Opinion issued February 25, 2014




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas


                           NO. 01-12-01180-CR


             KENNETH RAYSHAWN SHEPHARD, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


             On Appeal from the 412th Judicial District Court
                         Brazoria County, Texas
                     Trial Court Cause No. 62630


                       MEMORANDUM OPINION
     Kenneth Rayshawn Shephard was charged by indictment with the felony

offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03 (West 2011).

A jury found Shephard guilty and assessed a punishment of eight years’
imprisonment. On appeal, Shephard contends that the trial court erred in denying

his motion to suppress and his motions for mistrial and in admitting evidence

regarding the complainant’s pre-trial show-up identification of Shephard. We

affirm.

                                    Background

Motion to Suppress

      In his motion to suppress, Shephard argued that he was arrested without

probable cause upon answering the door of his girlfriend’s apartment and that the

evidence obtained as a result of his arrest should be suppressed. Officer T. York of

the Brazoria County Sheriff’s Department testified at the hearing. On June 26,

2010 around 10:00 in the morning he responded to a dispatch call regarding a

robbery. According to the dispatch, Richard Finch was leaving a drugstore, and as

he was trying to get into his vehicle, a black male in his early 20s, who was sitting

in a parked small silver SUV with a partial license plate of “V67,” pointed a

weapon at Finch and told him to “give him all of his stuff.” York did not recall the

dispatch containing a description of the suspect’s clothing.

      After receiving the dispatch, York drove toward where the suspect was last

seen. York saw Finch’s vehicle, a motor home, and began to search the area for an

SUV that matched the description given. Eight to ten minutes after receiving the

                                          2
initial dispatch, York located an unoccupied small silver SUV with a partial license

plate of V67 on the east side of an apartment complex on Yerby Street, near where

he had seen Finch’s motor home. York notified dispatch that he had located the

suspect vehicle, and confirmed that the hood of the car was hot, indicating that the

car had been recently driven.

      After Detective V. Ellison arrived, York left to check on Finch, who had

returned to the drugstore. Finch told York that the driver had been wearing a black

shirt and a black “do-rag.” York then heard over the radio that a suspect had been

detained, and was told to bring Finch to where the suspect vehicle was located to

help identify him. York drove Finch to the location, had Finch stay inside his

patrol car, and took the suspect out of the other patrol car. York had the suspect

stand more than 15 feet away from the front of his patrol car and Finch positively

identified Shephard as the robber.

      Detective Ellison also testified at the hearing on the motion to suppress. She

received a call on June 26, 2010 around 11:00 a.m. that there had been a robbery at

a drugstore and that Officer York had located the suspect vehicle. Ellison drove to

meet York. After York left to meet with Finch, Ellison started taking pictures of

the vehicle. A woman approached Ellison and told her that the vehicle belonged to




                                         3
her cousin, Tabitha Bell, and that Tabitha’s boyfriend had been driving it. The

woman told Ellison which apartment Tabitha lived in.

      Ellison went to the apartment with two deputies and knocked on the door.

She testified that she did not recall anyone unholstering a weapon. Shephard

answered the door and identified himself, and the deputies handcuffed him and

placed him in the back of a patrol car. Ellison testified that Shephard was detained,

but not under arrest.

      Ellison then contacted Tabitha Bell, the owner of the SUV and lessee of the

apartment, and Bell gave verbal and written consent to search the SUV and the

apartment. Bell told Ellison that Shephard was her boyfriend, and that he was

driving her SUV that day.

      According to Ellison, Shephard was detained at 11:40 a.m. and Officer York

arrived at the scene with Finch at 11:42 a.m. Ellison testified that she “asked Mr.

Finch to look very closely and identify him as either the one who attempted to rob

him or did not.” Finch identified him as the person who had robbed him, and

Shephard was arrested. Ellison testified that about 15 minutes elapsed between the

time she first made contact with Shephard and the time that Finch identified him.

      Following the pre-trial hearing, the trial court denied Shephard’s motion to

suppress. The trial court entered written findings of fact and conclusions of law,

                                         4
finding that Shephard was detained, not arrested, from the time he was handcuffed

until the time he was identified by Finch. The trial court also found that the

officers had reasonable suspicion to detain Shephard during that time.

