Opinion issued February 25, 2014
In The
Court of Appeals For The
First District of Texas
NO. 01-12-01180-CR
KENNETH RAYSHAWN SHEPHARD, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court Brazoria County, Texas Trial Court Cause No. 62630
MEMORANDUM OPINION Kenneth Rayshawn Shephard was charged by indictment with the felony
offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011).
A jury found Shephard guilty and assessed a punishment of eight years’ imprisonment. On appeal, Shephard contends that the trial court erred in denying
his motion to suppress and his motions for mistrial and in admitting evidence
regarding the complainant’s pre-trial show-up identification of Shephard. We
affirm.
Background
Motion to Suppress
In his motion to suppress, Shephard argued that he was arrested without
probable cause upon answering the door of his girlfriend’s apartment and that the
evidence obtained as a result of his arrest should be suppressed. Officer T. York of
the Brazoria County Sheriff’s Department testified at the hearing. On June 26,
2010 around 10:00 in the morning he responded to a dispatch call regarding a
robbery. According to the dispatch, Richard Finch was leaving a drugstore, and as
he was trying to get into his vehicle, a black male in his early 20s, who was sitting
in a parked small silver SUV with a partial license plate of “V67,” pointed a
weapon at Finch and told him to “give him all of his stuff.” York did not recall the
dispatch containing a description of the suspect’s clothing.
After receiving the dispatch, York drove toward where the suspect was last
seen. York saw Finch’s vehicle, a motor home, and began to search the area for an
SUV that matched the description given. Eight to ten minutes after receiving the
2 initial dispatch, York located an unoccupied small silver SUV with a partial license
plate of V67 on the east side of an apartment complex on Yerby Street, near where
he had seen Finch’s motor home. York notified dispatch that he had located the
suspect vehicle, and confirmed that the hood of the car was hot, indicating that the
car had been recently driven.
After Detective V. Ellison arrived, York left to check on Finch, who had
returned to the drugstore. Finch told York that the driver had been wearing a black
shirt and a black “do-rag.” York then heard over the radio that a suspect had been
detained, and was told to bring Finch to where the suspect vehicle was located to
help identify him. York drove Finch to the location, had Finch stay inside his
patrol car, and took the suspect out of the other patrol car. York had the suspect
stand more than 15 feet away from the front of his patrol car and Finch positively
identified Shephard as the robber.
Detective Ellison also testified at the hearing on the motion to suppress. She
received a call on June 26, 2010 around 11:00 a.m. that there had been a robbery at
a drugstore and that Officer York had located the suspect vehicle. Ellison drove to
meet York. After York left to meet with Finch, Ellison started taking pictures of
the vehicle. A woman approached Ellison and told her that the vehicle belonged to
3 her cousin, Tabitha Bell, and that Tabitha’s boyfriend had been driving it. The
woman told Ellison which apartment Tabitha lived in.
Ellison went to the apartment with two deputies and knocked on the door.
She testified that she did not recall anyone unholstering a weapon. Shephard
answered the door and identified himself, and the deputies handcuffed him and
placed him in the back of a patrol car. Ellison testified that Shephard was detained,
but not under arrest.
Ellison then contacted Tabitha Bell, the owner of the SUV and lessee of the
apartment, and Bell gave verbal and written consent to search the SUV and the
apartment. Bell told Ellison that Shephard was her boyfriend, and that he was
driving her SUV that day.
According to Ellison, Shephard was detained at 11:40 a.m. and Officer York
arrived at the scene with Finch at 11:42 a.m. Ellison testified that she “asked Mr.
Finch to look very closely and identify him as either the one who attempted to rob
him or did not.” Finch identified him as the person who had robbed him, and
Shephard was arrested. Ellison testified that about 15 minutes elapsed between the
time she first made contact with Shephard and the time that Finch identified him.
Following the pre-trial hearing, the trial court denied Shephard’s motion to
suppress. The trial court entered written findings of fact and conclusions of law,
4 finding that Shephard was detained, not arrested, from the time he was handcuffed
until the time he was identified by Finch. The trial court also found that the
officers had reasonable suspicion to detain Shephard during that time.
