Jeremy Thomas v. State

Opinion issued July 7, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00258-CR
———————————
JEREMY THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1284896

OPINION

A jury convicted appellant, Jeremy Thomas, of the first-degree felony

offense of murder, and the trial court assessed punishment at confinement for life.1

1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
Appellant filed both a notice of appeal and a motion for new trial, and the trial

court granted a new trial. We abated appellant’s appeal of his conviction while the

State appealed the trial court’s order granting a new trial. A panel of this Court

reversed the order granting a new trial and reinstated appellant’s conviction and

sentence. See State v. Thomas, 426 S.W.3d 233 (Tex. App.—Houston [1st Dist.]

2012) (“Thomas I”). The Court of Criminal Appeals granted appellant’s petition

for discretion review and ultimately affirmed this Court’s decision in Thomas I.

See State v. Thomas, 428 S.W.3d 99 (Tex. Crim. App. 2014) (“Thomas II”). We

reinstated appellant’s original appeal of his conviction, and appellant now contends

that: (1) the trial court erred by failing to fairly interpret and respond to the jury’s

request for a reading of testimony during deliberations; (2) the trial court erred by

denying his motion to suppress an eyewitness’s in-court identification; (3) during

voir dire, the trial court erred by stating that appellant looked like a “thug” and that

it was “fine” for the prospective juror to believe that as well; and (4) the trial court

erred by denying appellant’s motion to strike the prospective juror from the venire.

We affirm.

Background

A. Factual Background

On August 3, 2006, the complainant, Vernon Keith Moses, was shot four

times in the doorway of his apartment in southwest Houston. Before the shooting,

2
Brandon Lusk passed by Moses’ apartment on the way to his own apartment

located further inside the complex, saw that Moses appeared agitated, and spoke

with him briefly. Several minutes after he returned to his own apartment, Lusk

heard three or four gunshots. He opened his front door and saw a young man walk

quickly past, holding up his shorts with one hand and holding a pistol in his other

hand. Lusk could not identify this man.

Maria Coronado lived next door to appellant in the apartment building

perpendicular to Moses’ apartment building. On the night of the shooting,

Coronado heard arguing outside, and from her window she could see appellant and

one of his friends arguing with Moses in front of Moses’ apartment. Coronado saw

appellant and his friend walk upstairs to appellant’s apartment before going “right

back downstairs.” Coronado heard four or five gunshots, but she did not see who

fired the shots. She then saw appellant and his friend run away, but she could not

remember the direction in which they fled from Moses’ apartment. She later

identified appellant in a photo-array as being present at the shooting.

At the time of the shooting, Trancquena Johnson was at the apartment

complex visiting her friend, Ochelata Reliford, who lived in the same apartment

building as appellant and Coronado. Johnson recognized appellant as someone she

had seen at the complex on previous occasions, but she did not know his name.

She saw appellant, another man, a woman, and Moses arguing in front of Moses’

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apartment. Johnson went inside Reliford’s apartment, but then, about five minutes

later, she decided to return home, and she walked outside with her daughter, her

godson, and Reliford. While outside, she saw the same four people arguing at

Moses’ apartment. Johnson saw appellant raise a gun and shoot at Moses.

Appellant then ran past her with what appeared to be a gun in his hand. Johnson

testified that she got a “good look” at appellant and that she recognized him from

having seen him around the apartment complex before. Johnson also identified

appellant in a photo-array.

Reliford saw appellant at several points during the day on August 3, 2006.

He saw appellant hanging out with a few other men that morning, he saw appellant

“having a confrontation” with his girlfriend, Ciarra Vallery, later in the day, and he

saw appellant have periodic arguments with Moses throughout the day. That

evening, when Johnson was leaving his apartment, Reliford saw Vallery at the

apartment she shared with appellant, crying and saying, “Don’t do this.” Appellant

then walked to Moses’ apartment and shot Moses in the head when Moses

answered the door. Reliford saw appellant and three or four other men run past

where he stood with Johnson, and he saw appellant with a gun in his hand when he

ran past. Reliford also identified appellant in a photo-array and in court. He

testified that he identified appellant “because he’s the guy that shot [Moses] and

took his life.”

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 B. Procedural Background

Appellant filed a pre-trial motion to suppress Reliford’s in-court

identification of him. Appellant argued that Houston Police Department (“HPD”)

officers improperly administered a photo-array containing his picture to several

alleged eyewitnesses because the officers “used the same photospread when

showing them to witnesses, and all witnesses . . . signed their acknowledgement of

their selection in the same location on said photospread.” Appellant argued that

this process “create[d] an improper confirmation to each individual witness that

they have selected the individual in the photospread that other witnesses had done”

and tainted any subsequent in-court identification. Reliford was the fourth witness

to view the photo-array, identify appellant as the shooter, and then sign his name

on the back of the photo-array indicating that he had selected appellant. The trial

court denied the motion to suppress.

During voir dire, defense counsel informed the venire about the presumption

of innocence and stated, “If you feel it, even if it’s just something in the pit of your

stomach, you’re thinking ‘I’m already kind of leaning towards him being guilty,’

please speak up now, because now is the time to do it.” Defense counsel asked

each row if anyone felt that way, and Venireperson No. 25 raised his hand.

Defense counsel and the venireperson had the following exchange:

[Defense counsel]: Juror No. 25, you think you couldn’t give
him a 100 percent fair trial?