Trial

        The motion to suppress was not re-litigated at trial. At trial, Richard Finch

testified that on June 26, 2010, he drove his 22-foot motor home to a drugstore in

Brazoria to pick up medicine and gauze bandages for his wife. They arrived at the

drugstore around 10:30 in the morning and Finch went inside to purchase the

medicine and gauze, leaving his wife in the motor home.

        Finch left the store holding the gauze, his wallet, and a checkbook. A small

gray SUV had parked in the parking spot on the driver’s side of the motor home,

and Finch noticed that the SUV was running and the passenger side window was

rolled down. Finch walked between the SUV and his motor home, and as he

reached for the driver’s side door handle on the motor home, he thought he heard

somebody say “Give me your stuff.” Finch was not sure what had been said, so he

turned around and looked at the driver of the SUV, a young black male. He asked

the driver “Do what?” The driver repeated “Give me your stuff.” Finch then saw

that the driver was reaching across the front seat of the SUV and pointing a semi-

automatic pistol at him. Finch testified that he got a good look at the driver, and

                                          5
that the driver was not wearing anything covering his face. He testified that he is

required to go to the eye doctor every year because he is a DOT licensed truck

driver, and that he was wearing his glasses, which give him 20/20 vision, when he

looked at the driver.

      Finch ran behind his motor home. The driver of the SUV pulled out of his

spot, and Finch got in his motor home, called 9-1-1, and followed the SUV until he

saw it turn on Yerby Street and the dispatcher told Finch to return to the drugstore.

After Officer York met Finch at the drugstore, Finch filled out an incident report,

and then was asked to “try to identify a person that they had gotten down at the

apartments.”

      When they arrived at the apartments, Finch recognized the suspect vehicle as

the vehicle the robber had been driving. Finch stayed in the patrol car. Detective

Ellison got in the car with him and said “I’m going to pull this person out and I

want you to see if this is the person.” Ellison got the suspect out of the back of the

other patrol car and put him in front of the hood of the car that Finch was in. Finch

testified that he got a good look at the suspect, and that he was “[a] hundred

percent” sure and “certain” that it was the person who had pulled a gun on him.

When asked how he could be so sure, Finch testified, “Well, it’d only been 45

minutes that I had seen him with the gun in his hand pointed at me, and you don’t

                                          6
forget that quick.” Finch testified that Shephard was wearing a white shirt and

gray pants and a white “do-rag” at the time he identified him, which was different

from the clothes he was wearing earlier, but that Finch was able to identify him

“[b]y his face” and that he was “sure” it was him because he recognized his face.

When Finch identified the defendant in the courtroom, he was “absolutely certain”

that he was the same person who pulled the gun on him.

      Kasandra Jones, Tabitha Bell’s cousin, testified that she had lived at the

apartment complex on Yerby Street for two years. On June 26, 2010, several of

her children were playing outside and noticed police officers surrounding Tabitha’s

car. Kasandra went outside to talk to the police. A female officer asked her if she

knew who drove the car, and she told him that it belonged to her cousin Tabitha.

She told the officer that Tabitha had a boyfriend that Kasandra knew as Shawn,

who was a little taller than the officer and wore his hair “kind of cut low,” but that

she did not know him well and so could not give a full description. She told the

officer which apartment Tabitha lived in.

      Officer York testified at trial. He testified that he got the call about an

aggravated robbery from the dispatcher around 10:50 a.m. on June 26, 2010, and

that it took him about two minutes to get close to the scene, where he observed

Finch’s motor home driving down Market Street. York testified that he was told

                                            7
that they were looking for a small, gray SUV with a partial license plate of “V67.”

He started checking the area nearby and found a vehicle matching the description

around 11:00 a.m. at an apartment complex on Yerby Street, where apartment

residents told him that a “younger black male” drives the vehicle. At 11:22 a.m.,

York turned the scene over to Detective Ellison, and went to meet with Finch at the

drugstore. While Finch was filling out an incident report, York heard over the

radio that a suspect had been detained. He testified that he told Finch “[t]hat a

person was detained that was supposed to be the suspect in the crime.” York drove

Finch to the apartments, and once at the apartments, York left Finch in his vehicle.

York asked Shephard to step out of the back of another patrol car.

