consent, the constitutional advice given to the accused, the length of detention, the repetitiveness
of the questioning, and the use of physical punishment. See Flores v. State, 172 S.W.3d 742, 749
(Tex. App.—Houston [14th Dist.] 2005, no pet.). The voluntariness of consent to search does not
require proof of the defendant‘s knowledge of a right to refuse the search. Schneckloth, 412 U.S.
at 234.
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During the hearing on the motion to suppress, Lively was merely asked, ―Did you give
consent for the search of your vehicle,‖ to which he replied, ―No, I did not.‖ Lively provided no
other testimony or explanation of the situation involving consent. There was no testimony or
argument in Lively‘s brief that he was in custody when Boswell asked for consent, was arrested at
gunpoint, was the subject of physical force, suffered a lengthy detention, or was given any advice
regarding consent.
The State chose not to cross-examine Lively. Instead, it introduced a stipulation in which
both parties agreed Lively had been previously convicted of a crime of moral turpitude. Next, the
State called Boswell, who testified that he asked for consent and Lively asked why he needed it.
After Boswell explained he wanted to search the Tahoe because of the way Lively was acting,
Lively said, ―[W]ell, if you feel like looking in there, look in there.‖2
The trial court was the exclusive trier of fact and judge of witness credibility at the
suppression hearing. It found Lively consented to the search. As the fact-finder, the court was
free to believe Boswell‘s testimony and disregard Lively‘s testimony. Because the record
supports the trial court‘s finding of consent, we afford the proper deference to its determination
and conclude that it did not abuse its discretion in overruling Lively‘s motion to suppress the
evidence obtained as a result of the accident investigation.
2
Lively attempted to impeach Boswell by introducing a transcript of a prior proceeding in a different county in which
Boswell stated he asked Lively for consent twice. Boswell said his comment was taken out of context, that he only
asked for Lively‘s consent once and that Lively never refused consent.
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IV. The Trial Court Did Not Err in Admitting Evidence from the Gun Barrel City
Arrest
Lively contends the trial court ―erred in admitting 404(b) evidence obtained during
Appellant‘s Gun Barrel City arrest to prove his identity as the suspect‖3 in the J&J Fastop robbery.
A trial court‘s decision to admit or exclude evidence is reviewed only for abuse of discretion.
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d
841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as the decision to
admit evidence is within the ―zone of reasonable disagreement.‖ Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‘g). We may not substitute our own decision
for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the
trial court‘s decision on the admission of evidence is supported by the record, there is no abuse of
discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.
Crim. App. 2002); Montgomery, 810 S.W.2d at 379.
The general rule is that all evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable is admissible. TEX.
R. EVID. 401, 402. However, unless admitted ―for other purposes, such as . . . identity,‖ evidence
of other crimes, wrongs, or acts is not admissible ―to prove the character of a person in order to
show action in conformity therewith.‖ TEX. R. EVID. 404(b). ―Rule 404(b) is a rule of inclusion
rather than exclusion.‖ De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The
3
Contrary to Lively‘s assertion that the trial court denied his motion in limine based on Rule 404(b) with respect to the
photographic evidence obtained at Wal-Mart, the record demonstrates his motion in limine was granted.
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rule only excludes evidence that is offered or will be used solely for the purpose of proving bad
character and hence conduct in conformity with that bad character. Id. at 343 (citing Rankin v.
State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996) (―if evidence (1) is introduced for a purpose
other than character conformity, (2) has relevance to a ‗fact of consequence‘ in
the case and (3) remains free of any other constitutional or statutory prohibitions, it is
admissible‖)).
The photographs of Lively, his Tahoe, and its contents were relevant. Identity of the J&J
Fastop robber was a fact of consequence in the case, and the evidence obtained at Wal-Mart made
the determination of whether Lively was the robber more probable, a fact pointed out by the State.
Contrary to Lively‘s contention, because the incident at Wal-Mart was not another robbery, the
photographs could not have been shown to the jury ―to prove the character of a person in order to
show action in conformity therewith.‖ In making its ruling, the trial court understood that the
―photographs . . . are not going to the other crime, it‘s going to go to the things found at the scene
of the accident.‖ We conclude the trial court did not journey beyond the zone of reasonable
disagreement in concluding Rule 404(b) did not preclude inclusion of the photographs taken
during the Wal-Mart accident and arrest.4
During the guilt/innocence phase, Boswell testified he heard reports while working the
4
Lively argues that Rule 404(b) should have prevented Boswell from testifying he received reports that a blue Tahoe
was used in a robbery near his location. The only objection raised to Boswell‘s statement, which did not mention that
the other robbery involved Lively or his Tahoe, was a hearsay objection. We need not address Lively‘s unpreserved
Rule 404(b) contention.
