Opinion issued February 28, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00107-CR
CHARLES ANTHONY GRANT, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1056384
MEMORANDUM OPINION
A jury convicted appellant, Charles Anthony Grant, of aggravated robbery, see Tex. Pen. Code Ann. § 29.03 (Vernon 2003), and assessed punishment at 50 years in prison. In two issues, appellant contends that the trial court erred when it (1) did not conduct a competency hearing before a jury and (2) denied appellant’s motion to suppress the complainant’s pretrial lineup identification of appellant.
We affirm.
Background
The complainant in this case, R. Edmund, is a Houston Metro bus driver. On January 2, 2006, after finishing a route, Edmund stopped the bus for a break before beginning his next route. Edmund was standing outside the bus smoking a cigarette when appellant inquired about the bus route. Edmund had not finished his break but allowed appellant to get on the bus because it was cold outside. Appellant got on the bus and sat directly behind Edmund’s seat.
Edmund finished his break and began his route with appellant as the only passenger. After five minutes, appellant rang the bell to get off of the bus. As Edmund slowed the bus to stop, appellant pulled out a handgun, cocked it, pointed it at Edmund, and demanded Edmund’s money. Edmund gave appellant all of his money and his cell phone. Edmund then pleaded with appellant to leave. At that moment, Edmund’s rosary fell from his pocket onto the floor of the bus. When the rosary fell, appellant fired the handgun. The shot missed Edmund but hit the bus near the steps.
Appellant then ran to a nearby apartment complex. Edmund drove to another location to call the police.
Approximately one week later, Edmund saw appellant’s picture on a television news program. The program identified appellant as a suspect in a murder. Edmund recognized appellant as the person who had robbed him. Edmund then contacted the police.
On February 6, 2006, Edmund viewed appellant in a lineup with five other men. Edmund positively identified appellant as the person who had robbed him. Appellant filed a motion to suppress Edmund’s identification, asserting that the lineup was “impermissibly suggestive.” At trial, a videotape was admitted into evidence showing the lineup. Edmund also identified appellant in court as his assailant.
During trial, but outside the presence of the jury, the trial court noted on the record that appellant had engaged in conduct that was disruptive to the proceedings and admonished appellant to behave appropriately. At that time, defense counsel informed the trial court that appellant had undergone a psychological evaluation the previous year at the defense’s request. Defense counsel told the trial court that he had asked for the evaluation because he had observed appellant engage in inappropriate crying episodes. Defense counsel told the trial court that the evaluating psychologist had found appellant to be “sane and competent at that time.” Based on appellant’s recent behavior, however, defense counsel requested that appellant be re-evaluated for competency.
Following the request, the trial court conducted an informal competency inquiry outside the presence of the jury. At the conclusion of the inquiry, the trial court denied defense counsel’s request that appellant be re-evaluated for competency.
Competency to Stand Trial
In his first issue, appellant contends that “the trial court erred in not conducting a competency hearing before a jury.”
We review a trial court’s decision not to conduct a competency hearing under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). The Code of Criminal Procedure provides that a defendant is presumed competent to stand trial and shall be found competent to stand trial, unless proven incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). The legislature has determined that a defendant is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or (2) rational as well as factual understanding of the proceedings against him. Id. art. 46B.003(a).
If evidence is brought to the attention of the trial court from any source raising a bona fide doubt as to the defendant’s competency, then the trial court must conduct an informal inquiry outside the jury’s presence to determine whether there is evidence to support a finding of incompetency. Id. art. 46B.004 (Vernon 2006); McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). In the inquiry, the court must determine whether there is “some evidence” to support a finding of incompetency, and, if the court so finds, it must then commence a hearing before a jury. McDaniel, 98 S.W.3d at 710; see also Tex. Code Crim. Proc. Ann. arts. 46B.005(b) , 46B.051 (Vernon 2006). The requirements of each step must be fulfilled before the next step becomes applicable. McDaniel, 98 S.W.3d at 710–11.
Evidence capable of creating a bona-fide doubt about a defendant’s competency may come from the trial court’s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Evidence is usually sufficient to create a bona-fide doubt if it shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710.
