                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00279-CR


TRAYSON L. WOODEN                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

      In three points, Appellant Trayson L. Wooden appeals his conviction for

robbery by threats. We affirm.

                   II. Factual and Procedural Background

      The State indicted Wooden for the robbery of Jennifer Whitus, who

testified that she arrived home from work at around 1:00 a.m. on April 24, 2008,


      See Tex. R. App. P. 47.4.
      1
and parked in her usual spot near the well lit entrance to her apartment. When

she exited her car, a man approached her ―very quickly, very purposefully,‖ and

aggressively. He said, ―Give me your purse, bitch, or I will shoot you.‖ Whitus

testified that she was frozen as the man jerked her purse from her and shoved

her down and that she saw him get into the passenger side of a four-door sedan

―that had been waiting there with the engine running and the passenger door

open.‖ Whitus got a ―good look‖ at his face and described him to the responding

police officers as an African American man over six feet tall and about 180

pounds2 with a bushy hairdo or ―an Afro‖ and a splotchy complexion. She also

described him as having either a wide gap between his teeth or a missing or

rotten tooth.

      On April 28, 2008, Fort Worth police officers arrested Gregory Wofford,

Wooden’s cousin, at Wofford’s home for a parole violation. They found Wooden

inside the house along with several of Whitus’s personal belongings, including

her identification card, and when Wooden failed to properly identify himself,

officers arrested him as well. That same day, Fort Worth Police Detective Billy

Randolph interviewed Whitus and showed her a photographic lineup from which

Whitus identified Wooden as her assailant.

      The trial court held a pretrial hearing after Wooden moved to suppress

Whitus’s upcoming in-court identification of Wooden, claiming that the

      2
       Whitus noted that it was hard to tell exactly because he was wearing a
large shirt and it was windy.

                                       2
photospread on which her identification would be based was unduly suggestive

because Wooden’s photograph had a green background, while the others had

blue or gray backgrounds.

      During the hearing, Detective Randolph testified that he created the

photospread by selecting photographs of six individuals, including Wooden, with

similar height, weight, gender, race, hair color, and eye color characteristics.

Detective Randolph also testified that, before revealing the photospread to

Whitus, he advised her that it would contain photographs of individuals with

similar characteristics, that her assailant may or may not be pictured, and that

she should concentrate on facial features because hair styles and clothing could

have changed. According to Detective Randolph, Whitus pointed to Wooden’s

photograph within five to ten seconds, and Detective Randolph wrote ―[p]icked

immediately‖ on the photospread.           Detective Randolph testified that the

background of Wooden’s photograph was green but that each photograph had a

different background color, which he could not adjust.         For purposes of the

hearing, the trial court admitted the photospread and photospread data, which

listed the photographed individuals’ weight, ranging from 160 to 180 pounds, and

height, ranging from five feet, nine inches to six feet, three inches.3




      3
       The trial court also admitted a photograph that, according to Whitus’s
testimony, showed that Wooden’s face was lighter in some areas and darker in
others, and a photograph that showed that Wooden had a missing tooth.

                                          3
      Whitus testified during the hearing that she identified Wooden almost

instantly but selected Wooden’s photograph between thirty and sixty seconds

later to ―look at the pictures carefully‖ and ―ma[k]e sure to look over all of them,

even though [her] eyes were drawn to the familiar face.‖4 Whitus then identified

Wooden in open court as the person who robbed her and stated that she based

her identification, not on the photospread, but on her ―observations of him at the

time of the offense.‖5 At the conclusion of the hearing, the trial court denied

Wooden’s motion to suppress but granted his request for a running objection to

the in-court identification.

      At trial, the jury viewed the photospread and heard testimony from Whitus,

Detective Randolph, other police officers, and Mason, the hairdresser, before

Wofford testified pursuant to a plea bargain with the State. Wofford said that he

drove Wooden to and from the scene of the robbery, that he remembered

watching Wooden rob a woman, and that he saw her identification card among

the items that Wooden stole from her. A jury found Wooden guilty and assessed


      4
        During trial, Whitus testified that, because she recognized Wooden’s face,
she was able to identify him even though he had a different hair style in the
photospread than she had originally described. Geleatha Mason, a hairdresser,
testified that Wooden’s hair in the photospread was in ―cornrows or braids‖ and
estimated that it takes approximately twenty minutes to break down cornrows
such that the hair returns to an Afro style.
      5
        After the trial court admitted Whitus’s in-court identification, Whitus
testified that, during her interview with Detective Randolph, she described her
assailant as weighing about 200 pounds, having a ―bushy Afro‖ and freckles, and
missing a tooth.

