Clevin Earl Brown, Jr. v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-12-00173-CR

CLEVIN EARL BROWN, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1273133R

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MEMORANDUM OPINION 1

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In two issues, Clevin Earl Brown, Jr. contends that his convictions and

sentences for murder and engaging in organized criminal activity (EOCA) should

be reversed for jury charge error and the trial court’s admission of testimony

regarding an allegedly improperly suggestive live lineup. We affirm.

1
See Tex. R. App. P. 47.4. This case was originally submitted on May 14,
2013. On June 10, 2014, the court, on its own motion, ordered the appeal to be
resubmitted on July 1, 2014; assigned this case to a new panel; and assigned
the undersigned to author the opinion.
 Background

Appellant shot Jarami Thomas in a convenience store parking lot in

Arlington during a fight. At appellant’s trial for murder and EOCA, he claimed

that he shot Jarami in self-defense. A jury convicted him of both offenses,

rejecting his self-defense claim. In accordance with the jury’s assessment, the

trial judge sentenced appellant to fifty years’ confinement on the murder charge

and five years’ confinement on the EOCA charge.

Jury Charge

In his first issue, appellant contends that the trial court reversibly erred by

including an improper definition of “knowingly” in the abstract paragraph of the

jury charge. Although the State concedes that the incorrect definition was used

in the abstract paragraph, it contends that the error is not reversible because it

did not egregiously harm appellant.

Standard of Review

“[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. Id. Unpreserved charge error warrants reversal only when the error

resulted in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West

2
2006). The appropriate inquiry for egregious harm is a fact specific one that

must be performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703,

710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim.

App. 2011).

In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at

172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

Applicable Law

As charged in this case, a person commits murder if he intentionally or

knowingly causes the death of a person or if he intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death

of a person. Tex. Penal Code Ann. § 19.02(b)(1)–(2) (West 2011). The penal

code provides two definitions of knowingly:

3
 A person acts knowingly, or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.

Id. § 6.03(b) (West 2011). Murder is a result-of-conduct offense, meaning that

the actor’s conduct must be done with the required culpability to effect the result

of death. E.g., Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994).

Thus, a charge that defines the mental state of “knowingly” as related to the

nature of the conduct––i.e., that includes the first definition––as well as the result

of the conduct is improper. Id.

The Charge Itself

Although we have reviewed and considered the charge as a whole, only

the pertinent parts are quoted below. The incorrect definition is italicized:

A person commits an offense if, with the intent to establish,
maintain, or participate as a member of a criminal street gang, he
commits the offense of murder.

A person commits the offense of murder if he intentionally or
knowingly causes the death of an individual.

A person commits the offense of murder if he intends to cause
serious bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual.

....

A person acts knowingly, or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,

4
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.

....

[Count one application] . . . [I]f you find from the evidence
beyond a reasonable doubt that the Defendant . . . did with the intent
to establish, maintain or participate as a member of a criminal street
gang, commit murder by intentionally or knowingly causing the death
of Jarami Thomas . . . , by shooting him with a firearm[,] or if you find
that the said defendant . . . did then and there, with the intent to
establish, maintain or participate as a member of a criminal street
gang, commit murder by intentionally, with the intent to cause
serious bodily injury to Jarami Thomas, committing an act clearly
dangerous to human life, namely, shooting him with a firearm, which
caused the death of Jarami Thomas, then you will find the
Defendant . . . guilty of the offense of engaging in organized criminal
activity, as charged in Count One of the indictment.

....

[Count two application] . . . [I]f you find from the evidence . . .
that the Defendant . . . did then and there intentionally or knowingly
cause the death of an individual, Jarami Thomas, by shooting him
with a firearm[,] or if you find that the said defendant . . . did then
and there intentionally, with the intent to cause serious bodily injury
to Jarami Thomas, commit an act clearly dangerous to human life,
namely, shooting him with a firearm, which caused the death of
Jarami Thomas, then you will find the Defendant . . . guilty of the
offense of murder, as charged in Count Two of the indictment.

....

[Self-defense instruction] Upon the law of self-defense, you
are instructed that a person is justified in using force against another
when and to the degree he reasonably believes the force is
immediately necessary to protect himself against the other person’s
use or attempted use of unlawful force.

