Rodney Cantrell Turner v. State

Affirmed and Memorandum Opinion filed August 18, 2009

Affirmed and Memorandum Opinion filed August 18, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00465-CR

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RODNEY CANTRELL TURNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1111991

M E M O R A N D U M  O P I N I O N

Appellant Rodney Cantrell Turner appeals his aggravated-robbery conviction, arguing  that the trial court erroneously denied his motion to suppress in-court identification testimony from the complainant and a witness because the in-court identification of appellant by these witnesses allegedly was tainted by an impermissibly suggestive Ashow-up@ identification procedure.  We affirm.

I.  Factual and Procedural Background

The complainant, Jose Cedillo, was robbed at gunpoint in the parking lot of his apartment complex while returning home from work at approximately 12:40 a.m.  Cedillo=s wife, Anna Alvarado, witnessed the robbery from their nearby apartment window and called the police.  Several hours later, appellant and another man were arrested at a supermarket near Cedillo=s apartment complex.  Suspecting that the two men had robbed Cedillo earlier in the evening, a police officer called Cedillo and Alvarado and asked them to come to the supermarket to see if they could identify the men in custody.  Later that day, Cedillo tentatively identified appellant and Alvarado positively identified appellant in a police-station line-up. 

Appellant was charged with aggravated robbery and pleaded Anot guilty.@   Appellant filed a pre-trial motion to suppress, seeking to prevent Cedillo and Alvarado from identifying him at trial and alleging that any such identification would be tainted by the impermissibly suggestive procedure that occurred at the supermarket.  The trial court denied the motion to suppress.  After a trial, the jury found appellant guilty of aggravated robbery and assessed punishment at thirty-seven years= confinement.

II.  Issue and Standard of Review

Appellant raises a single appellate issue, asserting that the trial court erred in denying his motion to suppress.^[1] We review the trial court=s ruling on a motion to suppress under an abuse‑of‑discretion standard.  Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). We view the evidence adduced at a suppression hearing in the light most favorable to the trial court=s ruling.  Champion v. State, 919 S.W.2d 816, 818 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).  At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented.  Id.  We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

                                                    III. Analysis

An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pre-trial identification procedure.  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).  We perform a two-step analysis to determine the admissibility of an in-court identification. First, we inquire whether the out-of-court identification procedure was impermissibly suggestive; and if so, we then determine whether the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification at trial.  Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).  It is appellant=s burden to prove the in-court identification was unreliable by establishing both of these elements by clear and convincing evidence.  See id.  An analysis under these steps requires an examination of the Atotality of the circumstances@ surrounding the particular case and a determination of the reliability of the identification.  Cantu v. State, 738 S.W.2d 249, 251 (Tex. Crim. App. 1987).  If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the identification testimony is admissible.  Delk, 855 S.W.2d at 706.

                   Did the trial court err in denying the motion to suppress?

In his motion to suppress, appellant challenged the Ashow-up@ identification of appellant by Cedillo and Alvarado when appellant was in a police car in the supermarket parking lot.  For the purposes of our analysis, we presume that this Ashow-up@ procedure was impermissibly suggestive, and we turn to the second step of the analysis to determine whether this procedure rendered the in-court identifications by Cedillo and Alvarado unreliable under the totality of the circumstances.  In conducting this analysis, we must weigh the corrupting effect of the impermissibly suggestive show-up identification procedure against the following factors to determine whether the in-court identification is admissible: 

(1)     the opportunity of the witness to view the perpetrator at the time of the crime;

(2)     the witness=s degree of attention;

(3)     the accuracy of the witness=s prior description of the perpetrator;

(4)     the level of certainty demonstrated by the witness at the time of the confrontation;

(5)     and the lapse of time between the alleged act and the time of the confrontation.  

Ibarra, 11 S.W.3d at 195.

The evidence adduced at the suppression hearing, when viewed in the light most favorable to the trial court=s ruling, shows the following:

!       Cedillo was robbed at gunpoint in the parking lot of his apartment complex while returning home from work at approximately 12:40 a.m. on April 11, 2007.  The robbery lasted about ten minutes.

!       Cedillo=s wife, Anna Alvarado, witnessed the robbery for about ten minutes from their nearby second-story apartment window before she called the police. There was outside lighting, and Alvarado could see the men who robbed her husband.

!       Officer Allen Casas arrived shortly thereafter and took statements from both Cedillo and Alvarado. 

!       Approximately three hours later, Officer Casas overheard a dispatch regarding a forgery in progress at a supermarket near Cedillo=s apartment complex, and Officer Casas drove to the supermarket. 

!       Officers on location arrested two men and recovered Cedillo=s stolen wallet from one of the men.  By the time Officer Casas arrived, the men were in custody and sitting in the back of separate patrol cars.

