                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-242-CR


CHRISTOPHER W AYNE                                                     APPELLANT
SCRANTON

                                            V.

THE STATE OF TEXAS                                                           STATE

                                        ------------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                  I. Introduction

      Gunmen breached the back door of an Arlington gaming establishment around

closing time and stripped the cash from an elderly employee’s wallet.         Police

captured Appellant Christopher W ayne Scranton a few hours later and presented

him for a field show-up to an eyewitness who had tried to bar the door as the robbers

broke in. Appellant now appeals his convictions on two counts of aggravated


      1
           See Tex. R. App. P. 47.4.
robbery, contending that the pretrial field show-up was impermissibly suggestive and

that the evidence is legally and factually insufficient. Because we hold the trial court

did not abuse its discretion by denying Appellant’s motion to suppress identification

and because we hold the evidence is both legally and factually sufficient to support

the jury’s verdict, we affirm the trial court’s judgment.

                               II. Factual Background

      Around midnight on May 10 going into May 11, 2008, Appellant parked his red

F-150 pickup truck on the side of the Joy Game Room, a gaming establishment at

the corner of South Collins and East Mayfield in Arlington.

      Marcus Linton spent five days a week at the game room, sometimes helping

out with odd jobs such as cleaning up and re-stocking the refrigerator. On May 10,

he had been helping set up a security camera when around 2:00 a.m., closing time,

he stepped out front to move the car he had borrowed to the alley in the back so that

passers-by would not think that the business was still open while he stayed to play

some of the machines after hours.

      As he wheeled the car around to the alley, he passed near Appellant’s red

pickup truck backed up against the building. The truck’s “dim” lights were on and

two people were in the front seat: a black man sitting upright behind the steering

wheel and someone else bent down in the passenger seat beside him.

      Marcus thought it was “not normal” for a vehicle to be parked that way and on

that side of the building at that time of night. As he passed the front of the truck, the


                                           2
passenger’s face was below his line of sight and the driver acted as though he

wanted to avoid being noticed.

      Marcus continued into the alley, parked behind the building, climbed out of the

car, and tapped on the game room’s back door. Someone let him in, and after

stepping inside and locking the door behind him, he realized that he had left a

friend’s cell phone in the car. He turned to unlock the door, and when he set foot

outside, he saw two people standing close by. He immediately retreated inside and

tried to close the door when a pair of hands grabbed hold from the outside.

      Riley Kemp was the manager in charge of the late shift. Standing in the

doorway between the main and back areas, he turned from the customer he had

been assisting to see Marcus struggling to close the back door.

      Marcus had almost succeeded when another pair of hands from the outside

grabbed the door. But Marcus released his grip when the muzzle of a handgun

penetrated the opening and pressed against his forehead.

      For a moment, Marcus locked eyes with the man holding the gun. Then,

fearing that he was either going to be hurt or killed, Marcus stepped aside and two

gunmen (the second armed with a shotgun) threw the door open and burst inside.

      The intruders, bundled up in multiple layers and hooded sweats, trained their

weapons at Marcus and Kyong Son, a seventy-year old employee who had been

helping clean up, and ordered them face-down on the floor.




                                         3
      W atching from the main area of the game room, Riley called 911 and began

quietly escorting the fifteen or so customers toward the front entrance and out of the

building. As Riley talked with the 911 dispatcher, the men in the back realized that

the keys to the money were evidently on the opposite side of the building with Riley

at the front entrance. Frantically looking for something to steal, they kicked open the

locked office door located in the back area. Finding nothing valuable there, one of

the men snatched the wallet from Son’s back pants pocket, stripped it of its sixty

dollars in cash, and stuffed it back in Son’s pants. Then they made for the back

door, slammed it shut, and dashed through the alley.

      Riley hurried to the back, opened the door, and instructed Marcus to see if he

could tell where the men went. Marcus took off running down the alley.

      The robbers barreled north along the wooden privacy fence that extended

behind the game room toward Mayfield Street. Marcus followed on the opposite

sidewalk as they circled back onto Mayhill Court and continued south down that

street, disappearing through an open gate between two houses at the end of the cul-

de-sac. W ithin seconds, a patrol car pulled up to Marcus, who climbed in and

collapsed onto the backseat.