      Detective Ellison also testified at trial. She testified that she arrived at the

apartments on Yerby Street and had started taking pictures of the suspect vehicle

located by Officer York when she was approached by Kasandra Jones, who told

her that her cousin Tabitha Bell owned the vehicle. Jones also told her which

apartment Bell lived in and Ellison went to the apartment with two other deputies.

Shephard answered the door, and he was handcuffed. Shephard’s pockets were

searched, and two keys were found, one of which was a key to the gray SUV.

Shephard was taken downstairs and placed in the back of a patrol vehicle. Ellison

then requested that York bring Finch to the apartments. Ellison spoke briefly with

                                          8
Finch, but she testified that she did not make any suggestive comments to him.

Ellison said that she asked Finch to “look closely and see if he could identify the

subject as the one that pointed the gun at him.” Finch told her that he was “100

percent positive” that the subject was the man who had pulled a gun on him and

that he had “no doubt.” Ellison testified that Finch had no hesitation in his voice

when he identified Shephard, and that he seemed certain. After Finch identified

Shephard, Shephard was arrested.

                               Motion to Suppress

      In his first issue, Shephard contends that the trial court erred in denying his

motion to suppress. He argues that he was under arrest as of the moment he was

handcuffed and that the trial court should have suppressed evidence relating to the

keys found in his pocket and Finch’s on-site identification because both are the

fruit of an illegal arrest. He also argues that, even if he was merely detained, and

not arrested, at the time he was handcuffed, the evidence regarding the keys should

have been suppressed because they were obtained in violation of the “plain feel”

doctrine.

A. Standard of Review

      In reviewing a trial court’s ruling on a motion to suppress evidence, we

apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327

                                         9
(Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial

court’s determination of historical facts that depend on credibility, while we

conduct a de novo review of the trial court’s application of the law to those facts.

Carmouche, 10 S.W.3d at 327.

      In a hearing on a motion to suppress, the trial court is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony.    State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Accordingly, a trial court may choose to believe or to disbelieve all or any part of a

witness’s testimony. Id. “This is so because it is the trial court that observes first

hand the demeanor and appearance of a witness, as opposed to an appellate court

which can only read an impersonal record.” Id. Unless a trial court abuses its

discretion by making a finding unsupported by the record, we defer to its findings

and will not disturb them on appeal. Flores v. State, 177 S.W.3d 8, 14 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d).

B. Applicable Law

      Generally, three categories of interaction occur between police officers and

civilians: (1) consensual encounters, (2) investigative detentions, and (3) arrests.

State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011); Pennywell v.

                                         10
State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A

consensual encounter occurs when a law enforcement officer approaches an

individual in public to ask questions. Pennywell, 127 S.W.3d at 152. An officer

needs no justification for an encounter which triggers no constitutional protections.

Id. An encounter does not constitute a seizure of the person, but a detention or an

arrest does. Id.

      In contrast, a police officer may stop and briefly detain a person for

investigative purposes only if the officer, in light of his experience, has a

reasonable suspicion supported by articulable facts that criminal activity may be

afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968). The

circumstances can give rise to a reasonable suspicion if the officer has specific,

articulable facts at the time of detention which, taken together with rational

inferences from those facts, lead the officer to conclude that the person detained is,

has been, or soon will be, engaged in criminal activity. Woods v. State, 956

S.W.2d 33, 38 (Tex. Crim. App. 1997). A reasonable suspicion is more than a

mere hunch or suspicion; a person may not be detained unless the circumstances

objectively support a reasonable suspicion of criminal activity. Davis v. State, 947

S.W.2d 240, 244 (Tex. Crim. App. 1997). Whether a temporary investigative




                                         11
detention is reasonable depends on the totality of the circumstances. Woods, 956

S.W.2d at 38.

      “A law enforcement officer may stop and briefly detain a person for

investigative purposes on less information than is constitutionally required for

probable cause to arrest.” Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.

2010) (citing Terry, 392 U.S. at 22, 88 S. Ct. at 1880). To effectuate an arrest, an

officer must have probable cause to believe the person arrested has committed or is

committing an offense. Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App.

1991).   Probable cause exists where the facts and circumstances within the

officer’s knowledge and of which he has reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that a

particular person has committed or is committing an offense. Id. at 413.