Trial
The motion to suppress was not re-litigated at trial. At trial, Richard Finch
testified that on June 26, 2010, he drove his 22-foot motor home to a drugstore in
Brazoria to pick up medicine and gauze bandages for his wife. They arrived at the
drugstore around 10:30 in the morning and Finch went inside to purchase the
medicine and gauze, leaving his wife in the motor home.
Finch left the store holding the gauze, his wallet, and a checkbook. A small
gray SUV had parked in the parking spot on the driver’s side of the motor home,
and Finch noticed that the SUV was running and the passenger side window was
rolled down. Finch walked between the SUV and his motor home, and as he
reached for the driver’s side door handle on the motor home, he thought he heard
somebody say “Give me your stuff.” Finch was not sure what had been said, so he
turned around and looked at the driver of the SUV, a young black male. He asked
the driver “Do what?” The driver repeated “Give me your stuff.” Finch then saw
that the driver was reaching across the front seat of the SUV and pointing a semi-
automatic pistol at him. Finch testified that he got a good look at the driver, and
5 that the driver was not wearing anything covering his face. He testified that he is
required to go to the eye doctor every year because he is a DOT licensed truck
driver, and that he was wearing his glasses, which give him 20/20 vision, when he
looked at the driver.
Finch ran behind his motor home. The driver of the SUV pulled out of his
spot, and Finch got in his motor home, called 9-1-1, and followed the SUV until he
saw it turn on Yerby Street and the dispatcher told Finch to return to the drugstore.
After Officer York met Finch at the drugstore, Finch filled out an incident report,
and then was asked to “try to identify a person that they had gotten down at the
apartments.”
When they arrived at the apartments, Finch recognized the suspect vehicle as
the vehicle the robber had been driving. Finch stayed in the patrol car. Detective
Ellison got in the car with him and said “I’m going to pull this person out and I
want you to see if this is the person.” Ellison got the suspect out of the back of the
other patrol car and put him in front of the hood of the car that Finch was in. Finch
testified that he got a good look at the suspect, and that he was “[a] hundred
percent” sure and “certain” that it was the person who had pulled a gun on him.
When asked how he could be so sure, Finch testified, “Well, it’d only been 45
minutes that I had seen him with the gun in his hand pointed at me, and you don’t
6 forget that quick.” Finch testified that Shephard was wearing a white shirt and
gray pants and a white “do-rag” at the time he identified him, which was different
from the clothes he was wearing earlier, but that Finch was able to identify him
“[b]y his face” and that he was “sure” it was him because he recognized his face.
When Finch identified the defendant in the courtroom, he was “absolutely certain”
that he was the same person who pulled the gun on him.
Kasandra Jones, Tabitha Bell’s cousin, testified that she had lived at the
apartment complex on Yerby Street for two years. On June 26, 2010, several of
her children were playing outside and noticed police officers surrounding Tabitha’s
car. Kasandra went outside to talk to the police. A female officer asked her if she
knew who drove the car, and she told him that it belonged to her cousin Tabitha.
She told the officer that Tabitha had a boyfriend that Kasandra knew as Shawn,
who was a little taller than the officer and wore his hair “kind of cut low,” but that
she did not know him well and so could not give a full description. She told the
officer which apartment Tabitha lived in.
Officer York testified at trial. He testified that he got the call about an
aggravated robbery from the dispatcher around 10:50 a.m. on June 26, 2010, and
that it took him about two minutes to get close to the scene, where he observed
Finch’s motor home driving down Market Street. York testified that he was told
7 that they were looking for a small, gray SUV with a partial license plate of “V67.”
He started checking the area nearby and found a vehicle matching the description
around 11:00 a.m. at an apartment complex on Yerby Street, where apartment
residents told him that a “younger black male” drives the vehicle. At 11:22 a.m.,
York turned the scene over to Detective Ellison, and went to meet with Finch at the
drugstore. While Finch was filling out an incident report, York heard over the
radio that a suspect had been detained. He testified that he told Finch “[t]hat a
person was detained that was supposed to be the suspect in the crime.” York drove
Finch to the apartments, and once at the apartments, York left Finch in his vehicle.