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 Venireperson: Probably not.
[Defense counsel]: Would you not hold the State to their burden
of proof?
Venireperson: No, I would hold the State to their burden,
but I don’t think I could give him a fair trial.

As soon as defense counsel finished questioning the venire, the trial court

dismissed the venire to take a break and called Venireperson No. 25 up to the

bench for an on-the-record discussion. The trial court and Venireperson No. 25

then had the following exchange:

The Court: You said based on [appellant’s] looks you could
not give him a fair trial?
Venireperson: Yes, sir.
The Court: But you also said that you could follow the law
and you said you would hold the State to its burden
of proof beyond a reasonable doubt?
Venireperson: Yes. Just based on his looks alone, he looks like a
thug.
The Court: That’s fine. I don’t disagree with that. In fact, I
agree with that. The question is, can you follow
the law and hold the State to its burden of proof
and listen to the evidence?
Venireperson: Yes, I can.

After Venireperson No. 25 returned to his seat, the trial court stated, “All right.

He’s in.” Defense counsel did not object to the trial court’s comments at this time.

The trial court then denied defense counsel’s attempt to challenge Venireperson

No. 25 for cause. Defense counsel requested three additional peremptory strikes,

6
specifically noting that the trial court refused to strike Venireperson No. 25 for

cause, which required him to exercise a peremptory strike. The trial court denied

this request.

During deliberations, the jury foreman sent a note to the trial court

requesting the court to provide “all transcripts of the case.” The trial court sent the

jury a form stating that the jury needed to certify that it was in disagreement as to

the statement of a witness and it needed to indicate the specific point of dispute.

The jury filled out the form as follows:

Name of witness whose statement is subject to disagreement:

Tranquena [sic] Johnson

Lawyer questioning witness at time of statement:

State

Statement in dispute:

With respect to the people outside Mr. Moses’s apartment
immediately prior to the shooting, we are in dispute as to the number
of people present and the respective colors of their shirts.

The trial court brought the jury back into the courtroom and had the court

reporter read the following testimony to the jury on the record:

Question: “Then, what happened?”
Answer: “And as I was getting them from the car, the defendant
ran past me.”
Question: “What did you notice about him, as he ran by?”

7
 Answer: “I noticed him because of me seeing him prior. And
there’s nothing specific that I noticed. What he was
wearing and that, you know, I had seen him before.”
Question: “What was he wearing?”
Answer: “A black T-shirt. I don’t really remember shoes or
anything like that.”
*****
Question: “So there were four people total that you saw outside that
apartment?”
Answer: “Yes.”
*****
Question: “And as you’re looking there, how many people can you
see standing there arguing?”
Answer: “Four.”

The trial court then concluded the reading and sent the jury back to continue its

deliberations.

After the jury returned to deliberate, the trial court stated that defense

counsel had timely objected prior to the reading of testimony and had requested

that a portion of Johnson’s cross-examination be included in the reading. The trial

court allowed defense counsel to state his objection on the record, and defense

counsel stated,

I wanted there to be the inclusion of any testimony and not just in
direct, but to also add anything from cross and any type of redirect,
any issue under the cross-examination or direct of Trancquena
Johnson relating to the number of people. I ask that it be included in
its entirety.

8
Defense counsel did not object to the reading on any other basis. The trial court

stated that it overruled the objection “based strictly on the request of the jury,” as

the jury “made a very specific request” as to which witness’s testimony “and they

went on to narrow that to questions asked by the State.”

The jury ultimately found appellant guilty of murder, and the trial court

assessed punishment at confinement for life.

Reading of Testimony during Deliberations

In his first issue, appellant contends that the trial court’s instruction to the

jury concerning requests to have testimony read back to it during deliberations was

erroneous because the instruction required the jury to narrow its request to

questions posed by one attorney to one witness and that the trial court then

“provided the jury with an incomplete and misleading portion of testimony.”

Specifically, appellant argues that the form provided to the jury improperly limited

the testimony that the jury could request, that the trial court should have read

testimony from Reliford that was responsive to the jury’s request, and that the

court improperly included testimony in the reading that was not responsive to the

request.

Code of Criminal Procedure article 36.28 provides that “if the jury

disagree[s] as to the statement of any witness they may, upon applying to the court,

have read to them from the court reporter’s notes that part of such witness

9
testimony or the particular point in dispute, and no other . . . .” TEX. CODE CRIM.

PROC. ANN. art. 36.28 (Vernon 2006); Howell v. State, 175 S.W.3d 786, 790 (Tex.

Crim. App. 2005) (“This statute seeks to balance our concern that the trial court

not comment on the evidence with the need to provide the jury with the means to

resolve any factual disputes it may have.”). After determining that the jurors

dispute a portion of testimony, the trial court must “strike a balance between

reading too much or too little testimony in response to the jury’s request.” Arnold

v. State, 234 S.W.3d 664, 676 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see

also Fox v. State, 283 S.W.3d 85, 89 (Tex. App.—Houston [14th Dist.] 2009, pet.

ref’d) (“If [the jury request] is proper, the trial court must then interpret the

communication, decide what sections of the testimony will best answer the inquiry,

then limit the rereading accordingly.”). We review the trial court’s ruling on the

jury’s request to review disputed testimony for an abuse of discretion. Arnold, 234

S.W.3d at 676. “When the jury requests the reading of only a specific and limited

portion of testimony, the trial court does not abuse its discretion by providing only

the requested information.” Id. at 677.

