Ford v. State, 08-90-00090-CR

• Decision Date: 18 July 1990
• Docket Number: No. 08-90-00090-CR,08-90-00090-CR
• Parties: Billy Ray FORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 863

794 S.W.2d 863

Billy Ray FORD, Appellant, v. The STATE of Texas, Appellee.

No. 08-90-00090-CR.

Court of Appeals of Texas El Paso.

July 18, 1990.

William D. Burdett, Hearn and William W. Vance, Vance, Bruchez & Goss, P.C., Bryan, for appellant.

Bill R. Turner, Dist. Atty. and Margaret Lalk, Asst. Dist. Atty., Bryan, for appellee.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment, enhanced by one prior felony conviction for burglary of a habitation, at imprisonment for thirty years and a fine of $24.00. We affirm.

The first point of error contends that the lower court erred in failing to suppress the in-court identification of Appellant by the complainant as the product of suggestive pretrial identification procedures, namely a six-subject photographic array in which the complainant Tracy Forsyth identified Appellant (Subject no. 2) as the individual who robbed her at gunpoint.

At approximately 11:20 p.m., April 30, 1987, Tracy Forsyth was the sole clerk on duty at a 7-11 convenience store in College Station. A black male, identified by Forsyth as Appellant, passed in front of the store in the direction of the pay telephone. He then entered and asked for change, apparently waiting for the telephone to become available. At a distance of two feet, face-to-face in the well lighted store, Appellant engaged Forsyth in several minutes of conversation. He then exited. Several minutes later, he entered, followed by another black male (Bernard Smith; identified as subject no. 5 in the photographic array). Smith walked to the cold drink vault at the rear. Appellant approached Forsyth at the register. He briefly exhibited a revolver and demanded all the money from the register. This amounted to approximately $24.00. Appellant raised the drawer to check for additional money in the register. He then demanded and received four packs of Kool 100 cigarettes. Smith exited the door, followed less than a minute later by Appellant. While Forsyth suspected Smith of stealing several cases of beer, she could not be certain, her attention centering upon the Appellant. In fact, she could only assume that the two were acting in concert. She did not see them arrive or depart in the same vehicle. They did not speak to each other, and Smith never approached the register or said anything to Forsyth. Forsyth locked the store and summoned the police. During her next work shift, a day later, a white van with three subjects stopped in front of the store. After several minutes, Smith entered and purchased three beers, staring at Forsyth and smiling. She recognized him as the second subject from the night before. As he was leaving, Forsyth noted the license number of the van and reported it to the police. The police traced the vehicle to Bernard Smith's brother, George.

Talking to George's wife, police learned that Bernard Smith and Appellant had departed from George's house in the van on the night of April 30 (George's birthday). Preexisting police photographs of Appellant and Smith were thus utilized in the photographic array presented to Forsyth. She unequivocally identified their photographs.

In a not atypical anecdotal episode occasionally encountered in trial proceedings, Appellant was displeased with his handling at the pretrial suppression hearing. It seems that he was brought to the courtroom along a hallway where he could be seen by the various witnesses. In making a preliminary complaint to the trial judge, Appellant took the stand:

Q: This morning when you were brought in you came in through the hallway leading into the courtroom?

A: Yes, sir.

Q: And did you see any of the witnesses in this case?

A: Yes, sir.

Q: Which witnesses did you see?

A: The ones that I robbed.

Q: All right. And what's her name?

A: Tracy Forsyth.

The jury was not made privy to this statement, and we have not relied upon it in disposing of the points of error.

The defendant bears the burden of demonstrating by clear and convincing evidence that the trial identification was irreparably tainted by an impermissibly suggestive pretrial identification procedure. Herrera v. State, 682 S.W.2d 313, 318 (Tex.Crim.App.1984). Such an irreparable taint would amount to a denial of due process, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Evaluation of the complaint involves a two-step process--first, determining whether the pretrial procedure was impermissibly suggestive and second, whether there was a resulting substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). It is this latter danger which is critical and directly implicates the defendant's due process rights. Consequently, if unnecessarily suggestive procedures were utilized in advance of trial, a subsequent in-court identification may, nonetheless, be permitted if the State demonstrates by clear and convincing evidence at the trial level that the pretrial procedure did not taint the in-court identification and that the testimony was the product of an independent source, namely the observations made at the time of the offense. Jackson v. State, 657 S.W.2d 123, 130 (Tex.Crim.App.1983); Williams v. State, 477 S.W.2d 885 (Tex.Crim.App.1972). If an independent origin is adequately shown, it may be concluded that the impermissible pretrial procedure did not result in a substantial likelihood of misidentification. Id.; Herrera, 682 S.W.2d at 318.

In assessing the existence of resulting taint or independent origin, the courts have identified a variety of factors to be assessed on a case-by-case basis: (1) the witness's prior opportunity to observe the perpetrator, (2) any discrepancy between the witness's earlier description of the perpetrator and the defendant's actual appearance, (3) whether the witness has previously identified some other individual, (4) prior identification of the accused by the witness, (5) prior failures of the witness to identify the accused, (6) the lapse of time between the offense and the various identifications. Herrera, 682 S.W.2d at 318.

Appellant's complaint in this case is without merit at every step of the foregoing analytical framework. A copy of State's Exhibit No. One (the photographic array) is contained in the record and although the reproduction is of poor quality, it is nonetheless adequate to disprove Appellant's objections. At the outset, there is an obvious disparity between the three photographs on the top row (Appellant's position is no. 2) and the three photographs on the bottom row (Bernard Smith is in position no. 5). This distinction is adequately explained by the testimony of the identification officer, Detective Walker. In effect, he assembled two three-photograph arrays, not one six-photograph array. The top row was composed of photographs of individuals resembling the armed robber (allegedly Appellant's role) and the bottom row consisted of individuals resembling the second subject at the robbery scene (allegedly Bernard Smith). Viewing each row separately, we conclude that Appellant has not demonstrated an impermissibly suggestive array. Subjects in either a photographic array or a physical lineup need not be identical. Their similarities in appearance should be adequate to provide a reasonable test for the witness's capacity to reliably identify the perpetrator. The photographs of Appellant and his array companions on the top row reflect great similarity in size and shape of facial features--nose, lips, facial hair, shape of face. Appellant complains of the length of hair shown in his photograph, but we find the difference to be less than...