In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00233-CR
______________________________
JEFFERY JANSEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court
Gregg County, Texas
Trial Court No. 32914-A
Before Morriss, C.J., Ross and Carter, JJ.
O R D E R
Jeffery Jansen has appealed his conviction for possession of a controlled substance. The trial court imposed sentence August 3, 2005, and Jansen timely appealed. Jansen is represented by retained counsel and is not appealing as an indigent; he is, therefore, responsible to pay for the preparation of the appellate record. The record was originally due to be filed 120 days after the date sentence was imposed; in this case, that due date was December 1, 2005. See Tex. R. App. P. 35.2(b).
The clerk's record was timely received November 21, 2005. Our clerk's office has contacted the court reporter, who has informed the Court that the reporter's record has not been prepared or filed because the party has not paid the reporter's fee and has not made satisfactory arrangements to pay that fee as required by Tex. R. App. P. 35.3(b), (c).
Earlier this month, retained counsel informed this Court that Jansen wishes to dismiss his appeal, but we have not, as yet, received a motion to dismiss the appeal.
Under the authority of Tex. R. App. P. 37.3(c), we hereby provide the appellant with notice and an opportunity to cure the defect in timely preparing the record (as required by our rules) by paying or making arrangements to pay the court reporter the amount owed and by filing the reporter's record. If the reporter's record or information reflecting an adequate effort to obtain such is not received by this Court within fifteen days of the date of this order, that is, before March 8, 2006, or if the appellate brief based solely on the clerk's record is not received by that same date, this appeal will be considered on the record alone. See Tex. R. App. P. 38.8(b); Stavinoha v. State, 82 S.W.3d 690 (Tex. App.—Waco 2002, no pet.); Bush v. State, 80 S.W.3d 199 (Tex. App.—Waco 2002, no pet.); see also McDaniel v. State, 75 S.W.3d 605 (Tex. App.—Texarkana 2002, no pet.); Rodriguez v. State, 970 S.W.2d 133, 135 (Tex. App.—Amarillo 1998, pet. ref'd).
IT IS SO ORDERED.
Josh R. Morriss, III
Chief Justice
Date: February 21, 2006
viewing court uses a two-step analysis: 1) Was the photo display impermissibly suggestive? 2) If it was suggestive, the court looks to the totality of the circumstances to determine if the suggestive procedure gave rise to a "very substantial likelihood of irreparable misidentification."
Mitchell v. State, 974 S.W.2d 161, 164 (Tex. App.-San Antonio 1998), vacated on other grounds, 989 S.W.2d 747 (Tex. Crim. App. 1999) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)); see also Wallace, 75 S.W.3d at 584 (citing In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.-Houston [14th Dist.] 2000, pet. denied)) (listing two-pronged test).
The evidence shows that, during her 9-1-1 call to police, Hobbs described the suspect as a black male, about 5'7" tall, weighing 130 pounds, and in his mid-twenties. Less than one and one-half hours later, police received a tip from Hopes that a person being sought by police was sighted in a location a few blocks away from where the robber abandoned the Cadillac. Hopes described the man as out of breath and desperate for a place to hide. He also told police the man's name was Patrick Lane, whom Hopes knew as his sister's former boyfriend. From this evidence, Wilson developed Lane as a suspect in the robbery. Given the state of the investigation at the time, there was no obligation to prepare a line-up fitting a description of someone not a suspect. See Wallace, 75 S.W.3d at 585. The argument that the persons in the photographic array have characteristics not described by the victim at the time of the 9-1-1 call has no validity. Cf. id. at 584 (allegation that array did not contain anyone matching original description by witnesses has no validity). The record before the trial court does not convey the idea that Wilson used the array in an unduly suggestive manner or indicate the pictures themselves led to a misidentification. Therefore, we cannot say the trial court abused its discretion by finding the photographic display was not unduly suggestive.
As the second step of the analysis, the Texas Court of Criminal Appeals has outlined five nonexclusive factors that should be weighed against the corrupting effect of any suggestive identification procedures in assessing reliability under the totality of the circumstances:
1) the opportunity of the witness to view the accused at the time of the crime;
2) the witness' degree of attention;
3) the accuracy of the witness' prior description of the accused;
4) the level of certainty demonstrated by the witness at the confrontation; and
5) the length of time between the crime and the confrontation.
Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Wallace, 75 S.W.3d at 585. "We are required to review the trial court's findings on these factors, regarded as matters of historical fact, deferentially in the light most favorable to the trial court's ruling. These factors should then be weighed de novo against the corrupting effect of the suggestive pretrial identification procedure." Wallace, 75 S.W.3d at 585.
Hobbs had ample time to view the robber, especially his face, during the commission of the crime. At times, the robber was as close as two feet from her. There was no evidence she was intoxicated or had impaired vision. She gave police a description of the man's vehicle, his clothing, and his height-demonstrating at least a moderate level of attentiveness during the encounter. While Hobbs described the suspect as weighing approximately forty pounds less than Lane's weight at trial, this evidence alone is not sufficient to label her identification as erroneous, given the totality of the circumstances. Cf. id. (discrepancies between early descriptions of suspect and defendant's actual appearance do not necessarily lead to misidentification when evidence is viewed under totality of circumstances). Our review of the photographic array admitted into evidence shows two other men in the array have eyes of a similar oval shape to Lane's eyes. Hobbs was quite positive photograph number five (Lane) was the person who committed the robbery. Only one week passed between the crime and the identification of Lane from the array. Therefore, examining the totality of the circumstances surrounding Hobbs' identification of Lane, we do not believe there was a very substantial likelihood of misidentification. See id. at 584.
The trial court's findings of fact and conclusions of law on the motion to suppress identification are supported by the evidence presented in this case. Therefore, the trial court did not abuse its discretion by denying Lane's motion to suppress.
3. Factual Sufficiency.
In his final point of error, Lane contends that, absent the victim's identification of him at trial, the overwhelming weight of the evidence does not support his conviction. He further contends the victim would not have identified him at trial as the robber absent her erroneous identification of him from the unduly suggestive photographic line-up.
The Texas Court of Criminal Appeals recently reaffirmed the Clewis (1) standard for reviewing factual sufficiency:
In conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). While a reviewing court has some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact[-]finder. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001). The reviewing court should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony.
Ortiz v. State, No. 73692, 2002 WL 31116634, at *5 (Tex. Crim. App. Sept. 25, 2002).
We have already found Hobbs' pretrial identification of Lane was not the product of an unduly suggestive photographic array. It follows that her in-court identification would not be the product of an overly suggestive pretrial identification. Additionally, the victim explicitly testified at trial that her in-court identification of Lane was made independently of her pretrial identification from the photographic array. Hobbs never wavered in the surety of her in-court identification. Nor does the overwhelming weight of the remaining evidence suggest Hobbs erroneously identified Lane. The evidence is thereby factually sufficient to support the conviction. Lane's final point of error is overruled.
We affirm the trial court's judgment.
Donald R. Ross
Justice
Date Submitted: January 17, 2003
Date Decided: February 4, 2003
Do Not Publish
1. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).