Here, during deliberations the jury informed the trial court that it had a

dispute about testimony. The trial court provided the jury with a pre-printed form

for the jury foreperson to fill out. The jury foreperson filled out the form as

follows:

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 Name of witness whose statement is subject to disagreement:

Tranquena [sic] Johnson

Lawyer questioning witness at time of statement:

State

Statement in dispute:

With respect to the people outside Mr. Moses’s apartment
immediately prior to the shooting, we are in dispute as to the number
of people present and the respective colors of their shirts.

The trial court brought the jury back into the courtroom and had the court reporter

read the following selections of testimony:

Question: “Then, what happened?”
Answer: “And as I was getting them from the car, the defendant
ran past me.”
Question: “What did you notice about him, as he ran by?”
Answer: “I noticed him because of me seeing him prior. And
there’s nothing specific that I noticed. What he was
wearing and that, you know, I had seen him before.”
Question: “What was he wearing?”
Answer: “A black T-shirt. I don’t really remember shoes or
anything like that.”
*****
Question: “So there were four people total that you saw outside that
apartment?”
Answer: “Yes.”
*****

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 Question: “And as you’re looking there, how many people can you
see standing there arguing?”
Answer: “Four.”

The trial court then sent the jury back for further deliberations.

Outside the presence of the jury, the trial court stated that defense counsel

had objected before the testimony was read back to the jury, and it allowed counsel

to state his objection on the record. Defense counsel objected as follows:

I wanted there to be the inclusion of any testimony and not just in
direct, but to also add anything from cross and any type of redirect,
any issue under the cross-examination or direct of Trancquena
Johnson relating to the number of people. I ask that it be included in
its entirety. I made the objection and the Court overruled it.

The trial court stated that it overruled the objection “based strictly on the request of

the jury. The jury made a very specific request as to the witnesses—which

witness’ testimony and they went on to narrow that to questions asked by the

State.” Defense counsel did not object on any other basis.

Complaints about error in the reading of trial testimony to the jury during

deliberations “must be preserved by objection at the time of the reading.” Hollins

v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); Heller v. State, 279 S.W.3d

823, 825 (Tex. App.—Amarillo 2008, no pet.). A timely objection provides the

trial court with an opportunity to correct the error. Hollins, 805 S.W.2d at 476.

Furthermore, the complaint on appeal must comport with the objection made at

trial. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Neal v. State,

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108 S.W.3d 577, 579 n.2 (Tex. App.—Amarillo 2003, no pet.) (“Appellant also

contends that reading the additional testimony was prejudicial and bolstered the

State’s case. However, before the trial court, he only objected on the ground that

the matter the court proposed to read exceeded the scope of the certification.

Because the objections about the prejudicial nature of the testimony and bolstering

were not raised below, they are waived.”).

At trial, defense counsel objected to the reading on the basis that the trial

court ought to include testimony from Trancquena Johnson on both direct and

cross-examination concerning the number of people present at the time of the

offense. Defense counsel did not object that the form provided by the trial court to

the jury improperly limited the portions of testimony that the jury could request,

that the trial court should have included Reliford’s testimony concerning the

number of people present in the reading, or that the reading exceeded the scope of

the jury’s request by including Johnson’s testimony that she saw appellant run past

her. On appeal, however, appellant raises all four of these arguments: that the trial

court should have included testimony from the cross-examination of Johnson, that

the trial court improperly limited the portions of testimony the jury could request,

that the trial court should have included Reliford’s testimony, and that the reading

exceeded the scope of the request.

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 We conclude that appellant’s complaint on appeal does not comport with his

trial objection, and to the extent he complains about matters other than the fact that

the reading did not include excerpts from Johnson’s cross-examination, he has

failed to preserve these complaints for appellate review. See Yazdchi, 428 S.W.3d

at 844; Hollins, 805 S.W.2d at 476; see also May v. State, 139 S.W.3d 93, 100

(Tex. App.—Texarkana 2004, pet. ref’d) (“The jury specifically asked for the

defense’s questions on the topic. The court read back the State’s questions and the

detective’s answers before moving to the defense’s questions and the answers.

This is obvious error. It was not, however, preserved for our review. Complaints

about error in the reading of trial testimony must be preserved by objection at the

time of the reading. There was no timely objection; thus, we may not address this

issue on the merits.”) (internal citations omitted).

The only complaint that appellant preserved was whether the trial court erred

by failing to read back testimony from Johnson’s cross-examination. 2 We turn,

2
The State argues that, on appeal, appellant “does not complain of the matter he
raised in his trial objection (i.e., failing to provide Johnson’s cross-examination
and redirect testimony about the number of people present).” We note, however,
that appellant argues in his appellate brief that “even though the jury did not
specify in writing that it desired more than the State’s questioning of a single
witness, it was error for the trial court to so limit its interpretation of the jury’s
dispute” and that article 36.28 “does not require that such a request be limited to
either a single witness or a single lawyer’s questioning.” This argument thus
encompasses appellant’s trial-level objection that the trial court erred by limiting
the testimony read back to the jury to Johnson’s testimony on direct, and,
therefore, this complaint is preserved for appellate review. See Yazdchi v. State,

14
therefore, to this argument. In Fox, the trial court provided a template form to the

jury for requesting the reading of disputed testimony similar to the one used in this

case. 283 S.W.3d at 89. The jury filled out the form and indicated that it wished

to hear the State’s direct examination of the complainant because it disputed the

complainant’s “description of the abuse, what he saw, and where he went to [sic].”

