Major Keith Tolbert v. State

Affirmed and Memorandum Opinion filed November 18, 2008

Affirmed and Memorandum Opinion filed November 18, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00140-CR

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MAJOR KEITH TOLBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1113398

M E M O R A N D U M  O P I N I O N

A jury found appellant, Major Keith Tolbert, guilty of robbery.  The court assessed punishment at thirty-five years= confinement.  In two issues, appellant argues the trial court erred in (1) not suppressing identification evidence and (2) admitting evidence of his prior convictions.  Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Factual and Procedural Background

Around 8:30 p.m. on April 19, 2007, Angela Feit, the complainant, was at a gas station putting air in her tires.  She chose this gas station because it was well lighted and seemed safe.  As she filled her tires, she noticed a man looking at her car.  The man walked around to the passenger side of Feit=s car, seemed to look in, and walked to the rear of her car.  The man then walked toward a red Cadillac, spoke to the driver, and returned to Feit.  He demanded Feit open her car door and give him her purse.  When Feit hesitated, the man repeated his demand and, with his hand in his waist band, told Feit he had a gun and would shoot her.  Feit fumbled for her keys, opened her car door, and handed the man her purse.  The man walked away and got into the passenger seat of the Cadillac.

During the encounter, Feit was about two to three feet from the man.  She initially could not see his face clearly because she was crouched down filling her tires.  When she handed him her purse, however, she tried to get as good a look at his face as possible.  The area was illuminated by a street light, and there was also good light from the gas station.

As she watched the Cadillac drive away, Feit repeated the license plate numbers and letters over and over in her head.  She immediately called 911 and related the incident and the license plate number.  When the officers arrived a few minutes later, she gave them a brief statement and a description of the man.  She described the getaway car as a red four-door Cadillac with a white top and described her attacker as wearing jeans and a light-colored tee-shirt.

Feit went home, and almost immediately a police officer arrived.  He told her they found the car matching her earlier description and apprehended two men.  The officer asked Feit to go with him to see whether she could identify them.  Feit agreed, and the officer took her to the parking lot where the officers had detained the men.  Feit identified appellant as the person who took her purse. Appellant was arrested and charged with robbery.

Appellant filed a pre-trial motion to suppress identification evidence.  At the suppression hearing, Feit testified the lighting in the parking lot enabled her to get a Agood look@ at appellant.  Feit had noticed appellant before the robbery because he walked around her car.  Appellant was only two to three feet away from Feit when he demanded her purse.

Feit also testified she was told that the two persons at the show-up were the men in the Cadillac she had identified.  The officers, however, did not tell Feit the men were involved in the robbery; they simply asked her whether she recognized them.  Feit was Aa few yards@ away when she saw each man, and the officers pointed a spotlight on them.  The officers took one man out of the police car for Feit to identify, and Feit Aknew right away@ this man was not her attacker.

When they showed Feit the second man, she believed this was the person who had held her up.  She recognized him from his build, facial characteristics, and Afrom just looking at his face.@  She was seventy-five to eighty percent sure, but was not completely confident.  Feit told the officers she knew she would definitely recognize the man=s voice.

The officers situated Feit so she could clearly hear the man=s voice and told him to say Apurse,@ Agun,@ and Ashoot.@  When he spoke, Feit was sure this was the man who had robbed her.  She testified that appellant had Aa very distinctive voice.  Some voices stay with you, and that night that voice stayed in my head.@

Appellant called Officer William Davis, who was the primary officer in the case and testified Feit described Athe information she got from her attacker,@ as well as the car and license number.  Within twenty to twenty-five minutes after Davis received the call about the robbery, another officer stopped the Cadillac Feit had described. Davis confirmed that no one told Feit she had to identify appellant or suggested that he was the one who robbed her.

The trial court denied appellant=s motion to suppress, and the case proceeded to trial.  At trial,  Feit reiterated substantially the same testimony she gave at the suppression hearing.  She also identified appellant as the person who robbed her.  In addition to Feit and Davis, three other persons involved in the investigation testifed.

