Jackson, Tadareous v. State

AFFIRM; Opinion issued September 19, 2012
In The
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No. 05-11-01116-CR
No. 05-11-01117-CR
TADAREOUS JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F09-53871-L and F09-53872-L
MEMORANDUM OPINION
Before Justices Morris, Francis, and Murphy
Opinion By Justice Francis
A jury convicted Tadareous Jackson of two aggravated robberies, and the trial court assessed
punishment at concurrent sixty-year sentences. In two issues, appellant challenges the admissibility
of the in-court identifications by the two complaining witnesses and the sufficiency of the evidence
to support his convictions. We conclude neither issue has merit and affirm the trial court’sjudgments.
Erika Reyes and Linda Leach worked at Hiliburn Hills apartment complex. Reyes was the
business manager and Leach was a leasing agent. On the morning of March 9, 2009, a man, who both
identified at trial as appellant, came into the office and asked about leasing an apartment. Leach gave
him a brochure, and appellant said he would be back later. About forty-five minutes later, appellant
returned and asked for an application. Leach gave him an application and thought he had left. She and
Reyes were standing in Leach’s office when appellant appeared. pointed a gun at them, and demanded
they give him their purses. Leach gave him her purse, but Reyes said her purse was in her office.
Appellant told Leach to get on the floor and not move or look at him. He held the gun on Reyes and
followed her to her office, tapping her with the gun on the back of her head as they walked. Once
Reyes gave him her purse, appellant told her not to come out of the office, and he left. Reyes locked
her office door and called the police. Appellant went back through Leach’s office and touched Leach
on her “private” before running out the door. Leach waited a few minutes and then, like Reyes, called
the police. Both Reyes and Leach testified they feared for their life during the encounter.
Cedric Spencer was waiting at a nearby bus stop when he saw a man walking “pretty fast”
carrying ‘junk in his arms.” The man stopped by a red car with an old gray hood; Spencer said it
looked like a “fix-up job.” The man then got into the car and drove off. A few minutes later, the
police pulled up and asked if he had seen anybody or anything. Spencer told him what he had just
seen. Evidence at trial showed that the mother of appellant’s child owned a red car with a gray hood.
On the day of the robbery, maintenance workers at the apartment complex found the four-page
application form that Leach said she had “marked up” and gave to appellant. The document was
turned over to police. A fingerprint expert testified that a fingerprint on the document belonged to
appellant.
Eighteen days after the robbery, Detective Doug Jones separately showed Leach and Reyes
photographic arrays; appellant’s photograph was included. Reyes testified the officer showed her six
pictures one by one, and she tentatively identified photo five, which was appellant’s, saying he “looks
familiar” but “not sure.” Leach narrowed it to two photographs, one of which was appellant, and said,
it “looks more like him.” At trial. Leach said she had “no doubt” appellant was the person who robbed
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her.
In his second issue, appellant contends the evidence was legally insufficient to support his
conviction because the State failed to prove he was the person who committed the aggravated robbery.
When assessing whether evidence is legally sufficient to support a conviction, we review all
of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact
could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979). The jury, as sole judge of the witnesses’ credibility and the weight to be given
their testimony, is free to accept or reject any and all evidence presented by either side. Wesbrook v.
State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
Here, the evidence identifying appellant as the robber is as follows. Eighteen days after the
robbery, Reyes and Leach tentatively identified appellant from a photograph lineup and then identified
him in court as the man who came into the office asking for an application and then robbed them at
gunpoint. Maintenance workers found the application given to appellant on the apartment grounds the
same day of the robbery, and a fingerprint expert testified a fingerprint on the application belonged to
appellant. A witness at a nearby bus stop near the time of the robbery testified he saw a man leaving
the area in red car with an old gray hood that looked like it was being “fixed up.” Other evidence
showed the description of the car matched a vehicle belonging to the mother of appellant’s child. In
sum, the jury had identification and fingerprint evidence as well as the description of an unusual
looking car associated with appellant in the neighborhood at the time of the robbery.
Appellant challenges the credibility of the complaining witnesses’ in-court identifications of
him, saying they were unable to identify him from a photographic lineup eighteen days after the
robbery but were able to positively identify him in court two years after the offense occurred.
Additionally, he attempts to diminish the importance ofthe fingerprint evidence by asserting that it was
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unclear exactly where the application was found and who found it. But the credibility of witnesses and
the weight to be given their testimony or other evidence were matters for the jury to decide. Viewing
the evidence in the light most favorable to the verdict, we conclude the evidence was legally sufficient
to prove beyond a reasonable doubt that appellant was the person who robbed Leach and Reyes at
gunpoint. We overrule the second issue.
In his first issue, appellant contends the trial court erroneously admitted the in-court
identifications by Leach and Reyes because they were tainted by an impermissibly suggestive photo
lineup. Appellant complains the photographic array was impermissibly suggestive because his
photograph was different than the others; specifically, he complains his face is closest to the frame of
the photo and his face is so large in the frame that his left ear is not visible.
To establish error by the trial court in admitting the in-court identifications by Leach and
Reyes, appellant first had to prove by clear and convincing evidence and based on the totality of the
circumstances that the photographic array procedure used was impermissibly suggestive. See Barley
v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). A pretrial procedure may be suggestive, but
that does not necessarily mean it is impermissibly so. Id. at 34. Suggestiveness may be implicated by
the manner a pretrial identification procedure is conducted, as in suggesting a suspect is included in
the array, or by the content of the photo array itself, such as when the suspect is the only individual
who closely resembles the pre-procedure description. See Id. at 33. A photo lineup is considered
unduly suggestive if the appearance of the other participants is greatly dissimilar from the suspect.
Withers v. State, 902 S.W.2d 122, 125 (Tex. App.—Houston [1St Dist. 1995, pet. ref’d). A suspect may
be greatly dissimilar in appearance from the other participants based on a distinctly different
appearance, race, hair color, height, or age. See Id. However, minor discrepancies among lineup
participants will not render a lineup impermissibly suggestive. See Partin v. State, 635 S.W.2d 923,
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926 (Tex. App.—Fort Worth 1982, pet. ref’d).
Here, appellant does not complain about the process used by the officer in conducting the photo
lineup; he challenges only the content of the photographic arrays. We have reviewed the photographic
arrays shown to both complaining witnesses. The arrays contain the same photographs depicting head
shots of appellant and five other men. Although appellant appears to be in slightly closer focus than
the others, the other individuals in the array are similar in appearance to appellant. All are young,
black men with short haircuts and similar facial features and skin tones. The camera angle on appellant
is a minor difference and does not render the array impermissibly suggestive. See Mendoza v. State,
No. AP-75213, 2008 WL 4803471, at *25 (Tex. Crim. App. Nov. 5, 2008) (not designated for
publication) (concluding array depicting appellant in closer focus than other suspects not impermissibly
suggestive); see also United States v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (concluding slightly
brighter and more close-up photograph did not render photographic array more suggestive; the
differences “would hardly suggest to an identifying witness that [the defendant] was more likely to be
the culprit”); State v. Anthony, 857 S.W.2d 861, 867 (Mo. App. W.D. 1993) (concluding photograph
taken at slightly closer distance than others was “minor” difference that did not render photographic
array impermissibly suggestive). We overrule the first issue.
We affirm the trial court’s judgments
MOLLY F
JUSTICE
Do Not Publish
TEx. R. App. 47
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