Id. The trial court read back portions of the complainant’s direct examination in

which he described two incidents of abuse, but it did not read back portions of the

complainant’s cross examination that contradicted his testimony on direct. Id. at

90. Our sister court held that “[b]ecause the jury requested testimony in which the

complaining witness described what happened, what he saw, and where he went,

appellant’s cross-examination proffer was responsive to the jury’s request” and

that, therefore, the trial court erred in refusing to read those portions of testimony

to the jury. Id. at 90–91. The court then concluded that because the testimony on

cross-examination “varied from the statements made on direct examination and the

conflicting statements were highly probative of appellant’s guilt,” the error was

harmful. Id. at 91 (citing Jones v. State, 706 S.W.2d 664, 668 (Tex. Crim. App.

1986)).

Here, the trial court read three excerpts of Trancquena Johnson’s testimony

to the jury, one of which, the last excerpt, does come from appellant’s cross-

428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (holding that, to preserve error,
complaint on appeal must comport with objection made at trial).

15
examination of Johnson. Appellant argues that the trial court erred by not reading

back the testimony that directly followed the last excerpt, in which Johnson

testified:

[Defense counsel]: How many people—how many people do
you see there whether they’re arguing or
not?
[Johnson]: Four.
[Defense counsel]: All right. And so you have the female?
[Johnson]: Yes.
[Defense counsel]: The person who’s about to be shot?
[Johnson]: Yes.
[Defense counsel]: And a person in a black shirt and in a white
shirt, correct?
[Johnson]: Correct.

This testimony is responsive to the jury’s request, and, despite the jury’s request

that the court read only testimony from the State’s questioning of Johnson, the trial

court should have read the additional testimony as well and erred in failing to do

so. See id. at 90–91; see also Jones, 706 S.W.2d at 667–68 (holding that trial court

erred in failing to read excerpts from cross-examination of witness even though

jury note specified to “[s]end [the jury] court records from the DA’s questions”).

We therefore must consider whether this failure constitutes harmful error. See

Fox, 283 S.W.3d at 91.

16
 Error under article 36.28 is harmless “where there is no variance between the

direct testimony and cross-examination.” Id.; see also Megason v. State, 19

S.W.3d 883, 890 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that when trial

court erroneously refuses to read back portion of testimony to jury, appellate court

conducts harmless error review and that, under such review, appellate court must

disregard any error that does not affect substantial rights of defendant). Here, the

portion of Johnson’s cross-examination that appellant asserts the trial court should

have read back to the jury does not contradict any of the three excerpts of

Johnson’s testimony that the trial court did read to the jury. Instead, the requested

excerpt only provides the additional information that a female and a man in a white

shirt were also present at the scene.

In light of the unobjected-to portion of the testimony that the court read back

to the jury indicating that Johnson saw appellant, who was wearing a black shirt,

run past her, the trial court’s omission from the reading of Johnson’s testimony that

a female and a man in a white shirt were also present at Moses’ apartment does not

affect appellant’s substantial rights. See Megason, 19 S.W.3d at 890 (holding that

excerpt that trial court did not read back “would not be of significance in the

outcome of the case, and [therefore] this error did not affect Megason’s substantial

rights”); cf. Fox, 283 S.W.3d at 91 (“Because the statements elicited by defense

counsel on cross-examination varied from the statements made on direct

17
examination and the conflicting statements were highly probative of appellant’s

guilt, the trial court’s error is harmful.”). We hold that the trial court’s failure to

include the requested excerpt from Johnson’s cross-examination in the reading to

the jury does not constitute harmful error. See TEX. R. APP. P. 44.2(b) (“Any [non-

constitutional] error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.”).

We overrule appellant’s first issue.

Admission of In-Court Identification

In his second issue, appellant contends that the trial court erroneously denied

his motion to suppress Reliford’s in-court identification of him because the pre-

trial identification procedure was impermissibly suggestive and tainted Reliford’s

in-court identification.

We review the trial court’s denial of a motion to suppress evidence for an

abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.

2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When

we review a trial court’s denial of a motion to suppress, we give “almost total

deference to a trial court’s express or implied determination of historical facts” and

review de novo the court’s application of the law to the facts. Id. We view the

evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808,

18
818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact and judge of

the credibility of the witnesses and the weight to be given to their testimony.” St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may

choose to believe or disbelieve any part or all of a witness’s testimony. Green v.

State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain the trial court’s

ruling only if it is reasonably supported by the record and correct on any theory of

law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.

2003).

We review de novo the trial court’s ruling on whether the suggestiveness of

a pre-trial photo-array may have influenced an in-court identification. Gamboa v.

State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009); Mendoza v. State, 443 S.W.3d

360, 363 (Tex. App.—Houston [14th Dist.] 2014, no pet.). “An in-court

identification is inadmissible when it has been tainted by an impermissibly

suggestive pretrial photographic identification.” Gamboa, 296 S.W.3d at 581

(quoting Loserth v. State, 963 S.W.2d 770, 771–72 (Tex. Crim. App. 1998)).

Courts use a two-step analysis to determine the admissibility of an in-court

identification: (1) whether the out-of-court identification procedure was

impermissibly suggestive; and, if so, (2) whether that suggestive procedure gave

rise to a substantial likelihood of irreparable misidentification. Conner v. State, 67

S.W.3d 192, 200 (Tex. Crim. App. 2001).

