                                                                                        ACCEPTED
                                                                                    01-15-00261-CR
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                                7/6/2015 3:30:28 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK



               No. 01-15-00261-CR
                                                                FILED IN
                                                         1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                                                         7/6/2015 3:30:28 PM
           IN THE FIRST COURT OF                A P P E ACHRISTOPHER
                                                          LS             A. PRINE
                                                                 Clerk
                      HOUSTON, TEXAS


                 LAWRENCE FLOYD MILLER, III,

                              Appellant,

                                  Vs.

                      THE STATE OF TEXAS,

                              Appellee.

                 Appeal from the 412th District Court
                      Brazoria County, Texas
                    Trial Court Cause No. 74039


BRIEF FOR THE APPELLEE, THE STATE OF TEXAS



                                           Trey D. Picard
                                           Assistant Criminal District Attorney
                                           State Bar No. 24027742
JERI YENNE – BRAZORIA COUNTY               111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY                 Angleton, Texas 77515
                                           (979) 864-1233
                                           (979) 864-1712 Fax
                                           treyp@brazoria-county.com

                                           Attorney for the Appellee,
Oral argument is not requested.            The State of Texas
              IDENTITY OF PARTIES AND COUNSEL


Appellant:                    Lawrence Floyd Miller, III


Appellee:                     The State of Texas


Attorney for the Appellant:   Cary M. Faden
                              Attorney at Law
                              State Bar No. 06768725
                              77 Sugar Creek Center Blvd.
                              Suite 230
                              Sugar Land, Texas 77478
                              (281) 491-6182
                              (281) 491-0049 Fax
                              careyfaden@aol.com


Attorney for the Appellant    Von Shelton
at Trial:                     Attorney at Law
                              State Bar No. 18211500
                              2038 East Mulberry St.
                              Angleton, Texas 77515
                              (979)849-2402
                              (979)849-8893 Fax


Attorney for the Appellee     Trey D. Picard
on Appeal:                    State Bar No. 24027742
                              Assistant Criminal District Attorney
                              111 East Locust St., Suite 408A
                              Angleton, Texas 77515
                              (979) 864-1233
                              (979) 864-1712 Fax




                              ii
Attorney for the Appellee   Robyn Griffith
at Trial:                   State Bar No. 24012738
                            Assistant Criminal District Attorney
                            111 East Locust St., Suite 408A
                            Angleton, Texas 77515
                            (979) 864-1233
                            (979) 864-1712 Fax




                            iii
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS............................................................................... iv

INDEX OF AUTHORITIES .......................................................................... v

ABBREVIATIONS FOR RECORD REFERENCES ................................... vi

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

ISSUES PRESENTED ................................................................................... 2

STATEMENT OF FACTS ............................................................................. 3

SUMMARY OF THE ARGUMENT ............................................................. 6

ARGUMENT .................................................................................................. 7

1)       The evidence is sufficient to show Appellant was the driver of
         the vehicle ............................................................................................. 7

2)       The trial court was within its discretion to allow a witness’ in
         court identification of Appellant as the driver ..................................... 9

CONCLUSION ............................................................................................. 13

PRAYER ....................................................................................................... 14

CERTIFICATE OF SERVICE ..................................................................... 15

CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 16

APPENDIX ................................................................................................... 17




                                                       iv
                           INDEX OF AUTHORITIES
Cases

Adames v. State,
     353 S.W.3d 854 (Tex.Crim.App.2011) ................................................ 7

Bartlett v. State,
      270 S.W.3d 147 (Tex.Crim.App.2008) ................................................ 7

Capello v. State,
      775 S.W.2d 476 (Tex.App.—Austin 1989, pet. ref’d) ....................... 10

Clayton v. State,
      235 S.W.3d 772 (Tex.Crim.App.2007) ................................................ 7

Denton v. State,
     911 S.W.2d 388 (Tex.Crim.App.1995) ................................................ 8

Garza v. State,
     633 S.W.2d 508 (Tex.Crim.App.1982) (op. on reh’g) ....................... 10

Jackson v. State,
      657 S.W.2d 123 (Tex.Crim.App.1983) .............................................. 10

Jackson v. Virginia,
      443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .......................... 7

Kirsch v. State,
      357 S.W.3d 645 (Tex.Crim.App.2012) ................................................ 8

Loserth v. State,
      963 S.W.2d 770 (Tex.Crim.App.1998) ........................................ 10, 11

Manson v. Brathwaite,
     432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) .......................... 10

Neil v. Biggers,
       409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) .......................... 10




                                           v
Williams v. State,
      235 S.W.3d 742 (Tex.Crim.App.2007) ................................................ 7


Statutes

TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2011) ........................................ 8

TEX. PENAL CODE ANN. § 49.09(b) (Vernon 2011) ........................................ 8




