                                       NO. 07-00-0586-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                   SEPTEMBER 17, 2002
                             ______________________________

                                NATHANIEL VONTRE GREEN,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

               FROM THE 208TH DISTRICT COURT OF HARRIS COUNTY;

                    NO. 857,561; HON. DENISE COLLINS, PRESIDING
                          _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

       Through two points, appellant Nathaniel Vontre Green challenges his conviction for

aggravated robbery. He alleges that 1) the trial court erred in denying his motion to

suppress his in-court identification as the assailant and 2) the evidence was insufficient

because the State failed to properly corroborate the testimony of an accomplice. Finding

no reversible error, we affirm the judgment of the trial court.




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CO DE AN N. § 75.0 02(a )(1) (V erno n Su pp. 2002 ).
                                      Background

   The victim, Henry Lewis, arrived in the United States from Austria in June 1998 and

visited a friend, Peter Olaolu, who lived in Houston. On June 19, Lewis went shopping

and spent almost $4,000. He was accompanied by Olaolu and Michelle Spencer, who was

Olaolu’s friend. All three returned to Olaolu’s apartment and ate dinner together. Around

11:00 p.m., Olaolu told Lewis he was taking Spencer home and going to work. Olaolu

returned around 7:30 the next morning and went to bed. Later, Spencer knocked on the

apartment door around 11:00 a.m. but left after being told by Lewis that Olaolu was

sleeping. She returned several minutes later. Lewis opened the door for her and returned

to the couch to lie down.

      Next, a gunman later identified as appellant, and a second man entered the room.

Appellant pointed a shotgun at Lewis’s face and told Lewis to lie down and avoid looking

at him. So too did the gunman demand to know the location of Lewis’s money. Apparently

because Lewis would not divulge the information, appellant struck Lewis with the shotgun.

Lewis eventually relented and disclosed the location of his money. Thereafter, appellant,

Spencer, and the second individual took various personal items and $3000 from Lewis.

Upon completing the robbery and as he left the abode, appellant shot Lewis.

      Following treatment at a Houston hospital, Lewis returned to Austria. In June 1999,

the Harris County District Attorney’s Office made arrangements to have a photo spread

containing appellant’s picture along with five others presented to Lewis at the American

Embassy in Vienna, Austria, by a special agent. Lewis positively identified appellant from

the photo spread.



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                    Point One – Motion to Suppress Identification

       In his first point, appellant contends that his in-court identification by Lewis was

impermissibly tainted by the photo spread sent to and seen in Austria. According to

appellant, this is so because Lewis allegedly had been told by investigators that he would

be contacted once they had apprehended the individual who committed the offense. By

informing Lewis of this, the investigators implicitly revealed to Lewis that appellant’s picture

would be in the photo spread, says appellant. This, in turn, tainted Lewis’s in-court

identification of appellant as one of the culprits. We overrule the point.

                                     Standard of Review

       Whether the trial court erred in overruling appellant’s motion to suppress depends

upon whether it abused its discretion. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). In other words, appellant must show that the decision fell outside the

zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App.

2001). Furthermore, to suppress an in-court identification because of a supposedly tainted

photo spread, the movant must prove not only that the photographic display was

impermissibly suggestive but also that the procedure utilized created a substantial

likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim.

App. 1995), cert. denied, 516 U.S. 1176, 116 S. Ct. 1271, 134 L. Ed.2d 217 (1996).

                                  Application of Standard

       State’s Exhibit No. 2 shows that Lewis signed the instructions to the photographic

line-up which stated, among other things, that he was not to conclude that the photographs

contained a picture of the person who committed the crime, that he was not obligated to



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identify anyone, and that it was just as important to clear innocent persons from suspicion

as to identify guilty parties. Lewis also testified that 1) he had read these instructions, 2)

Special Agent Paul Pettit told him that he was to see if he could identify anyone in the array

as the individual who shot him but, if unsure, avoid forcing himself to identify anyone, 3)

he was positive in his identification of appellant, 4) his selection of appellant was based on

his memory and not on the photos, 5) he could identify appellant as the one who shot him

because he looked at appellant’s face and gun during the incident, and 6) he remembered

appellant’s face. Lewis also denied that he had been told that a photo of the suspect was

included in the spread. From this evidence, the trial court had basis to conclude that no

one informed Lewis that appellant’s picture was within the photo array, assuming arguendo

that imparting such information would be improper. And, the statement which appellant

considers pivotal mandates no other finding.

       The statement in question concerned an investigator telling Lewis that if they “got

the person or whatever, they would try to fly [him] to the United States.” Prior to the

foregoing statement being made, Lewis had been asked if he could identify the individual

who shot him. Irrespective of whether it is read alone or in context, the comment said

nothing about anyone sending a photo spread to Lewis. And, to the extent that nothing

was said about a photo spread, it cannot be reasonably construed as suggesting that any

photo spread which was sent would include a picture of the individual who the police

believed committed the crime.

       In short, we cannot reasonably conclude that the utterance about returning Lewis

to the United States if and when the police “got the person or whatever” removes the trial

court’s refusal to grant the appellant’s motion to suppress outside the zone of reasonable

                                              4
disagreement. Thus, the trial court’s decision was and is not an abuse of discretion. See

Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex. Crim. App. 1990) (stating that a

decision does not constitute an abuse of discretion if it falls within the zone of reasonable

disagreement).

             Point Two – Legal and Factual Sufficiency of the Evidence

       Appellant next contends that the evidence was legally and factually insufficient to

sustain his conviction. This is allegedly so because Lewis’s testimony was inadmissible

for reasons addressed under point one and, being inadmissible, it could not be used to

corroborate the testimony of Spencer, appellant’s accomplice. We overrule the point.

                                    Standard of Review

       The standards of review applicable to determining whether the evidence is legally

and factually sufficient to support a conviction are well-settled. We do not reiterate them

but rather refer the litigants to Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

L.Ed.2d 560 (1979), King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000), and

Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) for explanations of same.

       Next, article 38.14 of the Texas Code of Criminal Procedure provides that a

conviction cannot be based upon the testimony of an accomplice unless corroborated by

other evidence tending to connect the defendant with the offense. TEX. CODE CRIM.

PROC. ANN. art. 38.14 (Vernon 1979). Thus, before Spencer’s testimony could be used

to sustain appellant’s conviction, it had to be corroborated.




                                             5
                                 Application of Standards

       As concluded under point one, Lewis’s identification of appellant as the one who

shot him while assisting in the robbery was admissible. Thus, it could be used to

corroborate Spencer’s testimony, assuming the latter was actually needed. And, more

importantly, it corroborated her testimony that appellant had a shotgun, entered the abode,

demanded money from Lewis, struck Lewis with the weapon, and then shot Lewis. This

is a sufficient basis upon which to conclude that the evidence supporting appellant’s

conviction for aggravated robbery was legally and factually sufficient.

       Accordingly, the judgment is affirmed. Pursuant to Rule 2 of the Rules of Appellate

Procedure and in order to expedite the decision, we suspend the operation of Rule 39.9

of the Rules of Appellate Procedure to permit submission of the case prior to expiration of

the 21-day notice provided for in that rule.



                                                        Per Curiam



Do not publish.




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