York asked Shephard to step out of the back of another patrol car.
Detective Ellison also testified at trial. She testified that she arrived at the
apartments on Yerby Street and had started taking pictures of the suspect vehicle
located by Officer York when she was approached by Kasandra Jones, who told
her that her cousin Tabitha Bell owned the vehicle. Jones also told her which
apartment Bell lived in and Ellison went to the apartment with two other deputies.
Shephard answered the door, and he was handcuffed. Shephard’s pockets were
searched, and two keys were found, one of which was a key to the gray SUV.
Shephard was taken downstairs and placed in the back of a patrol vehicle. Ellison
then requested that York bring Finch to the apartments. Ellison spoke briefly with
8 Finch, but she testified that she did not make any suggestive comments to him.
Ellison said that she asked Finch to “look closely and see if he could identify the
subject as the one that pointed the gun at him.” Finch told her that he was “100
percent positive” that the subject was the man who had pulled a gun on him and
that he had “no doubt.” Ellison testified that Finch had no hesitation in his voice
when he identified Shephard, and that he seemed certain. After Finch identified
Shephard, Shephard was arrested.
In his first issue, Shephard contends that the trial court erred in denying his
motion to suppress. He argues that he was under arrest as of the moment he was
handcuffed and that the trial court should have suppressed evidence relating to the
keys found in his pocket and Finch’s on-site identification because both are the
fruit of an illegal arrest. He also argues that, even if he was merely detained, and
not arrested, at the time he was handcuffed, the evidence regarding the keys should
have been suppressed because they were obtained in violation of the “plain feel”
doctrine.
A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress evidence, we
apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
9 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial
court’s determination of historical facts that depend on credibility, while we
conduct a de novo review of the trial court’s application of the law to those facts.
Carmouche, 10 S.W.3d at 327.
In a hearing on a motion to suppress, the trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Accordingly, a trial court may choose to believe or to disbelieve all or any part of a
witness’s testimony. Id. “This is so because it is the trial court that observes first
hand the demeanor and appearance of a witness, as opposed to an appellate court
which can only read an impersonal record.” Id. Unless a trial court abuses its
discretion by making a finding unsupported by the record, we defer to its findings
and will not disturb them on appeal. Flores v. State, 177 S.W.3d 8, 14 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d).
B. Applicable Law
Generally, three categories of interaction occur between police officers and
civilians: (1) consensual encounters, (2) investigative detentions, and (3) arrests.
State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011); Pennywell v.
10 State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A
consensual encounter occurs when a law enforcement officer approaches an
individual in public to ask questions. Pennywell, 127 S.W.3d at 152. An officer
needs no justification for an encounter which triggers no constitutional protections.
Id. An encounter does not constitute a seizure of the person, but a detention or an
arrest does. Id.
In contrast, a police officer may stop and briefly detain a person for
investigative purposes only if the officer, in light of his experience, has a
reasonable suspicion supported by articulable facts that criminal activity may be
afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968). The
circumstances can give rise to a reasonable suspicion if the officer has specific,
articulable facts at the time of detention which, taken together with rational
inferences from those facts, lead the officer to conclude that the person detained is,
has been, or soon will be, engaged in criminal activity. Woods v. State, 956
S.W.2d 33, 38 (Tex. Crim. App. 1997). A reasonable suspicion is more than a
mere hunch or suspicion; a person may not be detained unless the circumstances
objectively support a reasonable suspicion of criminal activity. Davis v. State, 947
S.W.2d 240, 244 (Tex. Crim. App. 1997). Whether a temporary investigative
11 detention is reasonable depends on the totality of the circumstances. Woods, 956
S.W.2d at 38.
“A law enforcement officer may stop and briefly detain a person for
investigative purposes on less information than is constitutionally required for
probable cause to arrest.” Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.
2010) (citing Terry, 392 U.S. at 22, 88 S. Ct. at 1880). To effectuate an arrest, an
officer must have probable cause to believe the person arrested has committed or is
committing an offense. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App.
1991). Probable cause exists where the facts and circumstances within the
officer’s knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief that a
particular person has committed or is committing an offense. Id. at 413.