      Another patrol car stopped at the end of the cul-de-sac, and Officer Robert

Muguerza climbed out and entered the backyard where the robbers had

disappeared. He spotted two suspects in the large open field across the fence.




                                          4
They ran west, crossing Collins and a church parking lot before vanishing into the

adjoining neighborhood.

      The officer who had picked up Marcus returned him to the game room, asking

on the way whether Marcus would be able to recognize the robbers if he saw them

again. Marcus replied that he would “because that’s all I remembered was the face.”

      In the game room parking lot, officers ran a license check of the red pick-up

truck backed up against the building; it was registered to Appellant.

      The police set up a containment perimeter encircling several blocks around

the game room. Officer Frank Smith had taken a position northwest of the game

room when he heard that a suspect had been seen running northbound on Collins.

He headed that way and picked up Lehman Mintor running northbound on the west

side of the street.

      The officer took Lehman to the game room parking lot and presented him to

Marcus for a field show-up. Illuminated by bright lights and wearing handcuffs

behind his back, he stood approximately twenty yards from Marcus, who was hidden

behind the lights. Marcus could not identify him.

      In the meantime, Officer Muguerza and his police dog had relocated to Shea

Court, just to the west of the church grounds where the suspects had last been seen.

The dog sniffed out Eddie Beasley, who was barefoot, wearing only a T-shirt and

shorts, hiding in a flower bed. Officers took Eddie into custody and transported him

to the game room parking lot where he was presented to Marcus in the same


                                         5
manner that Lehman had been a half hour before. Marcus immediately recognized

him as one of the robbers.

      After Lehman had been cleared for release, Officer Smith was taking him

south on Collins when he saw another suspect in a white T-shirt and jeans running

northbound through the church grounds from the wooded area where Eddie Beasley

had been tracked. Officer Smith radioed the suspect’s position and description,

dropped off Lehman, and took up a position on the south perimeter.

      A 911 caller reported seeing someone running and crouching behind fences

in a neighborhood to the northwest of the game room. Officer Smith drove to that

location and saw the same suspect he had seen running on Collins—now without

a shirt and with his jeans ripped—coming out of a backyard at 408 Thomas Lane.

Officer Smith cruised up from the rear with his lights off. W hen the suspect noticed

the patrol car, he started jogging. Pulling up alongside, Officer Smith asked him

what he was doing, to which he replied that he was going for his “morning jog.”

W hen the suspect identified himself as Appellant, Officer Smith recognized the name

from the license-plate check of the pickup truck at the game room. Officer Smith

ordered Appellant into the patrol car and transported him to the game room parking

lot where he was presented to Marcus for a field show-up in the same manner as

Lehman Mintor and Eddie Beasley had been before. Marcus immediately and

unequivocally identified Appellant as the gunman with whom he had earlier locked

eyes at the back door of the game room.


                                         6
      Crime scene investigators discovered a .45 caliber handgun and a sawed off

.410 shotgun in the field behind the fence where Marcus had chased the robbers.

Inside the fence, officers also found several articles of clothing, including hooded

jackets and gloves. Subsequent DNA testing of the clothing matched some of the

articles to Eddie Beasley and some to Appellant.

      A jury convicted Appellant on two counts of aggravated robbery. Appellant

pleaded true to habitual-offender paragraphs alleging prior convictions for robbery

and aggravated robbery. The trial court assessed Appellant’s punishment at fifty

years’ confinement on each count, ordering the sentences to run concurrently.

                         III. Sufficiency of the Evidence

      In his second issue, Appellant challenges the legal and factual sufficiency of

the evidence. He does not dispute that the evidence shows the commission of an

aggravated robbery, but he contends that the evidence is insufficient to show that

he committed it.

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. 2




      2
        Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

                                         7
       W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. 3 W e then ask

whether the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the evidence

supporting the conviction that the factfinder’s determination is manifestly unjust. 4 To

reverse under the second ground, we must determine, with some objective basis in

the record, that the great weight and preponderance of all the evidence, although

legally sufficient, contradicts the verdict. 5

       Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” 6 Evidence is

always factually sufficient when it preponderates in favor of the conviction. 7

       Viewed in the light most favorable to the verdict, the evidence presented in this

case is legally sufficient to support the jury’s implied finding expressed in its verdicts


