Kedariyon Dominque Ragsdale v. the State of Texas
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Opinion
Opinion issued April 10, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00250-CR ——————————— KEDARIYON DOMINQUE RAGSDALE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 361st District Court1 Brazos County, Texas Trial Court Case No. 16-03766-CRF-361
1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Tenth District of Texas to this Court. See TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3. OPINION
Appellant Kedariyon Ragsdale appeals his conviction for aggravated robbery.
See TEX. PENAL CODE §§ 29.02(a); 29.03(a)(2). In four issues, he contends that the
trial court erred in denying him a speedy trial, that the evidence is insufficient to
support his conviction, and that the trial court erred in admitting evidence of pretrial
and in-court identifications made by witnesses. We affirm.
Background
In August 2016, Ragsdale was indicted for aggravated robbery alleged to have
been committed in May 2016 in College Station, Texas. In August 2018, Ragsdale
was arrested and released on bond the same day. He proceeded to a jury trial in
Brazos County in February 2023. The jury found him guilty and assessed his
punishment at 10 years’ imprisonment.
A. State’s Witnesses
At trial, the jury heard from Toren Webb. Webb testified that in 2016, he lived
in College Station while attending Blinn College. He lived with his high school
friends Ekow Amua-Sekyi and Johnathan Fulgencio. They were randomly assigned
a fourth roommate named Danny Diaz. The four roommates lived in a two-story
apartment with four bedrooms. Webb knew that Diaz sold marijuana out of their
apartment.
2 Around 2:00 a.m. in late May 2016, Webb heard someone knocking at the
door. When he opened the door, a man with tattoos asked for Diaz. Webb told the
man that Diaz was not there. The man did not leave, but Webb shut the door, locked
it, and tried to go back to sleep.
Moments later, Webb heard a rock go through a window. He put on clothes,
grabbed a pocketknife, and went back to the front door. The living room window
was broken, and a rock was on the ground. He opened the door but found no one
outside. Fulgencio came out of his bedroom, and Webb told him what had happened.
Fulgencio’s girlfriend Mary Billi was also staying in Fulgencio’s upstairs bedroom
that evening. Webb described the person knocking on the door to Fulgencio.
Fulgencio told Webb that the person was a man named “Cross.” Webb returned to
his bedroom.
Webb testified that he then heard another knock at the door. This time, he
sprinted to the front door and found the same person, Cross, was there again. Webb
was angry and confronted Cross, asking him why he was in front of his apartment
so late and why he had thrown the rock through the window. Cross told Webb that
it was not him, but that people in the parking lot had been going through cars and it
could have been them. Webb went back to his bedroom to put on shoes so he could
go outside. As Webb was getting dressed, Fulgencio spoke with Cross. Webb then
heard Fulgencio screaming, “Stop!”
3 Webb saw Fulgencio try unsuccessfully to push the door closed to prevent the
men from coming in. Cross and two other men came into the apartment. Webb
testified that the two men behind Cross started pointing guns at Fulgencio. One of
them was “short [and] skinny. He was black [with] short hair.” Webb described the
other gunman as larger, with short dreads. He stated that the other man was about
his height and heavier set.
Webb testified that he went to his room to call 911. He closed and locked his
door and put his body against the door to keep the three men from entering.
Suddenly, his door fell on top of him as someone broke it down. The jury viewed
photos of the damage to the door frame. Webb identified Ragsdale in court as the
person who broke down his door. He testified that he would never forget Ragsdale’s
face.
Ragsdale also pointed a gun in Webb’s face and asked him repeatedly for Diaz
and “the pressure.” Webb understood Ragsdale to be asking where he could find
marijuana in the apartment. Webb told Ragsdale that he did not have any marijuana,
and that Diaz was not there.
Webb testified that when Amua-Sekyi came out of his bedroom, the robbers
pointed guns at him and yelled at him to get on the ground. Amua-Sekyi yelled back,
“Don’t shoot!” Webb heard Amua-Sekyi tell the robbers that he did not know where
4 any marijuana was in the apartment. Webb testified that the skinny robber with a
gun then punched Amua-Sekyi in the face.
According to Webb, Cross was acting like he was also being robbed. Webb
found it suspicious because Cross happened to be outside their apartment before the
robbery occurred. Webb testified that the robbers forced Billi down the stairs and on
to the couch. They then forced the three male roommates upstairs to Diaz’s bedroom.
They told them to empty all the drawers. One of the men found a safe in the closet
and told the roommates to open it. The roommates could not do so. The robbers then
told them to open a filing cabinet. Webb and Amua-Sekyi did so, but it only
contained papers. No marijuana was found in the room.
Webb went downstairs with Amua-Sekyi, Billi, and Cross. Fulgencio
remained upstairs with the other two robbers. Webb told Amua-Sekyi and Billi to
go get help. Amua-Sekyi and Billi ran out of the apartment. When they did so, Cross
screamed out, “They’re running!” The two robbers with guns came downstairs, and
Cross opened the door for them as they left with stolen items from the apartment.
Webb and Fulgencio were in the apartment after the robbers left. They soon found
Amua-Sekyi and Billi at a nearby apartment.
5 The jury viewed a photograph of Amua-Sekyi’s facial injuries. Webb testified
that in the days after the robbery, Amua-Sekyi’s face “got knotted up pretty bad.”2
The jury also saw photos of Diaz’s room and the damage to the door frame.
Webb testified that the police responded that night. Webb provided
descriptions of the robbers to the police. Law enforcement later showed him three
different photo arrays of potential suspects. Webb testified that he was presented
with a first photo array on the day of the robbery. He identified one suspect as the
person who was banging on the door asking for Diaz. A week later, he was presented
with a second photo array. He identified the man shown on Photo 3 as the bigger
man who knocked down his bedroom door. He was 100 percent confident in his
identification. Two weeks later, authorities showed Webb a third photo array. He
identified the man shown on Photo 4 as the third person involved in the robbery. He
was “very positive” that the man was part of the robbery and the person who was
upstairs making him open drawers.
A responding officer testified that he was dispatched to the apartment the night
of the robbery. He found the apartment ransacked. Two bedroom doors had been
kicked completely off their hinges, and a downstairs window was broken. The
complainants told the officer that one suspect was “a lighter-skinned black male”
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued April 10, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00250-CR ——————————— KEDARIYON DOMINQUE RAGSDALE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 361st District Court1 Brazos County, Texas Trial Court Case No. 16-03766-CRF-361
1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Tenth District of Texas to this Court. See TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3. OPINION
Appellant Kedariyon Ragsdale appeals his conviction for aggravated robbery.
See TEX. PENAL CODE §§ 29.02(a); 29.03(a)(2). In four issues, he contends that the
trial court erred in denying him a speedy trial, that the evidence is insufficient to
support his conviction, and that the trial court erred in admitting evidence of pretrial
and in-court identifications made by witnesses. We affirm.
Background
In August 2016, Ragsdale was indicted for aggravated robbery alleged to have
been committed in May 2016 in College Station, Texas. In August 2018, Ragsdale
was arrested and released on bond the same day. He proceeded to a jury trial in
Brazos County in February 2023. The jury found him guilty and assessed his
punishment at 10 years’ imprisonment.
A. State’s Witnesses
At trial, the jury heard from Toren Webb. Webb testified that in 2016, he lived
in College Station while attending Blinn College. He lived with his high school
friends Ekow Amua-Sekyi and Johnathan Fulgencio. They were randomly assigned
a fourth roommate named Danny Diaz. The four roommates lived in a two-story
apartment with four bedrooms. Webb knew that Diaz sold marijuana out of their
apartment.
2 Around 2:00 a.m. in late May 2016, Webb heard someone knocking at the
door. When he opened the door, a man with tattoos asked for Diaz. Webb told the
man that Diaz was not there. The man did not leave, but Webb shut the door, locked
it, and tried to go back to sleep.
