in the Matter of M. I. S., a Juvenile

ACCEPTED
01-14-00684-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/21/2015 2:55:32 PM
No. 01-14-00684-CV CHRISTOPHER PRINE
CLERK
In the
Court of Appeals
For the
First District of Texas FILED IN -
At Houston 1st COURT OF--APPEALS
- ----
HOUSTON, -
--- TEXAS
 - - ----ID K ------
10/21/2015
- - 2:55:32 -- PM
---- VO ------
CHRISTOPHER -- A. PRINE
----
No. 2013-05802J ---- Clerk
In the 313th District Court
Of Harris County, Texas
 FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE MATTER OF M.I.S.
10/21/2015 2:55:32 PM
Appellant
CHRISTOPHER A. PRINE
V. Clerk
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF


DEVON ANDERSON
District Attorney
Harris County, Texas

DAN MCCRORY
Assistant District Attorney
Harris County, Texas
mccrory_daniel@dao.hctx.net

MARTINA LONGORIA
RYAN MCLEAREN
Assistant District Attorneys
Harris County, Texas

1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
FAX No.: 713/755-5809

Counsel for Appellee

ORAL ARGUMENT GRANTED
 STATEMENT REGARDING ORAL ARGUMENT

This Court has granted oral argument.

i
 TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENTS ....................................................................... 4

REPLY TO POINT OF ERROR ONE ....................................................................... 5

REPLY TO POINTS OF ERROR TWO AND THREE .......................................... 11

REPLY TO POINT OF ERROR FOUR .................................................................. 27

CONCLUSION ........................................................................................................ 34

CERTIFICATE OF SERVICE ................................................................................. 35

CERTIFICATE OF COMPLIANCE ....................................................................... 35

ii
 INDEX OF AUTHORITIES

CASES

Baird v. State,
398 S.W.3d 220 (Tex. Crim. App. 2013) ....................................................... 12, 19

Barley v. State,
906 S.W.2d 27 (Tex. Crim. App. 1995)................................. 16, 17, 23, 24, 25, 26

Blackshear v. State,
385 S.W.3d 589 (Tex. Crim. App. 2012)..............................................................30

Brown v. State,
64 S.W.3d 94 (Tex. App.--Austin 2001, no pet.)..................................................26

Broxton v. State,
909 S.W.2d 912 (Tex. Crim. App. 1995) ..............................................................30
Burkett v. State,
127 S.W.3d 83 (Tex. App.--Houston [1st Dist.] 2003, no pet.) .................... 20, 21

Cantu v. State,
738 S.W.2d 249 (Tex. Crim. App. 1987) ..............................................................25
Cienfuegos v. State,
113 S.W.3d 481 (Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) ......................21
Dewberry v. State,
4 S.W.3d 735 (Tex. Crim. App. 1999) ..................................................................30
Gil v. State,
No. 08-05-00108-CR, 2007 WL 926470 (Tex. App.--El Paso
Mar. 29, 2007, no pet.) (not designated for publication) .......................................9
Grace v. Duke,
54 S.W.3d 338 (Tex. App.--Austin 2001, pet. denied) .................................. 29, 30

Hahn v. Love,
394 S.W.3d 14 (Tex. App.--Houston [1st Dist.] 2012, pet. denied) .......................8

iii
Harrison v. State,
187 S.W.3d 429 (Tex. Crim. App. 2005)..............................................................31

In re D.B,
594 S.W.2d 207 (Tex. App.--Corpus Christi 1980, no writ) ................................29

In re D.J.C.,
312 S.W.3d 704 (Tex. App.--Houston [1st Dist.] 2009, no pet.)..........................12

In re F.L.R.,
293 S.W.3d 278 (Tex. App.--Waco 2009, no pet.) .................................................8

In re I.L.,
389 S.W.3d 445 (Tex. App.--El Paso 2012, no pet.) ..............................................8

In re I.P.,
No. 04-98-00588-CV, 1999 WL 191589 (Tex. App.--San
Antonio Apr. 7, 1999, no writ) (not designated for publication) .........................29
In re J.H.C.,
No. 08-02-00244-CV, 2003 WL 1948985 (Tex. App.--El
Paso Apr. 24, 2003, no writ) (not designated for publication) ...................... 29, 30
Kelly v. State,
No. 14-13-00087-CR, 2014 WL 2446616 (Tex. App.--Houston [14th Dist.]
May 29, 2014, no pet.) (not designated for publication) .....................................18
Leza v. State,
351 S.W.3d 344 (Tex. Crim. App. 2001)................................................................9
Martinez v. State,
190 S.W.3d 254 (Tex. App.--Houston [1st Dist.] 2006, pet. ref’d)........................9

Mims v. State,
434 S.W.3d 265 (Tex. App.--Houston [1st Dist.] 2014, no pet.)................... 18, 20

Molandes v. State,
571 S.W.2d 3 (Tex. Crim. App. 1978) ....................................................................9

Mungia v. State,
911 S.W.2d 164 (Tex. App.--Corpus Christi 1995, no pet.) .................................21

iv
Neil v. Biggers,
409 U.S. 188 (1972) .............................................................................................16

Rocha v. Faltys,
69 S.W.3d 315 (Tex. App.--Austin 2002, no pet.)................................................31

Rodriguez v. State,
No. 07-11-00270-CR, 2013 WL 3355724 (Tex. App.--Amarillo
June 26, 2013, no pet.) (not designated for publication) .....................................18
Rojas v. State,
171 S.W.3d 442 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d) ...................26

Tamez v. State,
205 S.W.3d 32 (Tex. App.--Tyler 2006, no pet.) ....................................................9
United States v Watson,
12-4012, 540 Fed. Appx. 512, 515, 2013 WL
5508874 (6th Cir. Oct. 4, 2013) ............................................................................18
Walker v. State,
No. 13-11-00225-CR, 2011 WL 6916545 (Tex. App.--Corpus
Christi Dec. 29, 2011, no pet.) (not designated for publication) ..........................22

Watts v. Watts,
396 S.W.3d 19 (Tex. App.--Houston [1st Dist.] 2012, no pet.) .............................8

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006) .............................................31

TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006) .............................................30

TEX. FAM. CODE ANN. § 51.17 (West 2014).............................................................28

v
RULES

TEX. R. APP. P. 39.7 .................................................................................................... i

TEX. R. CIV. P. 251....................................................................................................29

TEX. R. CIV. P. 252....................................................................................................29
TEX. R. CIV. P. 286................................................................................................8, 10

vi
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State filed a petition alleging that appellant, a juvenile, engaged in

delinquent conduct by committing the offense of aggravated robbery. (CR 6).

