Trayson L. Wooden v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00279-CR
TRAYSON L. WOODEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three points, Appellant Trayson L. Wooden appeals his conviction for
robbery by threats. We affirm.
II. Factual and Procedural Background
The State indicted Wooden for the robbery of Jennifer Whitus, who
testified that she arrived home from work at around 1:00 a.m. on April 24, 2008,
See Tex. R. App. P. 47.4.
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and parked in her usual spot near the well lit entrance to her apartment. When
she exited her car, a man approached her ―very quickly, very purposefully,‖ and
aggressively. He said, ―Give me your purse, bitch, or I will shoot you.‖ Whitus
testified that she was frozen as the man jerked her purse from her and shoved
her down and that she saw him get into the passenger side of a four-door sedan
―that had been waiting there with the engine running and the passenger door
open.‖ Whitus got a ―good look‖ at his face and described him to the responding
police officers as an African American man over six feet tall and about 180
pounds2 with a bushy hairdo or ―an Afro‖ and a splotchy complexion. She also
described him as having either a wide gap between his teeth or a missing or
rotten tooth.
On April 28, 2008, Fort Worth police officers arrested Gregory Wofford,
Wooden’s cousin, at Wofford’s home for a parole violation. They found Wooden
inside the house along with several of Whitus’s personal belongings, including
her identification card, and when Wooden failed to properly identify himself,
officers arrested him as well. That same day, Fort Worth Police Detective Billy
Randolph interviewed Whitus and showed her a photographic lineup from which
Whitus identified Wooden as her assailant.
The trial court held a pretrial hearing after Wooden moved to suppress
Whitus’s upcoming in-court identification of Wooden, claiming that the
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Whitus noted that it was hard to tell exactly because he was wearing a
large shirt and it was windy.
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photospread on which her identification would be based was unduly suggestive
because Wooden’s photograph had a green background, while the others had
blue or gray backgrounds.
During the hearing, Detective Randolph testified that he created the
photospread by selecting photographs of six individuals, including Wooden, with
similar height, weight, gender, race, hair color, and eye color characteristics.
Detective Randolph also testified that, before revealing the photospread to
Whitus, he advised her that it would contain photographs of individuals with
similar characteristics, that her assailant may or may not be pictured, and that
she should concentrate on facial features because hair styles and clothing could
have changed. According to Detective Randolph, Whitus pointed to Wooden’s
photograph within five to ten seconds, and Detective Randolph wrote ―[p]icked
immediately‖ on the photospread. Detective Randolph testified that the
background of Wooden’s photograph was green but that each photograph had a
different background color, which he could not adjust. For purposes of the
hearing, the trial court admitted the photospread and photospread data, which
listed the photographed individuals’ weight, ranging from 160 to 180 pounds, and
height, ranging from five feet, nine inches to six feet, three inches.3
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The trial court also admitted a photograph that, according to Whitus’s
testimony, showed that Wooden’s face was lighter in some areas and darker in
others, and a photograph that showed that Wooden had a missing tooth.
3
Whitus testified during the hearing that she identified Wooden almost
instantly but selected Wooden’s photograph between thirty and sixty seconds
later to ―look at the pictures carefully‖ and ―ma[k]e sure to look over all of them,
even though [her] eyes were drawn to the familiar face.‖4 Whitus then identified
Wooden in open court as the person who robbed her and stated that she based
her identification, not on the photospread, but on her ―observations of him at the
time of the offense.‖5 At the conclusion of the hearing, the trial court denied
Wooden’s motion to suppress but granted his request for a running objection to
the in-court identification.
At trial, the jury viewed the photospread and heard testimony from Whitus,
Detective Randolph, other police officers, and Mason, the hairdresser, before
Wofford testified pursuant to a plea bargain with the State. Wofford said that he
drove Wooden to and from the scene of the robbery, that he remembered
watching Wooden rob a woman, and that he saw her identification card among
the items that Wooden stole from her. A jury found Wooden guilty and assessed
4
During trial, Whitus testified that, because she recognized Wooden’s face,
she was able to identify him even though he had a different hair style in the
photospread than she had originally described. Geleatha Mason, a hairdresser,
testified that Wooden’s hair in the photospread was in ―cornrows or braids‖ and
estimated that it takes approximately twenty minutes to break down cornrows
such that the hair returns to an Afro style.
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After the trial court admitted Whitus’s in-court identification, Whitus
testified that, during her interview with Detective Randolph, she described her
assailant as weighing about 200 pounds, having a ―bushy Afro‖ and freckles, and
missing a tooth.