Moments later, Webb heard a rock go through a window. He put on clothes,
grabbed a pocketknife, and went back to the front door. The living room window
was broken, and a rock was on the ground. He opened the door but found no one
outside. Fulgencio came out of his bedroom, and Webb told him what had happened.
Fulgencio’s girlfriend Mary Billi was also staying in Fulgencio’s upstairs bedroom
that evening. Webb described the person knocking on the door to Fulgencio.
Fulgencio told Webb that the person was a man named “Cross.” Webb returned to
his bedroom.
Webb testified that he then heard another knock at the door. This time, he
sprinted to the front door and found the same person, Cross, was there again. Webb
was angry and confronted Cross, asking him why he was in front of his apartment
so late and why he had thrown the rock through the window. Cross told Webb that
it was not him, but that people in the parking lot had been going through cars and it
could have been them. Webb went back to his bedroom to put on shoes so he could
go outside. As Webb was getting dressed, Fulgencio spoke with Cross. Webb then
heard Fulgencio screaming, “Stop!”
3 Webb saw Fulgencio try unsuccessfully to push the door closed to prevent the
men from coming in. Cross and two other men came into the apartment. Webb
testified that the two men behind Cross started pointing guns at Fulgencio. One of
them was “short [and] skinny. He was black [with] short hair.” Webb described the
other gunman as larger, with short dreads. He stated that the other man was about
his height and heavier set.
Webb testified that he went to his room to call 911. He closed and locked his
door and put his body against the door to keep the three men from entering.
Suddenly, his door fell on top of him as someone broke it down. The jury viewed
photos of the damage to the door frame. Webb identified Ragsdale in court as the
person who broke down his door. He testified that he would never forget Ragsdale’s
face.
Ragsdale also pointed a gun in Webb’s face and asked him repeatedly for Diaz
and “the pressure.” Webb understood Ragsdale to be asking where he could find
marijuana in the apartment. Webb told Ragsdale that he did not have any marijuana,
and that Diaz was not there.
Webb testified that when Amua-Sekyi came out of his bedroom, the robbers
pointed guns at him and yelled at him to get on the ground. Amua-Sekyi yelled back,
“Don’t shoot!” Webb heard Amua-Sekyi tell the robbers that he did not know where
4 any marijuana was in the apartment. Webb testified that the skinny robber with a
gun then punched Amua-Sekyi in the face.
According to Webb, Cross was acting like he was also being robbed. Webb
found it suspicious because Cross happened to be outside their apartment before the
robbery occurred. Webb testified that the robbers forced Billi down the stairs and on
to the couch. They then forced the three male roommates upstairs to Diaz’s bedroom.
They told them to empty all the drawers. One of the men found a safe in the closet
and told the roommates to open it. The roommates could not do so. The robbers then
told them to open a filing cabinet. Webb and Amua-Sekyi did so, but it only
contained papers. No marijuana was found in the room.
Webb went downstairs with Amua-Sekyi, Billi, and Cross. Fulgencio
remained upstairs with the other two robbers. Webb told Amua-Sekyi and Billi to
go get help. Amua-Sekyi and Billi ran out of the apartment. When they did so, Cross
screamed out, “They’re running!” The two robbers with guns came downstairs, and
Cross opened the door for them as they left with stolen items from the apartment.
Webb and Fulgencio were in the apartment after the robbers left. They soon found
Amua-Sekyi and Billi at a nearby apartment.
5 The jury viewed a photograph of Amua-Sekyi’s facial injuries. Webb testified
that in the days after the robbery, Amua-Sekyi’s face “got knotted up pretty bad.”2
The jury also saw photos of Diaz’s room and the damage to the door frame.
Webb testified that the police responded that night. Webb provided
descriptions of the robbers to the police. Law enforcement later showed him three
different photo arrays of potential suspects. Webb testified that he was presented
with a first photo array on the day of the robbery. He identified one suspect as the
person who was banging on the door asking for Diaz. A week later, he was presented
with a second photo array. He identified the man shown on Photo 3 as the bigger
man who knocked down his bedroom door. He was 100 percent confident in his
identification. Two weeks later, authorities showed Webb a third photo array. He
identified the man shown on Photo 4 as the third person involved in the robbery. He
was “very positive” that the man was part of the robbery and the person who was
upstairs making him open drawers.
A responding officer testified that he was dispatched to the apartment the night
of the robbery. He found the apartment ransacked. Two bedroom doors had been
kicked completely off their hinges, and a downstairs window was broken. The
complainants told the officer that one suspect was “a lighter-skinned black male”
with a large cross tattoo. The complainants suggested his name was “Cross.” The
2 Amua-Sekyi was unavailable to testify at trial due to military service. 6 responding officer was familiar with Dwanteria Cross because they went to high
school together, and the officer had arrested Cross the previous night for marijuana
possession. The responding officer told the detective assigned to the case that the
description of Cross matched the person he knew as Dwanteria Cross.
Dwanteria Cross testified at trial. He stated that part of his plea agreement was
to provide truthful testimony concerning his codefendants. The trial court admitted
Cross’s indictment, plea agreement, and judgment into evidence. Cross testified that
he had pleaded guilty to aggravated robbery that occurred on May 25, 2016. He was
sentenced to 18 years’ imprisonment. Cross did not remember testifying about the
aggravated robbery during his plea hearing. He testified that he remembered going
to the apartment on the day of the offense and that he blacked out. He stated he knew
of some of the people living in the apartment.
After Cross was excused from the stand, the reporter’s record from his plea
hearing was published to the jury. That testimony included Cross’s admission that
on May 25, 2016, he and two other men went to an apartment to rob a drug dealer
named Danny Diaz who lived there. Cross testified that his role was to go in and set
up the robbery. The other men came behind him with guns and robbed the
apartment’s occupants. He testified that the other men went into the apartment with
guns brandished. They took drugs and cash. Cross named Kendrick Patterson and
Kedariyon Ragsdale as the two other men who robbed the apartment with him. He
7 identified a photograph of Ragsdale, which was the same photograph of Ragsdale
used in the photo array shown to the complainants.
Mary Billi testified that in May 2016, she ended her freshman year at Texas
A&M University. At the time, she was dating Fulgencio. She also knew his friends
Amua-Sekyi and Webb. They all attended the same high school, but Billi did not
meet them until college. She stated that Fulgencio, Amua-Sekyi, and Webb had a
fourth roommate named Danny Diaz.
On the night of the robbery, Billi spent the night of the robbery at Fulgencio’s
apartment in his room on the second floor. She woke up to someone banging on the
front door while yelling loudly for Diaz. She later heard a rock thrown through a
window. She heard Fulgencio scream her name from downstairs, and she heard a
commotion and stomping. Billi tried to get up and close the bedroom door and lock
it so she could call 911. Instead, she was taken out of the room in a chokehold. The
person who put her in a chokehold held a gun to her head, and she thought she was
going to die. The man pushed her downstairs to a landing on the stairwell, and she
crouched with her hands up. She saw someone sitting on the couch. That person did
not have a shirt on and had a large cross tattoo on his chest. That person did not have
a gun, but the other two robbers had guns. She was later moved to the couch next to
the man with the cross tattoo.
8 Billi testified that the lights were on in the apartment, and she got a good look
at all three robbers. She stated that the robber who pointed a gun at her was taller
and was wearing a white shirt. The shorter robber told her to get her wallet and
demanded the cash inside. She did not have any cash, so she just left the wallet in
Diaz’s room and went back down to the couch. Billi testified that she was so afraid
someone was going to die that she covered her ears so she would not hear the
gunshots. At some point, she and Amua-Sekyi were able to escape to a neighbor’s
apartment and call 911. A few minutes later, Webb and Fulgencio joined them.
Later that night, the police arrived. Billi testified that the police asked the
group lots of questions about marijuana. Billi believed that Diaz was probably
selling marijuana because she saw a lot of people coming and going from his room.