The actor’s belief that the force was immediately necessary is
presumed to be reasonable if the actor:

5
 (1) knew or had reason to believe that the person against
whom the force was used was committing or attempting to commit
murder;

(2) did not provoke the person against whom the force was
used; and

(3) was not otherwise engaged in criminal activity.

The use of force against another is not justified:

(1) in response to verbal provocation alone[;]

(2) if the actor provoked the other’s use or attempted use of
unlawful force[;] or

(3) if the actor sought an explanation from or discussion with
the other person concerning the actor’s differences with the other
person while the actor was unlawfully carrying a weapon.

A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other in
the first place, as set out above; and

(2) when and to the degree he reasonably believes the deadly
force is immediately necessary to protect himself against the other
person’s use or attempted use of unlawful deadly force.

By the term “reasonable belief” as herein used is meant a
belief that would be held by an ordinary and prudent person in the
same circumstances as the defendant.

By the term “deadly force” is meant force that is intended or
known by the person using it to cause, or in the manner of its use or
intended use is capable of causing, death or serious bodily injury.

When a person is attacked with unlawful deadly force, or he
reasonably believes he is under attack or attempted attack with
unlawful deadly force, and there is created in the mind of such
person a reasonable expectation or fear of death or serious bodily
injury, then the law excuses or justifies such person in resorting to
deadly force by any means at his command to the degree that he

6
 reasonably believes immediately necessary, viewed from his
standpoint at that time, to protect himself from such attack or
attempted attack. And it is not necessary that there be an actual
attack or attempted attack, as a person has a right to defend his life
and person from apparent danger as fully and to the same extent as
he would had the danger been real, provided that he acted upon a
reasonable apprehension of danger, as it appeared to him from his
standpoint at the time, and that he reasonably believed such deadly
force was immediately necessary to protect himself against the other
person’s use or attempted use of unlawful deadly force.

....

Now, if you find from the evidence beyond a reasonable doubt
that on the occasion in question, the Defendant . . . committed the
offense of murder, but you further find from the evidence, or have a
reasonable doubt thereof, that the [D]efendant reasonably believed,
as viewed from his standpoint at the time, that from the words or
conduct, or both, of Jarami Thomas, it reasonably appeared to the
[D]efendant that his life or person was in danger and there was
created in the [D]efendant’s mind a reasonable expectation of fear of
death or serious bodily injury from the immediate use of unlawful
deadly force at the hands of Jarami Thomas to himself, and that
acting under such apprehension and reasonably believing that the
use of deadly force on his part was immediately necessary to protect
himself against Jarami Thomas’ use or attempted use of unlawful
deadly force, he shot Jarami Thomas with a firearm, then you should
acquit the [D]efendant on the grounds of self-defense, or if you have
a reasonable doubt as to whether or not the [D]efendant was acting
in self-defense on said occasion and under the circumstances, then
you should give the [D]efendant the benefit of that doubt and say by
your verdict Not Guilty.

[Emphasis added.]

In assessing harm resulting from the inclusion of improper conduct

elements in the definitions of culpable mental states, we “may consider the

degree, if any, to which the culpable mental states were limited by the application

portions of the jury charge.” Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim.

7
App. 1995), cert. denied, 517 U.S. 1106 (1996). In Patrick, the court of criminal

appeals held that the improper inclusion of an incorrect definition of knowingly

was harmless:

Although the definitions of “intentionally” and “knowingly”
indiscriminately set forth the three alternative conduct elements,
when those terms are viewed in their factual context, it becomes
apparent which conduct element applies to which element of the
offense. For instance, the application paragraph states that
appellant “did intentionally cause the death of [the victim.]” The term
intentionally directly modifies the phrase “cause the death”.
Referring back to the definitions of culpable mental states, it is
obvious that the “result of conduct” and cause the result language
are the applicable portions of the full code definitions. We conclude
that because the facts, as applied to the law in the application
paragraph, pointed the jury to the appropriate portion of the
definitions, no harm resulted from the court’s failure to limit the
definitions of culpable mental states to proving the conduct element
of the underlying offense.

Id. at 493 (citations omitted).