Officer Nathan Wackman testified he responded to Feit=s robbery call and was present when she identified appellant as her attacker.  No one suggested Feit Aneeded to identify those two suspects.@

Harris County Deputy Constable Gerald Hall testified he stopped the red Cadillac that night and appellant was in the passenger seat.  Appellant fled on foot, but Hall located him a few blocks away, hiding in a shed.

Police Sergeant Kenneth Campbell testified he spoke to appellant at the scene and noticed he had Aa very distinctive voice.@  He described procedures the police used for the identification.  Campbell explained that he tries to be impartial and does not ask leading questions.  He testified Feit did not seem hesitant in her identification of appellantCAshe seemed pretty sure.@  He explained he watched Feit=s face during the voice identification, and, when appellant spoke, Abasically that hit on something.@  Campbell testified Feit said, Athat=s him, that=s him, that=s him.@  Campbell also testified he discovered that, on the night of the robbery, Feit=s credit card was used at a store located between the robbery and arrest sites.

After the State rested, the court heard appellant=s motion to exclude several prior convictions the State intended to use for impeachment or punishment.  Appellant argued these convictions were too similar to the charged offense, were remote, and the prejudicial effect outweighed the probative value.  The trial court indicated it would allow evidence of three of the offensesCa 1992 conviction for unauthorized use of a motor vehicle, a 1989 conviction for possession of a prohibited weapon, and a 1987 conviction for auto theft. 

Appellant testified at trial.  On direct examination, he admitted that he had previously been convicted of the three offenses.^[1]  He denied robbing Feit.

The jury found appellant guilty.

II.  Discussion

A.        Identification

In his first issue, appellant argues the trial court erred in not suppressing Athe overly suggestive identification.@  He contends the show-up was impermissibly suggestive and tainted Feit=s in‑court identification of him.  In part, he complains the show-up procedure was unduly suggestive because Feit knew the two men she was shown were from the car she had identified.

The admissibility of an identification is generally a mixed question of law and fact, which we review de novo.  Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We follow two steps to determine whether a trial court erred in admitting an in‑court identification. First, we consider whether the pretrial identification procedure was impermissibly suggestive.  Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Second, if we conclude the procedure was impermissibly suggestive, we determine whether the procedure gave rise to a very substantial likelihood of irreparable misidentification.  Id. Analysis under these steps requires an examination of the totality of the circumstances of the case and a determination of the reliability of the identification.  Id.

Reliability is the lynchpin in determining the admissibility of identification testimony.  Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988).  It is appellant=s burden to show by clear and convincing evidence that the in‑court identification is unreliable.  Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).

Turning to the first step of the analysis, we observe that, although a show-up has some degree of suggestiveness, its use is necessary in many situations.  Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982).  By viewing the alleged perpetrator of the offense immediately after its commission, the witness is allowed to test her recollection while her memory is still fresh and accurate. Id.  Quick confirmation or denial of identification also enables the police to release innocent suspects and continue their search for the perpetrator while he is still within the area and before he can substantially alter his looks or dispose of evidence of the crime.  Id.  Finally, rigorous cross‑examination of the witness can expose any possible prejudice resulting from such a confrontation.  Id.

The show-up used in the present case could be considered necessary.  First, Feit had given the police a description of appellant=s appearance and the Cadillac in which he left, as well as the license number on the Cadillac.  The show-up, which took place less than an hour after the crime, enabled the officers to test Feit=s identification while the events were fresh in her mind.  Second, although the police detained two possible suspects, Feit identified only one and Aknew right away@ the other man was not her attacker. Finally, appellant=s counsel cross-examined Feit and the officers conducting the identification, thus allowing appellant to expose any possible prejudice resulting from the procedure.  See  Louis v. State, 825 S.W.2d 752, 754, 756 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d) (concluding on‑scene identification not impermissibly suggestive when confrontation occurred an hour after offense, witness immediately identified defendant, and cross‑examination could have exposed any possible prejudice resulting from confrontation).