Whether a detention is an investigative detention or an arrest depends upon
the facts and circumstances surrounding the detention. Id. at 412; Hoag v. State,
728 S.W.2d 375, 378–79 (Tex. Crim. App. 1987); Hilla v. State, 832 S.W.2d 773,
778 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Factors to consider include
“the amount of force displayed, the duration of a detention, the efficiency of the
investigative process and whether it is conducted at the original location or the
person is transported to another location, the officer’s expressed intent—that is,
12 whether he told the detained person that he was under arrest or was being detained
only for a temporary investigation, and any other relevant factors.” State v.
Sheppard, 271 S.W.3d 281, 290–91 (Tex. Crim. App. 2008).
Police may use such force as is reasonably necessary to effect the goal of the
detention: investigation, maintenance of the status quo, or officer safety. Rhodes v.
State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). Handcuffing alone will not
necessarily convert a temporary detention into an arrest. See id. at 117–18; Burkes
v. State, 830 S.W.2d 922, 924 (Tex. Crim. App. 1991); Hilla, 832 S.W.2d at 778.
And whether an officer believes a suspect is detained or arrested is not
determinative of the issue. Amores, 816 S.W.2d at 412; Hoag, 728 S.W.2d at 378;
Hilla, 832 S.W.2d at 778. Rather, we look to the reasonableness of the officer’s
actions, which is to be judged from the perspective of a reasonable officer at the
scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118.
“Furthermore, allowances must be made for the fact that officers must often make
quick decisions under tense, uncertain and rapidly changing circumstances.” Id.
An investigative detention implies that the obtrusive act is for the purpose of
actually investigating. Burkes, 830 S.W.2d at 925. Thus, where no investigation is
undertaken, the detention cannot be considered investigatory and rises to the level
of an arrest. Id. In any case, a reviewing court considers the totality of the
13 circumstances in determining whether a stop is a brief investigative detention or an
arrest. See Francis v. State, 896 S.W.2d 406, 411 (Tex. App.—Houston [1st Dist.]
1995, pet. dism’d).
C. Analysis
1. Detention or Arrest?
We must first determine whether Shephard was arrested or merely detained
when he was handcuffed at the door of his girlfriend’s apartment, because this
determines the applicable constitutional parameters. See Amores, 816 S.W.2d at
411. To do so, we consider the relevant factors in light of the totality of the
circumstances. See Sheppard, 271 S.W.3d at 290–91.
With respect to the amount of force displayed, the trial court found that
Shephard opened the apartment door, identified himself, stepped on to the porch,
and was placed in handcuffs and put in the back of a patrol car. Id. at 291 (factor
to consider is amount of force displayed). It also found that Detective Ellison
approached the door with two other officers, but that their weapons were not
drawn. 1
1 The only mention of weapons at the hearing on the motion to suppress was Detective Ellison’s testimony that she did not recall anyone unholstering their weapon. Some evidence at trial indicated that the officers’ weapons were drawn, but where, as here, the motion to suppress was not relitigated at trial, we measure the trial court’s fact findings and ruling on the motion to suppress against only the 14 Shephard argues that the fact that he was handcuffed and placed in a patrol
car means he was under arrest. But officers may use force as is reasonably
necessary to effect the goal of the detention, which, in this case, was to maintain
officer safety during the ongoing investigation. See Rhodes, 945 S.W.2d at 117–
18. Here, the officers were investigating an armed robbery that had just been
committed with a gun that had yet to be located. Detective Ellison was told that
the man who had been driving the suspect vehicle may be in the apartment and that
Finch was nearby and could be brought to the scene for an identification quickly.
Considering the circumstances, the trial court did not err in concluding that
handcuffing and placing Shephard in the patrol car until Finch’s arrival was
reasonably necessary to effect the goal of the detention. See Sheppard, 271
S.W.3d at 290 (investigative detention, not arrest, where suspect was handcuffed
only long enough for officer to conduct investigation of area); Balentine v. State,
71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (handcuffing and escorting appellant
to patrol car did not transform investigative detention into arrest, where officer had
reasonable concern for safety because he was investigating crime involving gun).