      Whether a detention is an investigative detention or an arrest depends upon

the facts and circumstances surrounding the detention. Id. at 412; Hoag v. State,

728 S.W.2d 375, 378–79 (Tex. Crim. App. 1987); Hilla v. State, 832 S.W.2d 773,

778 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Factors to consider include

“the amount of force displayed, the duration of a detention, the efficiency of the

investigative process and whether it is conducted at the original location or the

person is transported to another location, the officer’s expressed intent—that is,

                                        12
whether he told the detained person that he was under arrest or was being detained

only for a temporary investigation, and any other relevant factors.”        State v.

Sheppard, 271 S.W.3d 281, 290–91 (Tex. Crim. App. 2008).

      Police may use such force as is reasonably necessary to effect the goal of the

detention: investigation, maintenance of the status quo, or officer safety. Rhodes v.

State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). Handcuffing alone will not

necessarily convert a temporary detention into an arrest. See id. at 117–18; Burkes

v. State, 830 S.W.2d 922, 924 (Tex. Crim. App. 1991); Hilla, 832 S.W.2d at 778.

And whether an officer believes a suspect is detained or arrested is not

determinative of the issue. Amores, 816 S.W.2d at 412; Hoag, 728 S.W.2d at 378;

Hilla, 832 S.W.2d at 778. Rather, we look to the reasonableness of the officer’s

actions, which is to be judged from the perspective of a reasonable officer at the

scene, rather than with the advantage of hindsight. Rhodes, 945 S.W.2d at 118.

“Furthermore, allowances must be made for the fact that officers must often make

quick decisions under tense, uncertain and rapidly changing circumstances.” Id.

      An investigative detention implies that the obtrusive act is for the purpose of

actually investigating. Burkes, 830 S.W.2d at 925. Thus, where no investigation is

undertaken, the detention cannot be considered investigatory and rises to the level

of an arrest. Id. In any case, a reviewing court considers the totality of the

                                         13
circumstances in determining whether a stop is a brief investigative detention or an

arrest. See Francis v. State, 896 S.W.2d 406, 411 (Tex. App.—Houston [1st Dist.]

1995, pet. dism’d).

C. Analysis

    1. Detention or Arrest?

      We must first determine whether Shephard was arrested or merely detained

when he was handcuffed at the door of his girlfriend’s apartment, because this

determines the applicable constitutional parameters. See Amores, 816 S.W.2d at

411. To do so, we consider the relevant factors in light of the totality of the

circumstances. See Sheppard, 271 S.W.3d at 290–91.

      With respect to the amount of force displayed, the trial court found that

Shephard opened the apartment door, identified himself, stepped on to the porch,

and was placed in handcuffs and put in the back of a patrol car. Id. at 291 (factor

to consider is amount of force displayed). It also found that Detective Ellison

approached the door with two other officers, but that their weapons were not

drawn. 1


1
      The only mention of weapons at the hearing on the motion to suppress was
      Detective Ellison’s testimony that she did not recall anyone unholstering their
      weapon. Some evidence at trial indicated that the officers’ weapons were drawn,
      but where, as here, the motion to suppress was not relitigated at trial, we measure
      the trial court’s fact findings and ruling on the motion to suppress against only the
                                           14
      Shephard argues that the fact that he was handcuffed and placed in a patrol

car means he was under arrest. But officers may use force as is reasonably

necessary to effect the goal of the detention, which, in this case, was to maintain

officer safety during the ongoing investigation. See Rhodes, 945 S.W.2d at 117–

18. Here, the officers were investigating an armed robbery that had just been

committed with a gun that had yet to be located. Detective Ellison was told that

the man who had been driving the suspect vehicle may be in the apartment and that

Finch was nearby and could be brought to the scene for an identification quickly.

Considering the circumstances, the trial court did not err in concluding that

handcuffing and placing Shephard in the patrol car until Finch’s arrival was

reasonably necessary to effect the goal of the detention.        See Sheppard, 271

S.W.3d at 290 (investigative detention, not arrest, where suspect was handcuffed

only long enough for officer to conduct investigation of area); Balentine v. State,

71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (handcuffing and escorting appellant

to patrol car did not transform investigative detention into arrest, where officer had

reasonable concern for safety because he was investigating crime involving gun).