Billi testified that she was shown a photo array about a week later. The officer first
read her some instructions and then showed her one photo after another. She
identified the man shown on Photo 3 as “the taller guy with the white shirt on.” She
was 50 percent certain of her identification because the “baggier clothes, short hair,
the face just looked familiar.” She said the man in the photo was the person who
pointed a gun at her.
Detective R. Wilson of the College Station Police Department testified that he
had 32 years of experience, and he worked major felonies. He stated that there is
9 often a connection between drugs and violent crime, and he thought this robbery was
a “drug rip.”
Detective Wilson explained his investigation. Since Diaz was not present on
the night of the robbery, Detective Wilson obtained a search warrant for Diaz’s
room. Detective Wilson found vacuum bags and a vacuum sealer, which he believed
were used to break down quantities of marijuana for selling.
Detective Wilson spoke to the responding officer, who told him that Cross
was a potential suspect based on the complainants’ descriptions. Detective Wilson
learned that Cross had been arrested the day before with two other men.3 He created
photo arrays with photographs of Cross and the two other men. The arrays were
shown to the three complainants. Webb identified Cross. None of the complainants
identified the other two men. Detective Wilson obtained an arrest warrant for Cross.
Detective Wilson testified that within a day police arrested Cross.4 Cross
attempted to run from police. A search warrant revealed marijuana, a Hi-Point .45
pistol with two bullets, and a large amount of cash in Cross’s car. The marijuana was
in vacuum sealed bags, like those found in Diaz’s bedroom. Cross had two
3 The two men arrested with Cross were not Ragsdale or Patterson. 4 Cross had been arrested the day before the robbery. He was not in custody when Detective Wilson began his investigation the next day. 10 cellphones with him. One of them belonged to Amua-Sekyi, who later opened it with
his fingerprint.
At first, Cross refused to be interviewed by Detective Wilson. Later, Cross
agreed to be interviewed in the jail. Cross admitted to Detective Wilson that he was
part of the robbery and told Detective Wilson that someone named “Kedariyon
Davis” participated in the robbery. He gave a description of Kedariyon and said he
was from Mississippi. Detective Wilson spoke with Detective S. Fry with the Bryan
Police Department and told him that Cross gave the name “Kedariyon Davis” as a
participant in the robbery. Detective Fry informed Detective Wilson that
“Kedariyon Davis” also went by “Kedariyon Ragsdale” and the nickname “KD.”
Detective Wilson created a photo array with Ragsdale’s photograph and a
photograph of another man known to be associated with him, Vincent Hawkins. The
photo array was shown to Webb, Fulgencio, and Billi by another officer.5 All three
identified Ragsdale as one of the robbers. None of them identified Hawkins as part
of the robbery. Detective Wilson obtained an arrest warrant for Ragsdale.
Detective Wilson learned from Detective Fry that sometimes Ragsdale
associated with Kendrick Patterson. Detective Wilson placed Patterson’s photo in an
array and both Webb and Fulgencio identified him as the third robber. Detective
5 The officer who showed the photo arrays to the complainants was deceased by the time of trial. 11 Wilson obtained an arrest warrant for Patterson, who later pleaded guilty to
aggravated robbery for his role in the incident.
Fulgencio testified that he attended Blinn College and lived in College Station
with Amua-Sekyi and Webb in May 2016. The apartment complex assigned Diaz as
their fourth roommate, but they did not spend time with Diaz. On the night of the
robbery, Billi was staying with Fulgencio. They went to bed. In the middle of the
night, Fulgencio heard a loud knocking and someone yelling for Diaz. Fulgencio did
not get up because he did not know if Diaz was home or not. Later, when he heard
glass shatter, Fulgencio got up with Webb and went to the front door. He saw a
person he knew as Cross outside the apartment. Cross would hang out at the
apartment with Diaz. When Fulgencio asked, Cross denied throwing a rock through
the window and told them that he was looking for Diaz to “get some pressure.”
Fulgencio did not know what “pressure” was but thought he was talking about
marijuana. Fulgencio was angry because he thought Cross threw the rock.
Fulgencio and Webb went back to their bedrooms. Fulgencio testified that
later he heard much louder banging at the front door. He grabbed a steak knife and
opened the front door. Cross was outside the door and told Fulgencio that someone
was breaking into cars in the parking lot. When Fulgencio looked outside, two men
with guns ran into the apartment. Cross put his foot in the door to keep Fulgencio
from closing it. Fulgencio testified that he screamed, “No, no, no!”
12 Fulgencio testified that he remembered Patterson pointing a gun at him and
Ragsdale screaming or yelling at him to find “the pressure.” He testified that he was
terrified and thought he would die. Fulgencio stated that Patterson was dark skinned,
shorter, and wearing a black shirt. He identified Ragsdale as the bigger man with
shorter dreadlocks who was wearing a white T-shirt during the robbery. When
Fulgencio dropped against the wall, the man wearing a black shirt hit him with his
gun. He then saw Ragsdale tear down Webb’s door by hitting it repeatedly. Ragsdale
took the door off its hinges. Webb was under the door, and Ragsdale was on top of
the door. Fulgencio testified that Patterson went upstairs and brought Billi down in
a chokehold. When Amua-Sekyi opened his bedroom door, he seemed frightened.
Ragsdale pointed a gun at Amua-Sekyi and then punched him in the face.
Fulgencio testified that Patterson forced the three roommates upstairs.
Ragsdale kicked down Diaz’s upstairs bedroom door. Patterson pointed a gun at
them and told them to open a safe in Diaz’s closet. They could not open it because
it required a fingerprint. The robbers then opened drawers and grabbed whatever
they wanted in Diaz’s room.
Fulgencio testified that Patterson let them know his gun was loaded by
ejecting a bullet onto the ground and then putting it back in. Fulgencio testified that
Ragsdale was “very aggressive.” He stated that Ragsdale was big, like a football
13 defensive lineman. According to Fulgencio, “[Ragsdale] was bulldozing down the
doors.” Both Patterson and Ragsdale pointed guns at the three roommates and Billi.
After Billi and Amua-Sekyi ran out, Fulgencio saw Ragsdale leave the
apartment while carrying an X-box and a jar of coins from Diaz’s room. The police
later arrived, and the roommates gave descriptions of their attackers. Amua-Sekyi
had a knot on his forehead from being punched.
On the same day as the robbery, police showed Fulgencio a photo array. He
identified the man shown on Photo 5 (Cross) as the man banging on the front door
and yelling Diaz’s name. A week later, law enforcement showed him another array.
This time, he identified the man shown on Photo 3 (Ragsdale) as one of the robbers.
He stated he was only 50 percent certain because the photos were only headshots,
and he was unable to fully judge the size of the people in the photographs. He stated
that the man shown on Photo 3 was the person who wore a white T-shirt and punched
Amua-Sekyi in the face. About 10 days later, Fulgencio was shown a third array. In
that array, he identified the man shown on Photo 4 (Patterson) as the man who was
wearing a black shirt during the robbery. He was 60 percent certain of his
identification. Fulgencio testified that, after the robbery, they never moved back into
their apartment and left within a week.
14 B. Defense Witness
Francina Darden testified for the defense. She stated that Ragsdale was her
nephew and that Ragsdale’s father was her brother. Ragsdale’s father lived in
Vicksburg, Mississippi, and, in May 2016, he was admitted to the hospital. Darden
stated that Ragsdale visited his father in the hospital. The trial court admitted
photographs taken on May 7, 2016 into evidence. One of the photos showed
Ragsdale at the hospital. Darden testified that during that time, Ragsdale did not
have a job or transportation. According to Darden, Ragsdale remained in Vicksburg
until January 2017, when he moved back to Texas.
On cross-examination, Darden testified that she left Mississippi and moved
back to Texas at the end of May 2016 because her children had final school exams
in June 2016. She was not in Vicksburg and was not with Ragsdale on May 25, 2016.