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twenty-five years’ confinement as his punishment, and the trial court sentenced
him accordingly. This appeal followed.
III. Identification
In his first point, Wooden complains that the trial court erred by denying his
motion to suppress evidence relating to his pretrial identification because the
photospread from which Whitus identified him was impermissibly suggestive. In
his second point, he argues that the trial court erred by overruling his objection to
the in-court identification because it was tainted by the impermissibly suggestive
photospread.
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that use of that identification at trial would deny the
accused of due process. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App.
2001). When examining a pretrial or an in-court identification, we use a two-
prong test. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert.
denied, 516 U.S. 1176 (1996). First, we determine whether the defendant has
shown by clear and convincing evidence that the pretrial identification procedure
was impermissibly suggestive, and, if so, we will reverse only if the
suggestiveness gives rise to a very substantial likelihood of misidentification. Id.
at 33–34 (considering the totality of the circumstances).
Under the first Barley prong, suggestiveness may be created by the
manner in which the pretrial identification procedure is conducted if, for example,
a police officer suggests that the suspect’s photograph is included in the
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photospread, or it may be created by the content of the photospread itself ―if the
suspect is the only individual closely resembling the pre-procedure description.‖
Id. at 33; see Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.—Corpus Christi
1995, no pet.) (―[A] photo spread is not improperly suggestive merely because
each photograph can be distinguished in some manner from the defendant’s.‖).
Under the second Barley prong, we weigh the following five nonexclusive
Biggers factors against the corrupting effect of a suggestive identification
procedure: (1) the opportunity of the witness to view the criminal at the time of
the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s
prior description of the criminal, (4) the level of certainty demonstrated by the
witness at the confrontation, and (5) the length of time between the crime and the
confrontation. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008)
(―Reliability is the linchpin in determining the admissibility of identification
testimony.‖) (citing Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382
(1972)), cert. denied, 130 S. Ct. 72 (2009). We review de novo whether an
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of misidentification, but we view historical issues of fact in
the light most favorable to the trial court’s ruling. Cienfuegos v. State, 113
S.W.3d 481, 491 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Loserth
v. State, 963 S.W.2d 770, 773–74 (Tex. Crim. App. 1998) (stating that the
Biggers factors are treated as historical issues of fact)).
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A. First Barley Prong—Suggestiveness
Wooden asserts that his photograph’s green background was markedly
different from the blue or gray backgrounds of the other photographs and, thus,
attracted a level of attention that rendered the photospread impermissibly
suggestive. We have reviewed the photospread, which shows that the
background of Wooden’s photograph is green and that the backgrounds of the
other photographs are different shades of blue or gray. However, this
discrepancy is slight. See Barley, 906 S.W.2d at 33–34 (holding that a
photospread containing a photograph that was ―obviously taken in a different
setting‖ was not impermissibly suggestive); Page v. State, 125 S.W.3d 640, 647
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (―Slight differences in the
background color and brightness of photographs are insignificant.‖); see also
Mata v. State, No. 04-07-00146-CR, 2008 WL 2715869, at *4 (Tex. App.—San
Antonio July 9, 2008, pet. ref’d) (mem. op., not designated for publication)
(concluding that a gray background was permissible even though the other
backgrounds were light blue). This difference in background color does not
create a photospread in which ―the suspect is the only individual closely
resembling the pre-procedure description.‖ See Barley, 906 S.W.2d at 33; see
also Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App. [Panel Op.] 1978)
(concluding that the photographic spread was not impermissibly suggestive when
appellant’s photograph was the only one with a height indicator in the
background because this did not suggest that he had a characteristic that the
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other subjects did not share). Instead, Detective Randolph ensured that the
content of his photospread featured six individuals with similar characteristics
with regard to height, weight, gender, race, hair color, and eye color. See Barley,
906 S.W.2d at 33. Indeed, our review of the photospread and the photospread
data confirms that the six African American males pictured have similar height
and weight, black hair of a similar style, brown eyes, and similar facial features.
