Nathaniel Vontre Green v. State of Texas

NO. 07-00-0586-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 17, 2002
______________________________
NATHANIEL VONTRE GREEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 208TH DISTRICT COURT OF HARRIS COUNTY;
NO. 857,561; HON. DENISE COLLINS, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
Through two points, appellant Nathaniel Vontre Green challenges his conviction for
aggravated robbery. He alleges that 1) the trial court erred in denying his motion to
suppress his in-court identification as the assailant and 2) the evidence was insufficient
because the State failed to properly corroborate the testimony of an accomplice. Finding
no reversible error, we affirm the judgment of the trial court.
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CO DE AN N. § 75.0 02(a )(1) (V erno n Su pp. 2002 ).
Background
The victim, Henry Lewis, arrived in the United States from Austria in June 1998 and
visited a friend, Peter Olaolu, who lived in Houston. On June 19, Lewis went shopping
and spent almost $4,000. He was accompanied by Olaolu and Michelle Spencer, who was
Olaolu’s friend. All three returned to Olaolu’s apartment and ate dinner together. Around
11:00 p.m., Olaolu told Lewis he was taking Spencer home and going to work. Olaolu
returned around 7:30 the next morning and went to bed. Later, Spencer knocked on the
apartment door around 11:00 a.m. but left after being told by Lewis that Olaolu was
sleeping. She returned several minutes later. Lewis opened the door for her and returned
to the couch to lie down.
Next, a gunman later identified as appellant, and a second man entered the room.
Appellant pointed a shotgun at Lewis’s face and told Lewis to lie down and avoid looking
at him. So too did the gunman demand to know the location of Lewis’s money. Apparently
because Lewis would not divulge the information, appellant struck Lewis with the shotgun.
Lewis eventually relented and disclosed the location of his money. Thereafter, appellant,
Spencer, and the second individual took various personal items and $3000 from Lewis.
Upon completing the robbery and as he left the abode, appellant shot Lewis.
Following treatment at a Houston hospital, Lewis returned to Austria. In June 1999,
the Harris County District Attorney’s Office made arrangements to have a photo spread
containing appellant’s picture along with five others presented to Lewis at the American
Embassy in Vienna, Austria, by a special agent. Lewis positively identified appellant from
the photo spread.
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Point One – Motion to Suppress Identification
In his first point, appellant contends that his in-court identification by Lewis was
impermissibly tainted by the photo spread sent to and seen in Austria. According to
appellant, this is so because Lewis allegedly had been told by investigators that he would
be contacted once they had apprehended the individual who committed the offense. By
informing Lewis of this, the investigators implicitly revealed to Lewis that appellant’s picture
would be in the photo spread, says appellant. This, in turn, tainted Lewis’s in-court
identification of appellant as one of the culprits. We overrule the point.
Standard of Review
Whether the trial court erred in overruling appellant’s motion to suppress depends
upon whether it abused its discretion. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). In other words, appellant must show that the decision fell outside the
zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App.
2001). Furthermore, to suppress an in-court identification because of a supposedly tainted
photo spread, the movant must prove not only that the photographic display was
impermissibly suggestive but also that the procedure utilized created a substantial
likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim.
App. 1995), cert. denied, 516 U.S. 1176, 116 S. Ct. 1271, 134 L. Ed. 2d 217 (1996).
Application of Standard
State’s Exhibit No. 2 shows that Lewis signed the instructions to the photographic
line-up which stated, among other things, that he was not to conclude that the photographs
contained a picture of the person who committed the crime, that he was not obligated to
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identify anyone, and that it was just as important to clear innocent persons from suspicion
as to identify guilty parties. Lewis also testified that 1) he had read these instructions, 2)
Special Agent Paul Pettit told him that he was to see if he could identify anyone in the array
as the individual who shot him but, if unsure, avoid forcing himself to identify anyone, 3)
he was positive in his identification of appellant, 4) his selection of appellant was based on
his memory and not on the photos, 5) he could identify appellant as the one who shot him
because he looked at appellant’s face and gun during the incident, and 6) he remembered
appellant’s face. Lewis also denied that he had been told that a photo of the suspect was
included in the spread. From this evidence, the trial court had basis to conclude that no
one informed Lewis that appellant’s picture was within the photo array, assuming arguendo
that imparting such information would be improper. And, the statement which appellant
considers pivotal mandates no other finding.
The statement in question concerned an investigator telling Lewis that if they “got
the person or whatever, they would try to fly [him] to the United States.” Prior to the
foregoing statement being made, Lewis had been asked if he could identify the individual
who shot him. Irrespective of whether it is read alone or in context, the comment said
nothing about anyone sending a photo spread to Lewis. And, to the extent that nothing
was said about a photo spread, it cannot be reasonably construed as suggesting that any
photo spread which was sent would include a picture of the individual who the police
believed committed the crime.
In short, we cannot reasonably conclude that the utterance about returning Lewis
to the United States if and when the police “got the person or whatever” removes the trial
court’s refusal to grant the appellant’s motion to suppress outside the zone of reasonable
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disagreement. Thus, the trial court’s decision was and is not an abuse of discretion. See
Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990) (stating that a
decision does not constitute an abuse of discretion if it falls within the zone of reasonable
disagreement).
Point Two – Legal and Factual Sufficiency of the Evidence
Appellant next contends that the evidence was legally and factually insufficient to
sustain his conviction. This is allegedly so because Lewis’s testimony was inadmissible
for reasons addressed under point one and, being inadmissible, it could not be used to
corroborate the testimony of Spencer, appellant’s accomplice. We overrule the point.
Standard of Review
The standards of review applicable to determining whether the evidence is legally
and factually sufficient to support a conviction are well-settled. We do not reiterate them
but rather refer the litigants to Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
L.Ed.2d 560 (1979), King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) for explanations of same.
Next, article 38.14 of the Texas Code of Criminal Procedure provides that a
conviction cannot be based upon the testimony of an accomplice unless corroborated by
other evidence tending to connect the defendant with the offense. TEX. CODE CRIM.
PROC. ANN. art. 38.14 (Vernon 1979). Thus, before Spencer’s testimony could be used
to sustain appellant’s conviction, it had to be corroborated.
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Application of Standards
As concluded under point one, Lewis’s identification of appellant as the one who
shot him while assisting in the robbery was admissible. Thus, it could be used to
corroborate Spencer’s testimony, assuming the latter was actually needed. And, more
importantly, it corroborated her testimony that appellant had a shotgun, entered the abode,
demanded money from Lewis, struck Lewis with the weapon, and then shot Lewis. This
is a sufficient basis upon which to conclude that the evidence supporting appellant’s
conviction for aggravated robbery was legally and factually sufficient.
Accordingly, the judgment is affirmed. Pursuant to Rule 2 of the Rules of Appellate
Procedure and in order to expedite the decision, we suspend the operation of Rule 39.9
of the Rules of Appellate Procedure to permit submission of the case prior to expiration of
the 21-day notice provided for in that rule.
Per Curiam
Do not publish.
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