Appellant contends that the error here could not be harmless because

under the charge as given the jury could not have given effect to his claim of self

defense and would have been compelled to find that he was guilty––even under

his version of the facts––“for simply possessing and displaying the gun.” It is true

that the application paragraph of the charge here is not as narrow as that in

Patrick, which required the jury to find that the appellant had engaged in the

alleged conduct with the specific intent to kill. Id. Thus, we will review the

remainder of the factors mentioned in Almanza, as well as any other relevant

matters, to determine if egregious harm occurred.

8
The Evidence

Jarami owed a man named Tre money for losing a Superbowl bet. Tre

and appellant were members of the same gang. While Jarami was performing at

a club called Dreamworld on the night of March 13, 2011, Tre was in the

audience, raising his fists above his head indicating that he wanted to fight

Jarami. The host of the event at Dreamworld sent Jarami and his party out of the

club through an alternate door because he was afraid they would have a

confrontation with Tre at the club.

After the show, Jarami began receiving repeated text messages and

phone calls from Tre, possibly as many as thirty “back to back.” Jarami’s

girlfriend Jasmine heard “violent” shouting on the other end of the line when

Jarami answered a call. The person calling was Tre. Jarami ignored the calls at

first, but eventually “[h]e just wanted to solve everything.” He told Jasmine,

“Those guys keep calling me about their money, and they’re not getting it.”

Jarami finally agreed to meet Tre at a nearby 7-Eleven so they could settle the

dispute with a fight.

When Jarami, Jasmine, and Jarami’s cousin Krys and friend Kevyn arrived

at the 7-Eleven parking lot, a car full of people was already parked there in a

darkened area. Kevyn, who was driving, backed into a spot. Jarami was in the

passenger seat, and Jasmine was seated behind Kevyn. 2 Krys got out of the

2
Krys testified that Jasmine drove and parked the car.

9
car, and Kevyn told Jasmine to switch places with him “in case something

happened.” 3

According to Krys, a “light-skinned guy” in the other car motioned for them

to come over, but Jarami told him, “Y’all want to fight, y’all come over to where

the light is.” Jasmine and Krys testified that the driver of the other car drove over

“really fast” in front of their car and stopped, blocking them in. They both testified

that appellant got out of the other car and tried to pull Jarami out from the

passenger side. Jasmine tried to pull him back in from the driver’s seat.

Jarami and appellant began fighting; some “other guys” came out of the

other car, and Kevyn and Krys got out of Jarami’s car, to join the fight as well.

Tre was among them. Krys tried to pull appellant off Jarami. Krys hit appellant,

and appellant pulled out a gun and aimed it at Krys. Krys grabbed appellant’s

wrist, and they wrestled with the gun back and forth. According to Krys, Jarami

came behind appellant and grabbed his wrist and was wrestling with the gun too.

Meanwhile, Tre had retrieved a wooden board; he hit Krys with it while

Krys, Jarami, and appellant were wrestling for the gun. Jasmine testified that she

saw Tre keep trying to hit Jarami in the back of the head with it while Jarami was

fighting appellant. At that point, Jasmine came out of Jarami’s car and pulled Tre

down. As she was doing so, she looked back at Jarami; she saw appellant pull

out a gun, aim it, and shoot Jarami as he was pulling away from him. Jarami

3
Krys also testified that at some point before the fight, all four of them
exited the car, and Jasmine bought candy.

10
appeared to be trying to shield himself from the coming shot. Krys testified that

as he was trying to get back up after Tre hit him, he saw appellant and Jarami

fall. As appellant was standing up and Jarami was on the ground, “the gun

[went] off.” 4 Appellant had his back to Krys. After appellant shot Jarami, Krys

saw appellant walking toward Jarami with the gun out, but a girl who had been in

the car with Tre and appellant came over and pulled appellant away. Appellant,

Tre, and all those who had been in the car with them fled.

According to appellant, while Jarami was performing at Dreamworld, he

pointed out Tre from the stage, as if saying he wanted to fight Tre. After Jarami

finished performing, Krys sought out appellant and told him Jarami was waiting

out back to fight Tre. Tre did not want to fight and neither did appellant.