Further, Detective Randolph ensured that the pretrial identification
procedure was not suggestive by advising Whitus that the photospread would
include six individuals with similar characteristics, and he directed Whitus to
focus on facial features because, unlike hair and clothing, those are unlikely to
change with time. See id. And Whitus testified that she selected Wooden’s
photograph, not based on its background, but because her eyes were drawn to
his familiar face. See Doescher, 578 S.W.2d at 387 (noting that part of the
totality of the circumstances included testimony that the witnesses’ identification
of appellant was primarily based on their observations during the crime rather
than on the photospread); Bethune v. State, 821 S.W.2d 222, 229 (Tex. App.—
Houston [14th Dist.] 1991) (concluding that photospread was not impermissibly
suggestive when complainant testified that her selection was based solely on her
memory of her attack and that the defendant’s facial features set his photograph
apart from the others), aff’d, 828 S.W.2d 14 (Tex. Crim. App. 1992). Also, even if
the green background caught Whitus’s attention initially, she stated that she
made sure to look over all of the photographs for thirty to sixty seconds before
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finally choosing Wooden’s. See Smith v. State, No. 05-02-01886-CR, 2003 WL
22962434, at *4 (Tex. App.—Dallas Dec. 17, 2003, pet. ref’d) (not designated for
publication) (deciding that the identification was reliable in part because the
witness looked at the lineup for several seconds before choosing a photograph).
Finally, Detective Randolph advised Whitus that her assailant might not be
pictured at all. See Mata, 2008 WL 2715869, at *4 (noting that the police officer
never suggested that the suspect was included in the photospread) (citing
Barley, 906 S.W.2d at 33).
Considering the totality of the circumstances, including the content of the
photospread itself and the manner in which Detective Randolph conducted the
pretrial identification procedure, Wooden has not shown by clear and convincing
evidence that the in-court identification was tainted by an impermissibly
suggestive identification procedure. See Barley, 906 S.W.2d at 33–34.
B. Second Barley Prong—Likelihood of Misidentification
Even if the pretrial identification procedure was impermissibly suggestive
under the first Barley prong, it must also give rise to a very substantial likelihood
of misidentification to deny Wooden of due process. See Conner, 67 S.W.3d at
200; Barley, 906 S.W.2d at 33–34. Turning to the first and second Biggers
factors, Whitus’s description of the incident shows that she had a sufficient
opportunity to view and pay close attention to her assailant during and after the
incident. See Luna, 268 S.W.3d at 605. First, Whitus testified that the area in
which she was attacked was well lit, so she was able to get a ―good look‖ at her
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assailant’s face. See Loserth v. State, 985 S.W.2d 536, 544 (Tex. App.—San
Antonio 1998, pet. ref’d) (deferring to trial court’s finding that witness had
adequate opportunity to observe the defendant when the area was well lit and
the victim testified about seeing the defendant’s face). Further, even though she
was ―frozen,‖ the level of detail that she recalled demonstrated that she was very
attentive during the robbery. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim.
App.) (using the level of detail recalled by the witness as a measure of her
attentiveness), cert. denied, 510 U.S. 982 (1993). For example, Whitus observed
that her assailant’s approach was quick, purposeful, and aggressive, and she
distinctly remembered what he said to her before he jerked her purse from her
shoulder and pushed her down. Additionally, Whitus had the wherewithal to
observe her assailant as he escaped and was able to describe the type of get-
away vehicle, where it was parked, that its engine was running, and that its
passenger door was open.
Turning to the third Biggers factor, Whitus’s prior description of her
assailant was precise and added to the reliability of her identification. See Luna,
268 S.W.3d at 605. Her description of her assailant as being an African
American male over six feet tall with a missing or rotten tooth was accurate in all
three respects. Beyond these characteristics, although Whitus described
Wooden’s hair as bushy or ―an Afro‖ and the photograph shows Wooden’s hair in
cornrows, viewing the evidence in the light most favorable to the trial court’s
ruling, Whitus’s description was accurate because, as the trial court heard
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Detective Randolph state, hair styles are susceptible to change. See Loserth,
963 S.W.2d at 773–74 (instructing that we view these factors with deference in
the light most favorable to the trial court’s ruling). Moreover, another witness
testified that it only takes about twenty minutes to convert cornrows back into an
Afro hair style.
Next, even though Whitus’s estimation of Wooden’s weight was slightly
different when she spoke with Detective Randolph from her description on the
day of the incident, when viewed in the appropriate light, this discrepancy did not
render Whitus’s description inaccurate. See id. at 773–74. Indeed, as Whitus
testified, the difficulty of gauging someone’s weight was compounded by her
assailant’s baggy clothes blowing in the wind. The trial court could have
reasonably put more weight on Whitus’s first and more accurate estimate the
night of the attack that her assailant weighed approximately 180 pounds.