After finding that appellant had engaged in the alleged delinquent conduct and

further finding that he was in need of rehabilitation, the trial judge committed

appellant to the custody of the Texas Juvenile Justice Department for ten years.

(CR 47-48).

STATEMENT OF FACTS

The complainant, Orlando Caval, drove to pick up his wife from her job at

Marshalls at about 10:40 p.m. (RR III 23). He parked near the store in an area lit

by light poles. (RR III 27-29; RR VIII – SX 136; RR IX – SX 140). The

complainant remained in his car as he waited for his wife to get off work. (RR III

32).

A small sedan containing two males and a female pulled up next to the

complainant’s passenger side. (RR III 32-34, 46). The complainant rolled down

his passenger window and the female driver asked for directions to a particular

street. (RR III 33). The complainant offered to look up the street on his cell phone

and began browsing his phone. (RR III 33-34).
 While focusing on his phone, the complainant heard one of the males,

appellant, try to open his locked driver’s side door. (RR III 34-35, 48). The

complainant told appellant to remain where he was while the complainant

concentrated on retrieving the requested information from his phone. (RR III 35,

141-142). Appellant walked away. (RR III 141-142).

Appellant walked to the complainant’s rolled-down passenger window and

pointed a shotgun at the complainant’s face. (RR III 41, 142-144). The shotgun’s

barrel was actually inside the complainant’s car and appellant had his finger on the

trigger. (RR III 41-42). The gun was within 12 inches of the complainant’s head.

(RR III 43-44).

While the gun was pointed at the complainant’s head, the female ordered

him to exit his car and to leave his wallet and other belongings behind. (RR III 44).

The complainant complied and began walking toward Marshalls. (RR III 49). As

he walked away, the complainant heard someone slam his door shut and speed

away in his car. (RR III 49-50). Once the robbers were gone, the complainant

called 911 and an officer arrived. (RR III 51). The complainant gave the officer a

description of the robbers. (RR III 51).

Sergeant Scott Ashmore was the lead investigator assigned to this case. (RR

IV 21, 44). The day after the robbery, a witness told Sergeant Ashmore that Brenda

Flores was a possible suspect in the robbery. (RR IV 26, 126-127). Sergeant

2
Ashmore obtained a photograph of Flores and placed it in a photospread with the

images of five other women. (RR IV 26-27, 127; RR VIII – SX 120). A short time

later, the complainant viewed the photospread and positively identified Flores as

the female driver from the robbery. (RR III 57-58; RR IV 26-28).

After the complainant identified Flores as one of the robbers, Sergeant

Ashmore went to the district attorney’s office and secured a warrant for her arrest.

(RR IV 28). As he headed home from the district attorney’s office, Sergeant

Ashmore happened to overhear some “radio traffic” that prompted him drive to a

house that had just been burglarized. (RR III 225-226, 241-242; RR IV 29). When

he arrived, he found appellant, Flores, and Neiman Gasper in custody for the

commission of the burglary. (RR III 228-232, 241-246; RR IV 29-30). This

incident occurred about 18 hours after the robbery. (RR IV 67).

Sergeant Ashmore transported the three suspects to a substation, where he

placed appellant in a juvenile holding tank and then interviewed the other two

suspects. (RR IV 30-31). Flores and Gasper both identified appellant as the

gunman in the complainant’s robbery. (RR IV 31-32). Later, the complainant

identified appellant in a photospread as the gunman who robbed him. (RR III 61-

62; RR IV 37-40).

3
 SUMMARY OF THE ARGUMENTS

Point one: The trial judge correctly instructed the jurors to answer the second

question in appellant’s favor if they were not unanimous because a verdict

favorable to the defendant may be returned by a non-unanimous verdict.

Furthermore, Rule 286 of the Texas Rules of Civil Procedure permitted the judge,

on his own motion, to submit the instruction after the jury began deliberations

since the instruction related to a matter of law, not fact. Namely, the instruction

addressed the legal issue of how the jurors were to answer the second question in

the face of their inability to unanimously agree on an answer.

Points two and three: The trial judge did not abuse his discretion by denying

appellant’s motion to suppress the complainant’s out-of-court and in-court

identifications of appellant. Of the five circumstances that appellant identifies as

rendering the photospread identification procedure impermissibly suggestive, the

only one that possibly actually was impermissibly suggestive was the officer’s

confirmation to the complainant that he had picked the correct suspect. But this

suggestiveness did not give rise to a substantial likelihood of irreparable

misidentification because the complainant had a good opportunity to see appellant

during the robbery, the complainant paid attention to appellant during this time, the

complainant was certain of his identification of appellant, and the time passage

between the crime and the confrontation did not have a detrimental effect on the

4
identification. Moreover, the complainant testified that would have been able to

identify appellant in court even if he had not viewed the photospread.

Point four: The trial judge did not err in denying appellant’s motion for

continuance because (assuming the civil rules apply) the motion was not supported

by the requisite affidavit, or (assuming the criminal rules apply) the motion was

unsworn. Furthermore, appellant did not demonstrate that Funk’s testimony was

material since appellant’s failure to be in the company of his two accomplices 2.5

hours after the charged robbery has very little bearing, if any, on whether he

participated in the robbery.

REPLY TO POINT OF ERROR ONE

In his first point of error, appellant contends the trial judge erred by

submitting a supplemental instruction after the jurors had begun their deliberations.

Appellant maintains that the judge lacked authority to submit such an instruction

and that the instruction harmed him.