Darden testified that she only recently heard about the robbery and so she waited
until the middle of trial to come forward with information. She also agreed that the
hospital photos predated the offense. She testified that Ragsdale’s mother lived in
College Station and that Ragsdale had grown up there. She agreed that in May 2016,
Ragsdale was a heavyset man with short dreadlocks.
The jury found Ragsdale guilty of aggravated robbery, and he appeals.
15 Speedy Trial
In his first issue, Ragsdale argues that the trial court erred in denying his
motion to dismiss the indictment due to lack of a speedy trial. We disagree.
A. Standard of Review and Governing Law
In all criminal prosecutions, both the state and federal constitutions guarantee
the defendant the right to a speedy trial. See U.S. CONST. amend. VI; TEX. CONST.
art. I., §10; State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). A speedy
trial provides three protections to the defendant: freedom from oppressive pretrial
incarceration, mitigation of the anxiety and concern accompanying public
accusation, and avoidance of impairment to the defendant’s defense. Cantu v. State,
253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
In analyzing a speedy trial claim, we consider four factors: (1) the length of
the delay; (2) the State’s reason for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) prejudice to the defense because of the length of delay.
Barker v. Wingo, 407 U.S. 514, 530 (1972); Balderas v. State, 517 S.W.3d 756, 767
(Tex. Crim. App. 2016). The State bears the burden of justifying the length of delay,
but the defendant bears the burden of proving his assertion of the right and prejudice
resulting from the delay. Cantu, 253 S.W.3d at 280; State v. Moreno, 651 S.W.3d
399, 407 (Tex. App.—Houston [1st Dist.] 2022, no pet.). The defendant’s burden on
the latter two factors “varies inversely” with the State’s degree of culpability for the
16 delay. Cantu, 253 S.W.3d at 280; Moreno, 651 S.W.3d at 407. “Thus, the greater the
State’s bad faith or official negligence and the longer its actions delay a trial, the less
a defendant must show actual prejudice or prove diligence in asserting his right to a
speedy trial.” Cantu, 253 S.W.3d at 280–81.
The analysis under Barker is triggered by a delay that is unreasonable enough
to be “presumptively prejudicial.” Barker, 407 U.S. at 530 (“Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance.”); see also Cantu, 253 S.W.3d at 281; Doggett
v. United States, 505 U.S. 642, 652 n.1 (1992) (noting that presumptive prejudice
“does not necessarily indicate a statistical probability of prejudice; it simply marks
the point at which courts deem the delay unreasonable enough to trigger the Barker
enquiry”). Courts have generally held that delays approaching one year are
unreasonable enough. Balderas, 517 S.W.3d at 768; Cantu, 253 S.W.3d at 281. The
extent to which the delay exceeds the minimum amount of time needed to trigger the
analysis “factors into our assessment of the first Barker factor.” Balderas, 517
S.W.3d at 768; see Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003)
(stating that because nearly four-year delay between arrest and trial “stretched far
beyond the minimum needed to trigger the enquiry,” delay length weighed heavily
in favor of finding violation of right).
17 Once the Barker analysis is triggered, we must analyze the speedy trial claim
by first weighing the strength of each factor and then balancing their relative weights
considering the conduct of the prosecution and the defendant. Cantu, 253 S.W.3d at
281. No factor is necessary or sufficient to establish a violation of the speedy trial
right. Dragoo, 96 S.W.3d at 313. The factors are related, and we must consider them
together “along with any relevant circumstances.” Cantu, 253 S.W.3d at 281.
Because dismissing the charging instrument is a “radical remedy,” we must apply
the Barker test with “common sense and sensitivity to ensure that charges are
dismissed only when the evidence shows that a defendant’s actual and asserted
interest in a speedy trial has been infringed.” Id. “The constitutional right is that of
a speedy trial, not dismissal of the charges.” Id.
We apply a bifurcated standard of review in addressing speedy trial claims.
Lopez, 631 S.W.3d at 113–14. We give almost total deference to the trial court’s
historical fact findings that are supported by the record, and we draw reasonable
inferences from those facts necessary to support the findings. Balderas, 517 S.W.3d
at 767–68. When the trial court denies a speedy trial motion, we presume that the
court resolved any disputed factual issues in favor of the State, and we defer to
implied fact findings that are supported by the record. Cantu, 253 S.W.3d at 282.
We should not consider record evidence that was not before the trial court when it
made its ruling. Balderas, 517 S.W.3d at 768. Review of the individual Barker
18 factors necessarily involves both factual determinations and legal conclusions, but
“the balancing test as a whole is a purely legal question that we review de novo.”
Lopez, 631 S.W.3d at 114; Balderas, 517 S.W.3d at 768.
B. Analysis of Barker v. Wingo Factors
1. Length of delay
The aggravated robbery occurred May 25, 2016. An arrest warrant was issued
for Ragsdale on June 2, 2016, and the case was indicted on August 4, 2016. Ragsdale
was arrested and released on bond on August 27, 2018. Trial commenced in February
2023. Both parties agree that a delay from indictment to trial of 6.5 years is enough
to trigger the analysis under Barker. See Balderas, 517 S.W.3d at 768 (“In general,
courts deem delay approaching one year to be unreasonable enough to trigger the
Barker enquiry.”) (quotations omitted). Because the delay “stretched far beyond the
minimum needed to trigger the inquiry,” this first factor “weighs heavily in favor
of” finding that a violation of Ragsdale’s speedy-trial right occurred. See id.;
Dragoo, 96 S.W.3d at 314; see also Zamorano v. State, 84 S.W.3d 643, 649 (Tex.
Crim. App. 2002) (“[A]ny speedy trial analysis depends first upon whether the delay
is more than ‘ordinary’; if so, the longer the delay beyond that which is ordinary, the
more prejudicial that delay is to the defendant.”). This factor weighs against the
State.
19 2. Reason for the delay
We assign different weights to different reasons the State provides to justify
the delay. Balderas, 517 S.W.3d at 768; Dragoo, 96 S.W.3d at 314; Zamorano, 84
S.W.3d at 649. “Some reasons are valid and serve to justify an appropriate delay.”
Balderas, 517 S.W.3d at 768; see Gonzales, 435 S.W.3d at 810 (“Unjustifiable
reasons for delay count towards the ‘length of delay,’ while justifiable reasons for
delay do not.”); Ussery v. State, 596 S.W.3d 277, 285 (Tex. App.—Houston [1st
Dist.] 2019, pet. ref’d) (“A valid delay should not weigh against the State at all.”)
(quotations omitted).
On appeal, Ragsdale claims that the delay resulted from the State failing to
arrest him sooner. The record reflects that Ragsdale was arrested in August 2018 and
released on bond the same day. He remained on bond until convicted. Ragsdale cites
to trial testimony suggesting he was residing in Mississippi at the time of the offense
and remained in Mississippi until he returned to Texas in 2017. This evidence was
not before the trial court when the trial court ruled on Ragsdale’s motion, and we
thus do not consider it as part of our Barker analysis. See Balderas, 517 S.W.3d at
768 (stating reviewing court does not consider evidence not before the trial court
when it made its ruling).
Between January 2019 and January 2020, the court held seven status hearings.