Regarding the duration of the detention and efficiency of the investigative
process, the trial court found that Shephard was detained for no more than 15
evidence adduced at the hearing on the motion. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). 15 minutes before being identified by Finch and being told that he was under arrest.
See Sheppard, 271 S.W.3d at 290–91 (factors to consider are length of detention
and efficiency of investigative procedure). During this time, Finch was brought to
the apartments from the drugstore and Shephard remained at the apartment
complex where he was first detained. See id. at 291 (investigation conducted at
original location supports finding that detention was investigatory); Castro v. State,
373 S.W.3d 159, 165 (Tex. App.—San Antonio 2012, no pet.)(detention’s duration
must show that officers efficiently pursued investigation in order for detention to
be investigatory). Moreover, the trial court found that Detective Ellison
immediately sought to locate Tabitha Bell, the owner of the vehicle and the lessee
of the apartment, to obtain consent to search the vehicle and the apartment. We
conclude the duration of the detention was reasonable and the investigatory
procedure efficient. See Castro, 373 S.W.3d at 165 (25 to 45 minute long
detention was not unreasonable where officer had to transport suspect to second
location for on-site identification).
Finally, examining the officer’s expressed intent, the trial court found that no
one told Shephard that he was under arrest when he was handcuffed and placed in
the back of the patrol car. See Sheppard, 271 S.W.3d at 291 (officer’s expressed
16 intent is factor to consider). Detective Ellison testified that Shephard was detained,
not arrested, during that time.
Considering the relevant factors and the totality of the circumstances, we
conclude that the trial court did not err in concluding that Shephard was detained,
and not arrested, between the time that he was handcuffed and the time he was
identified by Finch and told that he was under arrest.
2. Did the officers have reasonable suspicion to detain Shephard?
Because Shephard was merely detained and not arrested until after he was
identified by Finch, the officers needed only reasonable suspicion, not probable
cause, to detain Shephard. See State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim.
App. 2011) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585
(1989)); Foster, 326 S.W.3d at 613. We conclude that the trial court did not err in
finding that the officers had reasonable suspicion to detain Shephard when they
did.
Reasonable suspicion exists when an officer has “specific, articulable facts
that, combined with rational inferences from those facts, would lead him
reasonably to conclude that the person detained is, has been, or soon will be
engaged in criminal activity.” Elias, 339 S.W.3d at 674. Here, the trial court
found that Officer York responded to a dispatch stating that an armed robbery had
17 just been committed by a black male in his early 20s driving a silver small SUV
with a partial license plate of V67. The trial court further found that Officer York
located a suspect vehicle matching this description and ascertained that the vehicle
had been recently driven. The trial court found that Officer York relayed this
information to Detective Ellison, who upon investigating the vehicle, was
approached by a woman who told her that the vehicle belonged to her cousin,
Tabitha Bell, that Bell’s boyfriend had been driving it, and identified which
apartment in the complex was Bell’s. When the officers approached that
apartment, a man matching the description Finch gave answered the door. Based
on these circumstances, the trial court correctly concluded the officers had
reasonable suspicion to detain Shephard. See Sheppard, 271 S.W.3d at 292;
Rhodes, 945 S.W.2d at 118–19.
In sum, because the trial court correctly concluded that Shephard was
detained, and that the officers had reasonable suspicion to detain Shephard, the
trial court did not err in refusing to suppress evidence regarding Finch’s on-scene
identification or the keys in Shephard’s pocket on the basis that they were fruits of
an illegal arrest. See Castro, 373 S.W.3d at 167 (because defendant was merely
detained, and not arrested, trial court did not err in refusing to suppress evidence
on the basis that evidence was the fruit of illegal arrest).
18 3. Were the keys in Shephard’s pocket seized in violation of the plain feel doctrine?
On appeal, Shephard contends that even if he was merely detained, rather
than arrested, outside the apartment, the keys seized from his pocket should be
suppressed because they were seized in violation of the “plain feel” doctrine. See
Baldwin v. State, 278 S.W.3d 367, 371–72 (Tex. Crim. App. 2009) (“plain feel”
doctrine only permits an officer to pat-down a validly detained suspect for
contraband; officer must have probable cause in order to conduct a search for non-
weapon contraband or other evidence).