                                         4
twenty-five years’ confinement as his punishment, and the trial court sentenced

him accordingly. This appeal followed.

                                 III. Identification

      In his first point, Wooden complains that the trial court erred by denying his

motion to suppress evidence relating to his pretrial identification because the

photospread from which Whitus identified him was impermissibly suggestive. In

his second point, he argues that the trial court erred by overruling his objection to

the in-court identification because it was tainted by the impermissibly suggestive

photospread.

      A pretrial identification procedure may be so suggestive and conducive to

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

accused of due process. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App.

2001). When examining a pretrial or an in-court identification, we use a two-

prong test. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert.

denied, 516 U.S. 1176 (1996). First, we determine whether the defendant has

shown by clear and convincing evidence that the pretrial identification procedure

was impermissibly suggestive, and, if so, we will reverse only if the

suggestiveness gives rise to a very substantial likelihood of misidentification. Id.

at 33–34 (considering the totality of the circumstances).

      Under the first Barley prong, suggestiveness may be created by the

manner in which the pretrial identification procedure is conducted if, for example,

a police officer suggests that the suspect’s photograph is included in the

                                         5
photospread, or it may be created by the content of the photospread itself ―if the

suspect is the only individual closely resembling the pre-procedure description.‖

Id. at 33; see Mungia v. State, 911 S.W.2d 164, 168 (Tex. App.—Corpus Christi

1995, no pet.) (―[A] photo spread is not improperly suggestive merely because

each photograph can be distinguished in some manner from the defendant’s.‖).

      Under the second Barley prong, we weigh the following five nonexclusive

Biggers factors against the corrupting effect of a suggestive identification

procedure: (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.   Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008)

(―Reliability is the linchpin in determining the admissibility of identification

testimony.‖) (citing Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382

(1972)), cert. denied, 130 S. Ct. 72 (2009). We review de novo whether an

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of misidentification, but we view historical issues of fact in

the light most favorable to the trial court’s ruling.     Cienfuegos v. State, 113

S.W.3d 481, 491 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Loserth

v. State, 963 S.W.2d 770, 773–74 (Tex. Crim. App. 1998) (stating that the

Biggers factors are treated as historical issues of fact)).



                                          6
A. First Barley Prong—Suggestiveness

      Wooden asserts that his photograph’s green background was markedly

different from the blue or gray backgrounds of the other photographs and, thus,

attracted a level of attention that rendered the photospread impermissibly

suggestive.   We have reviewed the photospread, which shows that the

background of Wooden’s photograph is green and that the backgrounds of the

other photographs are different shades of blue or gray.         However, this

discrepancy is slight.   See Barley, 906 S.W.2d at 33–34 (holding that a

photospread containing a photograph that was ―obviously taken in a different

setting‖ was not impermissibly suggestive); Page v. State, 125 S.W.3d 640, 647

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (―Slight differences in the

background color and brightness of photographs are insignificant.‖); see also

Mata v. State, No. 04-07-00146-CR, 2008 WL 2715869, at *4 (Tex. App.—San

Antonio July 9, 2008, pet. ref’d) (mem. op., not designated for publication)

(concluding that a gray background was permissible even though the other

backgrounds were light blue).   This difference in background color does not

create a photospread in which ―the suspect is the only individual closely

resembling the pre-procedure description.‖ See Barley, 906 S.W.2d at 33; see

also Doescher v. State, 578 S.W.2d 385, 387 (Tex. Crim. App. [Panel Op.] 1978)

(concluding that the photographic spread was not impermissibly suggestive when

appellant’s photograph was the only one with a height indicator in the

background because this did not suggest that he had a characteristic that the

                                      7
other subjects did not share).     Instead, Detective Randolph ensured that the

content of his photospread featured six individuals with similar characteristics

with regard to height, weight, gender, race, hair color, and eye color. See Barley,

906 S.W.2d at 33. Indeed, our review of the photospread and the photospread

data confirms that the six African American males pictured have similar height

and weight, black hair of a similar style, brown eyes, and similar facial features.