19
 In determining whether the pretrial identification procedure was so

impermissibly suggestive “as to give rise to a very substantial likelihood of

irreparable misidentification,” we consider the totality of the circumstances.

Gamboa, 296 S.W.3d at 581–82 (quoting Loserth, 963 S.W.2d at 772); Mendoza,

443 S.W.3d at 363 (“If the pretrial procedure is found to be impermissibly

suggestive, identification testimony would nevertheless be admissible where the

totality of the circumstances shows no substantial likelihood of

misidentification.”); Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.—Houston [1st

Dist.] 2003, no pet.) (“If sufficient indicia of reliability outweigh suggestiveness,

then an identification is admissible.”). Factors that we consider in making this

determination are: (1) the witness’s opportunity to view the defendant at the time

of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s

prior description of the defendant; (4) the witness’s level of certainty at the time of

the confrontation; and (5) the length of time between the offense and the

confrontation. Gamboa, 296 S.W.3d at 582.

“[I]t is well established that, even where the pre-trial identification

procedure is impermissibly suggestive, in-court testimony of an identification

witness will still be admissible as long as the record clearly reveals that the

witness’ prior observation of the accused was sufficient to serve as an independent

origin for the in-court identification.” Lesso v. State, 295 S.W.3d 16, 25 (Tex.

20
App.—Houston [1st Dist.] 2009, pet. ref’d) (stating such in context of overruling

claim of ineffective assistance based on failure to move to suppress in-court

identification of defendant); Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (“[W]hen an in-court identification is based

upon knowledge independent from the allegedly improper pre-trial procedure, it is

admissible.”). An appellant must show by clear and convincing evidence that the

in-court identification has been irreparably tainted to obtain reversal. Mendoza,

443 S.W.3d at 363.

Here, police officers showed Reliford a series of photo-arrays, one of which

contained appellant’s picture. Reliford was the fourth person to view the particular

photo-array at issue. Trancquena Johnson, Mickie Ebermann, 3 and Maria

Coronado had all viewed the photo-array before Reliford, identified appellant in

the number 3 position in the photo-array, and placed their signatures on the back of

the photo-array in the number 3 position. Reliford then viewed the photo-array,

identified appellant in the number 3 position, and placed his signature on the back

of the photo-array in the number 3 position. The State acknowledges that

“providing a witness such as Reliford the opportunity to learn that other witnesses

have identified the same person in a photo array may be impermissibly suggestive”

and concedes that appellant may have satisfied the first step in the analysis—

3
Mickie Ebermann did not testify at appellant’s trial.

21
whether the identification procedure used was impermissibly suggestive. 4

However, even if the identification procedure used in this case was impermissibly

suggestive, appellant still was required to demonstrate, by clear and convincing

evidence, that the identification procedure was so suggestive that it gave rise to a

“substantial likelihood of irreparable in-court misidentification” and that the

witness’s in-court identification was unreliable based on the totality of the

circumstances. See Mendoza, 443 S.W.3d at 363; Burkett, 127 S.W.3d at 88.

The first factor to consider in determining the likelihood of irreparable in-

court misidentification is the witness’s opportunity to view the defendant at the

time of the crime. See Gamboa, 296 S.W.3d at 582. Reliford testified that he met

appellant within a week of his moving to the apartment complex in June 2006, and

he had therefore known appellant for nearly two months at the time of the offense.

Reliford saw appellant around the complex on several occasions throughout the

day of the shooting, including several instances in which Reliford saw appellant

arguing with Moses, the complainant. Around 10:30 p.m. on the night of the
4
We note that, in an unpublished decision, the Fourteenth Court of Appeals has
held that “[i]mpermissibly suggestive procedures that confirm a witness’s choice
are disfavored for their tendency to reduce trustworthiness of subsequent
identifications.” See Garcia v. State, No. 14-06-00570-CR, 2007 WL 2447301, at
*2 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007, pet. ref’d) (mem. op., not
designated for publication) (holding such when witness viewed photo-array
eighteen days after crime and then viewed exact same photo-array over two years
later); see also Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (“We recognize that, in some situations, a police officer’s
comment that a witness has ‘a good memory’ following an identification may
render that identification impermissibly suggestive.”).

22
offense, Reliford was outside and saw appellant with his girlfriend Vallery, who

was crying and saying, “[D]on’t do this.” Appellant was facing Reliford, and

Reliford testified that he recognized appellant and that he “[got] a good look at

him.” Appellant walked away from Vallery, and Vallery’s shouts and crying drew

Reliford’s attention to her and appellant. Reliford then witnessed appellant walk to

Moses’ apartment, pull out a gun, and shoot Moses in the head. Reliford testified

that, although appellant’s back was turned at the time he shot Moses, he had not

lost sight of appellant from the time he saw appellant descend the stairs to the time

appellant approached Moses’ apartment. After the shooting, Reliford witnessed

appellant run toward where he was standing with Johnson. Reliford kept his eye

on appellant and saw appellant run past him with a gun in his hand. Reliford thus

had ample opportunity to view appellant at the time of the offense. See Burkett,

127 S.W.3d at 88 (noting that complainant testified that she “got a good look at

[appellant]” and that complainant had adequate opportunity to view perpetrator).