Appellant testified that when he and his friends, including Tre, got to the 7-

Eleven, they waited in the parking lot until they got a call that Jarami and his

friends were there. Appellant’s friend DJ, who was driving, drove over to

Jarami’s car. Appellant got out and told Jarami the fight should just be between

Jarami and Tre. Appellant said Jarami and Jasmine grabbed him by his hoodie

and tried to pull him into the car; Jasmine’s fingernail poked his eye. Krys came

over and attacked appellant from the front and Jarami grabbed him by the neck.

According to appellant:

4
Krys testified that he was unsure whether appellant meant to shoot
Jarami: “Now, whether he did it on purpose or not, I really don’t care, but it
happened. But it shouldn’t have happened. There shouldn’t been a gun there.”

11
 And then like I’m losing air. I’m like -- you know, I’m paranoid.
I’m losing -- I’m losing air. I can’t breathe. He’s choking me.
Krys . . . fighting me from the front. He’s trying to grab me like fight
me, too. So I grab for the gun. Krys . . . grab my hand, so we
fighting over it. He coming to my face. It’s going everywhere. It’s in
the sky right now. J.T. still holding me.

When I -- right when I pulled the gun down, I get it -- I get it
from Krys . . . . I come out of J.T. arms. Like he’s the one --

....

. . . I just pull the trigger. I’m thinking in my head like I’m
fixing to lose my life. I pull this gun. I’m trying to get away from
them. I’m trying to get them off me. But I’m like fearing for my life.

So once I -- once I got the gun, pull the trigger like to get him
away from me. When I’m falling, I fall off the curb. And hit -- like it
hit him, I’m just sitting there like shocked, like just standing there.
Like, just -- I’m looking like, Oh, my God. Like he just fell. I didn’t -- I
didn’t mean to shoot the dude or nothing.

The medical examiner who testified about appellant’s wounds said that he

was shot in the left arm, and the bullet passed through his rib cage, both lungs,

and his trachea.

Arguments of Counsel

During the State’s brief opening statement, the prosecutor told the jury that

the gang “one for all, all for one” mentality is the reason appellant killed Jarami

and that he did so to “exact[] payment from Jarami for disrespect to the gang.”

She stated, “[W]hile Jarami sat in his car, [appellant] . . . got out of a vehicle,

approached Jarami as he sat in his car and punched Jarami, pulled Jarami out of

the car, pulled out a gun, and as Jarami tried to defend himself, shot and killed

Jarami.” In his opening statement, appellant’s counsel emphasized that Jarami

12
and Krys were the aggressors against appellant and that appellant was trying to

fight them off. He also said that appellant grabbed his gun when he began to

fear for his life and that it went off as appellant was losing his balance.

During the first part of the State’s closing argument, the prosecutor

described the difference between (1) intentionally or knowingly causing

someone’s death by shooting him with a firearm and (2) committing an act clearly

dangerous to human life with the intent to cause serious bodily injury as “the

difference between saying, I did it -- I’m saying I did it on purpose or saying I

didn’t really mean to kill him when you shot him in the chest. I meant to hurt him

really bad.” Thus, he described intentionally or knowingly causing death as

result-oriented, i.e., meaning to kill.

Additionally, the prosecutor emphasized why the evidence did not show

self-defense: because appellant and Tre initiated the fight 5; because while

appellant was with Tre, Tre had been threatening Jarami during the evening

before the fight and had sent text messages to others that night indicating that he

was going to kill Jarami; and because appellant had knowingly or recklessly

5
Specifically, he argued,

You don’t get to claim self-defense if you went -- if you provoked the
difficulty, and in doing so -- that means you picked the fight, but your
intent was to goad that person into attacking you so that you can
then use -- use it as a pretext for killing them.

The whole idea -- you’ve probably seen this in . . . cowboy
movies. You know, the gun fighter’s standing there like this saying,
Go ahead and draw.

13
carried a gun, thus committing the offense of unlawfully carrying a weapon. He

further argued that Jarami was not using deadly force that would have justified

the shooting.

The following excerpt shows the State’s emphasis on the evidence

showing that appellant intended to kill Jarami and that he shot Jarami knowing it

would bring about his death:

What else is a contested issue? Was it an accident? . . . Well,
let’s see, he associates with Tre all the time. He was with Tre all
evening long. They had visited -- they’d been to Dreamworld earlier
in the night.

