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Opinion filed July 31, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00177-CR
_________
ORVAL WAYNE TAYLOR, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15,748-B
M E M O R A N D U M O P I N I O N
Orval Wayne Taylor appeals his conviction by a jury of the offense of burglary of a habitation. The jury assessed his punishment at fourteen years in the Texas Department of Criminal Justice, Institutional Division. In two issues, Taylor contends that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion in failing to suppress evidence concerning an out-of-court photo identification because the procedure was impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. We affirm.
Taylor contends in issue two that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
Dorothy Yates, the complainant, testified that on June 3, 2005, when she went into her house, which was located next to her auction barn on Highway 277, a man was standing in front of her china cabinet. She indicated that, when she asked him what he was doing in her home, he told her that Athey@ had told him she had a water leak and that he had come to fix it. She related that, when she told the man she did not have a water leak and he did not need to be in her house, he got out of the house. She said he returned to the house for a few seconds, perhaps to retrieve a glove.
Yates testified that she was able to see and write down the license plate number of the man=s pickup. When asked whether Taylor was the man who she had seen in her house, she replied, A[w]ell, it resembles him, about the size, yeah. I think so, for sure.@ She said that, after the police had come, she noticed scratches where it looked like someone had put something in Ato score the door.@ She indicated that several of her rings were missing. Yates testified that a Detective Michael Hobbs showed her six photographs and that she picked out Taylor=s photograph because it looked like the man who was in her home. She said she told him that she hoped she was right. She indicated that, because the man in her house had a cap, Detective Hobbs took a piece of paper and covered part of the head on the photograph. She stated that she could not remember whether he had done that with respect to all three of the photographs. She related that she was able to recognize the eyes in the photograph, but she did not know if she recognized Taylor=s eyes.
Aron Bryan, an Abilene police officer, testified that she was dispatched to Yates=s residence. She said that the license plate number that Yates had reported was 44PPP2. She indicated that, when she checked the license plate number on her vehicle=s computer, it showed that it was the license plate of a 1996 Ford pickup registered to Orval Wayne Taylor.
Detective Hobbs of the Abilene Police Department testified that he talked to Yates as part of his investigation of the burglary at her residence. He indicated that he developed a photographic lineup consisting of a photograph of Taylor along with the photographs of five men who had previously been arrested. He related that he prepared the lineup with the assistance of a computer program that was designed to generate photographs of people similar to the description entered of the defendant. He said that he selected five pictures from many that the computer had selected, trying to get as close as he could to what the defendant looked like. He identified State=s Exhibit Nos. 2 through 7 as the lineup that he developed and showed to Yates.
Detective Hobbs testified that Yates eliminated all the photographs except that of Taylor. He said that she pointed to his picture and said that she was about 75% sure that he was the man who was in her home. He indicated that, when she told him she thought he had a cap, he took a piece of paper and put it over the top of Taylor=s head in the picture. He related that, when he did so, she said, AThat=s his eyes, that=s him.@ He related that he conducted an independent investigation of the license plate number reported by Yates that showed that the plate was that of Taylor. Detective Hobbs acknowledged that Taylor=s pickup was two-tone containing both white and blue whereas Yates had described it as being a white pickup.
James Hawkins, an inmate in the Taylor County Jail, testified that another inmate, Evan John Smith, told him that he had broken into a house next to an auction barn on Highway 277. He indicated that Smith told him that a woman walked in while he was in the house and that he ran out because it scared him. Smith testified that the conversation never took place. We hold that the evidence is legally and factually sufficient to support the conviction. Taylor contends that the evidence is insufficient to identify him as the burglar, but we are of the opinion that Yates=s tentative identification of him, both in the photographic lineup and in court, taken together with evidence showing that Taylor was the owner of the pickup used by the burglar, is sufficient to establish that Taylor was in fact the burglar. We overrule issue two.
Taylor asserts in issue one that the trial court abused its discretion in failing to suppress evidence concerning an out-of-court photo identification of him because the procedure was impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. When challenging the admissibility of pretrial identifications, a defendant has the burden to show, by clear and convincing evidence based on the totality of the circumstances, that the pretrial identification procedure was impermissibly suggestive and that it created a substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). It is only after the court has determined that the procedures were impermissibly suggestive that it need consider the factors enumerated in Neil v. Biggers, 409 U.S. 188 (1972), to determine whether the reliability of the identification was affected. Id. at 34. We must, therefore, determine whether the photo array was so suggestive as to make Yates=s photo array identification of Taylor inadmissible.
We have set forth a description of the array and the procedures followed by Detective Hobbs in our discussion of issue two. Considering all of the testimony in the record concerning the array, including an examination of the photographs that were included, we conclude that the photo array was not impermissibly suggestive. At trial, Taylor=s only argument as to the array being suggestive was a reference to Detective Hobbs placing a sticky note over Taylor=s photograph to simulate a cap after Yates had eliminated the other five photos and had said she was 75% sure that Taylor was the man she had confronted in her house. As previously noted, Yates had told Detective Hobbs that the man in her home was wearing a cap. Under the circumstances, we do not feel that Detective Hobbs=s failure to show her the other five photos with a sticky note simulating a cap made the array suggestive where Yates had previously eliminated those photos as having anything to do with the man she confronted in her home.
Taylor contends for the first time on appeal that the photo array was suggestive because Detective Hobbs counseled Yates that she should keep in mind that time can change the looks of an individual, thereby suggesting that the suspect was in the array. We fail to see how Detective Hobbs=s comment concerning how an individual=s looks change over time was in any way suggestive that the intruder was in the array or that Taylor was that intruder. Our examination of the photo array indicates that all six individuals in the photos had beards, although one of the individuals not Taylor had a shorter beard than the others. Inasmuch as Taylor and all of the rest of the individuals in the array had beards, the array was not suggestive at least as to Taylor even though Yates had indicated her intruder had no beard. Taylor contends that only two of the individuals in the array had light-colored hair and only two or three had short hair. Although Yates had testified that the intruder had short, light-colored hair, our examination of the array indicates that three of the six individuals in the array had light-colored hair and almost all had relatively short hair. In any event, minor discrepancies between lineup participants will not render a lineup impermissibly suggestive. Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Inasmuch as Taylor has failed to show by clear and convincing evidence that the photo array was impermissibly suggestive, we overrule issue one.
The judgment is affirmed.
PER CURIAM
July 31, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals 2nd District of Texas at Fort Worth sitting by assignment.