       3
         Steadman v. State, 280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson
v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006).
       4
            Steadman, 280 S.W .3d at 246; Watson, 204 S.W .3d at 414–15, 417.
       5
            Watson, 204 S.W .3d at 417.
       6
       Johnson v. State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman,
280 S.W .3d at 246.
       7
            Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

                                             8
that Appellant was one of the robbers. Appellant’s vehicle was parked at the robbery

location before, during, and after the robbery; his DNA was detected on clothes

dumped into a backyard along the robbers’ escape route; two weapons matching the

descriptions of those used in the robbery were found on the other side of the fence;

a police officer observed Appellant running in a white T-shirt and jeans from an area

where the robbers were last seen and subsequently found him emerging from a

backyard without the T-shirt and with his jeans ripped; Appellant had been walking

up to the time that he noticed the patrol car behind him, but then feigned jogging

when he saw he was being followed; and an eyewitness who tried to keep the door

closed against the robbers’ entry and who testified that he looked into Appellant’s

eyes when Appellant held a gun to his forehead positively identified Appellant as one

of the robbers. W e overrule this part of Appellant’s second issue.

      In support of his claim that the evidence is factually insufficient to show that

he was one of the robbers, Appellant argues that the field show-up procedure was

unreliable because Marcus was high on drugs and even if he was sober, it is

doubtful that his view of the assailants was sufficient to identify him in a line-up. He

also suggests that Marcus’s identification of Appellant as one of the robbers was

tainted by Marcus’s motivation to catch the robbers because he felt guilty for letting

them in and because the police pressured him to make an identification. Finally, he

asserts that he parked beside the game room within walking distance of his

girlfriend’s home to avoid having his truck repossessed. Viewed in a neutral light,


                                           9
however, we find nothing in the record suggesting that the jury’s resolution of these

issues of weight and credibility resulted in verdicts that were clearly wrong or

manifestly unjust.      Nor do we find that the evidence supporting the verdict is

particularly weak or that it is outweighed by any evidence that conflicts with the

verdict. W e overrule this part of Appellant’s second issue.

                                IV. The Field Show-up

      In his first issue, Appellant claims that the trial court abused its discretion

when it denied his motion to suppress evidence that Marcus positively identified him

as one of the robbers. The State responds that Appellant failed to preserve this

issue for our review.

      Although the State acknowledges that the trial court granted Appellant a

running objection out of the presence of the jury on “the identity issue,” the State

argues that because Appellant requested his running objection during the testimony

of one witness, he was required to re-urge his objection when the same evidence

came in during the testimony of another. In other words, the State argues, his

running objection applied to only one witness, specifically, to the testimony of Officer

Stevens on the issue of Marcus’s identification of Appellant as one of the robbers

and not to Marcus’s testimony, which was presented later in the trial and which

Appellant did not specifically object to. The State contends that when Marcus later

testified to having identified Appellant as one of the robbers, Appellant was required




                                          10
to raise another objection to preserve any error in the admission of his testimony

about Marcus having identified Appellant.

      In support of its position, the State cites two cases from the court of criminal

appeals, Sattiewhite v. State 8 and Goodman v. State, 9 and two cases from our sister

courts in Austin and Tyler, Scaggs v. State 10 and White v. State, 11 respectively. In

addition, the State cites Ford v. State, 12 a more recent case, which it candidly

acknowledges cuts against its position.

      Also citing Ford, commentators have noted that “[a] properly framed running

objection can extend to testimony by all witnesses pertaining to the same type of

evidence.” 13 In Ford, when the decedent’s mother was called to testify, the appellant

stated, “Your Honor, I would ask that my running objection extend to all witnesses,

if they testify to the same type of matter.” 14 The trial court responded, “All right. I

note your objection. I’ll grant your running objection on this issue and overrule it.” 15


      8
           786 S.W .2d 271 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 881 (1990).
      9
           701 S.W .2d 850 (Tex. Crim. App. 1985).
      10
            18 S.W .3d 277 (Tex. App.—Austin 2000, pet. ref’d).
      11
            784 S.W .2d 453 (Tex. App.—Tyler 1989, pet. ref’d).
      12
            919 S.W .2d 107 (Tex. Crim. App. 1996).
      13
        1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of
Evidence § 103.2 (3d ed. 2002) (citing Ford, 919 S.W .2d at 113).
      14
            Ford, 919 S.W .2d at 113.
      15
            Id.