We conclude this argument is waived because it does not comport with
Shephard’s objection in the trial court. In his written motion to suppress, Shephard
contended that he was “arrested without warrant and without probable cause,” and
that “the search of the Defendant’s person and the premises where he was located
incident to such arrest was therefore illegal and all fruits of the search must be
suppressed.” He did not, however, argue that the seizure of his keys was improper
if he was detained rather than arrested.
Likewise, during the hearing on the motion to suppress, Shephard argued
that he had been arrested without probable cause at the time he was first
handcuffed. He identified only the on-scene identification as the evidence that
should be suppressed, and he did not argue that the keys were wrongfully seized 19 even if he was only detained. Accordingly, we hold that Shephard has failed to
preserve error on this issue. TEX. R. APP. P. 33.1(a); see Rothstein v. State, 267
S.W.3d 366, 373–74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)(because
appellant’s argument on appeal did not comport with any objection raised in the
motion to suppress or at the suppression hearing, appellant failed to preserve error
on issue)(citing Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005)).
We hold that the trial court did not err in denying Shephard’s motion to
suppress, and we overrule Shephard’s first issue.
Motions for Mistrial
In his second issue, Shephard contends that the trial court abused its
discretion in denying his motions for mistrial after prosecutors improperly
commented on Shephard’s silence.
A. Standard of Review and Applicable Law
An appellate court reviews a trial court’s ruling on a motion for mistrial for
an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
To determine whether a trial court abused its discretion by denying a mistrial, we
balance the three Mosley factors: (1) the severity of the misconduct or the
magnitude of the prejudicial effect, (2) the measures adopted to cure the
misconduct, and (3) the certainty of conviction absent the misconduct. Ramon v.
20 State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (citing Mosley v. State, 983
S.W.2d 249 (Tex. Crim. App. 1998)). We must uphold a trial court’s ruling on a
motion for mistrial if it was within the zone of reasonable disagreement. Wead v.
State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc)). “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.”
Hawkins v. State, 135 S.W.3d. 72, 77 (Tex. Crim. App. 2004).
Here, Shephard first complains that the State asked Detective Ellison, “Did
the Defendant ever give you an explanation of why he had those keys in his
pocket?” Shephard’s objection to the question was sustained and he requested a
mistrial, which was denied. Shephard did not ask that the jury be instructed to
disregard the question.
Shephard’s second complaint is that, during closing argument, the
prosecutor said, “He can’t change the fact that when Travis York had him out in
front of the car, in front of Richard Finch, the Defendant not in response to
anything, he never said what’s happening? What’s going on?” Shephard’s
objection was sustained, and the trial court instructed the jury to disregard the
statement, but denied Shephard’s motion for a mistrial.
21 The Fifth Amendment to the United States Constitution states, “No person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend. V. Under well-established Fifth Amendment law, the State is
prohibited from commenting on a defendant’s refusal to testify at trial. See Salinas
v. State, 369 S.W.3d 176, 177–78 (Tex. Crim. App. 2012), aff’d, 570 U.S. __, 133
S.Ct. 2174. However, “pre-arrest, pre-Miranda silence is not protected by the Fifth
Amendment right against compelled self-incrimination, and . . . prosecutors may
comment on such silence regardless of whether a defendant testifies.” Id. at 179.
In Salinas, the defendant voluntarily accompanied police officers investigating two
homicides to the police station for questioning. Id. at 177. After an hour of
answering questions, he remained silent when asked whether shotgun shells found
at the scene would match the shotgun found at his home. Id. Several months later,
he was charged with murder and eventually arrested. Id. The State introduced
evidence of his silence in response to the question regarding the shotgun at trial,
and the Court of Criminal Appeals held that, because the silence was pre-arrest, it
was admissible. Id. The Supreme Court of the United States affirmed.
The statement in closing argument about which Shephard complains is a
comment on Shephard’s silence during the pre-trial identification, which took
place just before he was arrested. Because the comment pertains to pre-arrest, pre-
22 Miranda silence, it is not protected by the Fifth Amendment, and the trial court
therefore did not err in denying Shephard’s motion for mistrial related to this
comment. See id. at 179.