And I don’t know what made him change his shirt. I don’t
know what made him change out of the plaid shirt he was wearing at
the club and put on a dark hoodie and put the hood over his head
before this incident occurred. Maybe you guys can think of a good
reason for that.

Tre threatened J.T. directly, both in telephone and in text
messages. We have those in evidence before you. And he was --
remember he was in -- he was with Tre all evening long while this is
going on, including while they’re riding in the car.

While his -- while the telephone calls are going on between
J.T. and Tre, he’s in the car knowing this is going on, and Tre had
been proclaiming his intent to kill J.T. to others.

Tre stated his intent to kill J.T. immediately before the killing.
Remember that text messages -- that text message? Immediately,
minutes before the killing, he stated his intent to kill him. This is
while he was arranging the fight, the, quote, fight.

The fight. We’re just going to fight it out straight up. He’s
texting at that very moment to somebody else that he’s going to kill
him, and this is the man sitting next to him in the car. His friend with
a gun.

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 He bragged -- Tre bragged in a text message about the killing
immediately after. Immediately before, I’m going to kill him;
immediately after, I left him dead on the curb.

....

This evidence that this was not an accident. Let’s see, he sat
in the car with Tre while Tre attempted to lure J.T. to the back of the
7-Eleven, to the darkness. He jumped out first after D.J. blocked in
J.T.’s car. He’s the first one out of the car.

He approached J.T. while J.T. was still seated in the car.
They didn’t pull up side by side, window to window, talk out here in
the open, out here where nothing bad can happen. We’re going to
do this? What?

. . . . He jumped out of the car, and he walked -- ran -- ran up
and opened the car door. He demanded that J.T. get out and fight,
and he was armed at the time.

Think it was an accident? He opened the door and dragged
J.T. from the car and was preparing to fire again after shooting J.T.
through both lungs and the trachea with a .45 caliber handgun.

And how do we know that’s telling the truth? How do you
know that was truthful? Well, Jasmine and Krys both accurately
described Teka. . . . I -- I don’t even know if she remembers getting
out of the car. She was probably as frightened as the rest of them.

But I do know one thing. They heard her say, C.J.B., no. This
is her friend, her play brother. Do you think under these
circumstances she’s going to do something to stop it, to get him
back in, before he blows that poor boy’s head off because she can
see he’s about to do it?

The defense also discussed the accident versus intent theory:

The murder section. He did not -- and they have a problem
with intent. He did not intend to kill J.T. He just didn’t.

....

15
 . . . But what happens is as they’re fighting for it, as he’s
trying to get away from J.T., he eventually does; and as he does, he
tells you he’s falling off of that curb where the spent shell casing just
happens to be, and as it’s coming down, bam, that’s where the shot
is.

And let me ask you this: If you’re trying to murder someone,
do you shoot them in the shoulder? Is that -- is that the kill shot that
you go for, the shoulder? How many vital organs do you have in
your shoulder? That’s what they want you to believe. Oh, yeah, he
is just a cold-blooded killer because, let me tell you, we see it every
day, cold-blooded killers shoot people in the shoulder. . . .

....

. . . [B]ut that grip kept getting tighter and tighter to the point
where he could not breathe any longer, he did what any of us would
have done. He reached for the closest thing that he had, and that
was a gun.

He didn’t just start blasting because if he would have, Krys
Triggs wouldn’t be here. What he did was he grabbed it. And they
could see it, and they fought for it. And it wasn’t until he started to
fall back and they’re fighting for it, Krys Triggs tell you they all fell to
the ground, but that gun went off.

The State also emphasized in its rebuttal argument that appellant and Tre

orchestrated the fight because they planned all along to kill Jarami.

Voir Dire

During voir dire, the State described the mental state attributable to the

murder count as follows:

And in a case of the elements, we have intentionally up there,
and just so you know, intentionally just means on purpose.

I know a lot of us watch Law & Order. How many of y’all
watch Law & Order? A lot of times you hear them talk about
premeditation. Have y’all heard of premeditation?