                                           11
On appeal, the Ford court held that the appellant had preserved his claim for review:

“     The record reflects that appellant was clearly objecting ‘to any and all

      impact evidence’ as ‘to all witnesses’ testifying to such. The trial court

      clearly understood such complaint and ruled adversely thereon. W e

      conclude that appellant has preserved his claim for review.” 16

      The record in this case shows that outside the jury’s presence, Appellant

specifically objected to “any testimony regarding [Marcus’s] identification of

[Appellant]” and the trial court granted a running objection “as to the identity issue.”

             MR. SCOTT [for Appellant]: Your Honor, at this time I would
      make a motion that any eyewitness identification in regards to Mr.
      Scranton be suppressed. I think the show-up lineup or the show-up
      that was done that night was highly prejudicial. It’s going to be
      suggestive to Mr. Linton. And I don’t think that much probative value
      can be had. I think it’s more highly prejudicial to the defendant. I think
      there’s better ways they could have done some type of identification.

              And I don’t think that there should be any testimony regarding Mr.
      Linton’s identification of Mr. Scranton due to the high probability of
      suggestive nature of the show-up lineup. I mean, one, he was in
      handcuffs; two, he had already identified a previous person; and, three,
      I don’t think that he has sufficient options in which to decide whether or
      not this was one of the suspects.

             THE COURT: Let me ask one question. He had also failed to
      identify one person that you brought in as a suspect that you used the
      same procedure to show; is that correct?

             THE W ITNESS: Yes, Your Honor.




      16
       Id. at 113–14; see also George v. State, 959 S.W .2d 378, 384 (Tex.
App.—Beaumont 1998, pet. ref’d).

                                          12
            THE COURT: Actually, there were three people that you showed
      him out there that night?

               THE W ITNESS: Yes, sir.

             THE COURT:        Okay.     All right.   I’m going to overrule your
      objection.

               MR. SCOTT: And I would like a running objection as to ––

             THE COURT: That’s fine. You can have your objection as to the
      identity issue.

               MR. SCOTT: Thank you, Your Honor.

               THE COURT: Bring in the jury. [Emphasis added.]

      W e think it clear from the record that Appellant properly framed his running

objection and that the trial court granted it to apply to all witnesses testifying on

Marcus’s eye-witness identification of Appellant. Accordingly, we hold that Appellant

has preserved his claim for review. 17

      The State also argues that Appellant failed to preserve his claim because

although he argued to the trial court that the identification procedure was suggestive,

he did not argue that it was impermissibly so nor did he argue that the procedure led

to his mistaken identification by the witness.

      Although there are no technical considerations or forms of words required to

preserve an error for appeal, a party must be specific enough so as to “let the trial

judge know what he wants, why he thinks himself entitled to it, and do so clearly



      17
            See Ford, 919 S.W .2d at 113–14; George, 959 S.W .2d at 384.

                                           13
enough for the judge to understand him at a time when the trial court is in a proper

position to do something about it.” 18 A general or imprecise objection is sufficient to

preserve error only if the legal basis for the objection is obvious to the trial court and

opposing counsel. 19 W hether the specific grounds for the objection were apparent

from the context of the objection is determined by looking at each situation

individually as it arises.20

       Our review of the discussion between Appellant and the trial court set out in

the record leads us to conclude that the trial court clearly understood the basis for

Appellant’s objection. 21      Therefore, we shall address the merits of Appellant’s

complaint.




       18
         Resendez v. State, 306 S.W .3d 308, 312–13 (Tex. Crim. App. 2009)
(quoting Lankston v. State, 827 S.W .2d 907, 909 (Tex. Crim. App. 1992)).
       19
             Buchanan v. State, 207 S.W .3d 772, 775 (Tex. Crim. App. 2006).
       20
           Heidelberg v. State, 144 S.W .3d 535, 538 (Tex. Crim. App. 2004); see
also Layton v. State, 280 S.W .3d 235, 240 (Tex. Crim. App. 2009) (holding that error
was preserved because “[a]fter receiving a copy of DeLarue and hearing
[a]ppellant’s argument, the trial judge should have been aware of the basis of the
objection”); Rivas v. State, 275 S.W .3d 880, 887 (Tex. Crim. App. 2009) (holding
that an objection is not defective merely because it does not identify a rule of
evidence); Clarke v. State, 270 S.W .3d 573, 580, 583 (Tex. Crim. App. 2008)
(holding error preserved when claim on appeal was same essential claim made to
the trial court, just “gussied . . . up with legal authority”).
       21
             See Lankston, 827 S.W .2d at 909.

