In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00218-CR ______________________________
SAMUEL JAMES WALKER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court Morris County, Texas Trial Court No. 8194-A
Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Ross *William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N
Samuel James Walker, Jr., appeals his conviction by a jury of aggravated robbery and the jury's assessment of ten years' imprisonment. His attorney filed an appellate brief in which he concludes that, after a review of the record and the related law, the appeal is frivolous and without merit. He has evaluated the record and has found no error that arguably supports an appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Walker did not file a response pro se.
In his Anders brief, counsel raises the arguable issue that the trial court erred in denying Walker's motion to suppress the pretrial identification of Walker because the identification procedure was impermissibly suggestive, thereby rendering any subsequent identification tainted. We review the denial of a motion to suppress by giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When the trial court does not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling. Id. at 327-28. In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing, because the ruling was based on that evidence rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).
Before trial, Walker filed a motion to suppress the picture identification, contending the picture identification was impermissibly suggestive to the extent that it caused the victim, Lilly Barnes, to misidentify Walker. At the hearing on the motion to suppress, only two witnesses testified, Officer Gary Porter and Barnes. Porter testified that, on the evening Barnes was assaulted and robbed in her home, he prepared a five-photograph spread for her to examine and instructed her not to pick anybody out unless she definitely recognized the person who assaulted her and stole her money. According to Porter's testimony, neither he nor any other officer suggested any particular photograph for Barnes to select. Porter further testified Barnes looked at the whole picture spread and almost immediately, within ten seconds, pointed to number two and said, "[T]hat's him." Photograph number two was a photograph of Walker. Porter testified Barnes signed and dated the photograph she identified, and then he signed and dated the photograph.
Porter also testified that, when choosing photographs for the lineup, he concentrated on photographs that resembled the description provided by Barnes, that of an African-American male, around the age of thirty, and wearing a yellowish shirt. He included Walker's photograph in the lineup because Barnes told him the individual who robbed her lived down the street with his mother and mowed Barnes' yard. Porter testified he had personal knowledge Walker had done yard work for Barnes and that Walker's mother lived down the street.
Barnes, the seventy-seven-year-old victim of the aggravated robbery, was called by Walker to testify at the hearing. Although Barnes testified that she did not remember signing the photograph she identified and that the signature on that photograph did not look like hers, she also testified no one told her the suspect was in the photographic lineup and, she stated, "I picked him out myself." She testified she did not know the other individuals in the photographs, only "the one that beat me up." She also testified she told the police Walker, who had mowed her yard about a week and a half before the robbery, was the one who assaulted her.
In Simmons, the United States Supreme Court established a two-part test to be used in challenging a pretrial identification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). The defendant must prove 1) the pretrial identification was impermissibly suggestive, and 2) under the circumstances, the impermissibly suggestive identification created a substantial likelihood of misidentification. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). To determine the latter, courts should consider as nonexclusive factors: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness' degree of attention; 3) the accuracy of the witness' prior description of the criminal; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140, 153-54 (1977); Webb, 760 S.W.2d at 269.
All the photographs shown to Barnes were close-ups of the individuals' faces. All were African-American males of roughly the same weight through the face and all were around the age of thirty. All had similar facial hair and the same color hair, and Porter testified all the photographs came from the Morris County Sheriff's Department files. Photograph one contained a placard at the bottom of the photograph with the words "MORRIS COUNTY, TX SHERIFF'S OFFICE"; photographs three and four each had a placard at the bottom with the words "MORRIS COUNTY, TX"; photographs two (Walker's) through five had portions of the top of the individuals' heads not showing. Walker specifically complains about number five, contending that a portion of his head was not showing, and because of this, his haircut was not visible. Although less of the individual's head in number five was showing than in the other photographs, that does not prevent the viewer from seeing the haircut. All of the individuals shown in the photographs had closely-cut hair except the individual in number four. Walker contends his photograph was more of a close-up than the others. However, all of the photographs were close-ups of varying degrees, but it cannot be said that Walker's was any more of a close-up than number five. We find that Walker has not met his burden under the first prong of the Simmons test. Simmons, 390 U.S. at 384.
Nonetheless, in the interest of justice, we will also examine the record to see if Walker proved the second prong of that test. The second prong provides the defendant must prove that, under the circumstances, the impermissibly suggestive identification created a substantial likelihood of misidentification. Webb, 760 S.W.2d at 269. In this case, Barnes had the opportunity to view Walker during the assault and robbery, and provided the police with a physical description shortly after the assault and identified where he lived. Barnes unequivocally identified Walker from the photographic lineup about two hours after the incident and signed her name to the photograph. Based on the circumstances, even if the photographic lineup had been impermissibly suggestive, which we hold it was not, the evidence provided at the hearing on the motion to suppress does not show a substantial likelihood of misidentification.
Despite the differences in the photographs, none of the photographs are more suggestive or stand out more than any of the others. There is no evidence the police acted impermissibly in suggesting to Barnes which, if any, of the photographs might be her attacker. We hold the trial court did not err in denying the motion to suppress.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: June 4, 2002
Date Decided: June 26, 2002
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00158-CR
______________________________
RAYMOND KEITH WALLS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd Judicial District Court
Red River County, Texas
Trial Court No. CR01626
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Raymond Keith Walls appeals from his conviction for sexual assault. See Tex. Penal Code Ann. § 22.011 (West 2011). Walls attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, providing possible issues, but explaining why they cannot succeed. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief and a letter to Walls November 16, 2011, informing Walls of his right to file a pro se response and his right to review the record of the trial proceedings in doing so. Walls brief was due to be filed in this Court December 16, 2011. As of this date, no brief has been filed and no request for extension has been made. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerks record and the reporters record, and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We, therefore, agree with counsels assessment that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 82627 (Tex. Crim. App. 2005).
We take note, though, of two inaccuracies in the trial courts judgment. The jury found Walls not guilty of aggravated sexual assault and convicted him of sexual assault. The judgment should cite Section 22.011 of the Texas Penal Code, not Section 22.021, and we amend the judgment to reflect the correct statute. Likewise, the judgment states Walls pled true to the two enhancement paragraphs, where in fact he pled not true. We amend the judgment to reflect Walls pleas.[1]
As amended, the trial courts judgment is affirmed.[2]
Josh R. Morriss, III
Chief Justice
Date Submitted: January 30, 2012
Date Decided: January 31, 2012
Do Not Publish
[1]Appellate courts have the authority to reform the judgment to make the record speak the truth when the matter has been called to its attention by any source. French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526 (Tex. App.Dallas 1991, pet. refd), the court noted that the authority of the appellate court to reform incorrect judgments is not dependent on request of any party and that the appellate court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court. Tex. R. App. P. 43.2(b).
[2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsels request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3 (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.