Here, appellant cites the following occurrences or evidence in the record to show that “some evidence” was presented to raise a bona fide doubt whether he was competent to stand trial:
(1) The trial court noted that appellant had engaged in disruptive behavior during trial, including verbal outbursts, banging on counsel table, raising his hand during voir dire, pounding on his own face, throwing his hands up, laughing, rolling his eyes, and slouching in his chair.
(2) Appellant engaged in inappropriate crying episodes. The bailiff testified that he had seen appellant crying in the holding cell.
(3) Dr. Steven McCary, the psychologist who had evaluated appellant 10 months earlier, testified during the punishment phase that appellant was of low intelligence and possibly mentally retarded, appellant displayed some difficulties in understanding the legal system, but was “at least marginally competent,” and appellant had a history of some psychiatric disorders for which he had taken medication.
(4) Appellant did not appear to understand certain concepts pertinent to his trial, including the sentencing range for the charge he faced (he asked the trial court for the death penalty), what a plea bargain is, or that his sisters’ testimony provided him with an alibi for the night in question.
(5) Appellant’s testimony during trial was, at times, “indecipherable” and “incomprehensible.”
After reviewing the record, we do not agree with appellant that his inappropriate and disruptive behavior constitutes evidence of his inability to communicate with counsel or factually appreciate the proceedings against him. In Moore v. State, the Court of Criminal Appeals held that disruptive behavior is not, by itself, probative of incompetence. 999 S.W.2d 385, 395 (Tex. Crim. App. 1999). The Moore court noted, “If such [disruptive] actions were probative of incompetence, one could effectively avoid criminal justice through immature behavior.” Id.
Here, the record reflects that, when the trial court admonished him for his disruptive behaviors, appellant acknowledged that his conduct was inappropriate, appeared contrite, and apologized to the court. Though inappropriate, nothing in the record indicates that appellant’s behaviors were not timely, topical, or logically related to what was occurring in the proceedings. See id.; see also Smith v. State, 51 S.W.3d 806, 812 (Tex. App.—Texarkana 2001, no pet.) (concluding that defendant’s actions of removing his clothes, lying on floor, and refusing to move did not constitute evidence casting doubt on his competency; rather, such conduct was in protest to “his perceived unfairness of the trial court’s actions”). The same can be said of appellant’s crying episodes.
We also disagree with appellant that the testimony of Dr. McCrary, the evaluating psychologist, when read in its entirety and in context, provided some evidence of appellant’s inability to communicate with counsel or factually appreciate the proceedings against him. Dr. McCrary opined that appellant was “possibly” mentally retarded but was probably in the “low-borderline” range of intelligence. While the Court of Criminal Appeals has concluded that evidence of moderate or greater retardation is sufficient to create a question of competency, we have found no authority concluding that evidence showing that a defendant is “possibly” mentally retarded with probable low-borderline intelligence is, by itself, sufficient to show incompetency. See McDaniel, 98 S.W.3d at 710. To the contrary, Dr. McCrary testified that, after he had spoken with appellant for a time, he believed that appellant understood “the basics of what goes on in a trial.” Dr. McCrary made clear that his ultimate professional opinion had been that appellant was competent to stand trial. Moreover, Dr. McCrary’s testimony indicating that appellant had, at some point, suffered from one or more psychiatric disorders, for which he required medication, did not mandate a competency inquiry absent evidence of a present inability to communicate with his attorney or to understand the proceedings. See Moore, 999 S.W.2d at 395–96; Brown, 129 S.W.3d at 766.
The record does show that appellant had difficulty understanding certain concepts with respect to the legal proceedings. Appellant was unaware of the sentencing range for the charged offense, did not appear to understand that his sisters had provided him with an alibi for the night in question, and did not appear to understand the concept of a plea bargain. Though the record indicates that he did not understand these individual, isolated concepts, the record also reveals that appellant understood the overall proceedings and the charges against him.