      Further, Detective Randolph ensured that the pretrial identification

procedure was not suggestive by advising Whitus that the photospread would

include six individuals with similar characteristics, and he directed Whitus to

focus on facial features because, unlike hair and clothing, those are unlikely to

change with time. See id. And Whitus testified that she selected Wooden’s

photograph, not based on its background, but because her eyes were drawn to

his familiar face. See Doescher, 578 S.W.2d at 387 (noting that part of the

totality of the circumstances included testimony that the witnesses’ identification

of appellant was primarily based on their observations during the crime rather

than on the photospread); Bethune v. State, 821 S.W.2d 222, 229 (Tex. App.—

Houston [14th Dist.] 1991) (concluding that photospread was not impermissibly

suggestive when complainant testified that her selection was based solely on her

memory of her attack and that the defendant’s facial features set his photograph

apart from the others), aff’d, 828 S.W.2d 14 (Tex. Crim. App. 1992). Also, even if

the green background caught Whitus’s attention initially, she stated that she

made sure to look over all of the photographs for thirty to sixty seconds before

                                          8
finally choosing Wooden’s. See Smith v. State, No. 05-02-01886-CR, 2003 WL

22962434, at *4 (Tex. App.—Dallas Dec. 17, 2003, pet. ref’d) (not designated for

publication) (deciding that the identification was reliable in part because the

witness looked at the lineup for several seconds before choosing a photograph).

Finally, Detective Randolph advised Whitus that her assailant might not be

pictured at all. See Mata, 2008 WL 2715869, at *4 (noting that the police officer

never suggested that the suspect was included in the photospread) (citing

Barley, 906 S.W.2d at 33).

      Considering the totality of the circumstances, including the content of the

photospread itself and the manner in which Detective Randolph conducted the

pretrial identification procedure, Wooden has not shown by clear and convincing

evidence that the in-court identification was tainted by an impermissibly

suggestive identification procedure. See Barley, 906 S.W.2d at 33–34.

B. Second Barley Prong—Likelihood of Misidentification

      Even if the pretrial identification procedure was impermissibly suggestive

under the first Barley prong, it must also give rise to a very substantial likelihood

of misidentification to deny Wooden of due process. See Conner, 67 S.W.3d at

200; Barley, 906 S.W.2d at 33–34.        Turning to the first and second Biggers

factors, Whitus’s description of the incident shows that she had a sufficient

opportunity to view and pay close attention to her assailant during and after the

incident. See Luna, 268 S.W.3d at 605. First, Whitus testified that the area in

which she was attacked was well lit, so she was able to get a ―good look‖ at her

                                         9
assailant’s face. See Loserth v. State, 985 S.W.2d 536, 544 (Tex. App.—San

Antonio 1998, pet. ref’d) (deferring to trial court’s finding that witness had

adequate opportunity to observe the defendant when the area was well lit and

the victim testified about seeing the defendant’s face). Further, even though she

was ―frozen,‖ the level of detail that she recalled demonstrated that she was very

attentive during the robbery. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim.

App.) (using the level of detail recalled by the witness as a measure of her

attentiveness), cert. denied, 510 U.S. 982 (1993). For example, Whitus observed

that her assailant’s approach was quick, purposeful, and aggressive, and she

distinctly remembered what he said to her before he jerked her purse from her

shoulder and pushed her down. Additionally, Whitus had the wherewithal to

observe her assailant as he escaped and was able to describe the type of get-

away vehicle, where it was parked, that its engine was running, and that its

passenger door was open.

      Turning to the third Biggers factor, Whitus’s prior description of her

assailant was precise and added to the reliability of her identification. See Luna,

268 S.W.3d at 605.      Her description of her assailant as being an African

American male over six feet tall with a missing or rotten tooth was accurate in all

three respects.    Beyond these characteristics, although Whitus described

Wooden’s hair as bushy or ―an Afro‖ and the photograph shows Wooden’s hair in

cornrows, viewing the evidence in the light most favorable to the trial court’s

ruling, Whitus’s description was accurate because, as the trial court heard

                                        10
Detective Randolph state, hair styles are susceptible to change. See Loserth,

963 S.W.2d at 773–74 (instructing that we view these factors with deference in

the light most favorable to the trial court’s ruling). Moreover, another witness

testified that it only takes about twenty minutes to convert cornrows back into an

Afro hair style.

      Next, even though Whitus’s estimation of Wooden’s weight was slightly

different when she spoke with Detective Randolph from her description on the

day of the incident, when viewed in the appropriate light, this discrepancy did not

render Whitus’s description inaccurate. See id. at 773–74. Indeed, as Whitus

testified, the difficulty of gauging someone’s weight was compounded by her

assailant’s baggy clothes blowing in the wind.        The trial court could have

reasonably put more weight on Whitus’s first and more accurate estimate the

night of the attack that her assailant weighed approximately 180 pounds.

      In addition, even though Whitus’s description of Wooden’s complexion

varied between ―splotchy‖ and ―freckled,‖ Whitus’s description was still accurate

in this respect when viewed in the appropriate light. See id. Indeed, Whitus

testified that she used the term ―freckles‖ on one occasion to describe an

inconsistency or unevenness in her assailant’s face. The trial court could have

interpreted this testimony to indicate not that she was inconsistent in her

description but merely that she struggled with how to convey the physical

characteristic that she had observed. As further evidence of reliability, the trial



                                        11
court had an opportunity to review the photograph that Whitus later testified

showed that Wooden’s face was darker in some areas and lighter in others.