The second factor we consider is the witness’s degree of attention at the time

of the offense. See Gamboa, 296 S.W.3d at 582. Reliford testified that, before the

offense occurred, he had been outside talking to Johnson by her car. While they

were outside, Vallery and appellant began arguing loudly, with Vallery “crying and

hollering loud.” Reliford testified that Vallery and appellant’s discussion, due to

its volume, “drew the attention away from [Reliford’s] and Ms. Johnson’s

23
conversation. We then turned and focused our attention on the two of them. Upon

focusing our attention on them, [appellant] proceeded down the sidewalk toward

[Moses’] apartment.” Reliford kept his eyes on appellant from the time appellant

walked down the stairs from his apartment to the time he ran past Reliford and

Johnson after having shot Moses. Reliford thus paid a high degree of attention to

appellant, a man with whom he was acquainted, at the time of the offense.

The third factor is the accuracy of the witness’s prior description of the

defendant. See id. The record provides no indication that Reliford gave a

description of the shooter or anyone involved in the offense prior to viewing the

photo-array. This factor, therefore, is neutral in the analysis of the likelihood of

irreparable misidentification.

The fourth factor is the witness’s level of certainty at the time of the

confrontation. See id. Reliford was consistent in unequivocally identifying

appellant as the shooter. When HPD Sergeant J. Brooks showed Reliford the

photo-array, Reliford identified appellant and told Sergeant Brooks, “[T]hat’s Red,

that’s the person that shot the victim [Moses].” Reliford also told Sergeant Brooks

that appellant “ran past him with the gun in his hand and [appellant] looked right at

[Reliford] and he was positive that Red was the person that shot and killed

[Moses].” Sergeant Brooks testified that he had not told Reliford that the suspect

was named “Red,” that Reliford was the one who provided information to the

24
officers concerning appellant’s physical characteristics, such as a surgical scar on

his stomach and paralysis in one of his hands, and that Reliford was “adamant” in

his identification of appellant.

Reliford identified appellant in court as the shooter, and he testified that he

identified appellant both as “somebody that [he] had seen before” and as “the

person that [he] saw shooting the complainant.” He stated, “I recognized

[appellant] as the shooter. And I recognized him—I knew him as the shooter

because I saw him doing the shooting. And I recognized him in the photo spread

because he was the shooter.” Reliford then further stated that he was identifying

appellant in-court as the shooter “[b]ecause he’s the guy that shot [Moses] and took

his life.”

Reliford thus unequivocally identified appellant as the shooter, both at the

time he viewed the photo-array and at trial. See Burkett, 127 S.W.3d at 89 (“[T]he

level of the complainant’s certainty as to her identification of appellant was

consistently high. When the complainant was shown the photographic array, she

identified appellant as the perpetrator immediately and without hesitation. She

also unequivocally identified appellant as the perpetrator of the offense during the

identification suppression hearing and at trial.”).

Finally, the fifth factor to consider is the length of time between the offense

and the confrontation. See Gamboa, 296 S.W.3d at 582. Here, the offense

25
occurred on August 3, 2006. Reliford viewed the photo-array on September 11,

2006, or thirty-nine days later. However, Reliford did not testify at trial until

March 16, 2011, nearly four-and-a-half years after the offense. A lengthy passage

of time between the offense and the in-court identification does not, however,

necessarily detract from the in-court identification when the witness can recall

details and is consistent in his testimony. See Delk v. State, 855 S.W.2d 700, 707

(Tex. Crim. App. 1993) (holding that eighteen-month time period between offense

and trial did not detract from identification “given the details [the witness] was

able to recall and the consistency in her testimony”); Burkett, 127 S.W.3d at 89

(noting that six-month period of time “did not detract from the complainant’s

identification in this case because of her consistent testimony and ability to recall

details).

Here, the length of time between the offense and the trial was nearly four-

and-a-half years, significantly longer than the time period in either Delk or Burkett.

However, as we have noted, Reliford was able to describe the offense in detail, and

he consistently displayed a high degree of certainty that appellant was the

perpetrator of the offense. Furthermore, Reliford testified at trial that he identified

appellant in court as the shooter “[b]ecause he’s the guy that shot [Moses] and took

his life,” thus indicating that his in-court identification of appellant was based on

what he witnessed on the day of the offense and not on viewing the photo-array.

26
See Burkett, 127 S.W.3d at 89 (“Moreover, the complainant testified that her in-

court identification of appellant was based on what she had observed on the day of

the offense, and not on her observation of the photographic array.”); see also

Rojas, 171 S.W.3d at 449 (“[W]hen an in-court identification is based upon

knowledge independent from the allegedly improper pre-trial procedure, it is

admissible.”).

When we consider all of the relevant factors, we conclude that the totality of

the circumstances supports the trial court’s decision to allow Reliford to identify

appellant in court as the shooter. See Burkett, 127 S.W.3d at 89. Appellant did not

meet his burden of establishing, by clear and convincing evidence, that allowing

Reliford, after he identified appellant in a pre-trial photo-array, to see that three

other witnesses had also identified appellant after viewing the photo-array did not

create a “very substantial likelihood of irreparable misidentification.” See

Gamboa, 296 S.W.3d at 582; Burkett, 127 S.W.3d at 89. We hold that the trial

court did not abuse its discretion in denying appellant’s motion to suppress

Reliford’s in-court identification.

We overrule appellant’s second issue.

Statements during Voir Dire

In his third issue, appellant contends that the trial court erred by stating

during voir dire that appellant looked like a “thug” and that it was “fine” for a

27
venireperson to think so as well. In his fourth issue, appellant contends that the

trial court erred by denying his motion to strike Venireperson No. 25, the

venireperson to whom the trial court made the complained-of statement.