                                           vi
       ABBREVIATIONS FOR RECORD REFERENCES

    Abbreviation                   The Record

1     RR 2:532         Reporter’s Record, vol. 2, page 532.

2      CR 1:45           Clerk’s Record, vol. 1, page 45.

3     Ant. Br. 5            Appellant’s Brief, page 5.

4     Apx. Ex. 1           State’s Appendix, Exhibit 1.

5     RR 5: Sx. 1   Reporter’s Record, vol. 5, State’s Exhibit 1




                          vii
                     STATEMENT OF THE CASE

             A jury convicted Appellant, Lawrence Floyd Miller, III, of

driving while intoxicated (DWI), third or more, and sentenced him to twenty

years confinement and a $5,000.00 fine (CR 00071). Trial occurred in the

412th District Court for Brazoria County, Texas, the Hon. Ed Denman

presiding.




                                    1
                            ISSUES PRESENTED

            At issue is whether the evidence is sufficient to show Appellant

was the driver of the vehicle, and whether the trial court was within its

discretion to allow a witness’s in court identification of Appellant as the

driver of the vehicle, which Appellant claims was the product of an improper

one-on-one police lineup.




                                     2
                         STATEMENT OF FACTS

             At approximately 11:00 p.m. on May 4, 2014, Appellant’s gray

Chevrolet pickup truck collided with automobile driven by Arecely Macedo

on Avenue A in Freeport, Texas (RR 4:19-20, 4:22-23). Macedo did not see

the driver of the truck; however, one of the truck’s tires was left behind as it

drove away from the accident (RR 4:26-27). Bobby Robinette, a witness

who lived near the scene and was outside of his home, heard a metallic

grinding noise coming from the concrete street next to his residence (RR

4:33, 4:35). Turning to the source of the noise, he saw a gray pickup truck

rolling down the street with one of its wheels missing—the rim scraping

against the pavement (RR 4:36-37). Robinette saw the truck proceed down

Avenue A and then turn into an adjoining alley (RR 4:37-38).

             Robinette saw two individuals exit the truck when it came to a

stop (RR 4:38). The passenger ran away without difficulty (RR 4:38-39).

Robinette noticed that the driver, however, had some difficulty walking as

he got out of the truck and tried to hobble away (RR 4:39-40). Robinette

continued to watch the diver as he flagged down Officer Adam Soto with the

Freeport Police Department, who was responding to the accident. Officer

Soto had been notified that the truck involved in the collision had fled in a

direction towards his location (RR 4:63, 4:65, 4:70).



                                       3
            When Officer Soto stopped, Robinette pointed out the truck and

the driver who was leaning against a nearby fence (RR 4:43, 4:61-62, 4:72).

Officer Soto saw a wrecked silver Chevrolet pickup truck in the alley, which

was leaning to one side because one of its wheels was missing (RR 4:71).

Officer Soto approached Appellant on foot and asked him if he was injured

from the accident, but Appellant, who appeared to be intoxicated, gave no

response (RR 4:73-74, 4:91-93) Officer Soto handcuffed Appellant and

conducted a pat down search, during which he recovered a set of keys—one

of which was fitted for that truck (RR 4:77). Robinette identified Appellant

as the driver of the Chevrolet pickup truck, and Appellant was confirmed to

be the registered owner (RR 4:43-45, 4:111, 4:117). Robinette also testified

that during the investigation one of the officers brought Appellant over to

him and asked, “is this the guy?” (RR 2:21, 4:50). But neither officer who

responded to the scene said this occurred (RR 4:77, 4:79, 4:81, 4:105-06).

            Officer Soto placed Appellant in the back of his patrol car until

Officer   Craig   Graham—who        specializes   in   intoxication   related

investigation—arrived on scene (RR 4:74, 4:97-98). When Officer Graham

opened the door of the patrol car, he immediately noticed a very strong odor

coming from Appellant (RR 4:99-100). He also observed Appellant had red,

watery eyes and was agitated and uncooperative (RR 4:100). Officer



                                     4
Graham testified that Appellant appeared to be extremely intoxicated, and

that Appellant’s speech was slurred to the extent his answers to questions

were almost incomprehensible (RR 4:100-01). Officer Graham obtained a

search warrant for Appellant’s blood, and a specimen was collected at a

nearby hospital (RR 4:101). Appellant became belligerent during the

collection process and several officers had to hold him down (RR 4:102).

Subsequent testing revealed Appellant’s blood alcohol level was 0.286

grams per 100 milliliters (RR 4:145).