In addition to arguing use of a show-up itself results in a degree of suggestiveness, appellant further contends the procedure was unduly suggestive because Feit knew the two men she viewed were occupants of the car she had identified.  Although this aspect of the procedure may have been suggestive, we cannot conclude it was impermissibly so.  See Barley, 906 S.W.2d at 33B34.  The officers did not tell Feit she had to identify either one of the persons she was being shown.  She knew definitely the first man the officers showed her was not the man who robbed her.  She apparently was comfortable expressing a less than one-hundred percent certainty after viewing the second man.  Having said she would definitely recognize his voice, she did so.  Appellant has not shown by clear and convincing evidence the show-up, if suggestive, was impermissibly so.  See id.

Nevertheless, assuming arguendo, the procedure was impermissibly suggestive, we cannot conclude it gave rise to a substantial likelihood of irreparable misidentification.  We turn now to the second step of the analysis.

To determine whether a suggestive procedure gave rise to a  substantial likelihood of irreparable misidentification at trial, we ask whether the subsequent in-court identification testimony is reliable under the totality of the circumstances. See Webb, 760 S.W.2d at 269.  In assessing reliability under the totality of the circumstances, we weigh the following five non‑exclusive factors against the corrupting effect of any suggestive identification procedure:  (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 confrontation; and (5) the length of time between the crime and the confrontation.  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375 (1972)).  We consider these and other relevant factors deferentially in the light most favorable to the trial court=s ruling.  See id.  Viewing the factors in this light, we then weigh them de novo against the corrupting effect of the suggestive pretrial identification procedure.  See id. at 195B96.

During the robbery, Feit was able to view appellant from two to three feet away in an area sufficiently lighted for her to get a clear look at him.  Appellant caught Feit=s attention even before the robbery as he walked around her car.  When she saw appellant at the show-up, Feit was seventy-five to eighty percent sure appellant was the person who robbed her. When she heard his voice, however, she was sure he was the person.  Less than an hour passed between the robbery and the identification confrontation.^[2]

After reviewing the totality of the circumstances, we conclude appellant has not shown by clear and convincing evidence that the show-up identification was impermissibly suggestive and that it resulted in a very substantial likelihood of irreparable misidentification at trial.  See Barley, 906 S.W.2d at 34; Delk, 855 S.W.2d at 706.  Accordingly, we overrule appellant=s first issue.

B.        Prior Convictions

In his second issue, appellant contends the trial court erred Ain admitting convictions too remote and prejudicial to be admissible.@  Appellant, however, testified about these convictions on direct examination in an attempt to preempt questions he anticipated from the State on cross-examination.  Therefore, appellant has waived appellate review of this issue.  See Wootton v. State, 132 S.W.3d 80, 84 & n.8 (Tex. App.CHouston [14th Dist.] 2004, pet. ref.d).  We therefore overrule appellant=s second issue.

Having overruled appellant=s two issues, we affirm the judgment.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 18, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

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

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^[1]  Before appellant testified, his counsel informed the court:

In regard to the theus [sic] hearing that we had yesterday, in view of the Court=s ruling as a matter of trial tactics I intend to bring out the prior convictions on direct rather than waiting for the State to use them on cross-examination, and I want the record to reflect that by doing so I=m not waiving my objections to the admissibility of these prior convictions, and I am admitting them on direct because of the Court=s ruling and as a matter of trial tactics.

The trial court responded, AThat=s great.@

^[2]  There was no testimony at the suppression hearing regarding whether Feit provided Davis with a physical description of the person who robbed her.  On cross-examination at the suppression hearing, Feit testified she had not noticed anything distinctive about appellant=s appearance the night of the robbery, but admitted Ahis ears do stick out.@