A final pretrial hearing was set on April 9, 2020, with jury trial scheduled for April
20 13, 2020. Both dates were cancelled due to the Covid-19 pandemic. Jury trials were
either banned or restricted from spring 2020 through early 2021. See e.g.,
Seventeenth Emergency Order Regarding the Covid-19 State of Disaster, 609
S.W.3d 119, 120 (Tex. 2020); Thirty-Third Emergency Order Regarding the Covid-
19 State of Disaster, 629 S.W.3d 179, 179–80 (Tex. 2021). The Waco Court of
Appeals, the appellate district from which this case was transferred to our Court, has
held that delay resulting from the onset of the pandemic is not attributable to the
State. Gibson v. State, No. 10-23-00131-CR, 2024 WL 976689, at *2 (Tex. App.—
Waco Mar. 7, 2024, pet. ref’d) (mem. op., not designated for publication) (citing
State v. Conatser, 645 S.W.3d 925, 930 (Tex. App.—Dallas 2022, no pet.)).6
6 Appellate courts have not reached a uniform conclusion over whether Covid-19 related delays weigh against the State, but courts reasoning that a Covid-19 delay weighs against the State have also concluded that it does not weigh heavily. Martinez v. State, No. 01-22-00390-CR, 2024 WL 2751393, at *21 (Tex. App.— Houston [1st Dist.] May 30, 2024, pet. ref’d) (mem. op., not designated for publication) (comparing State v. Conatser, 645 S.W.3d 925, 930 (Tex. App.— Dallas 2022, no pet.) (holding delay does not weigh against the State), with Laird v. State, 691 S.W.3d 30, 40 (Tex. App.—Austin 2023, pet. ref’d) (“To the extent that the pandemic and related court closures weigh against the State, they do so but slightly.”)).
“[T]he court of appeals to which [a] case is transferred must decide the case in accordance with the precedent of the transferor court under the principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” TEX. R. APP. P. 41.3. While there may be conflict among the court of appeals on this issue, there is no conflict between our court and the Waco court. Our court in Martinez ultimately considered delay caused by the pandemic to be outside the control of all parties and did not weigh this delay against the State. Martinez, 2024 WL 2751393, at *21. 21 At the hearing on the speedy trial motion, the trial court stated that despite the
Covid-19 delay, the case had been set for trial on three occasions in August 2021,
May 2022, and September 2022, and neither side moved for continuances. On each
trial setting, the State had sent witness subpoenas, indicating that it was planning to
be ready for trial. The trial court stated on the record that the court had set special
trial days to alleviate backup for cases where the defendant was not incarcerated
pending trial, like Ragsdale’s case. The trial court stated that on each of the dates
Ragsdale’s case had been set for trial in 2022, the case was not reached because the
court tried older cases instead.
This factor does not weigh against the State.
3. Defendant’s assertion of his right to speedy trial
The defendant “has no duty to bring himself to trial,” but the defendant does
have the responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d at 282.
This factor is closely related to the other three Barker factors “because the strength
of his efforts will be shaped by them,” and “[t]he more serious the deprivation, the
more likely a defendant is to complain.” Id. at 282–83 (quoting Barker, 407 U.S. at
531).
The defendant’s lack of a timely demand for a speedy trial “indicates strongly
that he did not really want one,” and “inaction weighs more heavily against a
violation the longer the delay becomes.” Balderas, 517 S.W.3d at 771 (internal
22 quotation omitted). Moving for dismissal of the charging instrument instead of a
speedy trial “will generally weaken a speedy-trial claim because it shows a desire to
have no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283.
Ragsdale was arrested and released on bond on August 27, 2018. Ragsdale
did not make his motion to dismiss the indictment for failure to provide a speedy
trial until the day before jury selection, February 26, 2023. He waited 4.5 years to
request dismissal. There is no indication in the appellate record that Ragsdale
asserted his speedy-trial right on any other occasion, and when he did make his
speedy-trial claim, he moved to dismiss the indictment rather than to have a trial.
This significantly weakens Ragsdale’s speedy-trial claim, showing a “desire to have
no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283; see also State v. Moreno,
651 S.W.3d 399, 415 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (holding that
motion to dismiss filed seven years after indictment and one month before trial
setting weighed against defendant in Barker analysis). We conclude that this factor
weighs heavily against Ragsdale. See Balderas, 517 S.W.3d at 771; Cantu, 253
S.W.3d at 283.
4. Prejudice to defendant because of length of delay
We analyze the final Barker factor—prejudice—in light of what the speedy-
trial right is designed to prevent: (1) oppressive pretrial incarceration; (2) a
defendant’s anxiety and concern; or (3) impairment of a defense. Balderas, 517
23 S.W.3d at 772. The defendant must show some prejudice, but he need not show
actual prejudice. Id.; see also Doggett, 505 U.S. at 655–57 (noting that in absence of
“excessive” bad faith or “excessive” negligent delay by the government, defendant
usually must show “specific prejudice” to his defense.)
Ragsdale was released on bond pending trial, therefore the interest of
preventing oppressive pretrial incarceration is not at issue in this case. Ragsdale also
did not make any arguments regarding minimizing anxiety and concern of the
accused. See Balderas, 517 S.W.3d at 772. His argument on appeal focuses primarily
on the alleged impairment to his defense resulting from delay.
The last interest, impairment of a defense, “is the most important because the
fairness of the entire criminal-justice system is distorted when a defendant is unable
to adequately prepare his defense.” Gonzales, 435 S.W.3d at 812. In analyzing the
role that excessive delay and presumptive prejudice play in the impairment of a
defendant’s ability to present a defense, “the length of delay may be so excessive
that it ‘presumptively compromises the reliability of a trial in ways that neither party
can prove or identify.’” Id. (quoting Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim.
App. 2003)). “In such instances, the defendant is absolved from the requirement to
demonstrate prejudice.” Gonzales, 435 S.W.3d at 812; see Doggett, 505 U.S. at 655–
56 (“While such presumptive prejudice cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria, it is part of the mix of relevant facts, and
24 its importances increases with the length of delay.”) (internal citation omitted).
Nevertheless, the “presumption of prejudice is extenuated by the defendant’s
acquiescence in the delay.” Dragoo, 96 S.W.3d at 315 (alterations and internal
quotations omitted).
While Ragsdale argued that his ability to prepare a defense was impaired by
the 6.5-year delay between indictment and trial, he offered no evidence of
impairment in support of his motion to dismiss or at the hearing on the motion. A
defendant must show that “lapses of memory” are in some way “significant to the
outcome of the case.” Porter v. State, 540 S.W.3d 178, 184 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d) (quoting State v. Munoz, 991 S.W.2d 818, 829 (Tex.
Crim. App. 1999)). At the hearing, Ragsdale’s counsel proffered that due to the
passage of time, cell phones could not be located that would have helped to show
that Ragsdale was not guilty. His counsel also said that Ragsdale had relatives in
Mississippi who could have had “fresher memories.”
Ragsdale argues on appeal that his witness, Francina Darden, would have had
a clearer memory if the trial had occurred sooner and that she might have retained
documents or photographs to support his alibi that he was in Mississippi at the time
of the robbery. Darden provided generalized testimony at trial regarding why
specific Mississippi witnesses, such as her mother, sisters, and brother (who is
Ragsdale’s father) were not available to testify at trial, but Darden did not testify
25 why these people would have been available at an earlier trial or suggest what their
testimony would have been. Darden did not testify at the hearing on the motion for
speedy trial, and her testimony was not before the trial court at the time it decided
the motion. We may thus not consider the testimony. See Balderas, 517 S.W.3d at
768 (stating appellate court should not consider record evidence that was not before
trial court when it made its ruling).
Ragsdale did not identify any specific problems due to faded memories or the
delay, and he has not shown how any lapses of memory were in some way significant
to the outcome of his case. See McGregor v. State, 394 S.W.3d 90, 116 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d) (defendant failed to demonstrate prejudice
where he neither identified specific problems due to faded memories nor indicated
how he was prejudiced by any witness’s faded memories). Ragsdale did not state
with specificity what evidence would have been on the cellphones he claims were
no longer available. As Barker noted, “Delay is not an uncommon defense tactic. As
the time between the commission of the crime and trial lengthens, witnesses may
become unavailable, or their memories may fade. If the witnesses support the
prosecution, its case will be weakened, sometimes seriously so. And it is the
prosecution which carries the burden of proof.” 407 U.S. at 521.7
7 We note that by the time of trial, Amua-Sekyi was unavailable to testify, and the officer who showed the complainants the photo arrays was deceased. 26 Ragsdale’s claim that delay impaired his defense is also undercut by his role
or acquiescence in the delay, the fact that he moved to dismiss the indictment rather
than to start the trial, and the fact that he filed his motion only a day before trial
commenced. Dragoo, 96 S.W.3d at 315; Hopper v. State, 520 S.W.3d 915, 929 (Tex.