The other comment about which Shephard complains—whether Shephard
ever gave any explanation for having the keys—likewise does not warrant reversal.
When, as in this case, a party requesting a mistrial does not first seek a lesser
remedy, a reviewing court cannot reverse the trial court’s judgment if the alleged
error could have been cured by a less drastic alternative. Ocon v. State, 284
S.W.3d 880, 884–85 (Tex. Crim. App. 2009). An instruction to disregard is
presumed to cure all but the most blatant comments. Moore v. State, 999 S.W.2d
385, 405–06 (Tex. Crim. App. 1999). Here, the comment was not so blatant that it
could not have been cured by an instruction to disregard had Shephard requested
one. Because Shephard did not request an instruction to disregard, the trial court
did not err in denying his motion for mistrial. See Wright v. State, 374 S.W.3d
564, 583 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (trial court did not err
in denying motion for mistrial where defendant did not request instruction that jury
disregard State’s question that defendant was only person that could explain her
feelings at time of the crime).
23 We hold that the trial court did not abuse its discretion in denying
Shephard’s motions for mistrial, and we overrule Shephard’s second issue.
Pre-trial Identification
In his third issue, Shephard contends that the trial court erred in admitting
evidence of Finch’s impermissibly suggestive pre-trial identification.
The admissibility of an identification is a mixed question of law and fact that
the appellate court reviews de novo. See Loserth v. State, 963 S.W.2d 770, 773
(Tex. Crim. App. 1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). A pretrial identification procedure may be so
unnecessarily suggestive and conducive to mistaken identification that to use that
identification at trial would deny the accused due process of law. Neil v. Biggers,
409 U.S. 188, 196, 93 S. Ct. 375, 380 (1972); Barley v. State, 906 S.W.2d 27, 32–
33 (Tex. Crim. App. 1995). Therefore, the reviewing court employs a two-step
analysis, determining whether the pretrial procedure was impermissibly suggestive,
and if so, whether the suggestive pretrial procedure gave rise to a very substantial
likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706
(Tex. Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d).
24 An in-field showup, also called a one-on-one showup, in which a single
suspect is shown to the complainant shortly after the crime is committed, is
generally considered to be impermissibly suggestive. See Stewart v. State, 198
S.W.3d 60, 63 (Tex. App.—Fort Worth 2006, no pet.); Pace v. State, 986 S.W.2d
740, 744 (Tex. App.—El Paso 1999, pet. ref’d). If the identification procedure was
impermissibly suggestive, the following five factors should be “weighed against
the corrupting effect of any suggestive identification procedure in assessing
reliability under the totality of the circumstances”: (1) the opportunity of the
witness to view the criminal at the time of the crime, (2) the witness’s degree of
attention, (3) the accuracy of the witness’s description of the criminal, (4) the level
of certainty demonstrated by the witness at the confrontation, and (5) the length of
time between the crime and confrontation. Webb v. State, 760 S.W.2d 263, 269
(Tex. Crim. App. 1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct.
2243, 2253 (1977) (citing Neil, 409 U.S. at 199–200, 93 S. Ct. at 382)). We may
also consider other relevant factors in evaluating the reliability of the witness’s
identification. Delk, 855 S.W.2d at 706; Pace, 986 S.W.2d at 745. We consider
these factors, all issues of historical fact, deferentially in a light favorable to the
trial court’s ruling. Loserth, 963 S.W.2d at 773; Williams v. State, 243 S.W.3d 787,
25 789 (Tex. App.—Amarillo 2007, pet. ref’d); Gilstrap v. State, 65 S.W.3d 322, 327
(Tex. App.—Waco 2001, pet. ref’d).
Assuming, without deciding, that the one-on-one showup was impermissibly
suggestive, we conclude that it did not create a very substantial likelihood of
irreparable misidentification and, therefore, the trial court did not err in admitting
it.