A. Propriety of Trial Court’s Statement

The trial court may not, “at any stage of the proceeding previous to the

return of the verdict, make any remark calculated to convey to the jury [its] opinion

of the case.” TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979); Devis v.

State, 18 S.W.3d 777, 782 (Tex. App.—San Antonio 2000, no pet.) (“To the jury,

the language and conduct of the trial court have a special and peculiar weight.”).

Ordinarily, an appellant’s complaint regarding an improper judicial comment must

be preserved at trial. Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013).

To the extent appellant relies upon the Court of Criminal Appeals’ decision in Blue

v. State for the proposition that the trial court’s comments constituted fundamental

error and required no objection, we note that, in Unkart, the Court of Criminal

Appeals explicitly stated that Blue was a plurality decision and “has no

precedential value,” although courts may consider the opinions in Blue “for any

persuasive value they might have.” Id. at 101.

In Blue, the trial court made the following statement to the entire venire

panel during voir dire:

[This case], which we are going on, is a situation where the attorney
has been speaking to his client about what does he want to do. And

28
 when you are on the button like these cases, it’s a question. Frankly,
an offer has been made by the State or do I go to trial. And he has
been back and forth so I finally told him I had enough of that, we are
going to trial. You have been sitting out here and this is holding up
my docket and I can’t get anything done until we know if we are
going to trial or not.

Frankly, obviously, I prefer the defendant to plead because it gives us
more time to get things done and I’m sure not going to come out here
and sit. Sorry, the case went away and we were all trying to work
toward that and save you time and cost of time, which you have been
sitting here and I apologize about that. I told the defendant that. Like
I said, I have enough of this and [I am] going to trial.

41 S.W.3d 129, 130 (Tex. Crim. App. 2000). The defendant did not object to the

trial court’s statements. Id. On appeal, a plurality of the Court of Criminal

Appeals held that the trial court’s comments “imparted information to the venire

that tainted the presumption of innocence” and could not “be viewed as fair and

impartial.” Id. at 132. The plurality therefore concluded that the comments “were

fundamental error of constitutional dimension and required no objection.” Id.

Here, during voir dire, defense counsel asked the members of the venire to

“speak up” if any of them were thinking, “‘I’m already kind of leaning towards

[appellant] being guilty.’” Venireperson No. 25 raised his hand, and he had the

following exchange with defense counsel:

[Defense counsel]: Juror No. 25, you think you couldn’t give
him a 100 percent fair trial?
Venireperson: Probably not.
[Defense counsel]: Would you not hold the State to their burden
of proof?

29
 Venireperson: No, I would hold the State to their burden,
but I don’t think I could give him a fair trial.

After defense counsel completed his portion of voir dire, the trial court

dismissed the venire to take a short break and brought Venireperson No. 25 up to

the bench. The trial court then asked the following questions:

The Court: You said based on [appellant’s] looks you could
not give him a fair trial?
Venireperson: Yes, sir.
The Court: But you also said that you could follow the law
and you said you would hold the State to its burden
of proof beyond a reasonable doubt?
Venireperson: Yes. Just based on his looks alone, he looks like a
thug.
The Court: That’s fine. I don’t disagree with that. In fact, I
agree with that. The question is, can you follow
the law and hold the State to its burden of proof
and listen to the evidence?
Venireperson: Yes, I can.

Venireperson No. 25 returned to his seat, and the trial court stated, “All right. He’s

in.” Defense counsel did not object to the trial court’s statements or to the court’s

questioning of Venireperson No. 25. Defense counsel used a preemptory strike

against Venireperson No. 25, and he did not serve on the jury.

We agree with the State that the trial court’s complained-of statements here,

unlike the statements made in Blue, did not “vitiate[] the presumption of

innocence” and did not constitute fundamental error. See 41 S.W.3d at 132. In

30
Blue, the trial court made the challenged statements to the venire as a whole at the

beginning of voir dire. Id. at 130. Thus, every venireperson who ultimately served

on the jury heard the trial court’s comments. Here, the trial court recessed the

venire and called Venireperson No. 25 up to the bench for further discussion. The

record provides no indication that any other venireperson, let alone a venireperson

who served on appellant’s jury, heard the trial court’s comments. Furthermore,

although the trial court stated that it was “fine” for Venireperson No. 25 to believe

that appellant looked like a thug and agreed with the venireperson’s comment, the

court also emphasized that, regardless of appellant’s physical appearance, the key

issue was whether the venireperson could listen to the evidence in the case and

hold the State to its burden of proof. See Unkart, 400 S.W.3d at 102

(distinguishing Blue and noting that, while trial judge stated that if he were on trial

he would want to testify, judge also emphasized that law requires jurors not to hold

defendant’s failure to testify against him and that jurors must be able to follow that

law). Vernireperson No. 25 indicated that he could do so.

Because the trial court’s complained-of statements did not constitute

fundamental error, appellant was required to object to the statements to preserve

error for appellate review. See id. at 99 (“Ordinarily, a complaint regarding an

improper judicial comment must be preserved at trial.”). Here, appellant did not

31
object to the trial court’s statements and thus failed to preserve this complaint for

appellate review.

We overrule appellant’s third issue.

B. Denial of Motion to Strike Prospective Juror

A venireperson is challengeable for cause if he “has a bias or prejudice

against the defendant or against the law upon which either the State or the defense

is entitled to rely.” Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App.