      Regarding the duration of the detention and efficiency of the investigative

process, the trial court found that Shephard was detained for no more than 15

      evidence adduced at the hearing on the motion. See Rachal v. State, 917 S.W.2d
      799, 809 (Tex. Crim. App. 1996).
                                         15
minutes before being identified by Finch and being told that he was under arrest.

See Sheppard, 271 S.W.3d at 290–91 (factors to consider are length of detention

and efficiency of investigative procedure). During this time, Finch was brought to

the apartments from the drugstore and Shephard remained at the apartment

complex where he was first detained. See id. at 291 (investigation conducted at

original location supports finding that detention was investigatory); Castro v. State,

373 S.W.3d 159, 165 (Tex. App.—San Antonio 2012, no pet.)(detention’s duration

must show that officers efficiently pursued investigation in order for detention to

be investigatory).     Moreover, the trial court found that Detective Ellison

immediately sought to locate Tabitha Bell, the owner of the vehicle and the lessee

of the apartment, to obtain consent to search the vehicle and the apartment. We

conclude the duration of the detention was reasonable and the investigatory

procedure efficient.    See Castro, 373 S.W.3d at 165 (25 to 45 minute long

detention was not unreasonable where officer had to transport suspect to second

location for on-site identification).

      Finally, examining the officer’s expressed intent, the trial court found that no

one told Shephard that he was under arrest when he was handcuffed and placed in

the back of the patrol car. See Sheppard, 271 S.W.3d at 291 (officer’s expressed




                                         16
intent is factor to consider). Detective Ellison testified that Shephard was detained,

not arrested, during that time.

       Considering the relevant factors and the totality of the circumstances, we

conclude that the trial court did not err in concluding that Shephard was detained,

and not arrested, between the time that he was handcuffed and the time he was

identified by Finch and told that he was under arrest.

   2. Did the officers have reasonable suspicion to detain Shephard?

       Because Shephard was merely detained and not arrested until after he was

identified by Finch, the officers needed only reasonable suspicion, not probable

cause, to detain Shephard. See State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim.

App. 2011) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585

(1989)); Foster, 326 S.W.3d at 613. We conclude that the trial court did not err in

finding that the officers had reasonable suspicion to detain Shephard when they

did.

       Reasonable suspicion exists when an officer has “specific, articulable facts

that, combined with rational inferences from those facts, would lead him

reasonably to conclude that the person detained is, has been, or soon will be

engaged in criminal activity.” Elias, 339 S.W.3d at 674. Here, the trial court

found that Officer York responded to a dispatch stating that an armed robbery had

                                         17
just been committed by a black male in his early 20s driving a silver small SUV

with a partial license plate of V67. The trial court further found that Officer York

located a suspect vehicle matching this description and ascertained that the vehicle

had been recently driven. The trial court found that Officer York relayed this

information to Detective Ellison, who upon investigating the vehicle, was

approached by a woman who told her that the vehicle belonged to her cousin,

Tabitha Bell, that Bell’s boyfriend had been driving it, and identified which

apartment in the complex was Bell’s.            When the officers approached that

apartment, a man matching the description Finch gave answered the door. Based

on these circumstances, the trial court correctly concluded the officers had

reasonable suspicion to detain Shephard.         See Sheppard, 271 S.W.3d at 292;

Rhodes, 945 S.W.2d at 118–19.

      In sum, because the trial court correctly concluded that Shephard was

detained, and that the officers had reasonable suspicion to detain Shephard, the

trial court did not err in refusing to suppress evidence regarding Finch’s on-scene

identification or the keys in Shephard’s pocket on the basis that they were fruits of

an illegal arrest. See Castro, 373 S.W.3d at 167 (because defendant was merely

detained, and not arrested, trial court did not err in refusing to suppress evidence

on the basis that evidence was the fruit of illegal arrest).

                                           18
   3. Were the keys in Shephard’s pocket seized in violation of the plain feel
   doctrine?

      On appeal, Shephard contends that even if he was merely detained, rather

than arrested, outside the apartment, the keys seized from his pocket should be

suppressed because they were seized in violation of the “plain feel” doctrine. See

Baldwin v. State, 278 S.W.3d 367, 371–72 (Tex. Crim. App. 2009) (“plain feel”

doctrine only permits an officer to pat-down a validly detained suspect for

contraband; officer must have probable cause in order to conduct a search for non-

weapon contraband or other evidence).

