Green v. State
| Decision Date | 10 July 2012 |
| Docket Number | NO. 14-10-00438-CR,14-10-00438-CR |
| Parties | CLARENCE GREEN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Affirmed and Memorandum Opinion filed July 10, 2012.
On Appeal from the 228th District Court
Harris County, Texas
Clarence Green appeals his conviction for aggravated robbery, arguing that the evidence is insufficient to sustain his conviction and that the trial court reversibly erred in overruling his objection to the State's allegedly improper jury argument. Because the evidence is sufficient to sustain appellant's conviction and any error in overruling appellant's objection to the State's jury argument was harmless, we affirm.
Myong Soon Lee owns and operates a beauty supply store in southwest Houston. On February 19, 2008, Lee was behind the register when two individuals, one male and one female, came into the store pointing guns and yelling "get down." Both robbers were wearing "hoodies" (hooded sweatshirts) and had their faces covered. The woman, who wore a gray hoodie and a bandanna over her face, ordered Lee's employees to a back room while the man, who wore a black hooded jacket and had his face covered with a stocking mask, held a gun to Lee's head and demanded all the money in the register. Lee gave the man all the cash she had, about $600-$700 in total. After the robbers left, Lee activated an alarm in her store that contacts the police in the event of a hold-up, and Officer Bob Conley of the Houston Police Department responded to the scene. According to Officer Conley, Lee described the female as black but gave virtually no description of the male except that he was wearing a hoodie around his face. The description Officer Conley recorded read "[u]nknown male, unknown age, didn't really give a height or weight." None of Lee's employees were able to give any further description of the male robber. The store has 16 security cameras, one of which captured images of two people approaching the store through an adjacent alley moments before the robbery. One of the people, who appears to be female, is shown wearing jeans and a gray hoodie and is depicted looking down, with her face not visible. The other, who is identifiably male, is shown wearing what appears to be a green hooded jacket over a black shirt or hoodie. The male's face is visible at a distance. Seconds later, internal cameras recorded the same woman, her face covered with a bandanna, pointing a gun at store employees and forcing them to the back of the store, while the register camera recorded a man wearing a black hooded coat holding a gun to Lee as she took cash from the register. In this recording, the man is looking down and his face is not visible.
About two months after the robbery, the police received a tip from an informant named Ashley Hudson. Hudson testified that on the night of the robbery, she, appellant, a female named Dishekaer Smith, and a male identified only as "Jahree" were drivingaround the area near Lee's store when, "in the spur of the moment," they decided to rob it. Hudson pulled the car into an apartment complex and parked next to a wall adjoining the shopping center in which Lee's store is located. According to Hudson, appellant, Smith, and Jahree pulled on hoodies and wrapped bandannas around their faces, and appellant handed out guns. Appellant took a .38 caliber revolver with a silver barrel and light brown handle. Smith took a .25 caliber semiautomatic pistol, while Jahree took a black "Tech 9" automatic weapon. Appellant, Smith, and Jahree climbed over the adjoining wall while Hudson waited in the car. The three were gone less than fifteen minutes. When they returned, they carried a bag full of money. Back at appellant's apartment, the crew divided up the money. Hudson's share, which she estimated to contain less than those of the other robbers, came to something less than $200. At trial, Hudson identified the man shown in the external surveillance video as appellant and the female as Smith.
The police began to look for appellant and found that he was wanted under a number of outstanding municipal warrants for traffic violations. The police spotted appellant's car and pulled him over. Appellant was driving, with Smith in the front passenger seat. Appellant consented to let the police search his car, and they found a black knit stocking cap or ski mask in the back cargo area along with three baseball hats, cellular phones, and other personal items. The police asked appellant for permission to search his apartment, which he granted. In a bedroom, they found several guns, including a .25 caliber semiautomatic pistol and .38 caliber revolver with a light brown handle and silver barrel. They also found more cellular phones, bandannas, and a number of black hoodies.
The police contacted Lee and asked her to view a live lineup consisting of appellant and five other black males of similar descriptions. The men were told to wrap bandannas around their faces and say "get down." Lee, who speaks broken English, was accompanied by her son. Lee's son interpreted as the officers read Lee instructions and asked her to identify a suspect. Lee brought footage from her store's security cameras to the lineup and looked at it periodically to aid in identifying the robber. Lee identified appellant as the robber and appellant was charged with aggravated robbery.
Before trial, appellant moved to suppress all "evidence of identification by any witness from any third party witness who may have been present at any show-up or line-up proceeding or photograph identification proceeding." The trial court denied this motion. At trial, before Lee identified appellant in court, an identification hearing was held outside the jury's presence. Lee testified at the hearing without an interpreter. She stated that although the male robber wore a black hoodie and his face was covered with a stocking cap, Lee could tell he was black because of "his voice, dress and complexion, his figure" and added that She further noted that she had told the police that the robber was "skinny" and carried a small silver-colored gun. Lee also discussed the lineup she had attended some two months after the robbery. Her testimony about this lineup is riddled with contradictions and appears to suffer from the lack of an interpreter. Asked if she had been told that the suspected perpetrator might not be in the lineup, Lee responded "No," but she later said that the officer administering the lineup "might have said, but I would not understand him." Lee stated that she had understood she was "to pick out the most closest one." When asked, "did you believe that was the person who robbed you?" she replied, "Yes." But when asked, "So, in other words, you're not sure if [appellant] is the suspect?" Lee responded that she was "not quite certain" appellant was the robber, adding that she believed he was "because [she] saw it through the camera" she had brought to the lineup and "his complexion is very close."
Officer John Varela, who administered the lineup, also testified at the identification hearing. Officer Varela stated that he had read Lee the standard instructions for such lineups, which he read into the record as follows:
In a moment you're going view a live lineup. The persons in the lineup may or may not be the person or persons who committed the crime now being investigated. Keep in mind that hairstyles, beards and mustaches may be easily changed. And also the lineup may not always depict the true complexion of a person. It may be lighter or—it may be lighter or darker. When you've seen the entire lineup, tell me whether or not you see theperson or persons who committed the crime. Do not tell other witnesses that you have or have not identified anyone.
The trial court denied appellant's motion to suppress Lee's in-court identification.
The next day, Lee testified before the jury, this time with the aid of an interpreter. She identified appellant, without objection, as the robber. 1 Regarding the line-up identification, Lee stated that she had discussed her prior testimony with her son and now recalled that she had not been told to identify "the closest one" but rather "the very one" who had robbed her. She added that because of the lack of an interpreter the day before, she "was confused with the translation a little bit." The following exchange then took place:
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