During the informal inquiry, appellant articulated to the trial court that he understood that he was on trial for robbing a bus driver. Appellant also displayed an understanding of the roles played by the trial judge, the prosecutor, and the defense. Also, as mentioned, Dr. McCrary found in his evaluation that appellant had an adequate understanding of the proceedings. The individual instances of appellant’s lack of knowledge were not evidence of appellant’s inability to communicate with counsel or factually appreciate the proceedings against him.
Lastly, appellant contends that his “indecipherable” and “incomprehensible” testimony during the guilt-innocence and punishment phases demonstrated his incompetence to stand trial. Appellant points out that the court reporter and the questioning attorney “on at least thirty occasions” did not understand appellant’s testimony. Appellant also points out that his testimony regarding where he was on the night of the robbery was inconsistent with his sisters’ alibi testimony.
We have thoroughly reviewed the record, and it does show that the court reporter and the questioning attorney had difficulty understanding appellant’s responses at times. But the record also reveals that the difficulty stemmed from appellant not speaking loudly enough, from appellant covering the microphone with his hand, or from appellant not articulating clearly.
Although appellant’s answers were, at times, rambling and nonresponsive to the questions he was asked, most of appellant’s testimony reveals simply that he wanted an opportunity to tell his story in his own way and to relate what he felt was important. Appellant’s testimony also indicated that he understood the charges against him. Appellant denied robbing Edmund, denied possessing a gun, and denied that he had ever ridden a Metro bus. While some of appellant’s testimony may have been damaging and ill-advised, it did not suggest that he lacked a rational understanding of the case against him or an inability to communicate with his counsel. See Baldwin v. State, 227 S.W.3d 251, 256 (Tex. App.—San Antonio 2007, no pet.) (concluding that, even though some of defendant’s testimony was “damaging” and “misguided,” it did not show he lacked of rational understanding of case against him); Lawrence v. State, 169 S.W.3d 319, 322–23 (Tex. App.—Fort Worth 2005, pet. ref’d) (holding that defendant’s rambling and nonresponive testimony was not evidence of incompetency); cf. Greene v. State, 225 S.W.3d 324, 329 (Tex. App.—San Antonio 2007, no pet.) (concluding that defendant’s rambling and confused testimony revealing descriptions of hallucinations he experienced showed he was “out of touch” with reality at time of trial and holding that trial court abused its discretion in failing to conduct competency inquiry).
We hold that the trial court did not abuse its discretion when it did not conduct a competency hearing before a jury. We overrule appellant’s first issue.
Pretrial Lineup Identification of Appellant
In his second issue, appellant contends that the trial court erred when it denied his motion to suppress Edmund’s pretrial lineup identification of him. Appellant asserts that the lineup viewed by Edmund was impermissively suggestive because of the disparity in age, height, weight, and appearance of appellant and the other lineup participants. More specifically, appellant asserts, “Appellant did not resemble any of the other five men in the lineup and none of the other five men resembled [Edmund’s] initial description of the robber.”
Appellant points out that Edmund described his assailant as being between 18 and 20 years of age and being 5 feet 7 inches tall. The record shows that appellant is 5 feet 9 inches tall and was 18 years old at the time of the line-up. Appellant further points out that two of the other lineup participants were 30 and 31 years old. Two others were six inches taller than appellant, and the fifth participant was two inches taller and forty pounds heavier than appellant. Appellant contends that the man who most resembled appellant in the lineup “was noticeably balding,” while appellant was not balding.
Appellant concludes, “The reality is that none of the fill ins looked anything like Appellant or like the physical description the complainant initially gave to police. As a result, the lineup was unduly suggestive.”
We apply a de novo standard of review to determine whether an identification procedure was so impermissibly suggestive that it gave rise to a very substantial likelihood of misidentification. Cienfuegos v. State, 113 S.W.3d 481, 491 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We first look to the totality of the circumstances surrounding the identification to determine if the procedure was unnecessarily suggestive. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). If we conclude that the identification procedure was impermissibly suggestive, we then consider the factors listed in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972) to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Cienfuegos, 113 S.W.3d at 491. A defendant bears the burden to show both impermissible suggestion and a substantial likelihood of misidentification by clear and convincing evidence. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App. 1995).