      We conclude this argument is waived because it does not comport with

Shephard’s objection in the trial court. In his written motion to suppress, Shephard

contended that he was “arrested without warrant and without probable cause,” and

that “the search of the Defendant’s person and the premises where he was located

incident to such arrest was therefore illegal and all fruits of the search must be

suppressed.” He did not, however, argue that the seizure of his keys was improper

if he was detained rather than arrested.

      Likewise, during the hearing on the motion to suppress, Shephard argued

that he had been arrested without probable cause at the time he was first

handcuffed. He identified only the on-scene identification as the evidence that

should be suppressed, and he did not argue that the keys were wrongfully seized
                                           19
even if he was only detained. Accordingly, we hold that Shephard has failed to

preserve error on this issue. TEX. R. APP. P. 33.1(a); see Rothstein v. State, 267

S.W.3d 366, 373–74 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)(because

appellant’s argument on appeal did not comport with any objection raised in the

motion to suppress or at the suppression hearing, appellant failed to preserve error

on issue)(citing Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005)).

      We hold that the trial court did not err in denying Shephard’s motion to

suppress, and we overrule Shephard’s first issue.

                               Motions for Mistrial

      In his second issue, Shephard contends that the trial court abused its

discretion in denying his motions for mistrial after prosecutors improperly

commented on Shephard’s silence.

A. Standard of Review and Applicable Law

      An appellate court reviews a trial court’s ruling on a motion for mistrial for

an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

To determine whether a trial court abused its discretion by denying a mistrial, we

balance the three Mosley factors: (1) the severity of the misconduct or the

magnitude of the prejudicial effect, (2) the measures adopted to cure the

misconduct, and (3) the certainty of conviction absent the misconduct. Ramon v.

                                        20
State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004) (citing Mosley v. State, 983

S.W.2d 249 (Tex. Crim. App. 1998)). We must uphold a trial court’s ruling on a

motion for mistrial if it was within the zone of reasonable disagreement. Wead v.

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc)). “Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required.”

Hawkins v. State, 135 S.W.3d. 72, 77 (Tex. Crim. App. 2004).

C. Analysis

      Here, Shephard first complains that the State asked Detective Ellison, “Did

the Defendant ever give you an explanation of why he had those keys in his

pocket?” Shephard’s objection to the question was sustained and he requested a

mistrial, which was denied. Shephard did not ask that the jury be instructed to

disregard the question.

      Shephard’s second complaint is that, during closing argument, the

prosecutor said, “He can’t change the fact that when Travis York had him out in

front of the car, in front of Richard Finch, the Defendant not in response to

anything, he never said what’s happening?        What’s going on?”    Shephard’s

objection was sustained, and the trial court instructed the jury to disregard the

statement, but denied Shephard’s motion for a mistrial.

                                        21
      The Fifth Amendment to the United States Constitution states, “No person

. . . shall be compelled in any criminal case to be a witness against himself.” U.S.

CONST. amend. V. Under well-established Fifth Amendment law, the State is

prohibited from commenting on a defendant’s refusal to testify at trial. See Salinas

v. State, 369 S.W.3d 176, 177–78 (Tex. Crim. App. 2012), aff’d, 570 U.S. __, 133

S.Ct. 2174. However, “pre-arrest, pre-Miranda silence is not protected by the Fifth

Amendment right against compelled self-incrimination, and . . . prosecutors may

comment on such silence regardless of whether a defendant testifies.” Id. at 179.

In Salinas, the defendant voluntarily accompanied police officers investigating two

homicides to the police station for questioning. Id. at 177. After an hour of

answering questions, he remained silent when asked whether shotgun shells found

at the scene would match the shotgun found at his home. Id. Several months later,

he was charged with murder and eventually arrested. Id. The State introduced

evidence of his silence in response to the question regarding the shotgun at trial,

and the Court of Criminal Appeals held that, because the silence was pre-arrest, it

was admissible. Id. The Supreme Court of the United States affirmed.