2009); see TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (c)(2) (Vernon 2006). To

be challengeable, the bias or prejudice must “substantially impair the prospective

juror’s ability to carry out his oath and instructions in accordance with the law.”

Gardner, 306 S.W.3d at 295. Before a venireperson may be excused on the basis

of bias or prejudice, the law must be explained to him, and he must be asked

whether he can follow that law regardless of his personal views. Id. The

proponent of a challenge for cause has the burden of establishing that the challenge

is proper by showing that “the veniremember understood the requirements of the

law and could not overcome his prejudice well enough to follow the law.” Id.

We review a trial court’s ruling on a challenge for cause “with considerable

deference because the trial judge is in the best position to evaluate a

veniremember’s demeanor and responses.” Id. at 295–96 (citing Colburn v. State,

966 S.W.2d 511, 517 (Tex. Crim. App. 1998)). Thus, a trial court’s ruling on a

32
challenge for cause may be reversed only for a clear abuse of discretion. Id. at

296. “When a veniremember’s answers are ambiguous, vacillating, unclear, or

contradictory, we give particular deference to the trial court’s decision.” Id.;

Robinson v. State, 989 S.W.2d 456, 458 (Tex. App.—Houston [1st Dist.] 1999,

pet. ref’d) (“If a venire member equivocates on her ability to follow the law, the

reviewing court must defer to the trial court’s judgment.”).

Appellant argues that Venireperson No. 25 “clearly expressed bias and

prejudice and unequivocally stated he could not be fair.” Venireperson No. 25 did

not, however, unequivocally state that he could not follow the law. When asked by

defense counsel whether he could give appellant “a 100 percent fair trial,”

Venireperson No. 25 responded, “Probably not.” He then stated, in response to a

question concerning whether he would hold the State to its burden, “No, I would

hold the State to their burden, but I don’t think I could give him a fair trial.” At the

bench conference, Venireperson No. 25 agreed with the trial court that he “said

based on [appellant’s] looks [he] could not give [appellant] a fair trial” and “also

said that [he] could follow the law and [he] said [he] would hold the State to its

burden of proof of beyond a reasonable doubt.” Venireperson No. 25 then

clarified, “Just based on his looks alone, [appellant] looks like a thug.” The trial

court asked, “[C]an you follow the law and hold the State to its burden of proof

and listen to the evidence?” Venireperson No. 25 replied, “Yes, I can.”

33
 At most, therefore, Venireperson No. 25 vacillated before stating that he

could follow the law and hold the State to its burden of proof. See Robinson, 989

S.W.2d at 461 (“[A] trial judge may properly overrule a challenge for cause even if

a venire member is not unequivocal as to the ability to follow the law despite

personal prejudices.”). Venireperson No. 25 indicated that he “probably” could

not give appellant a fair trial and that he did not “think” he could give appellant a

fair trial. He also, however, stated that he would listen to the evidence, hold the

State to its burden, and follow the law, despite believing that appellant “look[ed]

like a thug.” We defer to the trial court’s ruling denying appellant’s challenge for

cause to Venireperson No. 25. See Gardner, 306 S.W.3d at 296 (“When a

veniremember’s answers are ambiguous, vacillating, unclear, or contradictory, we

give particular deference to the trial court’s decision.”); Robinson, 989 S.W.2d at

461 (“Even if [the veniremember] vacillated about his ability to set aside his

personal feelings on a defendant’s decision to testify, we must defer to the ruling of

the trial court.”). We therefore hold that the trial court did not abuse its discretion

in denying appellant’s challenge for cause.

To the extent appellant argues that the trial court improperly questioned

Venireperson No. 25 and attempted to rehabilitate him, appellant must object on

this basis before the trial court to preserve error, and here he failed to do so. See

Woodall v. State, 350 S.W.3d 691, 695 (Tex. App.—Amarillo 2011, no pet.) (“No

34
objection was made by Appellant’s counsel that the trial court erred in any way by

personally questioning prospective jurors. By failing to present this objection at

trial, Appellant failed to preserve the issue for review.”); see also TEX. R. APP. P.

33.1(a)(1) (stating that, to preserve error, complaining party must make timely

request, objection, or motion to trial court that states grounds for complaint with

specificity).

Moreover, even if appellant had preserved this issue for appellate review,

trial courts have “inherent authority to question prospective jurors regarding their

qualifications and ability to serve as fair and impartial jurors.” Woodall, 350

S.W.3d at 695; see also Gardner v. State, 733 S.W.2d 195, 210 (Tex. Crim. App.

1987) (holding, in capital case, that trial court is not statutorily prohibited from

individually questioning prospective jurors on issues “beyond initial questioning

regarding points of law”). Trial courts may intervene in voir dire examinations

“for purposes of clarification and expedition,” and trial court comments during voir

dire do not constitute reversible error unless the comments “are reasonably

calculated to benefit the State or prejudice the defendant’s rights . . . .” Gardner,

733 S.W.2d at 210.

Here, Venireperson No. 25 at times stated that he did not believe he could

give appellant a fair trial but also stated that he could hold the State to its burden of

proof. In light of this equivocation, we conclude that the trial court did not err in

35
intervening and asking Venireperson No. 25 a series of questions to clarify

whether, despite his personal belief that appellant “look[ed] like a thug,” he could

properly listen to the evidence, hold the State to its burden, and follow the law.

These questions were not “reasonably calculated to benefit the State or prejudice

the defendant’s rights.” See id.

We overrule appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).

36