Crim. App. 2017) (“Any presumptive prejudice due to the passage of time was
extenuated by appellant’s acquiescence in the delay and even further extenuated by
appellant’s failure to employ a remedy that would have guaranteed him a speedy
trial.”); Martinez, 2024 WL 2751393, at *23–24 (concluding presumption of
prejudice rebutted and defendant failed to demonstrate prejudice resulting from
delay). We thus conclude that this factor does not weigh in favor of Ragsdale.
5. Balancing of factors
A balancing of the Barker factors demonstrates that the trial court did not err
in denying Ragsdale’s motion to dismiss. The length of the delay, six years from
indictment, and four years from Ragsdale’s arrest, weighs heavily in favor of finding
a speedy trial violation. Factors largely outside the control of both parties contributed
to the delay. But ultimately, Ragsdale’s delay in asserting his speedy-trial right and
his failure to establish any specific impairment in his defense resulting from the
delay weigh heavily against him. Ragsdale waited until the eve of trial to assert his
right to a speedy trial, and when he did so, he sought a dismissal of the indictment
against him. Ragsdale’s acquiescence in the delay and his lack of particularized
27 evidence that his defense was compromised by the delay rebutted any presumptive
prejudice caused by its length. Instead, he merely argued that evidence that might
support his alibi was unavailable and that witnesses may have had clearer memories
if the trial had occurred sooner. He presented no evidence of anxiety caused by the
delay, and he was not incarcerated pending trial.
We balance the Barker factors with “common sense and sensitivity to ensure
that charges are dismissed only when the evidence shows that a defendant’s actual
and asserted interest in a speedy trial has been infringed.” Cantu, 253 S.W.3d at 281.
Upon balancing the Barker factors, we conclude that Ragsdale’s right to a speedy
trial was not violated. We hold that the trial court did not err by denying Ragsdale’s
motion to dismiss the indictment on speedy trial grounds.
We overrule Ragsdale’s first issue.
Sufficiency of the Evidence
Ragsdale next argues that the evidence is insufficient to support his conviction
for aggravated robbery. We disagree.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979); see Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light
most favorable to the jury’s verdict to determine whether any “rational trier of fact
28 could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319; Gutierrez v. State, 668 S.W.3d 46, 49 (Tex. App.—
Houston [1st Dist.] 2022, pet. ref’d). Our role is that of a due process safeguard, and
we consider only whether the factfinder reached a rational decision. See Morgan v.
State, 501 S.W.3d 84 89 (Tex. Crim. App. 2016) (observing that reviewing court’s
role on appeal “is restricted to guarding against the rare occurrence when a fact
finder does not act rationally”) (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010)); Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston
[1st Dist.] 2020, pet. ref’d).
In a sufficiency review, we consider the “combined and cumulative force” of
the circumstances pointing toward guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of the actor,” and “the standard of review on appeal is the same
for both direct and circumstantial evidence cases.” Kuciemba v. State, 310 S.W.3d
460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004)). The trier of fact is the sole judge of the weight and credibility of
the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018).
Thus, when performing an evidentiary sufficiency review, we may not reevaluate
the weight and credibility of the evidence and substitute our judgment for that of the
factfinder. Gutierrez, 668 S.W.3d at 50. A reviewing court, faced with a record of
29 historical facts supporting conflicting inferences, must presume that the trier of fact
resolved any such conflict in favor of the prosecution and must defer to that
resolution. Jackson, 443 U.S. at 326. When there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous. Evans
v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).
A person commits theft if he unlawfully appropriates property with the intent
to deprive the owner of the property. TEX. PENAL CODE § 31.03(a). A person
commits robbery if, while committing a theft, and “with intent to obtain or maintain
control of the property, he (1) intentionally, knowingly, or recklessly causes bodily
injury to another; or (2) intentionally or knowingly threatens or places another in
fear of imminent bodily injury or death.” Id. § 29.02(a)(1)-(2). A person commits
aggravated robbery when he commits robbery, and he uses or exhibits a deadly
weapon. See id. § 29.03. A firearm is considered a deadly weapon. See id.
§ 1.07(a)(17)(A).
B. Analysis
On appeal, Ragsdale argues that the evidence is insufficient to prove the
identity element of the crime. He asserts that, without the pretrial and in-court
identification evidence that he argues was improperly admitted, the remaining
evidence does not support his conviction. But in conducting a sufficiency review, a
30 court considers all the evidence, including both properly and improperly admitted
evidence. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
Considering the combined and cumulative force of all the evidence, as we
must, the evidence was sufficient as to Ragsdale’s identity as a participant in the
robbery. Identity may be proven by direct evidence, circumstantial evidence, or by
reasonable inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509
(Tex. Crim. App. 2018). Proof by circumstantial evidence is equally as probative as
proof by direct evidence, and circumstantial evidence alone can be sufficient to
establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).
Cross testified during his plea and sentencing hearing that Ragsdale was one
of two codefendants who pointed guns at the complainants and stole cash and drugs
during the robbery. When Cross was arrested, a search of his vehicle recovered
vacuum-packed marijuana, a pistol with two bullets, cash, and a cell phone. The cell
phone belonged to Amua-Sekyi, who confirmed ownership by opening it with his
fingerprint. Cross first provided Ragsdale’s name to Detective Wilson. Detective
Wilson then created a photo array with Ragsdale’s photograph to present to the
complainants.
In the weeks after the robbery, Webb identified Ragsdale in a photo array.
Webb stated that he was 100 percent certain of his identification. Webb also
identified Ragsdale in court during trial as the robber who broke his bedroom door
31 down and pointed a gun in his face. Webb recalled the robbery incident in detail and
testified that Ragsdale threatened him and asked him where the “pressure” was in
the apartment.
Shortly after the incident, Billi identified Ragsdale in a photo array as being
one of the robbers. She stated that he was the “taller guy with the white shirt on.”
She stated she was 50 percent sure of her identification. She testified that Ragsdale
pointed a gun at her and the other complainants. She recalled the robbery in detail,
stating that she was brought downstairs in a chokehold by one of the robbers. She
was scared that someone was going to die. She eventually ran out of the apartment
with one of the roommates to get help.
Fulgencio identified Ragsdale in court as one of the robbers. He stated that
Ragsdale was a big man wearing a white T-shirt during the robbery. Fulgencio saw
Ragsdale break down Webb’s bedroom door, taking it off its hinges. He saw
Ragsdale on top of the door while Webb was underneath it. Fulgencio testified that
Ragsdale pointed a gun at Amua-Sekyi and punched him in the face. Webb testified
that he saw Ragsdale leave the apartment with an X-box and a jar of coins from
Diaz’s room. Fulgencio also identified Ragsdale in the photo array in 2016. He stated
he was 50 percent sure of his identification, explaining that he needed to see the
whole body, rather than a headshot, so he could judge the size of the person.
32 Francina Darden, Ragsdale’s paternal aunt, testified that Ragsdale was in
Mississippi at the time of the robbery. She said that Ragsdale’s father was in the
hospital in May 2016 and that Ragsdale remained in Vicksburg until he moved to
Texas in January 2017. On cross-examination, she testified that she had left
Mississippi by May 25, 2016 and was not with Ragsdale that day. The jury as
factfinder could choose to disbelieve Darden’s testimony that Ragsdale was in
Mississippi at the time of the robbery. See Estrella v. State, 546 S.W.3d 789, 797
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (stating appellate court presumes
the factfinder resolved any conflicts in the evidence).
Considering the cumulative force of all the evidence and deferring to the
jury’s role as sole judge of credibility, a rational factfinder could conclude beyond a
reasonable doubt that Ragsdale committed aggravated robbery.