                                            14
      W e review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. 22 W e give almost total deference to a trial court’s

rulings on questions of historical fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor, but we review de novo application-

of-law-to-fact questions that do not turn on credibility and demeanor. 23

      A pretrial identification procedure may be so suggestive and conducive to

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

the accused due process of law. 24

      W hether an identification procedure was so impermissibly suggestive as to

give rise to a very substantial likelihood of misidentification is a mixed question of law

and fact that does not turn on an evaluation of credibility and demeanor. 25

Accordingly, we apply a de novo standard of review.

      To determine the admissibility of an out-of-court identification, we ask,

considering the totality of the circumstances, (1) whether the identification procedure



      22
         Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W .2d 85, 89 (Tex. Crim. App. 1997).
      23
        Amador, 221 S.W .3d at 673; Estrada v. State, 154 S.W .3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53 (Tex. Crim. App. 2002).
      24
         Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968);
Barley v. State, 906 S.W .2d 27, 32–33 (Tex. Crim. App. 1995), cert. denied, 516
U.S. 1176 (1996).
      25
         Loserth v. State, 963 S.W .2d 770, 772–73 (Tex. Crim. App. 1998); Page
v. State, 125 S.W .3d 640, 646 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

                                           15
was impermissibly suggestive and, if so, (2) whether the improperly suggestive

procedure created a very substantial likelihood of irreparable misidentification. 26

Suggestiveness may arise from the manner in which an identification procedure is

conducted.27 For example, we have previously noted that although a one-man field

show-up does not in and of itself violate due process, from a practical perspective

it does carry with it a degree of suggestiveness. 28 On the other hand, it also allows

the police to quickly release a person who has been seized but is not the

perpetrator. 29       But the question we must ask here is not whether a show-up

procedure carried with it a degree of suggestiveness, it is whether the show-up was

impermissibly suggestive. A defendant bears the burden of establishing by clear and

convincing evidence that the pretrial identification procedure was impermissibly

suggestive.30 If we find that it is, we then must decide whether the impermissibly

suggestive procedure led to a very substantial likelihood of irreparable

misidentification. 31



         26
               Simmons, 390 U.S. at 384, 88 S.Ct. at 971; Barley, 906 S.W .2d at 33.
         27
               Barley, 906 S.W .2d at 33.
         28
               Stewart v. State, 198 S.W .3d 60, 63 (Tex. App.—Fort W orth 2006, no
pet.).
         29
               Id.
         30
               Barley, 906 S.W .2d at 33–34.
         31
         See id.; Delk v. State, 855 S.W .2d 700, 706 (Tex. Crim. App.), cert.
denied, 510 U.S. 982 (1993).

                                             16
       Appellant asserts that the field show-up in this case was impermissibly

suggestive because (1) Marcus identified only the suspects that were in handcuffs

whereas he did not identify the suspect that was not in handcuffs and (2) the police

pressured Marcus to positively identify a suspect making him feel that they would not

take “no” for an answer.

       Our review of the record, however, shows that the identification procedure

employed by the police in this case was not impermissibly suggestive. The police

officer who presented Lehman Mintor—the suspect whom Marcus could not identify

and whom the police subsequently released—could not remember whether Lehman

was in handcuffs during the show-up. Marcus, on the other hand, testified that he

looked at a number of suspects that night and that they all were handcuffed.

Further, our review of the record does not support Appellant’s contention that the

police unduly pressured Marcus to positively identify anyone or that they would not

take “no” for an answer. In fact, Marcus specifically testified that the police “asked

me to see if I recognized –– if I recognized this person as being one of the two,” and

that he did not feel that they put any pressure on him to identify anyone.

Accordingly, we hold that the field show up was not impermissibly suggestive.

Because of our disposition of this issue, we need not address whether the procedure

led to a substantial likelihood of misidentification. W e overrule appellant’s first issue.




                                            17
                                V. Conclusion

      Having overruled both of Appellant’s issues, we affirm the judgment.



                                                  PER CURIAM

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

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

DELIVERED: July 8, 2010




                                       18
