Davis v. State

• Court: Texas Supreme Court
• Writing for the Court: Ross
• Citation: Davis v. State, 180 S.W.3d 277 (Tex. 2005)
• Decision Date: 21 November 2005
• Docket Number: No. 06-05-00001-CR.,06-05-00001-CR.
• Parties: Terrell Kinyon DAVIS, Appellant, v. The STATE of Texas, Appellee.

180 S.W.3d 277

Terrell Kinyon DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 06-05-00001-CR.

Court of Appeals of Texas, Texarkana.

Submitted September 27, 2005.

Decided November 21, 2005.

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Chris Castanon, Mesquite, for appellant.

Steve Tittle, Asst. Dist. Atty., F. Duncan Thomas, Hunt County Dist. Atty., Greenville, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Terrell Kinyon Davis appeals from his convictions by a jury for five separate offenses arising from two transactions. All five cases were tried together, and the appeals are brought on a single record. The appeals in our cause numbers 06-05-00001-CR and 06-05-00002-CR are from Davis' convictions for aggravated kidnapping and aggravated robbery, respectively, alleged to have been committed during the first transaction. The remaining three appeals are from Davis' convictions for offenses alleged to have been committed during the second transaction: aggravated assault with a deadly weapon in each of the causes numbered 06-05-00003-CR and 06-05-00004-CR, and felon in possession of a firearm in cause number 06-05-00005-CR. Each of the five indictments alleged one prior felony conviction for enhancement purposes. Davis pled not guilty to each indictment, and pursuant to his election, the trial court assessed punishment in each case. The court sentenced Davis to forty-five years' imprisonment in each of the first four cases and twenty years' imprisonment in the fifth case. The jury made an express finding in each of the first four cases "that a deadly weapon, to wit: a firearm, was used or exhibited in the commission of the offense . . . or the immediate flight therefrom." The trial court made a similar deadly weapon finding in the fifth case. The punishments in all five cases run concurrently. Each appeal is disposed by a separate opinion issued of even date.

In the present appeal, Davis was convicted for the aggravated kidnapping of Thera Phelps. In the companion to this appeal (06-05-00002-CR), he was convicted of aggravated robbery of the same person. Davis contends that the trial court erred by denying his motion to suppress evidence of his identification as the actor and that the evidence of his identity is legally and factually insufficient to support the verdict. The same issues are raised in the companion case in which he was also convicted of aggravated robbery.

Because all five cases were tried together and the evidence concerning both transactions was presented to the same jury, we summarize that evidence before addressing Davis' contentions of error.

THE FIRST TRANSACTION

(Aggravated Kidnapping and Aggravated Robbery)

The kidnapping and robbery occurred June 15, 2003, at about 12:30 a.m. The evidence shows that a man dressed in all black clothing, including a mask, accosted Thera Phelps, a Burger King employee, after she had closed the business and gone home. As she was getting out of her car, this person dressed in black appeared, held Phelps at gunpoint, got into her car, and ordered her to return to the store for the money. On arrival at the store, he ordered Phelps to turn off the alarm, open the safe, and give him the money, which she did. The two re-entered Phelps' car and she drove, at his directions, to a particular location not far from her home, where he got out of the car and ran away. The encounter lasted fifteen to twenty minutes. Phelps testified she could not identify her assailant, not even his racial group, from his appearance.

After Davis was arrested three months later, officers recorded his voice and played the recording for Phelps without comment or explanation. Detective Warren Mitchell testified that, without any hesitation or doubt, Phelps identified the voice as belonging to the person who had kidnapped her and robbed her business. Phelps testified at trial she had no doubt the voice on the recording was that of her assailant.

THE SECOND TRANSACTION

(Aggravated Assaults and Unlawful Possession of a Firearm by a Felon)

The aggravated assaults occurred September 15, 2003, at about 12:50 a.m. The evidence shows that a man dressed in all black clothing, including a black ski mask and black gloves, and carrying a gun, accosted Tevas Jackson, a Church's Chicken store manager, after she had closed the business and gone home. He met Tevas¹ at her car and ordered her back in. She declined and screamed. He hit her with the gun while she continued to scream. Her daughter, LaKendra Jackson, came out of the house and also saw the assailant. At that point, the assailant pointed the gun at LaKendra and either told her "shut up" or "don't move." LaKendra retreated inside the house, and the assailant ran away.