We overrule Ragsdale’s issue related to sufficiency of the evidence.
Identification
In his next two issues, Ragsdale contends that, in violation of his
constitutional rights to due process and due course of law, the trial court erred in
denying his motion to suppress pretrial photo lineup identification and subsequent
in-court identifications by witnesses. Ragsdale argues that the pretrial lineup
identification procedure was impermissibly suggestive because he was the only
person who closely resembled the description given by witnesses. Specifically, he
33 argues that the other men in the photo array have disparate weights from the
description of the suspect, and each can be distinguished in some manner from
Ragsdale’s photograph. As to the in-court identifications, Ragsdale argues that the
impermissibly suggestive pretrial lineup tainted the in-court identifications, and that
the witnesses’ identification of Ragsdale was based on their pretrial review of the
photographic lineup rather than on their independent memory from the offense.
A. Relevant Facts
At the pretrial hearing on appellant’s motion to suppress the identifications,
Detective R. Wilson of the College Station Police Department testified that he had
been with the department for 32 years. He testified as to the way the photo array was
compiled. He explained each time he puts together a photo array, he compiles six
photographs and chooses where to put the photograph of the suspect in succession
one through six. He then chooses five other pictures that match similarly and puts
the array in a folder that has instructions to be read to witnesses by another officer.
The photo arrays in this case were compiled in this manner.
Detective Wilson testified that the witnesses had described the suspect as
being “six-foot, six-foot-one, 250 pounds, with short dreads.” Detective Wilson
interviewed co-suspect Cross, who named Ragsdale as a participant. Detective
Wilson placed Ragsdale’s latest booking photo in an array with photographs of five
other people. The other photographs were old booking photos, and Detective Wilson
34 selected photos of people of similar age and features. He chose booking photos from
people in Brazos County so that the backgrounds on the photographs would be the
same as Ragsdale’s photo. All photos were headshots, showing men from the
shoulders up. The photographs are in black and white. Detective Ragsdale created
three identical copies of the photo array to show to Fulgencio, Webb, and Billi.8
Another officer showed the photo array to the three witnesses in a parking lot
in Katy, Texas in June 2016.9 The officer who showed the photographs met with
each witness individually in a car, where he showed them the photo lineup. Detective
Wilson and the other witnesses remained outside. All three witnesses chose the
photo of Ragsdale. Webb identified Ragsdale with 100 percent certainty. Fulgencio
and Billi stated that they were 50 percent sure of their identifications. Detective
Wilson testified that the lack of certainty was normal and not concerning. He stated
that he would have been more concerned if the witnesses had chosen a different
photo.
Webb testified at the pretrial hearing that he got a “good look” at the three
suspects on the night of the offense. He was presented with multiple arrays on three
different dates, and the officer who showed the arrays to him did not pressure him
8 The evidence included each of the photo arrays and audio recordings of the officer showing the array to each witness. The Department did not have body cameras in May 2016, so only audio of the procedure was recorded. 9 This officer was deceased by the time of trial. 35 or suggest a photo to choose. Webb testified that he was certain that Ragsdale, who
he identified in the photograph, was one of the robbers. At the time he made the
identification, Webb was 100 percent sure of his identification. Webb testified that
around 2016, after he identified Ragsdale and other suspects, he was given the name
of those suspects, and he looked up Ragsdale on the internet. He testified that it was
“years and years ago.” Webb further testified that his identification of Ragsdale was
based on his memory, not on the fact that he had reviewed the photo arrays the day
before in preparation for trial.
Before the jury, Webb identified Ragsdale in court as the robber who broke
down his bedroom door. He testified that he would never forget Ragsdale’s face after
that moment. He testified that he had ample opportunity to view Ragsdale, including
when Ragsdale pointed a gun at him, threatened him, and asked him where the
“pressure” was in the apartment. He also saw Ragsdale beating up Amua-Sekyi, and
he saw Ragsdale as he came in and out of bedrooms while Webb emptied drawers
inside Diaz’s room.
Fulgencio testified at the pretrial hearing and before the jury. At the hearing,
he testified that the officer showed him multiple arrays while they sat in a car. In
preparation for trial, Fulgencio had listened to the audio recording made when he
viewed the photo arrays in the car in Katy, Texas. He identified the arrays as the
36 same ones he had been presented. He testified that the officer did not do anything to
indicate which photograph Fulgencio should pick.
Later before the jury, Fulgencio testified that a “pretty big” black man with
shorter dreads pointed a gun at him. Fulgencio testified that he was shown three
different photo arrays by law enforcement. In the second array, he identified the
photograph of the robber who wore a white T-shirt. He testified that when he made
the identification, he told the detective and wrote on the array that he was 50 percent
certain of his identification. He explained that the headshots did not allow him to
fully evaluate the size of the individuals. Fulgencio identified Ragsdale in court as
the man who had pointed a gun at him and “bulldozed” Webb’s bedroom door.
Fulgencio saw Ragsdale punch Amua-Sekyi in the face. He also identified Ragsdale
in court as the same person he previously identified in the photo array.
Billi testified at the pretrial hearing that she had a decent look at all three
suspects that came into the apartment on the night of the robbery. She was presented
with multiple photo arrays of the suspects. She identified Ragsdale in an array in
June 2016. At the time, she stated she was 50 percent sure of her identification. She
testified that she picked the photo because the person in it looked familiar. The police
officer did not pressure her in any way. Billi was not asked to identify Ragsdale
before the jury. Before the jury, she identified the photo she had identified as
37 Ragsdale in an array in June 2016. She told the jury that the person in that photo had
pointed a gun at her, Amua-Sekyi, Webb, and Fulgencio.
B. Standard of Review
We review a trial court’s decision on a motion to suppress identification under
an abuse of discretion standard. See Villareal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996). Under this standard, we give almost total deference to a trial
court’s determination of historical facts supported by the record, especially when the
trial court’s fact findings are based on an evaluation of credibility and demeanor of
witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We give
the same amount of deference to the trial court’s rulings on “application of law to
fact questions,” also known as “mixed questions of law and fact,” if the resolution
of those questions turns on evaluation of credibility and demeanor. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (internal quotations omitted). We review
de novo “mixed questions of law and fact” that do not fall within this category. Id.
When, as in this case, there are no written findings of fact in the record, we uphold
the trial court’s ruling on any theory of law applicable to the case and presume the
trial court made implicit findings of fact in support of its ruling so long as those
findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855–56 (Tex.
Crim. App. 2000).
38 When faced with a challenge to an out-of-court identification, a trial court
considers the totality of the circumstances surrounding the identification to
determine if a procedure was so unnecessarily suggestive and conducive to
irreparable mistaken identification that the defendant was denied due process of law.
See Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1998). In the first step of
this analysis, the trial court determines whether the identification procedure was
impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App.
1995). If the trial court determines that the identification is impermissibly
suggestive, the court must consider the factors enumerated in Neil v. Biggers to
determine whether the suggestive procedure gave rise to a substantial likelihood of
irreparable misidentification. See id. at 33–34 (citing Neil v. Biggers, 409 U.S. 188
(1972)). Throughout this process, the burden remains on the movant to show
impermissible suggestion and substantial likelihood of misidentification by clear and
convincing evidence. See Barley, 906 S.W.2d at 33–34.
C. Analysis
1. Pretrial identification
On appeal, Ragsdale contends that the content of the photo array made it
impermissibly suggestive. He argues that Ragsdale was the only individual who
closely resembled the description given by witnesses and that the extra photographs
in the array were of men who could not “conceivably weigh 250 pounds.”
39 Suggestiveness may be created by the manner the pretrial identification
procedure is conducted. Barley, 906 S.W.2d at 33. For example, police may point
out the suspect or suggest that a suspect is included in the photo array. Id. The
content of the array itself may also show suggestiveness if the suspect is the only
individual who closely resembles the pre-procedure description. Id. Furthermore, an
individual procedure may be suggestive, or the cumulative effect of procedures may
be suggestive. Id.