Relevant facts

The jury charge posed two questions to the jury. First, it asked the jurors to

determine whether appellant committed the charged offense (as either a principal

or a party). (RR V 9-11; CR 43). The second questions asked: “Do you find from

the evidence beyond a reasonable doubt that the respondent, [appellant], did then

and there use or exhibit a deadly weapon, namely a firearm, during the commission

5
of or during the immediate flight from the commission of the aggravated robbery

alleged in the petition?” (CR 44). The verdict form allowed the jury to answer this

second question either “WE DO” or “WE DO NOT.” (CR 44).

After deliberating a number of hours, the jurors sent the judge a note

indicating that they were “hopelessly deadlocked” on the second question and

sought advice on how to proceed. (RR V 13). The judge directed the jury back to

the submitted jury charge. (RR V 14).

The next day, the prosecutor proposed providing the jury a supplemental

instruction for the second question. (RR VI 12-13). She recommended adding the

following sentence to the original version of the second question: “You are further

instructed that if you cannot unanimously agree on an answer to this question, then

you will state in your answer for Question No. 2, We do not.” (RR VI 13, 30). The

prosecutor explained that this instruction “clarifies for the jury the exact question

they had.” (RR VI 13). She further explained that the additional instruction

benefitted appellant because it directs the jury to resolve the deadly weapon issue

in his favor if the jurors were not unanimous in their answer. (RR VI 14).

Following appellant’s objections to the submission of the proposed

supplemental instruction, the judge agreed that the instruction would benefit

appellant on the deadly weapon issue. (RR VI 14-23). The judge then announced

that he would allow the jurors to continue deliberations “a little while longer”

6
before providing them with the proposed supplemental instruction. (RR VI 25).

Shortly thereafter, the jurors sent out a second note stating that they had exhausted

all discussions and were still unable to reach a unanimous decision on the second

question. (RR VI 33). The judge then provided the jury with the proposed

supplemental instruction that directed the jurors to answer “we do not” on the

second question if they could not unanimously agree on an answer to the question.

(RR VI 36-37).

About fifteen minutes later, the jury returned with an answer to both

questions. The jurors replied “we do” in response to the first question, finding

appellant engaged in delinquent conduct by committing the charged offense. (RR

VI 39). The jurors answered “we do not” to the second question. (RR VI 39).

The judge polled the jury. (RR VI 39-41). All twelve jurors confirmed “we

do” was their verdict on the first question. (RR VI 39-40). Regarding the second

question, only one juror confirmed that “we do not” was his or her verdict. (RR VI

40-41). In other words, only one juror determined that appellant did not use or

exhibit a deadly weapon during the offense’s commission. The eleven other jurors

disavowed this verdict, evidently believing appellant used a deadly weapon. (RR

VI 40-41). Given the language of the supplemental instruction, the single juror’s

belief that appellant did not use a weapon was enough to prevent the entry into the

judgment of a deadly weapon finding. (CR 47).

7
Argument and analysis

As mentioned, appellant argues the trial judge erred by submitting the

supplemental jury instruction pertaining to the second question after the jury had

already begun deliberating. The Rules of Civil Procedure govern the charge in a

juvenile proceeding. In re I.L., 389 S.W.3d 445, 451 (Tex. App.--El Paso 2012, no

pet.); In re F.L.R., 293 S.W.3d 278, 281 (Tex. App.--Waco 2009, no pet.). The

standard of review for alleged error in the jury charge is abuse of discretion. Hahn

v. Love, 394 S.W.3d 14, 37 (Tex. App.--Houston [1st Dist.] 2012, pet. denied).

Rule 286 of the Texas Rules of Civil Procedure addresses the issue of

supplemental instructions. It provides: “After having retired, the jury may receive

further instructions from the court touching any matter of law, either at their

request or upon the court’s own motion.” TEX. R. CIV. P. 286. Issues involving the

submission of supplemental instructions under this rule are reviewed for an abuse

of discretion. Watts v. Watts, 396 S.W.3d 19, 21-22 (Tex. App.--Houston [1st Dist.]

2012, no pet.).

Appellant raises several complaints about the judge’s submission of the

supplemental instruction. First, appellant appears to claim the instruction was

improper because it allowed the jury to return a non-unanimous answer to the

second question. Generally, the Texas Constitution and the Texas Code of

Criminal Procedure require a unanimous verdict in all felony cases. Leza v. State,

8
351 S.W.3d 344, 356 (Tex. Crim. App. 2001). This unanimity requirement applies

to the elements of an offense. Tamez v. State, 205 S.W.3d 32, 44 (Tex. App.--Tyler

2006, no pet.); Martinez v. State, 190 S.W.3d 254, 258 (Tex. App.--Houston [1st

Dist.] 2006, pet. ref’d).

A deadly weapon affirmative finding allegation is not an essential element of

a charged offense. See Tamez, 205 S.W.3d at 45. Therefore, a lack of unanimity

on the deadly weapon issue does not produce a lack of jury unanimity on an

element of the offense. Id. As such, unanimity is not required in the jury’s answer

to the deadly weapon question.

Furthermore, a defendant’s right to a unanimous verdict applies only to a

verdict adverse to the defendant; a verdict favorable to a defendant may be

returned on a non-unanimous agreement. Molandes v. State, 571 S.W.2d 3, 4 (Tex.

Crim. App. 1978). As observed by the trial judge, the jury’s answer to the second

question benefitted appellant because it resulted in there being no deadly weapon

finding. (RR VI 22-23). Since the verdict for the second issue benefitted appellant,

unanimity was not required. Id.; see also Gil v. State, No. 08-05-00108-CR, 2007

WL 926470, at *6 (Tex. App.--El Paso Mar. 29, 2007, no pet.) (not designated for

publication) (“the deadly weapon special issue was not an element of the offense;

therefore, there is no issue of the jury’s not having returned a unanimous verdict.”).

Accordingly, the content of the supplemental instruction was proper.

9
 Second, appellant argues the submission of the supplemental instruction was

error because the jury did not request such an instruction. Rule 286, however,

allows further instructions at the jury’s request or “upon the court’s own motion.”