Though good practice dictates that the individuals in a lineup should be as similar as possible, a pretrial identification procedure is not impermissibly suggestive simply because the lineup members are not identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985); Cienfuegos, 113 S.W.3d at 491. Neither due process nor common sense requires such exactitude. Buxton, 699 S.W.2d at 216; Cienfuegos, 113 S.W.3d at 491. A lineup becomes suggestive when the accused is placed with persons of distinctly different appearance, race, hair color, height, or age. Withers v. State, 902 S.W.2d 122, 125 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Minor discrepancies between lineup participants will not render a lineup unduly suggestive. Id. In sum, the individuals need not be identical in appearance to the defendant, but their similarities in appearance should provide a reasonable test for the witness’s capacity to reliably identify the perpetrator. Cienfuegos, 113 S.W.3d at 492.
As mentioned, appellant bases his challenge to the lineup on discrepancies in the height, weight, and age of appellant and the other individuals in the lineup. The record reflects that one of the lineup participants was noticeably heavier than appellant and that two of the participants were notably taller. The fact that two of the participants were approximately 12 years older than appellant was not overly noticeable, as claimed by appellant. As pointed out by appellant, one of the two older participants had a receding hairline, but was otherwise the most similar to appellant in appearance.
Despite the dissimilarities, we note that all six men in the lineup were dressed in civilian clothes, were African-American, and appeared to be in the same general age range. The participants each wore his hair in a similar fashion, save the man whose hair was receding slightly. Moreover, all the men in the lineup, except one, wore thin facial hair in varying patterns.
We conclude that the height and weight of appellant and the other members of the lineup were not so distinctly different as to make the identification procedure impermissibly suggestive. This is particularly true in light of the overall similarities in the men’s actual appearances, as reflected in the videotaped lineup. We conclude that appellant has not shown by clear and convincing evidence that the lineup procedure was impermissibly suggestive.
Even assuming that it was impermissibly suggestive, the lineup did not give rise to the substantial likelihood of irreparable misidentification when analyzed under the Biggers factors. The Court of Criminal Appeals has held that five nonexclusive Biggers factors should be “weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances.” Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Biggers, 409 U.S. at 199, 93 S. Ct. at 382–83).
These factors include (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 prior 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 the confrontation. Id. We review the application of these factors under a de novo standard. Id.
The record shows that Edmund viewed the lineup a little over one month after the robbery. The record also shows that the description Edmund gave police matched appellant’s appearance.
At the suppression hearing, Edmund testified that he first encountered appellant when Edmund was on break and appellant asked to get on the bus. Edmund testified that he noticed appellant was fidgety but had assumed it was because appellant was cold. Edmund then told appellant that he could sit on the bus while Edmund finished his break. Edmund stated that this “first encounter” with appellant lasted two minutes.
Edmund testified that appellant rode the bus about five minutes before appellant rang the bell to stop. Edmund stated that appellant sat “right behind me” on the bus. Edmund testified that, after appellant rang the bell and as the bus was slowing to stop, he heard appellant cock the gun. Appellant then demanded Edmund’s money. Edmund stated that, after the bus was stopped, he was face to face with appellant for two to five minutes during the robbery. Edmunds also testified, “I was standing right in front of him [during the robbery] looking at him. I was calm, I was telling him, ‘Brother, you got everything. Please, take it and go.’”
Edmund further testified that, when he viewed the lineup, he “immediately” recognized appellant as the person who had robbed him. When asked how certain he was at the lineup that appellant was his assailant, Edmund responded, “Oh, 100 percent sure.” On cross-examination when asked if he had noticed that the other men in the lineup were dissimilar to appellant in appearance, Edmund stated that he had only paid attention to appellant because he immediately recognized appellant as his assailant.
After applying the Bigger factors, we conclude that the lineup identification procedure was not so “corruptive” as to outweigh the factors supporting the identification. That is, appellant has not shown by clear and convincing evidence that there was a very substantial likelihood of irreparable misidentification. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress evidence of Edmund’s pretrial lineup identification of appellant.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).