Ragsdale’s argument focuses on the content of the array. In a pretrial
identification procedure, while the better practice may be to use as many individuals
as possible who fit the defendant’s description, it is not essential that all the
individuals be identical in appearance. Cienfuegos v. State, 113 S.W.3d 481, 492
(Tex. App.—Houston [1st Dist.] 2003, pet ref’d). “Neither due process nor common
sense requires such exactitude.” Id. While the individuals need not be identical in
appearance to the defendant, their similarities in appearance should provide a
reasonable test for the witness’s capacity to reliably identify the perpetrator. Id.
Neither of Ragsdale’s arguments demonstrate that the photo array was
impermissibly suggestive. The record reflects that the photographs are of young
adult African American men. They all have short-to-medium black hair in
dreadlocks or twists and appear similar in age. All men are photographed from the
shoulders up. Four of the six photographs are of men with light facial hair. While
40 their exact weights cannot be determined from a headshot, all the men are wearing
casual civilian clothes, like T-shirts or a sweatshirt. The photographs are not greatly
dissimilar in appearance from the suspect. See Withers v. State, 902 S.W.2d 122, 125
(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (stating lineup is considered
unduly suggestive if “other participants are greatly dissimilar in appearance” from
suspect) (emphasis in original). From what can be seen in each headshot, the
photographs do not depict men of greatly disparate height and weight, such that the
lineup is impermissibly suggestive. See Hosea v. State, No. 01-02-00724-CR, 2004
WL 253259, at *2 (Tex. App.—Houston [1st Dist.] Feb. 12, 2004, no pet.) (mem.
op., not designated for publication) (holding lineup with individuals of disparate
heights and weights does not make identification procedure impermissibly
suggestive when men dressed in similar clothes with similar complexion, hair color,
hair style, and facial hair as defendant).
Having determined that the pretrial photo array was not impermissibly
suggestive, we need not address the second prong of the analysis, i.e. whether under
the circumstances it created a substantial likelihood of misidentification. See Barley,
906 S.W.2d at 34.
We hold that Ragsdale has not shown by clear and convincing evidence that
the pretrial lineup procedure was impermissibly suggestive. Accordingly, we further
41 hold that the trial court did not err in denying Ragsdale’s motion to suppress the
pretrial lineup identifications.
2. In-Court Identification
Ragsdale next argues that the trial court should have excluded the in-court
identifications made by Fulgencio and Webb10 because the identifications resulted
from an improperly suggestive pretrial identification procedure and because the in-
court identifications were not reliable. Specifically, he argues that the witnesses’
identifications were not based on independent memory but instead on their review
of the lineup immediately before trial and therefore were fruit of the poisonous tree
and should have been excluded. See Wong Sun v. United States, 371 U.S. 471, 484
(1963) (excluding evidence obtained from illegal arrest).
Ragsdale’s argument that the in-court identifications should have been
excluded as fruit of illegal government activity was not preserved for appellate
review. Ragsdale did not object based on this doctrine during the hearing in the trial
court. See TEX. R. APP. P. 33.1(a) (to preserve error for appeal, specific complaint
must be presented to trial court). Moreover, the record does not reflect any argument
that Ragsdale was illegally arrested, or that the in-court identifications about which
he complains were tainted “fruit” of an illegal search, seizure, or detention. See Bell
v. State, Nos. 01-04-00090-CR, 01-04-0091-CR, 2005 WL 1910810, at *2 (Tex.
10 Billi was not asked to identify Ragsdale in court. 42 App.—Houston [1st Dist.] Aug. 11, 2005, pet. ref’d) (mem. op., not designated for
publication) (declining to apply fruit of poisonous tree doctrine because allegedly
illegal arrest had no bearing on witnesses’ identifications in video lineup). Thus,
even if the issue had been preserved, we conclude that the fruit of the poisonous tree
doctrine is not applicable in this case.
We have held that the pretrial identification procedure was not impermissibly
suggestive, but even assuming that it was, Ragsdale has not met his burden to show
that the procedure led to a substantial risk of irreparable misidentification. “An in-
court identification is inadmissible when it has been tainted by an impermissibly-
suggestive pretrial photographic identification.” Ibarra v. State, 11 S.W.3d 189, 195
(Tex. Crim. App. 1999). In determining whether an impermissibly suggestive
identification procedure gives rise to a substantial likelihood of irreparable
misidentification, we weigh the following factors: (1) the witness’s opportunity to
view the suspect at the time of the crime; (2) the witness’s degree of attention; (3)
the accuracy of the witness’s prior description of the suspect; (4) the witness’s level
of certainty regarding the identification; and (5) the length of time between the crime
and the identification. See Balderas, 517 S.W.3d at 792 (naming Biggers factors).
Reliability is the “linchpin” in determining admissibility of identification
testimony. Nunez-Marquez v. State, 501 S.W.3d 226, 237 (Tex. App.—Houston [1st
Dist.] 2016, pet ref’d). Thus, even where the pretrial identification procedure is
43 impermissibly suggestive, “in-court testimony of an identification witness will still
be admissible as long as the record clearly reveals that the witness’[s] prior
observation of the accused was sufficient to serve as an independent origin for the
in-court identification.” McGuire v. State, 631 S.W.3d 222, 231 (Tex. App.—
Houston [14th Dist.] 2020, no pet.) (quoting Jackson v. State, 657 S.W.2d 123, 130
(Tex. Crim. App. 1983)); see also Nunez-Marquez, 501 S.W.3d at 237 (holding that
even when pretrial identification procedure is impermissibly suggestive,
identification testimony is still admissible if the indicia of reliability outweigh the
suggestiveness, such that there is no substantial likelihood of irreparable
misidentification).
The evidence reflects that both Fulgencio and Webb had a sufficient
independent basis for their identifications of Ragsdale. McGuire, 631 S.W.3d at 231.
Considering the first four Biggers factors, Webb testified that he would never forget
Ragsdale’s face after Ragsdale broke down his bedroom door. Ragsdale also pointed
a gun at him. Webb watched Ragsdale punch his roommate and saw Ragsdale
coming in and out of bedrooms during the robbery. Fulgencio identified Ragsdale in
the courtroom, stating that he saw Ragsdale “bulldozing” doors during the robbery
and that he was “so big, so aggressive.”
Ragsdale focuses on the fifth Biggers factor on appeal. He argues that the
reliability of the two witness’s in-court identifications is lessened by the passage of
44 time between their identifications by photo array and the time of trial. Each witness
identified Ragsdale in the photo array in June 2016. Trial began in 2023. This length
of time does not detract from the reliability of each in-court identification. See
Thomas v. State, 470 S.W.3d 577, 591–92 (Tex. App.—Houston [1st Dist.] 2015)
aff’d, 505 S.W.3d 916 (Tex. Crim. App. 2016) (upholding admission of
complainant’s in-court identification that occurred nearly four-and-a-half years after
the crime). Despite the passage of time, Webb and Fulgencio described the offense
in detail and consistently displayed certainty that Ragsdale was the perpetrator of the
offense. To the extent Ragsdale argues that the evidence is less probative because of
the delay between the identification and the day of trial, the jury is the sole judge of
the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899.
Even assuming that the pretrial lineup was impermissibly suggestive, we
conclude that under the totality of the circumstances, the identification procedure
that preceded the in-court identifications did not give rise to a substantial likelihood
of misidentification. The trial court did not err by admitting the in-court
identification evidence.
We overrule Ragsdale’s issues related to pretrial and in-court identifications.
45 Conclusion
We affirm the judgment of the trial court.
Susanna Dokupil Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
Publish. TEX. R. APP. P. 47.2(b).
Related
Cite This Page — Counsel Stack
Kedariyon Dominque Ragsdale v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kedariyon-dominque-ragsdale-v-the-state-of-texas-texapp-2025.