TEX. R. CIV. P. 286. Therefore, as occurred in this case, the trial judge may provide

the jury a supplemental instruction without a request from the jury. The absence of

a jury request did not render the submission of the instruction erroneous.

Third, appellant claims Rule 286 does not warrant the submission of the

supplemental instruction because the rule authorizes only additional instructions

“touching any matter of law.” TEX. R. CIV. P. 286 (italics added). Appellant

maintains that rule 286 is inapplicable because the jury was deadlocked on a

question of fact, namely, whether appellant used or exhibited a deadly weapon.

While the jurors may have disagreed about the fact of whether appellant used a

deadly weapon, the supplemental instruction addressed the legal issue of how such

a disagreement ought to be resolved for purposes of answering the second

question. In other words, the instruction directed the jurors how to proceed, as a

“matter of law,” in the face of their inability to agree. Accordingly, Rule 286 was

applicable and authorized the judge’s submission of the supplemental instruction.

Fourth, appellant claims the judge erred by submitting the supplemental

instruction because the jury may have interpreted it as applying to the first question

as well, causing the jurors to believe unanimity was not required for the first

10
question. The judge, however, instructed the jury in very clear terms that the

supplemental charge was applicable only to the second question. (RR VI 36-37).

There was no basis, therefore, for the jury to believe that the content of this

instruction touched upon the first question. In any event, the post-verdict polling

of the jury confirmed that the jurors were in fact unanimous on the first question.

(RR VI 39-40). Accordingly, there was no error.

Even assuming the judge did err by submitting the instruction, any error was

harmless because, as the judge observed (RR VI 22-23), the supplemental

instruction benefitted appellant since it authorized a negative finding on the deadly

weapon special issue even if only a single juror voted against the finding. As such,

it disabused the jury of any notion that a negative finding required a unanimous

vote on the issue. Since the instruction made it much easier for appellant to obtain

a favorable verdict on the second question, he was not harmed by its submission.

Accordingly, appellant’s first point of error is meritless and should be

overruled.

REPLY TO POINTS OF ERROR TWO AND THREE

In his next two points of error, appellant contends the trial judge erred by

denying his motion to suppress the complainant’s identifications of appellant. (RR

III 70, 118). In his second point, appellant claims the judge erred in admitting

evidence of the complainant’s out-of-court identification of appellant. In his third

11
point, appellant argues the judge erred in admitting evidence of the complainant’s

in-court identification of appellant. In both points of error, appellant asserts that

the pretrial identification procedure was impermissibly suggestive and rendered the

identification unreliable.

1. Standard of review

A trial judge’s ruling on a motion to suppress in a juvenile case is reviewed

under the same standard as used in adult criminal proceedings. In re D.J.C., 312

S.W.3d 704, 711 (Tex. App.--Houston [1st Dist.] 2009, no pet.). An appellate court

reviews a trial judge’s suppression ruling under a bifurcated standard. Baird v.

State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). Almost total deference is

afforded to the trial judge’s determination of fact. Id. The trial judge is the sole

arbiter of questions of fact and of the weight and credibility to give testimony. Id.

In this capacity, the judge is free to believe or disbelieve any part of any witness’s

testimony. Id. The trial judge’s determination of the legal significance of the facts,

however, is reviewed de novo. Id.

2. The facts relating to appellant’s suggestiveness claims

The trial judge conducted a midtrial hearing on appellant’s motion to

suppress the complainant’s identifications of appellant. (RR III 69-118). The

complainant testified that he went to the police station the day after the robbery

and Sergeant Ashmore showed him a photospread containing six males of similar

12
appearance. (RR III 52-53, 59-62). The complainant picked appellant from the

photospread. (RR III 62, 110, 113-114). He was “very positive” of his

identification of appellant. (RR III 80). Regarding the identification, the

complainant explained that appellant’s nose “really stands out.” (RR III 86).

On appeal, appellant contends the identification procedure that led to this

out-of-court identification was impermissibly suggestive, which rendered it

unreliable. Appellant argues the procedure was impermissibly suggestive because:

(1) Sergeant Ashmore did not employ a double-blind process when he administered

the photospread identification procedure; (2) Sergeant Ashmore sat directly across

from the complainant which allowed him to see the photospread (resulting in the

possibility that the officer inadvertently relayed visual clues to the complainant);

(3) after the complainant identified appellant, Sergeant Ashmore told him he had

picked the right person and provided him appellant’s name; (4) appellant’s

photograph was the only one in which the person was wearing a striped shirt; and

(5) two of the remaining five fill-in photographs depicted the same person.

(appellant’s brief, pp. 13-14).

Regarding appellant’s first claim, Sergeant Ashmore explained that, with

regard to the administration of photospread identification procedures, a “blind

administrator” procedure involves having one officer create the photospread and

having a second officer (who does not know the suspect’s position in the

13
photospread) show the photospread to the witness. (RR III 93; RR IV 48-49). This

procedure avoids the possibility that the officer who shows the photospread to the

witness might subconsciously provide the witness subtle clues about the suspect’s

position. (RR III 94). It is undisputed that Sergeant Ashmore did not employ a

blind administrator; he alone created the photospread and administered it. (RR III

95-96; RR IV 49).

Regarding appellant’s second claim, the complainant testified that he and

Sergeant Ashmore were sitting at a desk across from one another so that the officer

could see the photospread while the complainant examined it. (RR III 73-74, 79-

80, 172). However, Sergeant Ashmore testified that he was behind the complainant

while the complainant viewed the photospread. (RR III 113). He was not in front

of the complainant where he would have been able to see the photospread. (RR III

113-114).

Regarding appellant’s third claim, the complainant testified that after he

picked appellant’s picture out of the photospread, Sergeant Ashmore told him

appellant’s name. (RR III 85). The complainant stated the officer “might have”

also told him that he “got [the identification] right.” (RR III 85). Sergeant

Ashmore testified that he told the complainant he had picked the right person and

provided him appellant’s name. (RR III 114; RR IV 79). Sergeant Ashmore

admitted that it was a violation of his department’s policy to provide a witness

14
feedback about his selection. (RR III 101, 107-108). The officer explained that he

violated the policy in this instance because the complainant feared the robbers

would visit his home because they had his keys and his identifying information.

