Williams, Flournoy Davis v. State

• Court: Court of Appeals of Texas
• Decided: August 24, 2006
• Docket: 14-05-00378-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-05-00378-CR

FLOURNOY DAVIS WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 972,662

M E M O R A N D U M   O P I N I O N

Appellant, Flournoy Davis Williams, appeals his conviction for aggravated robbery. In his sole issue, appellant contends that the trial court erred by overruling his motion to suppress the identification testimony of two State witnesses.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4. 

I.  Background

On December 30, 2003, appellant entered a fast-food restaurant three times within a thirty-minute period.  The first time, several uniformed police officers were eating in the dining area.  Appellant asked where the restroom was located and left.  He returned a second time when there were no longer marked police cars in the parking lot.  However, the police chief remained in the restaurant finishing his meal.  Appellant asked for the time and left again.  Appellant entered the restaurant a third time after the police chief left.  A restaurant manager and cashier stood at the counter.  Appellant approached the counter and said, AGive me everything you got.@  He lifted his shirt to reveal the handle and part of the cylinder of a gun tucked in his pants.  The manager gathered the money from three registers, placed it in a bag, and handed the bag to appellant.  The cashier exited through a back door and called 911 from a nearby convenience store. 

As appellant left the restaurant with the bag of money, a piece of paper fell from his back pocket.  The cashier gave the paper to the police when they arrived on the scene.  The paper was a completed job application with appellant=s name and address. Two Houston police officers drove to the address listed on the application.  A man later identified as appellant stood next to a vehicle stopped in the same block as the listed address.  Appellant walked away from the vehicle and began to cross the yard of a residence.  The officers drove up next to him in the patrol car and told him they needed to talk to him.  Appellant threw down a bag he was carrying and fled.  The officers retrieved the bag and arrested appellant.  The bag contained a purple hat and a loaded gun.  When the officers searched appellant incident to arrest, they found $271 in small bills in his pocket.  The officers brought appellant back to the restaurant, where he was positively identified by both the manager and the cashier.

A jury convicted appellant of aggravated robbery, and he was sentenced to seventy years= imprisonment.  

II.  Discussion

In his sole issue, appellant contends the in-court identification testimony of the two restaurant employees was tainted by an impermissibly suggestive out-of-court identification procedure.^[1]  We apply a two-step analysis to determine whether in-court identification testimony is admissible.  See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995).  First, we must determine whether the out-of-court identification procedure was impermissibly suggestive.  Id.  Second, if the out-of-court procedure was impermissibly suggestive, we must determine whether it gave rise to a very substantial likelihood of irreparable misidentification.  Id.

Appellant argues that the identification procedure was impermissibly suggestive because it was an Aon-the-scene@ or Ashowup@ identification.  When the police apprehend a suspect shortly after a crime and present him before a witness at the scene, the resulting confrontation is suggestive, although not always impermissibly suggestive.  See Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (op. on reh=g) (noting that on-the-scene confrontations are to some degree suggestive).  Here, we will assume, without deciding, that the identification procedure was impermissibly suggestive because we conclude it did not give rise to a very substantial likelihood of irreparable misidentification. 

Appellant bore the burden to prove by clear-and-convincing evidence that the in-court identification was unreliable.  See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).  We must consider the totality of the circumstances to determine reliability, including the following five non-exclusive factors: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness=s degree of attention; (3) the accuracy of the witness=s prior description of the perpetrator; (4) the level of certainty demonstrated by the witness;  and (5) the length of time between the crime and the confrontation.  Neil v. Biggers, 409 U.S. 188, 199B200 (1972); Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).  We view the facts relevant to the reliability factors in the light most favorable to the trial court=s ruling.  See Ibarra, 11 S.W.3d at 195B96.  We then weigh the factors de novo against the Acorrupting effect@ of the suggestive out-of-court identification procedure.  Id. (citing Loserth v. State, 963 S.W.2d 770, 773B74 (Tex. Crim. App. 1998)). 

It was undisputed that both of the State=s witnesses were standing across from appellant at the counter of a fast-food restaurant when appellant displayed his gun.  It was also undisputed that both witnesses saw appellant enter the restaurant twice before the robbery took place.  At the suppression hearing, the witnesses were questioned regarding the events that occurred after the officers brought appellant back to restaurant.  Both witnesses testified that they were separated before being asked to identify appellant.  Both witnesses testified that they first saw appellant without a cap.  They viewed him again, after a police officer placed the cap on appellant=s head.  An officer testified that appellant matched the description he was given at the scene. 

Neither witness indicated he or she had any doubt as to appellant=s identity.  Both witnesses stated they identified appellant immediatelyC before the officer placed the cap on appellant=s head.  The manager testified she was Apositive@ as to appellant=s identity.  Both witnesses also testified that their identification of appellant was based on independent recollection of the crime.  See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985) (holding an in-court identification admissible when the record revealed the witness=s ability to make the in-court identification had an origin independent of any allegedly improper out-of-court identification procedure). The cashier testified that the officers brought appellant back to the restaurant within ten to twenty minutes after the robbery.  See Louis v. State, 825 S.W.2d 752, 757 (Tex. App.CHouston [14th Dist.] 1992, writ ref=d) (finding no substantial likelihood of misidentification when show-up identification took place within an hour of the robbery).  

Under these circumstances, the reliability factors weigh in favor of allowing the in-court identification testimony of both witnesses.  Appellant failed to show by clear and convincing evidence that the allegedly improper out-of-court identification procedure resulted in a very substantial likelihood of irreparable misidentification.  See Ibarra, 11 S.W.3d at 195B96.  Accordingly, we overrule appellant=s sole issue.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Opinion filed August 24, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant also appears to challenge his warrantless arrest in an argument nested within his sole issue.  However, appellant did not file a motion to suppress or otherwise object to the arrest or evidence seized as a result of the arrest.  Therefore, he has failed to preserve error with respect to the warrantless arrest.  See Tex. R. App. P. 33.1(a).