                                        5
                  SUMMARY OF THE ARGUMENT

            Considering that a witness identified Appellant as the driver of

the Chevrolet pickup truck, as well as the fact Appellant was its registered

owner and a key to that vehicle was found on his person during a pat down

search, the jury could have found beyond a reasonable doubt that Appellant

was the driver or operator of the vehicle for purposes of DWI. Further, the

trial court did not err by admitting Robinette’s in-court identification of

Appellant as the driver because Robinette’s testimony shows his

identification of Appellant was independent of—and not influenced by—any

alleged one-on-one lineup.




                                     6
                                 ARGUMENT

      1)     The evidence is sufficient to show Appellant was the driver
             of the vehicle.

             When reviewing the sufficiency of the evidence, an appellate

court views all of the evidence in the light most favorable to the verdict to

determine whether any rational fact finder could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Adames v. State,

353 S.W.3d 854, 859 (Tex.Crim.App.2011). The court’s review of “all of

the evidence” includes evidence that was properly and improperly admitted.

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). Direct and

circumstantial evidence are treated equally, and circumstantial evidence

alone can be sufficient to establish guilt. Id.

             The jury is also the exclusive judge of the facts, the credibility

of the witnesses, and the weight to be given to the testimony. Bartlett v.

State, 270 S.W.3d 147, 150 (Tex.Crim.App.2008). A court of appeals may

not re-evaluate the weight and credibility of the evidence or substitute its

judgment for that of the jury. Williams v. State, 235 S.W.3d 742, 750

(Tex.Crim.App.2007); see also Clayton, 235 S.W.3d at 778 (“When the

record supports conflicting inferences, [the court] presume[s] that the




                                        7
factfinder resolved the conflicts in favor of the prosecution and therefore

defer[s] to that determination.”).

             A person is guilty of DWI, third offense, if he (1) having been

two times previously convicted of an offense related to the operation of a

motor vehicle while intoxicated (2) is intoxicated (3) while operating a

motor vehicle (4) in a public place. See TEX. PENAL CODE ANN. §§ 49.04,

49.09(b) (Vernon 2011). Appellant’s sufficiency challenge in this appeal is

limited to whether the State proved beyond a reasonable doubt he operated a

motor vehicle—he does not challenge evidence supporting the jury’s other

findings that Appellant was intoxicated, or any other element of the offense.

             The term “operating,” as utilized in the Penal Code, is not

defined. See TEX. PENAL CODE ANN. § 49.04(a); see also Kirsch v. State,

357 S.W.3d 645, 651 (Tex.Crim.App.2012). Therefore, in assessing the

sufficiency of the evidence to prove that a defendant was “operating” a

vehicle for purposes of DWI, a reviewing court looks to the totality of the

circumstances, which must “ ‘demonstrate that the defendant took action to

affect the functioning of his vehicle in a manner that would enable the

vehicle’s use.’ ” Kirsch, 357 S.W.3d at 650–51 (quoting Denton v. State,

911 S.W.2d 388, 390 (Tex.Crim.App.1995)).




                                      8
              There is no dispute Appellant’s silver Chevrolet pickup had just

been involved in a hit and run auto accident, during which one of its tires

had been torn off, and that his vehicle came to a stop in an alley near

Robinette’s home. He only claims he was not the driver and that the State’s

evidence does not indicate otherwise. However, Robinette saw Appellant

exit the pickup truck from the driver’s seat after it came to a stop in an alley

(RR 4:39-40). Responding officers found keys to that vehicle in Appellant’s

pocket (RR 4:77). Appellant was also identified as the registered owner of

that vehicle (RR 4:111, 4:117). Considering this evidence in the light most

favorable to the verdict, the jury could have found beyond a reasonable

doubt that Appellant was operating the vehicle in question, and his first issue

should be overruled.

       2)     The trial court was within its discretion to allow Robinette’s
              in-court identification of Appellant as the driver.

              In his second issue, Appellant argues that the trial court erred in

refusing to suppress Robinette’s in-court identification of him because it

derived from an improperly suggestive, one-on-one lineup occurring at the

scene.1 While often criticized as suggestive, however, one-on-one lineups do


1
 Neither of the investigating officers said the alleged one-on-one lineup took place. But
because Robinette was the only witness to testify at the suppression hearing, and
maintains that one of the officers brought Appellant over to him and asked if Appellant
was the driver, the State’s analysis assumes arguendo this event occurred.


                                           9
not violate due process as a matter of law. See Neil v. Biggers, 409 U.S. 188,

93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Garza v. State, 633 S.W.2d 508, 512

(Tex.Crim.App.1982) (op. on reh’g). The question is whether the

suggestiveness inherent in the procedure was such as to give rise to a

substantial likelihood of irreparable misidentification. See Biggers, 409 U.S.

at 198-99, 93 S.Ct. at 381-82; Jackson v. State, 657 S.W.2d 123, 127

(Tex.Crim.App.1983); Capello v. State, 775 S.W.2d 476, 482 (Tex.App.—

Austin 1989, pet. ref’d).