      The statement in closing argument about which Shephard complains is a

comment on Shephard’s silence during the pre-trial identification, which took

place just before he was arrested. Because the comment pertains to pre-arrest, pre-

                                        22
Miranda silence, it is not protected by the Fifth Amendment, and the trial court

therefore did not err in denying Shephard’s motion for mistrial related to this

comment. See id. at 179.

      The other comment about which Shephard complains—whether Shephard

ever gave any explanation for having the keys—likewise does not warrant reversal.

When, as in this case, a party requesting a mistrial does not first seek a lesser

remedy, a reviewing court cannot reverse the trial court’s judgment if the alleged

error could have been cured by a less drastic alternative. Ocon v. State, 284

S.W.3d 880, 884–85 (Tex. Crim. App. 2009). An instruction to disregard is

presumed to cure all but the most blatant comments. Moore v. State, 999 S.W.2d

385, 405–06 (Tex. Crim. App. 1999). Here, the comment was not so blatant that it

could not have been cured by an instruction to disregard had Shephard requested

one. Because Shephard did not request an instruction to disregard, the trial court

did not err in denying his motion for mistrial. See Wright v. State, 374 S.W.3d

564, 583 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (trial court did not err

in denying motion for mistrial where defendant did not request instruction that jury

disregard State’s question that defendant was only person that could explain her

feelings at time of the crime).




                                        23
      We hold that the trial court did not abuse its discretion in denying

Shephard’s motions for mistrial, and we overrule Shephard’s second issue.

                              Pre-trial Identification

      In his third issue, Shephard contends that the trial court erred in admitting

evidence of Finch’s impermissibly suggestive pre-trial identification.

A. Standard of Review and Applicable Law

      The admissibility of an identification is a mixed question of law and fact that

the appellate court reviews de novo. See Loserth v. State, 963 S.W.2d 770, 773

(Tex. Crim. App. 1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.—Houston

[14th Dist.] 2000, no pet.). A pretrial identification procedure may be so

unnecessarily suggestive and conducive to mistaken identification that to use that

identification at trial would deny the accused due process of law. Neil v. Biggers,

409 U.S. 188, 196, 93 S. Ct. 375, 380 (1972); Barley v. State, 906 S.W.2d 27, 32–

33 (Tex. Crim. App. 1995). Therefore, the reviewing court employs a two-step

analysis, determining whether the pretrial procedure was impermissibly suggestive,

and if so, whether the suggestive pretrial procedure gave rise to a very substantial

likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706

(Tex. Crim. App. 1993); Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d).

                                          24
      An in-field showup, also called a one-on-one showup, in which a single

suspect is shown to the complainant shortly after the crime is committed, is

generally considered to be impermissibly suggestive. See Stewart v. State, 198

S.W.3d 60, 63 (Tex. App.—Fort Worth 2006, no pet.); Pace v. State, 986 S.W.2d

740, 744 (Tex. App.—El Paso 1999, pet. ref’d). If the identification procedure was

impermissibly suggestive, the following five factors should be “weighed against

the corrupting effect of any suggestive identification procedure in assessing

reliability under the totality of the circumstances”: (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 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 confrontation. Webb v. State, 760 S.W.2d 263, 269

(Tex. Crim. App. 1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct.

2243, 2253 (1977) (citing Neil, 409 U.S. at 199–200, 93 S. Ct. at 382)). We may

also consider other relevant factors in evaluating the reliability of the witness’s

identification. Delk, 855 S.W.2d at 706; Pace, 986 S.W.2d at 745. We consider

these factors, all issues of historical fact, deferentially in a light favorable to the

trial court’s ruling. Loserth, 963 S.W.2d at 773; Williams v. State, 243 S.W.3d 787,




                                          25
789 (Tex. App.—Amarillo 2007, pet. ref’d); Gilstrap v. State, 65 S.W.3d 322, 327

(Tex. App.—Waco 2001, pet. ref’d).

C. Analysis

      Assuming, without deciding, that the one-on-one showup was impermissibly

suggestive, we conclude that it did not create a very substantial likelihood of

irreparable misidentification and, therefore, the trial court did not err in admitting

it.