(RR IV 42). Sergeant Ashmore wanted to ease the complainant’s concerns by

letting him know he had picked the right suspects and, therefore, he could carry on

his life without fear that the robbers would harm him. (RR IV 42-43).

Regarding appellant’s fourth claim, it is undisputed that appellant’s

photograph was the only one in the photospread in which the subject was wearing

a striped shirt; the other subjects were wearing solid-colored shirts. (RR III 81,

112, 174; RR VIII – SX 116).

Regarding appellant’s fifth claim, there is no evidence that the same person’s

photograph appears twice in appellant’s photospread. The record reflects that

appellant’s attorney stated he thought the person depicted in positions three and six

in the photospread were the same person. (RR III 111; RR IV 74). The attorney’s

statements, of course, do not constitute evidence. When defense counsel asked

Sergeant Ashmore whether the two photographs were in fact of the same person,

the officer replied he did not know. (RR III 111-112; RR IV 74-75). The record,

therefore, does not affirmatively establish that the same person’s photograph

appears twice in the photospread.

3. Argument and analysis

15
 3.1. Applicable law

A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny

the defendant due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex.

Crim. App. 1995). A two-step analysis is used to determine the admissibility of an

in-court identification: (1) whether the out-of-court identification procedure was

impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a

very substantial likelihood of irreparable misidentification. Id. at 33. An analysis

under these steps requires an examination of the totality of the circumstances

surrounding the particular case and a determination of the reliability of the

identification. Id. This test is applicable to the admissibility determination of both

in-court and out-of-court identifications. Neil v. Biggers, 409 U.S. 188, 198

(1972).

Under the first prong, the identification procedures employed might be

suggestive, but not impermissibly so. Barley, 906 S.W.2d at 33. Suggestiveness

may be created by the manner in which the officer conducts the pretrial

identification procedure or by the content of the photospread itself. Id.

Under the second prong, even assuming the identification procedure is

impermissibly suggestive, it must be determined whether a very substantial

likelihood for irreparable misidentification has been created. Id. at 34. Reliability

16
is the linchpin in determining admissibility of identification testimony. Id. If

indicia of reliability outweigh suggestiveness, an identification is admissible. Id.

To obtain a reversal, the defendant must show by clear and convincing evidence

that the identification has been irreparably tainted. Id.

In determining whether a very substantial likelihood for irreparable

misidentification has been created, the following nonexclusive factors are

considered: (1) the witness’s opportunity to view the criminal act; (2) the witness’s

degree of attention; (3) the accuracy of the suspect’s description; (4) the level of

certainty at the time of the confrontation; and (5) the time between the crime and

the confrontation. Id. at 34-35. These factors are weighed against the corrupting

effect of any suggestive identification procedure. Id. at 35.

In light of this guiding case law, it must be determined whether the five

circumstances cited by appellant: (1) render the out-of-court identification

procedure impermissibly suggestive; and (2) if it is impermissibly suggestive,

whether that suggestive procedure gave rise to a very substantial likelihood of

irreparable misidentification. Barley, 906 S.W.2d at 33.

3.2. The identification procedure was not impermissibly suggestive

As mentioned, appellant first claims the identification procedure was

impermissibly suggestive because Sergeant Ashmore did not employ a double

blind process when he administered the photospread identification procedure.

17
However, while such a procedure may be preferable, failure to employ it does not

make a pretrial identification procedure impermissibly suggestive per se. Kelly v.

State, No. 14-13-00087-CR, 2014 WL 2446616, at *4 (Tex. App.--Houston [14th

Dist.] May 29, 2014, no pet.) (not designated for publication); Rodriguez v. State,

No. 07-11-00270-CR, 2013 WL 3355724, at *5 (Tex. App.--Amarillo June 26,

2013, no pet.) (not designated for publication); see also United States v Watson, 12-

4012, 540 Fed. Appx. 512, 515, 2013 WL 5508874, at *3 (6 th Cir. Oct. 4, 2013)

(finding non-blind lineups are not inherently suggestive).

Furthermore, the defendant bears the burden of establishing by clear and

convincing evidence that the procedure was impermissibly suggestive. Mims v.

State, 434 S.W.3d 265, 272 (Tex. App.--Houston [1st Dist.] 2014, no pet.). While

the double blind procedure is designed to prevent the possibility that an officer

might knowingly or inadvertently send clues about the suspect’s position in the

photospread to an identification witness, appellant has not presented any evidence

that such clues actually were sent in this case. There is no evidence that Sergeant

Ashmore, despite the absence of a double-blind procedure, engaged in any conduct

whatsoever that might have suggested to the complainant that he pick any

particular person out of the photospread. As such, appellant has not carried his

burden of proof with regard to his first claim.

18
 Second, appellant claims the identification procedure was impermissibly

suggestive because Sergeant Ashmore positioned himself so that he could see the

photospread while the complainant viewed it. Appellant argues this positioning

allowed the possibility that the officer inadvertently sent the complainant visual

clues regarding the suspect’s photograph.

Although the complainant testified at the suppression hearing that Sergeant

Ashmore sat across a desk from him so that the officer could see the photospread

(RR III 73-74, 79-80, 172), Sergeant Ashmore testified that he was behind the

complainant while the complainant viewed the photospread where he would have

been unable to see the photospread. (RR III 113-114). As such, the relevant

testimony on this issue was conflicting.

A ruling on a suppression motion is reviewed on appeal in the light most

favorable to the trial judge’s determination. State v. Story, 445 S.W.3d 729, 732

(Tex. Crim. App. 2014). And the trial judge is entitled to believe or disbelieve any

part of any witness’s testimony. Baird, 398 S.W.3d at 226.