      Turning to the fourth Biggers factor, Whitus exhibited a high level of

certainty when she selected Wooden’s photograph at the confrontation.         See

Luna, 268 S.W.3d at 605. Both she and Detective Randolph testified that she

recognized her assailant instantly; the only discrepancy between their

testimonies was whether she pointed to Wooden’s photograph at that moment or

took additional time to carefully examine each photograph. Either way, viewing

the evidence in the appropriate light, the trial court could have found that this

evidence supported a finding that Whitus was highly confident in her identification

of Wooden. See Loserth, 963 S.W.2d at 773–74. Finally, turning to the fifth

factor, the length of time between the April 24 robbery and the April 28

confrontation was four days, which strengthened the reliability of Whitus’s

identification. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243,

2253–54 (1977) (―The photographic identification took place only two days later.

We do not have here the passage of weeks or months between the crime and

the viewing of the photograph.‖).

      In sum, we conclude that Wooden has not shown by clear and convincing

evidence that the photospread was impermissibly suggestive, and the trial court

could have reasonably found that each Biggers factor weighed in favor of

reliability even if the photospread was impermissibly suggestive. See Biggers,

409 U.S. at 199–200, 93 S. Ct. at 382; Loserth, 963 S.W.2d at 773–74; Barley,

                                        12
906 S.W.2d at 33–34.        Therefore, we hold that any suggestiveness did not

deprive Wooden of due process by giving rise to a very substantial likelihood of

misidentification, see Biggers, 409 U.S. at 199–200, 93 S. Ct. at 382; Conner, 67

S.W.3d at 200, and we overrule Wooden’s first and second points.

                             IV. Accomplice Witness

      In his third point, Wooden complains that, absent the impermissibly

suggestive photospread and the tainted in-court identification, insufficient

evidence existed to corroborate Wofford’s accomplice testimony.            Wooden

implicitly concedes that sufficient evidence would exist if, as we have determined,

the photospread was not impermissibly suggestive and, thus, did not taint the in-

court identification. However, we will still address the sufficiency in light of our

decision on Wooden’s first two points. See Green v. State, No. 07-00-0586-CR,

2002 WL 31084674, at *2–3 (Tex. App.—Amarillo Sept. 17, 2002, no pet.) (not

designated for publication) (addressing the accomplice testimony issue even

though appellant only based this claim on the alleged inadmissibility of the in-

court identification, which the trial court held to be admissible).

      The code of criminal procedure provides that a conviction cannot be based

upon the testimony of an accomplice unless other evidence tending to connect

the defendant with the offense corroborates the testimony. Tex. Code Crim.

Proc. Ann. art. 38.14 (West 2005).        ―[N]on-accomplice evidence is sufficient

corroboration if it shows that rational jurors could have found that it sufficiently

tended to connect the accused to the offense.‖ Smith v. State, 332 S.W.3d 425,

                                          13
442 (Tex. Crim. App. 2011) (―Therefore, it is not appropriate for appellate courts

to independently construe the non-accomplice evidence.‖).

      In addition to Whitus’s pretrial and in-court identification of Wooden,

corroborating Wofford’s testimony at trial was Whitus’s testimony that, in the well

lit parking lot, she got a ―good look‖ at her attacker, who she initially told police

was an African American male who stood over six feet tall, had a bushy hairdo,

weighed about 180 pounds, had a missing or rotten tooth, and had a splotchy

complexion.    Also corroborating Wofford’s testimony was evidence that Fort

Worth police officers found Wooden in the same house as the one from which

they recovered Whitus’s identification card. The only contradicting evidence was

Whitus’s statement during a subsequent interview with police that her attacker

weighed about 200 pounds. However, we must defer to the jury’s resolution of

this inconsistency and not independently construe the evidence. See id. We

conclude that rational jurors could have found that the combined weight of the

non-accomplice evidence—including Whitus’s almost instantaneous pretrial

identification, her in-court identification, the detailed description that she gave to

responding police officers, and the evidence that police found Wooden and

Whitus’s identification card in Wofford’s house—tended to connect Wooden to

the offense. See id. Thus, we overrule Wooden’s third point.




                                         14
                              V. Conclusion

      Having overruled all of Wooden’s points, we affirm the trial court’s

judgment.



                                         PER CURIAM


PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: December 8, 2011




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