      Under the first factor, we examine the opportunity of the witness to view the

criminal at the time of the crime. Webb, 760 S.W.2d at 269. Finch testified that he

heard someone in the small SUV say “Give me your stuff,” that he turned around

and looked directly at the driver, and that he got a “good look” at the driver. Finch

was within a few feet of the driver, because he was standing between his motor

home and the passenger-side window of the SUV, which was parked in the parking

spot next to him.

      Under the second factor, we consider the witness’s degree of attention. Id.

The record reflects that Finch was alert and paid close attention to the surrounding

circumstances. He testified that he noticed as he walked up to his motor home that

the small SUV next to it was running, and that the passenger window was rolled

down. Finch reacted by resisting the robbery, and, in the midst of the commotion,

                                         26
was able to discern the suspect’s license plate and even follow the suspect while

calling 9-1-1. See Wilson v. State, 267 S.W.3d 215, 218 (Tex. App.—Waco 2008,

pet. ref’d).

       The third factor is the accuracy of the witness’s description of the criminal.

Webb, 760 S.W.2d at 269. Finch described the suspect to the 9-1-1 dispatcher as

“a black male in his early 20s, driving a silver small passenger SUV with a partial

license plate of ‘V67.’” He later told Officer York that the suspect was wearing a

black shirt and a black “do-rag.” Shephard was a black male in his early 20s, and

his girlfriend told the police that he had been driving her car that day, which

matched the description given by Finch. At the time he was detained, Shephard

was wearing a white “do-rag” and shirt. Finch had reported a “do-rag,” albeit

black, and a black shirt.

       The fourth factor to consider is the level of certainty demonstrated by the

witness at the confrontation. Webb, 760 S.W.2d at 269. Detective Ellison testified

that Finch told her when he identified Shephard on the scene that he was “100

percent positive” that Shephard was the person who had pulled a gun on him.

Ellison testified that Finch had no hesitation in his voice and seemed certain of his

identification. Finch also testified that he got a good look at the suspect, and that




                                         27
he was “[a] hundred percent” sure and “certain” that Shephard was the person who

pulled a gun on him.

         Finally, with respect to the length of time between the crime and

confrontation, the record reflects that about an hour elapsed between the crime and

the identification. Id. at 269. Finch’s receipt from the drugstore was timestamped

10:44 a.m., and Shephard was arrested at 11:53 a.m., after being identified by

Finch.

         Shephard argues that Officer York’s testimony that he told Finch “[t]hat a

person was detained that was supposed to be the suspect in the crime” and Finch’s

testimony that Detective Ellison told him “I’m going to pull this person out and I

want you to see if this is the person” is evidence that the officers improperly

suggested that he was the person who committed the crime. But Finch, when

cross-examined regarding whether the officers told him that Shephard had

committed the crime or had been the driver of the SUV, testified only that he was

asked whether Shephard was the person who had held him up. Detective Ellison

testified that she asked Finch to “look closely and see if he could identify the

subject as the one that pointed the gun at him.”

         Shephard also argues that the fact that he was handcuffed and placed in the

back of a patrol car gave rise to a very substantial likelihood of irreparable

                                          28
misidentification.   These facts weigh against admissibility, and the trial court

would have been within its discretion to consider them. See Delk, 855 S.W.2d at

706; Pace, 986 S.W.2d at 745.          However, considering the totality of the

circumstances, including the fact that Shephard had the keys to the SUV in his

pocket, we conclude that the pre-trial identification did not create a “very

substantial likelihood of irreparable misidentification.” See Williams, 243 S.W.3d

at 791 (no substantial likelihood of irreparable misidentification where, 30 minutes

after burglary, officer brought detained suspect to complainant’s house in back of

patrol car and told complainant “I need you to identify the man and then step away

from the car.”); Pace, 986 S.W.2d at 745 (no substantial likelihood of irreparable

misidentification where victim was asked to identify suspect pulled from back seat

of patrol car); Wilson, 267 S.W.3d at 218–19 (no substantial likelihood of

irreparable misidentification where, although description of perpetrator did not

match identified person, evidence showed victim got “a good look” at perpetrator,

that victim was attentive to surroundings, that victim was “100 percent sure” of

identification, and a short time passed between crime and identification).

      We overrule Shephard’s third issue.




                                         29
                                    Conclusion

      We affirm the judgment of the trial court.



                                                       Rebeca Huddle
                                                       Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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