16
 Where in Texas, we don’t have premeditation. I don’t have to
prove that the Defendant sat down and planned the murder. We
don’t have to prove . . . premeditation. I do have to prove that it was
intentional or that it was knowing. [Emphasis added.]

Additionally, when discussing the possibility of assessing probation, at least two

prospective jurors seemed to understand that murder is result-oriented conduct

and voiced that opinion before the panel:

PROSPECTIVE JUROR: If it was just the organized crime
piece, not at all. I can see probation there fairly enough. But if the
murder piece, again, if the intention factor is proven or agreed to
amongst the jurors, I couldn’t see giving probation for that.

....

PROSPECTIVE JUROR: I feel basically the same as
everybody else. I don’t think you can really go with probation if it
was beyond a shadow of a doubt this man intended to kill somebody
else.

Analysis

After a review of the entire record, including the parts emphasized by

Almanza, we conclude and hold that the improper definition in the abstract

paragraph did not result in egregious harm to appellant.

It is clear that from voir dire through closing argument, the State’s theory

articulated to the jury was that appellant and Tre planned to kill Jarami in

retaliation for failing to pay his gambling debt and that the fight was merely a

pretext for the killing. Jasmine, Krys, and a bystander all testified that appellant

had been the one to initially approach Jarami’s car after the car he was in

blocked their car. The defense’s theory articulated to the jury was that appellant

17
intended only to facilitate a fight between Jarami and Tre, just happened to have

a gun with him, and either shot Jarami by accident or only when the fight got out

of hand and he feared for his life. The state of the evidence and jury arguments

clarified any error that occurred in the charge: it was clear that the jury was to

convict appellant if it believed he and Tre lured Jarami to the parking lot with the

intent to shoot and kill him and that it was to acquit appellant of the murder

charge if it believed appellant shot Jarami in self defense or that the gun

accidentally went off during the fight. We have not found any place in the record

where it was suggested to the jury that it could find appellant guilty simply for

displaying and possessing the gun during an incident in which a person was

killed.

Accordingly, we overrule appellant’s first issue.

Complaint About Live Lineup

In his second issue, appellant alleges that the trial court abused its

discretion by overruling his objection to a detective’s testimony that Jasmine

identified him in a live lineup after previously being unable to identify him in a

photo spread.

Jasmine had previously testified that she had identified Tre in a photo

spread shown to her by a detective. She thought she had recognized appellant

in a different photo spread, but she could not be sure so she told the detective,

“He may be the guy, but on the paper it looked different from in person.” She

then testified that she had identified appellant in a later live lineup. During later

18
questioning of the detective who showed Jasmine the photo spread, appellant’s

counsel went into more detail about the method the detective used. When the

detective said that appellant was the only person common to both the photo

spread and lineup, appellant’s counsel objected that the live lineup was

impermissibly suggestive. He did not ask for the jury to be instructed not to

consider any prior evidence regarding the lineup. The trial court overruled the

objection, finding both that it was untimely and that the lineup was not unduly

suggestive.

Although the State contends that appellant’s complaint was not preserved,

his counsel had not had the opportunity to question the detective about

appellant’s being the only similarity between the photo spread and the live lineup

until the detective’s cross-examination. However, by that point Jasmine had

already testified that she identified appellant in the live lineup; thus, regardless of

the timeliness of appellant’s objection, any error is harmless because the same

evidence was previously admitted without objection. See, e.g., Klein v. State,

273 S.W.3d 297, 318 (Tex. Crim. App. 2008); Leday v. State, 983 S.W.2d 713,

718 (Tex. Crim. App. 1998) (noting that prior admission of improper evidence

renders subsequent, objected-to admission harmless).

Moreover, appellant did not meet the “difficult and heavy burden” required

to show by clear and convincing evidence that the live lineup was impermissibly

suggestive, especially given that Jasmine and Krys had both testified that they

had seen appellant in both Dreamworld and the 7-Eleven parking lot that night in

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close proximity. See, e.g., Jackson v. State, 628 S.W.2d 446, 448–49 (Tex.

Crim. App. [Panel Op.] 1982).

We overrule appellant’s second issue.

Conclusion

Having overruled appellant’s two issues, we affirm the trial court’s

judgment.

/s/ Terrie Livingston

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 4, 2014

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