Under the first factor, we examine the opportunity of the witness to view the
criminal at the time of the crime. Webb, 760 S.W.2d at 269. Finch testified that he
heard someone in the small SUV say “Give me your stuff,” that he turned around
and looked directly at the driver, and that he got a “good look” at the driver. Finch
was within a few feet of the driver, because he was standing between his motor
home and the passenger-side window of the SUV, which was parked in the parking
spot next to him.
Under the second factor, we consider the witness’s degree of attention. Id.
The record reflects that Finch was alert and paid close attention to the surrounding
circumstances. He testified that he noticed as he walked up to his motor home that
the small SUV next to it was running, and that the passenger window was rolled
down. Finch reacted by resisting the robbery, and, in the midst of the commotion,
26 was able to discern the suspect’s license plate and even follow the suspect while
calling 9-1-1. See Wilson v. State, 267 S.W.3d 215, 218 (Tex. App.—Waco 2008,
pet. ref’d).
The third factor is the accuracy of the witness’s description of the criminal.
Webb, 760 S.W.2d at 269. Finch described the suspect to the 9-1-1 dispatcher as
“a black male in his early 20s, driving a silver small passenger SUV with a partial
license plate of ‘V67.’” He later told Officer York that the suspect was wearing a
black shirt and a black “do-rag.” Shephard was a black male in his early 20s, and
his girlfriend told the police that he had been driving her car that day, which
matched the description given by Finch. At the time he was detained, Shephard
was wearing a white “do-rag” and shirt. Finch had reported a “do-rag,” albeit
black, and a black shirt.
The fourth factor to consider is the level of certainty demonstrated by the
witness at the confrontation. Webb, 760 S.W.2d at 269. Detective Ellison testified
that Finch told her when he identified Shephard on the scene that he was “100
percent positive” that Shephard was the person who had pulled a gun on him.
Ellison testified that Finch had no hesitation in his voice and seemed certain of his
identification. Finch also testified that he got a good look at the suspect, and that
27 he was “[a] hundred percent” sure and “certain” that Shephard was the person who
pulled a gun on him.
Finally, with respect to the length of time between the crime and
confrontation, the record reflects that about an hour elapsed between the crime and
the identification. Id. at 269. Finch’s receipt from the drugstore was timestamped
10:44 a.m., and Shephard was arrested at 11:53 a.m., after being identified by
Finch.
Shephard argues that Officer York’s testimony that he told Finch “[t]hat a
person was detained that was supposed to be the suspect in the crime” and Finch’s
testimony that Detective Ellison told him “I’m going to pull this person out and I
want you to see if this is the person” is evidence that the officers improperly
suggested that he was the person who committed the crime. But Finch, when
cross-examined regarding whether the officers told him that Shephard had
committed the crime or had been the driver of the SUV, testified only that he was
asked whether Shephard was the person who had held him up. Detective Ellison
testified that she asked Finch to “look closely and see if he could identify the
subject as the one that pointed the gun at him.”
Shephard also argues that the fact that he was handcuffed and placed in the
back of a patrol car gave rise to a very substantial likelihood of irreparable
28 misidentification. These facts weigh against admissibility, and the trial court
would have been within its discretion to consider them. See Delk, 855 S.W.2d at
706; Pace, 986 S.W.2d at 745. However, considering the totality of the
circumstances, including the fact that Shephard had the keys to the SUV in his
pocket, we conclude that the pre-trial identification did not create a “very
substantial likelihood of irreparable misidentification.” See Williams, 243 S.W.3d
at 791 (no substantial likelihood of irreparable misidentification where, 30 minutes
after burglary, officer brought detained suspect to complainant’s house in back of
patrol car and told complainant “I need you to identify the man and then step away
from the car.”); Pace, 986 S.W.2d at 745 (no substantial likelihood of irreparable
misidentification where victim was asked to identify suspect pulled from back seat
of patrol car); Wilson, 267 S.W.3d at 218–19 (no substantial likelihood of
irreparable misidentification where, although description of perpetrator did not
match identified person, evidence showed victim got “a good look” at perpetrator,
that victim was attentive to surroundings, that victim was “100 percent sure” of
identification, and a short time passed between crime and identification).
We overrule Shephard’s third issue.
29 Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).