In addition, even though Whitus’s description of Wooden’s complexion
varied between ―splotchy‖ and ―freckled,‖ Whitus’s description was still accurate
in this respect when viewed in the appropriate light. See id. Indeed, Whitus
testified that she used the term ―freckles‖ on one occasion to describe an
inconsistency or unevenness in her assailant’s face. The trial court could have
interpreted this testimony to indicate not that she was inconsistent in her
description but merely that she struggled with how to convey the physical
characteristic that she had observed. As further evidence of reliability, the trial
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court had an opportunity to review the photograph that Whitus later testified
showed that Wooden’s face was darker in some areas and lighter in others.
Turning to the fourth Biggers factor, Whitus exhibited a high level of
certainty when she selected Wooden’s photograph at the confrontation. See
Luna, 268 S.W.3d at 605. Both she and Detective Randolph testified that she
recognized her assailant instantly; the only discrepancy between their
testimonies was whether she pointed to Wooden’s photograph at that moment or
took additional time to carefully examine each photograph. Either way, viewing
the evidence in the appropriate light, the trial court could have found that this
evidence supported a finding that Whitus was highly confident in her identification
of Wooden. See Loserth, 963 S.W.2d at 773–74. Finally, turning to the fifth
factor, the length of time between the April 24 robbery and the April 28
confrontation was four days, which strengthened the reliability of Whitus’s
identification. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243,
2253–54 (1977) (―The photographic identification took place only two days later.
We do not have here the passage of weeks or months between the crime and
the viewing of the photograph.‖).
In sum, we conclude that Wooden has not shown by clear and convincing
evidence that the photospread was impermissibly suggestive, and the trial court
could have reasonably found that each Biggers factor weighed in favor of
reliability even if the photospread was impermissibly suggestive. See Biggers,
409 U.S. at 199–200, 93 S. Ct. at 382; Loserth, 963 S.W.2d at 773–74; Barley,
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906 S.W.2d at 33–34. Therefore, we hold that any suggestiveness did not
deprive Wooden of due process by giving rise to a very substantial likelihood of
misidentification, see Biggers, 409 U.S. at 199–200, 93 S. Ct. at 382; Conner, 67
S.W.3d at 200, and we overrule Wooden’s first and second points.
IV. Accomplice Witness
In his third point, Wooden complains that, absent the impermissibly
suggestive photospread and the tainted in-court identification, insufficient
evidence existed to corroborate Wofford’s accomplice testimony. Wooden
implicitly concedes that sufficient evidence would exist if, as we have determined,
the photospread was not impermissibly suggestive and, thus, did not taint the in-
court identification. However, we will still address the sufficiency in light of our
decision on Wooden’s first two points. See Green v. State, No. 07-00-0586-CR,
2002 WL 31084674, at *2–3 (Tex. App.—Amarillo Sept. 17, 2002, no pet.) (not
designated for publication) (addressing the accomplice testimony issue even
though appellant only based this claim on the alleged inadmissibility of the in-
court identification, which the trial court held to be admissible).
The code of criminal procedure provides that a conviction cannot be based
upon the testimony of an accomplice unless other evidence tending to connect
the defendant with the offense corroborates the testimony. Tex. Code Crim.
Proc. Ann. art. 38.14 (West 2005). ―[N]on-accomplice evidence is sufficient
corroboration if it shows that rational jurors could have found that it sufficiently
tended to connect the accused to the offense.‖ Smith v. State, 332 S.W.3d 425,
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442 (Tex. Crim. App. 2011) (―Therefore, it is not appropriate for appellate courts
to independently construe the non-accomplice evidence.‖).
In addition to Whitus’s pretrial and in-court identification of Wooden,
corroborating Wofford’s testimony at trial was Whitus’s testimony that, in the well
lit parking lot, she got a ―good look‖ at her attacker, who she initially told police
was an African American male who stood over six feet tall, had a bushy hairdo,
weighed about 180 pounds, had a missing or rotten tooth, and had a splotchy
complexion. Also corroborating Wofford’s testimony was evidence that Fort
Worth police officers found Wooden in the same house as the one from which
they recovered Whitus’s identification card. The only contradicting evidence was
Whitus’s statement during a subsequent interview with police that her attacker
weighed about 200 pounds. However, we must defer to the jury’s resolution of
this inconsistency and not independently construe the evidence. See id. We
conclude that rational jurors could have found that the combined weight of the
non-accomplice evidence—including Whitus’s almost instantaneous pretrial
identification, her in-court identification, the detailed description that she gave to
responding police officers, and the evidence that police found Wooden and
Whitus’s identification card in Wofford’s house—tended to connect Wooden to
the offense. See id. Thus, we overrule Wooden’s third point.
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V. Conclusion
Having overruled all of Wooden’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 8, 2011
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