Viewing the record in the light most favorable to the trial judge’s ruling

mandates an appellate determination that the trial judge found Sergeant Ashmore’s

account of his position credible. Given Sergeant Ashmore’s description of his

being positioned behind the complainant (and therefore out of the complainant’s

19
sight), the office’s position did not render the identification procedure

impermissibly suggestive.

Moreover, even assuming Sergeant Ashmore actually did sit across from the

complainant (thereby creating the possibility of him sending subconscious clues),

appellant has not carried his burden of establishing by clear and convincing

evidence that the procedure was impermissibly suggestive. Mims, 434 S.W.3d at

272. Specifically, there has been no showing that Sergeant Ashmore actually did

send any clues to the complainant. Accordingly, regardless of the officer’s

position, there is no evidence of an impermissibly suggestive identification

procedure.

Third, appellant claims the identification procedure was impermissibly

suggestive because, after the complainant identified appellant in the photospread,

Sergeant Ashmore told him he had picked the correct suspect. (RR III 79, 85, 101,

107-108, 114, 174-175; RR IV 42-43, 56-57, 79). The officer’s confirmation to the

complainant that he had correctly identified a suspect did not affect the

admissibility of the pretrial identification because Sergeant Ashmore made the

comment only after the complainant had already made the identification quickly

and with great certainty. (RR III 80, 113, 178; RR IV 77-78). Burkett v. State, 127

S.W.3d 83, 87-88 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (officer’s

confirmation of witness’s identification was not impermissibly suggestive as to the

20
pretrial identification since the confirmation occurred after the pretrial

identification).

It is possible, however, that Sergeant Ashmore’s confirmation could

influence the complainant’s in-court identification. Id. at 88. The State will

address this issue below when it examines the second prong of the applicable test,

i.e., whether any impermissibly suggestive procedure was so suggestive that it

gave rise to a very substantial likelihood of irreparable in-court misidentification.

Id.

Fourth, appellant argues the content of the photospread was impermissibly

suggestive because appellant was the only person in it who was wearing a striped

shirt. (RR VII- SX 116). The other five subjects were wearing solid-colored shirts.

This claim is meritless because photospread subjects need not be identical in

appearance. Burkett, 127 S.W.3d at 87. Neither due process nor common sense

require such exactitude. Id. As such, a photospread is not impermissibly

suggestive simply because the defendant’s shirt is different than the shirts worn by

the other five men in the photospread. Cienfuegos v. State, 113 S.W.3d 481, 492

(Tex. App.--Houston [1st Dist.] 2003, pet. ref’d) (mere fact that defendant was

only person in lineup wearing red shirt did not render it impermissibly suggestive);

Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.--Corpus Christi 1995, no pet.);

Walker v. State, No. 13-11-00225-CR, 2011 WL 6916545, at *11 (Tex. App.--

21
Corpus Christi Dec. 29, 2011, no pet.) (not designated for publication)

(photospread was not impermissibly suggestive even though defendant was only

person who was not wearing a solid-colored shirt).

In this case, the six males in the photospread share very similar physical

features and their shirts, while different, are not prominently displayed in the

photographs. Accordingly, a subtle difference in appellant’s shirt did not render the

photospread impermissibly suggestive.

Fifth, appellant claims the photospread is impermissibly suggestive because

the same person appears in the third and sixth position. (RR VII- SX 116). The

record, however, does not support this allegation. Admittedly, the defense attorney

stated he thought the person depicted in positions three and six in the photospread

were the same person. (RR III 111; RR IV 74). The attorney’s statements,

however, do not constitute evidence. When defense counsel asked Sergeant

Ashmore whether the two photographs were in fact of the same person, the officer

replied he did not know. (RR III 111-112; RR IV 74-75). The record, therefore,

does not affirmatively establish that the same person’s photograph appears twice in

the photospread. Absent evidence that the same person appears in the two

photographs, appellant has not shown that the photospread was impermissibly

suggestive. In any event, assuming the same person appears twice, appellant has

22
not cited any authority describing such a circumstance as impermissibly

suggestive.

Therefore, only one of the five circumstances appellant cites as purportedly

rendering the photospread impermissibly suggestive might actually render it as

such, namely, Sergeant Ashmore’s confirmation of the complainant’s identification

of appellant. At most, this confirmation potentially could affect only the

complainant’s in-court identification of appellant since the officer’s confirmation

occurred after the complainant had made his out-of-court identification.

Accordingly, the second prong of the Barley test must be examined.

3.3. Any suggestive procedure did not give rise to a substantial likelihood of
irreparable misidentification

The second prong of the Barley test asks whether the suggestive procedure

gave rise to a very substantial likelihood of irreparable misidentification. Barley,

906 S.W.2d at 33. Five factors are considered in addressing this issue.

The first factor examines the witness’s opportunity to view the defendant

during the commission of the offense. Id. at 34. The circumstances of the robbery

provided the complainant a good opportunity to see appellant commit the offense.

Although the robbery occurred at night, the complainant recalled that the area in

which he parked was well lit by light posts. (RR III 27-29, 158). When appellant

approached the driver’s side of the complainant’s car, the complainant looked at

appellant and could “clearly see his face.” (RR III 36, 83, 133). The complainant

23
explained that appellant was close to him so that the complainant “had both [sic]

angle of his face.” (RR III 178). The complainant had an additional opportunity to

see appellant when he approached the car a second time. (RR III 40-41, 144). The

complainant’s observations of appellant were detailed enough to allow him to

notice that appellant’s nose and lips stood out as features. (RR III 61, 86). There

was no evidence of anything obstructing the complainant’s view of appellant.

The record, therefore, demonstrates that the complainant had a very good

opportunity to see appellant during the commission of the robbery. The

complainant looked at appellant from a close distance in a well-lit area on two

occasions with sufficient attention to discern details about his facial features.

Accordingly, this first factor supports a determination that any suggestiveness in

the identification procedure did not give rise to a very substantial likelihood of

irreparable misidentification.