Two officers, who were already responding to a different call in the immediate area, heard Tevas screaming and reached her immediately after the assault. Two other officers arrived promptly, and they all set up a perimeter around the immediate area and began searching for the assailant. Officer Adrian Guzman heard a car alarm activate in a carport located in close proximity, and he saw a person, dressed in all black clothing, running in front of the car parked in the carport. Guzman gave chase and caught the person, who was immediately identified by a fellow officer — and who was identified in court by Guzman — as Davis. Davis had gloves and a black shirt in his hand that he dropped to the ground when Guzman caught him. Officers searched the carport where the car alarm activated and found a loaded pistol tucked behind a refrigerator on top of its motor. Guzman testified that the persons who lived at the residence told him the weapon did not belong to them.

BOTH TRANSACTIONS

The evidence shows that, when Davis got out of Phelps' car to run away following his abduction and robbery of her, he was within only a few yards of the place where he was caught by Guzman after his assaults on Tevas and her daughter. Phelps and Tevas lived within a block of each other, and the record indicates Davis lived near both of them.

VOICE IDENTIFICATION

Davis' points of error focus exclusively on the evidence identifying him as the actor in this prosecution. He first contends the court erred by denying his motion to suppress Phelps' identification of his voice. Davis casts his argument as an identification issue, seeking to have it analyzed in the same way as a photographic lineup, complaining about the procedure followed by the police in playing a tape for Phelps with only his voice on it. The State has not addressed the issue as presented, but treats the admissibility of the identification as any other piece of evidence.

The authorities controlling an identification analysis typically involve photographic lineups, occasionally with a vocal component — as in requiring the members of the lineup to repeat some key phrase. There is no Fifth Amendment question raised in this case, and counsel has correctly acknowledged that a defendant may be required to speak words uttered by a robber as part of the identification process.²

Davis contends the pretrial identification procedure was so tainted as to make the identification unreliable, and thus the court should not have admitted the evidence. He argues that the procedure and resulting identification were unreliable because the victim was not able to describe and give characteristics of the voice at trial, because it was over three months between the attack and the time she heard the audiotape, and because no other voices were presented to her in a type of vocal lineup. Based on these grounds, Davis asks us to conclude that, because the pretrial identification was impermissibly suggestive, it should have been suppressed.

The general rule is that the Due Process Clause of the Fourteenth Amendment prohibits the use of identification testimony from a witness who was subjected to an impermissibly suggestive pretrial identification procedure. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The reason for the rule is the substantial likelihood of misidentification that suggestive procedures may engender. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988); Roberts v. State, 923 S.W.2d 141, 144 (Tex.App.-Texarkana 1996, pet. ref'd). If the totality of the circumstances reveals no substantial likelihood of misidentification, even though the procedure was impermissibly suggestive, the court will consider the identification testimony reliable. Reliability is the linchpin in determining the identification testimony's admissibility. Webb, 760 S.W.2d at 269; Roberts, 923 S.W.2d at 144.

Further, the analysis requires an examination of the totality of the circumstances surrounding the identification. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App.1995). Suggestiveness may arise from the manner in which a pretrial identification procedure is conducted. Id. For example, a police officer may point out the suspect or suggest that a suspect is included in a lineup or photographic array. Id. Also, the content of a lineup or photographic array itself may be suggestive if the suspect is the only individual who closely resembles the description given by the witness. Id. Also, an individual procedure may be suggestive or the cumulative effect of procedures may be suggestive. Id.; Page v. State, 125 S.W.3d 640, 647 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).

Although (as mentioned above) there are a number of cases involving both visual and vocal identifications of a defendant, counsel has directed us to no specific authority discussing this situation — where only a vocal identification is made — and we are aware of none. Because the sole purpose of the use of the tape recording of Davis' voice was the same as a photograph of Davis would have been had Phelps been able to attempt identification from appearance, we will apply the same types of strictures as are used in...