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accident that a blue Tahoe was used in a previous robbery nearby. Counsel‘s objection to
admission of this type of testimony was overruled. On appeal, Lively argues the trial court erred
in allowing Boswell‘s testimony because it constituted an inadmissible extraneous offense. We
disagree.
Again, evidence of other crimes, wrongs, or acts is not admissible ―to prove the character
of a person in order to show action in conformity therewith.‖ TEX. R. EVID. 404(b) (emphasis
added). To constitute an extraneous offense, the evidence must show a bad act or crime, and that
the defendant was connected to it. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)
(quoting Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992)). Where the State does
not tie the defendant to a previous act, it is not being used to show ―that person’s actions in
conformity with such character.‖ Rodriguez v. State, 975 S.W.2d 667, 684 (Tex.
App.—Texarkana 1998, pet. ref‘d).
Rodriguez was convicted of aggravated robbery for theft of a wallet accomplished by
threat of a handgun. Id. at 671. In that case, the arresting officer testified the vehicle Rodriguez
was in had been reported stolen, a fact which the officer claimed Rodriguez later admitted. Id. at
683. This Court reasoned that because the officer‘s statements were not specifically connected to
Rodriguez, and nothing in the evidence suggested he stole the car or knew the car was stolen
before his arrest, the officer‘s statements could not be interpreted as testimony of any prior bad act
by Rodriguez. Id. at 684. Thus, we ruled that Rule 404(b) did not apply to bar the officer‘s
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testimony. Id.
Here, the State did not allege, and Boswell did not testify that it was Lively‘s blue Tahoe
that was used in the previous robbery or that Lively had committed the robbery. As in Rodriguez,
we conclude Boswell‘s testimony, which did not refer to any prior bad act by Lively, was not
barred by Rule 404(b) because it was not being used to show action in conformity therewith.
These points of error are overruled.
V. Ineffective Assistance of Counsel
Allegations of ineffectiveness must be firmly founded in the record. Wallace v. State, 75
S.W.3d 576, 589 (Tex. App.—Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003);
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). Absent an opportunity for the attorney to explain the
questioned conduct, we will not find deficient performance unless the challenged conduct was ―so
outrageous that no competent attorney would have engaged in it.‖ Goodspeed, 187 S.W.3d at
392; Fox v. State, 175 S.W.3d 475, 486 (Tex. App.—Texarkana 2005, pet. ref‘d). For this reason,
direct appeal is usually an inadequate vehicle for raising such a claim because the record is
generally undeveloped. Thompson, 9 S.W.3d at 813–14; Fox, 175 S.W.3d at 485.
We evaluate ineffective assistance of counsel claims using the two-part Strickland test
formulated by the United States Supreme Court, which requires a showing of both deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Thompson,
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9 S.W.3d at 812; Fox, 175 S.W.3d at 485. First, Lively must show that his counsel‘s
representation fell below an objective standard of reasonableness. Fox, 175 S.W.3d at 485 (citing
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). There is a strong presumption that
counsel‘s conduct fell within the wide range of reasonable professional assistance and that the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689; Ex parte
White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong, 25 S.W.3d at 712. Therefore, we will
not second-guess the strategy of Lively‘s counsel through hindsight. Blott v. State, 588 S.W.2d
588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana
2005, pet. ref‘d).
The second Strickland prong requires a showing that the deficient performance prejudiced
the defense to the degree that there is a reasonable probability that, but for the attorney‘s
deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 689; Tong, 25
S.W.3d at 712. Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez,
195 S.W.3d 713, 730 (Tex. Crim. App. 2006).
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Before trial, Bryant was subpoenaed by a court in Tyler, Texas, on another robbery case in
which Lively was the defendant. Bryant did not testify in that trial. A motion in limine was
granted preventing the State from mentioning or alluding to any pretrial identification. The State
told the court it did not anticipate discussing any pretrial identification. During
cross-examination of Bryant, the following exchange occurred:
Q. Now, you have never seen that man that took your money on June 26th of
2007, since that time; is that correct?