The second factor considers the witness’s degree of attention. Barley, 906

S.W.2d at 34-35. The complainant testified that he looked at appellant during the

robbery and clearly saw his face from a close distance. (RR III 36, 83, 178). He

was attentive enough to appellant’s appearance to recall distinctive features about

appellant’s face. (RR III 61-62, 86). The complainant confirmed that he would

have been able to identify appellant in court as the gunman even if he had not

viewed he photospread containing appellant’s image, further demonstrating a high

24
degree of attention to appellant’s appearance. (RR III 48-49, 62-63). Furthermore,

as the victim, the complainant was more than just a casual observer of the crime.

Therefore, he had more reason to be attentive. Id. at 35 (citing Cantu v. State, 738

S.W.2d 249 (Tex. Crim. App. 1987)) (a witness who is also a victim has a greater

degree of attention than a casual bystander.) This factor, therefore, also militates in

favor of the State.

The third factor examines the accuracy of the witness’s description of the

defendant. Barley, 906 S.W.2d at 35. On the night of the offense, the complainant

told officers that the gunman was a “really young” Hispanic male who stood

between five feet and three inches and five feet and six inches tall. (RR III 86, 144,

155, 195). Appellant, a juvenile, is a young male, and he appears to be Hispanic.

(RR VIII – SX 116). At the time of trial, appellant was five feet and eight inches

tall. (RR III 149). There was no evidence of appellant’s height at the time of the

offense nor indication of whether appellant, considering his youth, may have

grown between the time of the offense and the trial. (RR III 181). Given the

general nature of the complainant’s description, this factor is only marginally

compelling.

The fourth factor concerns the witness’s level of certainty at the time of the

confrontation. Barley, 906 S.W.2d at 35. The complainant immediately identified

appellant in the photospread. (RR III 113). He was “very positive” of his

25
identification of appellant. (RR III 80). The complainant was “really sure it was

him.” (RR III 178). The complainant never wavered from this identification and

identified appellant as the gunman in court. (RR III 48). He confirmed that he

could have recognized appellant in court even if he had not previously seen

appellant in the photospread. (RR III 48-49). Since the complainant identified

appellant with a very high level of certainty, this factor favors the State.

The final factor considers the time between the crime and the confrontation.

Barley, 906 S.W.2d at 35. Only one day passed between the robbery and the

complainant’s identification of appellant in the photospread. (RR III 23; RR VIII –

SX 116). And the in-court identification occurred about nine months after the

offense. (RR III 1, 23). A nine-month passage does not have a detrimental effect

on an identification. Brown v. State, 64 S.W.3d 94, 101 (Tex. App.--Austin 2001,

no pet.) (eight months). As such, this factor also favors the State.

In addition to these five factors, the complainant confirmed that he would

have been able to identify appellant as the gunman in court even if he had not

viewed the photospread containing appellant’s picture. (RR III 48-49, 62-63).

When an in-court identification is based upon knowledge independent from an

allegedly improper pretrial procedure, it is admissible. Rojas v. State, 171 S.W.3d

442, 449 (Tex. App.--Houston [14th Dist.] 2005, pet. ref’d).

26
 Considering all of these circumstances, the complainant’s in-court

identification of appellant was reliable. Therefore, even if the pretrial

identification procedure was impermissibly suggestive, there was not a substantial

likelihood for irreparable misidentification. As such, the trial judge did not err in

denying appellant’s motion to suppress the complainant’s identifications of him.

Points of error two and three are meritless and should be overruled.

REPLY TO POINT OF ERROR FOUR

In his fourth point of error, appellant contends the trial judge erred in

denying his motion for a continuance. (RR II 4-8; CR 32-33). Appellant claims he

was entitled to a continuance to allow a missing witness to testify at his trial.

Relevant facts

On the first day of trial, before the voir dire proceeding began, defense

counsel presented a written motion for continuance to the judge. (RR II 4; CR 32-

33). He explained that the State had issued a subpoena for Ms. Funk, but both the

State and appellant decided they did not require her testimony so she was excused

from testifying. (RR II 4; CR 32). However, on the Friday evening before this trial

began on a Monday, defense counsel obtained an offense report relating to an

extraneous incident that occurred about 2.5 hours after the charged robbery. (RR II

4-5).

27
 Based on this development, defense counsel contacted Funk over the

weekend and “emailed her a document [], she viewed it, and based on her

information, we felt she became a necessary witness for the defense.” (RR II 5).

Funk, who lives in Austin, informed defense counsel that she was not available to

testify on the scheduled trial date. (RR II 5). Defense counsel indicated that Funk

would be available at some unspecified time in the future. (RR II 5; CR 32).

Defense counsel did not specify the anticipated content of Funk’s testimony,

but the record indicates he texted her an unidentified photospread on the Sunday

before trial. (RR II 5-8). Based on discussions at the hearing on the continuance

motion, it appears as though there was a “lack of identification” or “non-

identification” of appellant by Funk with regard to an extraneous offense that

involved three people, including appellant’s two accomplices, about 2.5 hours after

the robbery. (RR II 6-7). At the conclusion of this hearing, the trial judge denied

appellant’s motion for a continuance. (RR II 8).

Argument and analysis

In a juvenile case, the denial of a motion for continuance is examined under

the Texas Rules of Civil Procedure and civil case law. TEX. FAM. CODE ANN. §

51.17(a) (West 2014) (with few inapplicable exceptions, the Texas Rules of Civil

Procedure govern juvenile proceedings); In re J.H.C., No. 08-02-00244-CV, 2003

WL 1948985, at *2 (Tex. App.--El Paso Apr. 24, 2003, no writ) (not designated for

28
publication) (expressly holding that civil law applies in review of denial of

continuance in juvenile case) (citing In re D.B, 594 S.W.2d 207, 212 (Tex. App.--

Corpus Christi 1980, no writ) (applying civil case law in reviewing denial of

juvenile’s continuance motion)); In re I.P., No. 04-98-00588-CV, 1999 WL 191589,

at *1 (Tex. App.--San Antonio Apr. 7, 1999, no writ) (not designated for

publication) (applying civil rules to review denial of juvenile’s continuance

motion). A denial of a motion for continuance is reviewed for an abuse of

discretion. Grace v. Duke, 54 S.W.3d 338, 343 (Tex. App.--Austin 2001, pet.

denied).

