In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00890-CR
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COURTNEY BARNARD CALDWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1104136
A jury found appellant, Courtney Barnard Caldwell, guilty of aggravated robbery and assessed punishment at 46 years in prison. See Tex. Pen. Code Ann. § 29.02(2) (Vernon 2003). In a single point of error, appellant contends that the trial court erred by denying his motion to suppress and thereby permitting the complaining witness to identify appellant at trial because the photo array in which the witness identified appellant before trial was impermissibly suggestive. We affirm.
Background
Lawrence Stephens was the victim of a car-jacking by two black males on February 7, 2007. Just before dark, as Stephens drove his car, a black Lexus with luxury rims, into an apartment complex, a tall, dark man with braids approached Stephens's vehicle and asked for a cigarette lighter. After reaching to retrieve his car lighter, Stephens turned to face a long, black revolver about six inches from his face. The gunman took Stephens's cell phone and demanded his car keys. Stephens recognized the gunman from a tattoo parlor, but said nothing, got out of the car, and surrendered the keys.
As Stephens was handing over his car keys, appellant came up behind Stephens. Appellant had pulled his jacket up, but was only six feet behind Stephens. Stephens saw appellant's face, however, though only briefly, and stated at trial that he recognized appellant from a club they had both frequented. Appellant demanded money and the key to unlock the tire rims on Stephens's car, and the gunman told Stephens to lie on the ground, face down. When the car would not start, because Stephens had installed a kill switch, the gunman forced Stephens to start the car. The gunman then drove away in Stephens's car, and appellant went to another vehicle and left the scene. Stephens contacted police and described the assailants.
Police recovered Stephens's car the next day. It had been stripped and abandoned, but police recovered appellant's fingerprint from the outside of Stephens's car, and an officer constructed a photo array that contained appellant's photo. Stephens identified appellant from the array on February 12, 2007, five days after the robbery. Stephens signed the array, on which he circled the photo of appellant. Appellant was arrested on February 16, 2007, when a vehicle in which he was a passenger was stopped for a traffic offense .
Identification of Appellant
In his sole point of error, appellant contends that the trial court erred by denying appellant's pretrial motion to suppress Stephens's identifying him before trial from the photo array and thus permitting Stephens to identify appellant at trial because the photo array was impermissibly suggestive, had tainted Stephens's pretrial identification of appellant, and had substantially increased the likelihood that Stephens would misidentify appellant at trial.
A. Standard of Review
A defendant who contends that an in-court identification is inadmissible must prove by clear and convincing evidence that the in-court identification is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). We apply a two-step analysis on appeal. Id. We first determine whether the pretrial photo display was impermissibly suggestive. Id. If we conclude that the pretrial photo display was impermissibly suggestive, we then determine whether it gave rise to a very substantial likelihood of irreparable misidentification, id., based on the factors established in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). See Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999) (applying Biggers factors). We will uphold the trial court's decision to admit the identification unless the trial court clearly abused its discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
B. Whether the Pretrial Photo Display was Impermissibly Suggestive
Appellant contends that the pretrial photo display shown to Stephens was impermissibly suggestive because only the photo of him, among those in the display, showed an individual with a facial tattoo, specifically, a tear-shaped tattoo beneath the right eye.
It is undisputed that appellant appeared at trial with a tear-shaped tattoo beneath his right eye, but the record does not support appellant's contention that the photo display shown to Stephens contained a photo of appellant with the tattoo. State's Exhibit 17 confirms that photo display from which Stephens identified appellant before trial did not include a photo of appellant with any type of facial tattoo. (1)
In addition, the record establishes that the photo used in the array presented to Stephens had been taken in November 2006, more than a year before the aggravated robbery took place. The record further supports that appellant obtained the tattoo after the aggravated robbery of Stephens. The police officer who presented the photo array to Stephens on February 12, 2007 also interviewed appellant shortly after he was arrested on February 16, 2007. As the officer explained under cross-examination during the pretrial hearing on appellant's motion to suppress, appellant's appearance during the interview differed from his appearance in the earlier photo used in the array because appellant had a tattoo that appeared "fresh . . . that day" and appeared to be "still wet, real dark." The officer was able to make that determination based on his personal experience, having obtained a tattoo himself.
We note further that there is no evidence of any conduct by a police officer during the photo array presented to Stephens that was impermissibly suggestive. See Ibarra, 11 S.W.3d at 196. The officer did not suggest that the array contained a photo of the suspect and did not tell Stephens that he had to choose someone from the display. Indeed, the page of instructions that accompanied the photo array Stephens signed indicated the importance of clearing innocent individuals. Likewise, nothing in the display distinguished appellant in any appreciable respect. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). There was only one array of photos shown to Stephens, and the individuals in the array had the same skin tone, haircut, and facial features.
For these reasons, we hold that the photo array presented to Stephens, from which he identified appellant before trial, was not impermissibly suggestive. Accordingly, we need not assess whether there was any likelihood that Stephens's pretrial identification of appellant tainted Stephens's trial testimony identifying appellant.
We overrule appellant's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. The record contains a photo array that depicts appellant with a tattoo, but that array had been shown to a different witness, who did not testify until the punishment stage of the trial.