!       A different police officer called Cedillo and Alvarado and told them that two thieves had been arrested, and that the police officers wanted to see if Cedillo and Alvarado could identify the individuals as the men who robbed Cedillo earlier that day.  Cedillo and Alvarado went to the supermarket, and Officer Casas saw them arrive.  Officer Casas asked Cedillo if the man in one of the police cars was one of the men who robbed him.  At first, when they were at some distance from the patrol car, Cedillo said he was not sure.  Then, Officer Casas and Cedillo walked closer to the patrol car, and Cedillo identified the man as one of the robbers, but Officer Casas was not sure Cedillo identified appellant or Bradley Thompson, the other man with whom appellant was arrested at the supermarket.  Alvarado recognized appellant and Thompson as the men who robbed her husband. 

!       Later that day, an officer called Cedillo and Alvarado and told them that someone had been arrested and that the police officers wanted Cedillo and Alvarado to come to a Houston Police Department office to view a live line-up. The officers set up two five-men line-ups.  Appellant was one of five men on one side and Thompson was one of five men on the other side.  The other eight men were taken from the central jail, and were chosen because they were the same race and gender and had physical characteristics (such as height and weight) similar to either appellant or Thompson, respectively.  None of the men in the line-ups were wearing jail clothing. 

!       Appellant and Thompson chose which position they would occupy during the line-up.  Cedillo and Alvarado received instructions in Spanish as to how the line-up would be conducted, and that they should not make any comments between themselves during the line-up as to which man, if any, was one of the robbers. Cedillo and Alvarado  were also told that the men who robbed Cedillo might or might not be in the line-up.  The police did not suggest in any way who, if anyone, Cedillo and Alvarado should identify.

!       After viewing the line-up Cedillo and Alvarado were interviewed separately.  Cedillo positively identified Thompson and tentatively identified appellant.  Cedillo identified appellant because he robbed Cedillo rather than based on seeing appellant in the police car at the supermarket. 

!       Cedillo identified appellant at the suppression hearing  because Cedillo recognized appellant from the robbery.

!       Alvarado positively identified both Thompson and appellant after viewing the line-up.  Alvarado identified appellant at the line-up as one of the robbers because she recognized him from the robbery. Appellant was wearing the same white t-shirt and pants that he was wearing when Alvarado saw him earlier in the police car, but he was not wearing the black jacket that he had been wearing earlier. 

!       Alvarado identified appellant as one of the robbers because she remembered him from the robbery. 

Both Cedillo and Alvarado had an opportunity to view the perpetrators during the commission of the crime.  Alvarado testified that she witnessed the crime for ten minutes from a window that was ten feet away. Outside lighting enabled her to see.  Cedillo indicated that he had his head down during the robbery and that he did not see appellant very well.  Alvarado=s testimony shows that she had a high degree of attention.  The record does not show any discrepancy between a pre-identification description by Cedillo or his wife and appellant=s description.  The Ashow-up@ procedure occurred within six hours of the robbery.  Both Cedillo and Alvarado showed a high level of certainty when they identified appellant at the suppression hearing, which was slightly more than thirteen months after the robbery.  Both Cedillo and Alvarado testified that their identifications of appellant were from the actual robbery rather than based on what they saw during the Ashow-up@ procedure. Weighing this evidence of reliability against what we presume was the unduly suggestive nature of the Ashow-up@ procedure, we conclude that no substantial risk of irreparable misidentification was created so as to deny appellant due process.^[2] See Santos v. State, 116 S.W.3d 447, 453 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (holding that unduly suggestive home video shown to complainant did not create substantial risk of irreparable misidentification); Louis v. State, 825 S.W.2d 752, 757 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d) (holding that even if Ashow-up@ identification were impermissibly suggestive, it did not create substantial risk of irreparable misidentification); Lewis v. State, 751 S.W.2d 895, 897B98 (Tex. App.CHouston [14th Dist.] 1988, no pet.) (holding that Ashow-up@ identification did not create substantial risk of irreparable misidentification). Accordingly, we conclude the trial court did not abuse its discretion by denying appellant=s motion to suppress.  Having overruled appellant=s sole issue on appeal, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  After counsel filed a brief on appellant=s behalf, appellant filed a pro se brief raising an additional issue.  We will not address this issue as appellant has no right to hybrid representation. See Scheanette v. State, 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004).

^[2]  In his brief, appellant makes two conclusory statements that the line-up, as opposed to the Ashow-up,@ was impermissibly suggestive.  However, appellant does not present this court with argument, analysis, case citations, or record citations in support of these statements.  Therefore, appellant has failed to adequately brief this point, and we do not address it.  See Tex. R. App. P. 38.1(i); King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).