Continuances should be granted only for sufficient cause supported by

affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. When

a defendant seeks a continuance for want of testimony, the motion must be

supported by an affidavit stating that such testimony is material, showing the

materiality thereof, and that he has used due diligence to procure such testimony,

stating such diligence, and the cause of failure if known; and, if it be for the

absence of a witness, he shall state the name and residence of the witness, and what

he expects to prove by the witness. TEX. R. CIV. P. 252.

Appellant failed to support his continuance motion with the required

affidavit in violation of Rules 251 and 252. (CR 32-33). A trial court does not

abuse its discretion when it denies a continuance motion submitted in violation of

29
the affidavit requirement. Grace, 54 S.W.3d at 343; J.H.C., 2003 WL 1948985, at

*2. Since appellant failed to support his motion with the requisite affidavit, the

trial judge did not abuse his discretion by denying it. J.H.C., 2003 WL 1948985, at

*2. As such, his fourth point of error is meritless and should be overruled.

Furthermore, even assuming that the criminal rules of procedure apply to

this issue, appellant’s complaint would remain meritless. The Texas Code of

Criminal Procedure provides that all motions for continuance must be sworn to by

a person having personal knowledge of the facts relied on for the continuance.

TEX. CODE CRIM. PROC. ANN. art. 29.08 (West 2006). An unsworn motion

preserves noting for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim.

App. 1999). Appellant’s continuance motion is unsworn. (CR 32-33). Therefore,

even under criminal law standards, appellant presents nothing for review. Id.

Nevertheless, despite the lack of preservation, appellant argues the denial of

his continuance motion denied him due process. However, there is no due process

exception to the rule requiring motions for continuance to be written and sworn to

in order to be preserved on appeal. Blackshear v. State, 385 S.W.3d 589, 591 (Tex.

Crim. App. 2012). Further, appellant failed to raise a due process argument in the

trial court, thereby waiving such a claim. (RR II 4-9; CR 32-33). Broxton v. State,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (failure to object waived due process

claim).

30
 Additionally, appellant waived any error because, in addition to being

unsworn, appellant’s written continuance motion lacks some statutorily-required

content, including an explanation of “[t]he facts which are expected to be proved

by the witness.” (CR 32-33). TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006)

(listing required content of defendant’s first continuance motion). Accordingly, for

these various reasons, appellant failed to preserve his complaint for appellate

review, whether the civil or criminal standard is employed.

Moreover, even if appellant had preserved his complaint for review, it would

be meritless since the trial judge did not err in denying his motion for continuance.

Under both the civil and criminal standards, a defendant must show the materiality

of the missing witness’s potential testimony. Harrison v. State, 187 S.W.3d 429,

434 (Tex. Crim. App. 2005); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.--

Austin 2002, no pet.). The motion for continuance must show on its face the

materiality of the absent testimony. Harrison, 187 S.W.3d at 434. Mere

conclusions and general averments are not sufficient for the court to determination

the issue of materiality. Id.

Appellant’s written continuance motion does not identify the subject of

Funk’s anticipated testimony whatsoever; nor does it allege that her testimony

would be material in any way. (CR 32-33). And the comments made at the hearing

on the motion add only vague detail to the matter. Defense counsel simply

31
established that he texted Funk a photospread that she viewed on an iPhone. (RR II

5, 8). While defense counsel failed to explain Funk’s response after viewing the

photospread, he seemed to indicate that Funk might say that she saw “an

intervening person with” appellant’s two codefendants about 2.5 hours after the

robbery. (RR II 6-7). The prosecutor’s comments indicate that Funk made no

identification from the photospread. (RR II 6).

The record in this matter is too vague and ambiguous to establish the

materiality of Funk’s anticipated testimony. Evidently, appellant believed Funk’s

testimony would be relevant because it might establish that Funk saw appellant’s

two accomplices with a third person several hours after the robbery and, based on

Funk’s “non-identification” regarding the photospread, that third person was not

appellant. (RR II 6).

However, the record does not even establish that appellant’s picture was in

the photospread viewed by Funk, thereby failing to attach any significance to her

non-identification. And even if appellant did appear in the photospread, there is no

evidence that Funk’s inability to identify him was consistent with appellant not

being the third person present. Perhaps Funk did not see the third person very well

at the time of the encounter, which resulted in her inability to subsequently identify

anyone. Or maybe Funk may not have been able to view the photospread well

enough on the iPhone screen to make an accurate identification. In any event, the

32
appellate record is not sufficiently developed on this issue to demonstrate the

materiality of Funk’s anticipated testimony. In fact, the trial testimony from

Sergeant Ashmore establishes that Funk actually did identify a photograph of

appellant as the third person present at her encounter with the trio. (RR IV 129-

130).

Furthermore, even assuming Funk’s testimony would have indicated that

appellant was not with his two accomplices 2.5 hours after the robbery, such a fact

is hardly exculpatory or compelling since it is not uncommon for people to

separate at some point following a group activity. Appellant’s absence from the

group at a later time provided little, if any, probative evidence of whether he

participated in the charged robbery. As such, regardless of the precise content of

Funk’s testimony, it would not have been material. Therefore, the trial judge did

not abuse his discretion in denying appellant’s motion for continuance.

Point of error four is meritless and should be overruled.

33
 CONCLUSION

It is respectfully submitted that all things are regular and the conviction

should be affirmed.

DEVON ANDERSON
District Attorney
Harris County, Texas

/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
mccrory_daniel@dao.hctx.net

34
 CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been sent to the

following email addresses via TexFile:

Cheri Duncan
Amalia Beckner
Assistant Public Defenders
Cheri.duncan@pdo.hctx.net
Amalia.beckner@pdo.hctx.net

/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document
has a word count of 7,461 words, based upon the representation provided by the
word processing program that was used to create the document.

/s/ Dan McCrory
DAN McCRORY
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
TBC No. 13489950
Date: 10/21/2015

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