              Five factors are considered to evaluate whether there was a

substantial likelihood of irreparable misidentification: (1) the opportunity of

the witness to view the criminal at the time of the crime, (2) the witness’s

degree of attention, (3) the accuracy of the witness’s prior description of the

criminal, (4) the level of certainty demonstrated by the witness at the

confrontation, and (5) the length of time between the crime and the

confrontation. See Biggers, 409 U.S. at 199, 93 S.Ct. at 411; see also

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d

140 (1977).

              An appellate court will review the five Biggers factors, which

are all issues of historical fact, deferentially in a light favorable to the trial

court’s   ruling. See       Loserth   v.    State, 963   S.W.2d    770, 773-74



                                           10
(Tex.Crim.App.1998). The factors viewed in this light should then be

weighed de novo against “the corrupting effect” of the suggestive pretrial

identification procedure. Id. The reviewing court must also view the

historical facts in a light most favorable to the court’s ruling if the trial court

does not make express findings of historical facts. Id. at 774.

             In this case, Robinette saw Appellant exit the pickup truck

shortly after it came to rest in an alley after being damaged in the collision

with Macedo’s vehicle (RR 2:8-9, 4:36-37, 4:39-40). According to the

witness, the lineup occurred while Robinette was at the arrest location and

had just seen Appellant get out of the driver’s seat of the vehicle. Given the

immediacy of Robinette’s identification of Appellant at the scene, as well as

the certainty with which Robinette was able to identify Appellant, both at the

scene and in court (RR 2:11-12, 4:43-45) the record does not support a

finding there was a substantial likelihood of misidentification resulting from

a suggestive one-on-one lineup.

             Under the “totality of the circumstances” the trial court did not

err in admitting Robinette’s in-court identification of Appellant by Robinette

because of the alleged one-on-one lineup. Considered in conjunction with

the historical facts in light of the Biggers factors, the record does not

indicate there is a substantial likelihood of irreparable misidentification by



                                        11
this witness. To the contrary, Robinette’s identification of Appellant as the

driver of the Chevrolet pickup was independent of—and not influenced by—

any alleged one-on-one lineup. Therefore, the Court of Appeals should hold

that the trial court did not abuse its discretion in admitting Robinette’s

identification of Appellant, and Appellant’s second issue should be

overruled.




                                     12
                              CONCLUSION

             Viewing all of the evidence in the light most favorable to the

verdict, the jury could have found beyond a reasonable doubt that Appellant

operated a motor vehicle in a public place while he was intoxicated. Further,

the trial court was within its discretion to allow Robinette’s in court

identification of the Appellant as the driver, since the purported one-on-one

lineup was not so suggestive as to give rise to a substantial likelihood of

misidentification. Accordingly, Appellant’s issues on appeal should be

overruled.




                                     13
                              PRAYER

            For these reasons, the State asks the Court of Appeals to

overrule the Appellant’s issues on appeal and affirm the trial court’s

judgment.


                           Respectfully submitted,


                           /s/ Jeri Yenne
                           _____________________________________
                           Jeri Yenne
                           State Bar No. 04240950
                           Brazoria County Criminal District Attorney


                           /s/ Trey D. Picard
                           _____________________________________
                           Trey D. Picard
                           State Bar No. 24027742
                           Assistant Criminal District Attorney


                           111 East Locust St., Suite 408A
                           Angleton, Texas 77515
                           (979) 864-1233
                           (979) 864-1712 Fax
                           treyp@brazoria-county.com

                           ATTORNEY FOR THE APPELLEE,
                           THE STATE OF TEXAS




                                 14
                       CERTIFICATE OF SERVICE

             As required by Texas Rule of Appellate Procedure 6.3 and

9.5(b), (d), (e), I certify that I have served this document on all other parties,

which are listed below, on July 6, 2015:

      Cary M. Faden                         By:
      Attorney at Law                                personal delivery
      State Bar No. 06768725
      77 Sugar Creek Center Blvd.                    mail
      Suite 230                                      commercial delivery service
      Sugar Land, Texas 77478
                                                     electronic delivery / fax
      (281) 491-6182
      (281) 491-0049 Fax
      careyfaden@aol.com

      Attorney for the Appellant


                                        /s/ Trey D. Picard
                                        _____________________________
                                        Trey D. Picard
                                        Assistant Criminal District Attorney




                                       15
             CERTIFICATE OF RULE 9.4 COMPLIANCE

            I certify that this electronically filed document complies with

Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of

words is: 2,702.


                                     /s/ Trey D. Picard
                                     _____________________________
                                     Trey D. Picard
                                     Assistant Criminal District Attorney




                                   16
                  APPENDIX

No documents are attached.




                      17
