NUMBER 13-00-034-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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CHRISTOPHER DEON JOHNSON
, Appellant,v.
THE STATE OF TEXAS, Appellee.
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___________________________________________________________
Before Justices Hinojosa, Chavez and Rodriguez
Opinion by Justice Chavez
Appellant Christopher Deon Johnson pleaded not guilty to the felony offense of aggravated assault. After a jury found him guilty, the trial court assessed the appellant's punishment at twenty years imprisonment. Appellant raises one issue on appeal. We affirm.
The State presented Nathaniel Thomas as its sole witness to the crime. Thomas testified that, as he was standing on a street corner in Houston, he observed a Lexus automobile come around the corner. He saw a person firing a gun out of the sun roof of the car, and heard four to six shots. Thomas attempted to hide, but was struck by a bullet in the leg. Houston police officers recovered three shell casings from the street. A firearms expert matched the shell casings to a stolen gun recovered from the house where appellant was arrested.
Appellant argues that the trial court erred by allowing the State to introduce into evidence a prejudicial photo array out of which Thomas identified appellant before the trial. We review this type of ruling according to an abuse of discretion standard or review. Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998). In doing so, we view the evidence in light most favorable to the trial court's ruling, and give almost total deference to the trial court's ruling. Id; see Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997).
Appellant has the burden of proving by clear and convincing evidence 1) that the pretrial identification was "impermissibly suggestive," and 2) that there was a "substantial likelihood of irreparable misidentification." Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). The court must look at the totality of the circumstances in determining the second step. Manson v. Brathwaite, 432 U.S. 98, 114 (1997); Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987). This includes consideration of the following non-exclusive list of factors: 1) the opportunity of the witness to view the criminal during the commission 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 confrontation during cross examination; and 5) the length of time between the crime and the confrontation. Manson, 432 U.S. at 114-16.
Appellant complains that because it was dark outside, because there were bright flashes from the firearm, because the events happened very quickly, and since the witness testified that his focus was on his own safety and health, Thomas could not get a good view of the shooter. The State contends that each person in the photo array was an African-American male with braided hair; Thomas picked out appellant from the photo array; Thomas testified that he saw who was in the car as it was coming down the street; Thomas named appellant as the culprit before being taken to the hospital from the scene, and Thomas knew who appellant was prior to the day of the shooting. Appellant's trial counsel argued that two of the six people in the photo array were not African-American, and that the hair styles were divergent among all six of the people. Further, some of the people photographed had facial hair and earrings, while others did not.
However, we need not look into these factors because Thomas's identification of appellant was based on a set of facts separate from the photo identification. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, this court must determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). See also Waller v. State, 648 S.W.2d 308, 312 (Tex. Crim. App. 1983) (When an in-court identification is based upon knowledge independent of any possible improper trial procedure, it is admissible.). Thomas testified that he saw appellant two to three weeks after the shooting when appellant approached him and asked him if he was the person whom appellant had shot. This knowledge -- that the person who shot Thomas was appellant -- is independent of the alleged impermissibly suggestive photo array, and admissible against appellant. We therefore overrule appellant's issue on appeal.
We AFFIRM the judgement of the trial court.
MELCHOR CHAVEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 27th day of July, 2000.