A. Yes.
Q. But after all this time -- and this is the very first time that you‘ve seen this man
sitting right here in this courtroom right?
A. I‘ve seen him one time. That‘s when I had to go to Tyler.
Q. That was when?
A. When I went to Tyler when he was brought over there.
Q. You went to Tyler, Texas?
A. That‘s --
Q. Let‘s talk about that.
Counsel immediately asked to approach the bench and asked for a hearing outside the presence of
the jury. On appeal, Lively complains his counsel was ineffective because ―he failed to request a
hearing outside the presence of the jury prior to opening the door on cross-examination to
testimony surrounding an impermissibly suggestive pretrial identification by the victim.‖
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Although Lively argues counsel‘s questions ―invited evidence of an impermissibly
suggestive pretrial identification,‖ the trial court confirmed that counsel‘s questions did not open
the door to any pretrial identification. We agree with the trial court on this matter. Bryant‘s
nonresponsive answer to the question of whether she had seen Lively ―in this courtroom‖ made no
reference to the Tyler court trial. She merely stated that she saw Lively in Tyler, Texas, and did
not suggest that she identified Lively as the robber at that time. In his brief, Lively did not expand
on the need for a hearing outside the jury‘s presence on this issue; counsel had already obtained a
favorable ruling on a motion in limine regarding pretrial identification testimony. We find no
ineffective assistance of counsel in this matter.
Lively also complains his counsel was ineffective in failing to object to the in-court
identification by Bryant, which was tainted by allegedly impermissibly suggestive identification
procedures in Tyler. Before trial, counsel stated to the court his ―position . . . that a pretrial
identification procedure was impermissibly suggestive and tainted the in-court identification
procedure.‖ After Bryant‘s in-court identification, counsel objected and asked ―the Court to
exclude her in-court identification of Carl Lively here in the court today because it was tainted in
an impermissibly suggestive way by the pretrial identification procedures down in Tyler, Texas.‖
Trial counsel objected to the pretrial identification as being tainted, obtained a hearing to develop
the issue, and obtained an adverse ruling by the trial court. The fact that the hearing and ruling by
the court occurred after the in-court identification by the witness did not preclude the trial judge
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from excluding and striking the testimony had he agreed that the identification was improper.
Contrary to Lively‘s assertion, we find that counsel sufficiently objected to the in-court
identification.
Nevertheless, counsel would not be considered ineffective in this case had he failed to
object to the in-court identification. An in-court identification is examined based on the totality
of the circumstances to determine if a ―suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification.‖ Wallace, 75 S.W.3d at 584.
Bryant‘s in-court identification was admissible if it was based on her observations at the
time of the offense and was not affected by the pretrial procedures. Neil v. Biggers, 409 U.S. 188,
198–99 (1972). We look to the opportunity of the witness to view the accused at the time of the
crime, the witness‘ degree of attention, the accuracy of the witness‘ prior description of the
accused, the level of certainty demonstrated by the witness at the confrontation, and the length of
time between the crime and confrontation. Wallace, 75 S.W.3d at 585 (citing Loserth v. State,
963 S.W.2d 770, 772 (Tex. Crim. App. 1998)).
Bryant said that her presence in the Tyler courtroom did not have any effect on her in-court
identification of Lively. The surveillance cameras demonstrated that Bryant was close to Lively
at the time of the robbery. Although his face was covered by a bandana and sunglasses, Bryant
identified Lively based on characteristics such as his hair color, eyebrows, top of his cheekbones,
dissimilar ears, approximate age, and height. As to the degree of attention, Bryant stated, ―When
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somebody‘s [sic] robs you at gunpoint and you can see what you could see when they rob you,
that‘s something that does not go away.‖ Bryant‘s statements given to Randell, which formed the
basis of the police broadcast, and her written statement to the police also demonstrated her degree
of attention and accuracy relating to Lively‘s physical description. Although the length of time
between the robbery and trial does not favor admission of the in-court identification, Bryant
reiterated her certainty throughout trial that Lively was the person who robbed her. She claimed
―if I wouldn‘t have been in Tyler when he was there, I still would have recognized him from the
sideburns and the ears. Some facial descriptions, you don‘t—they—they don‘t go away.‖ Based
on the totality of the circumstances, Bryant demonstrated her in-court identification was
independently reliable.
We overrule this last point of error.
VI. Conclusion
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: April 29, 2010
Date Decided: May 5, 2010
Do Not Publish
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