                                                                                 PD-1642-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 1/14/2015 4:11:36 PM
                                                               Accepted 1/21/2015 11:55:56 AM
                              PD-1642-14                                          ABEL ACOSTA
                                                                                          CLERK

                 IN THE COURT OF CRIMINAL APPEALS
                       OF THE STATE OF TEXAS



                     CORDERO JARREAL STEVENSON
                          Petitioner/Appellant

                                   v.

                         THE STATE OF TEXAS
                           Respondent/Appellee


On Petition for Discretionary Review from the Fourteenth Court of Appeals
         In Cause No. 14-13-00690-CR, affirming the conviction in
 Cause No. 1299880 from the 179th District Court of Harris County, Texas


                PETITION FOR DISCRETIONARY REVIEW



 ORAL ARGUMENT REQUESTED                         ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County, Texas

                                                 FRANCES BOURLIOT
                                                 Assistant Public Defender
                                                 Harris County, Texas
                                                 Texas Bar No. 24062419
  January 21, 2015                               1201 Franklin, 13th Floor
                                                 Houston, Texas 77002
                                                 Phone: (713) 368-0016
                                                 Fax: (713) 437-4317
                                                 frances.bourliot@pdo.hctx.net

                                                 Counsel for Petitioner
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Cordero Jarreal Stevenson
                                          TDCJ # 01873901
                                          Garza East Unit
                                          4304 Highway 202
                                          Beeville, Texas 78102

TRIAL PROSECUTORS:                        Rachel Palmer
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin Avenue
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Theodore Haynes, Jr.
                                          P.O. Box 300833
                                          Houston, Texas 77230-0833

PRESIDING JUDGE:                          Hon. Kristin Guiney
                                          179th District Court
                                          Harris County, Texas
                                          1201 Franklin Avenue, 18th floor
                                          Houston, Texas 77002

COUNSEL ON APPEAL FOR APPELLANT:          Frances Bourliot
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002




                                  ii
                                             TABLE OF CONTENTS

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

TABLE OF CONTENTS ........................................................................................... iii

INDEX OF AUTHORITIES........................................................................................ iv

STATEMENT REGARDING ORAL ARGUMENT.......................................................... 1

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

STATEMENT OF PROCEDURAL HISTORY ................................................................ 1

QUESTION FOR REVIEW ......................................................................................... 2

         NO  RATIONAL JURY COULD HAVE FOUND BEYOND A REASONABLE
         DOUBT THAT MR. STEVENSON COMMITTED AN AGGRAVATED ROBBERY
         WITH A DEADLY WEAPON BASED ON THE ALIBI TESTIMONY COUPLED
         WITH THE WEAK AND TAINTED EVIDENCE PRESENTED. DID THE COURT
         OF APPEALS ERR WHEN IT CONCLUDED THAT THE EVIDENCE WAS
         LEGALLY SUFFICIENT?

REASON FOR GRANTING REVIEW ........................................................................... 2

ARGUMENT............................................................................................................. 2

PRAYER .................................................................................................................. 6

CERTIFICATE OF SERVICE ...................................................................................... 7

CERTIFICATE OF COMPLIANCE .............................................................................. 7




                                                            iii
                                             INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................ 4, 5

Ervin v. State, 331 S.W.3d 49 (Tex. App.-Houston [1st Dist] 2010, pet. refd). ....... 2, 4, 5

Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007) ......................................................... 2

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) ....................................................... 2

Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................ 2, 4

Stevenson v. State, 14-13-00690-CR, 2014 WL 6085583 (Tex. App.—Houston [14th

   Dist.] Nov. 13, 2014) ...................................................................................................... 1, 2

Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston. [14th Dist.] 2010, no pet.) ..... 4, 6

Wade v. State, 951 S.W.2d 886 (Tex. App. – Waco, 1997, pet. ref’d) ................................ 5

Winfrey v. State, 393 S.W. 3d 763 (Tex. Crim. App. 2013) .................................................. 3




                                                                iv
                      STATEMENT REGARDING ORAL ARGUMENT

         Petitioner requests oral argument as it may aid the Court since the analysis of

this case depends upon a detailed review of the record.

                               STATEMENT OF THE CASE

         This petition seeks review of a direct appeal brought after a conviction for

aggravated robbery with a deadly weapon. (C.R. at 125). On July 23, 2013, Stevenson’s

case was called for a jury trial; he was arraigned and entered a plea of not guilty (3 R.R.

at 22). On July 23, 2013, the jury found Stevenson guilty as charged in the indictment

(3 R.R. at 120). The trial court assessed his punishment at thirty-three (33) years

confinement in the Texas Department of Criminal Justice – Institutional Division (4

R.R. at 80).

                        STATEMENT OF PROCEDURAL HISTORY

         On November 13, 2014, in an unpublished memorandum opinion, the

Fourteenth Court of Appeals affirmed Mr. Stevenson’s conviction, overruling four

points of error. Stevenson v. State, 14-13-00690-CR, 2014 WL 6085583 (Tex. App.—

Houston [14th Dist.] Nov. 13, 2014). See Appendix. No motion for rehearing was

filed.




                                             1
                               QUESTION FOR REVIEW

      NO  RATIONAL JURY COULD HAVE FOUND BEYOND A REASONABLE
      DOUBT THAT MR. STEVENSON COMMITTED AN AGGRAVATED ROBBERY
      WITH A DEADLY WEAPON BASED ON THE ALIBI TESTIMONY COUPLED
      WITH THE WEAK AND TAINTED EVIDENCE PRESENTED. DID THE COURT
      OF APPEALS ERR WHEN IT CONCLUDED THAT THE EVIDENCE WAS
      LEGALLY SUFFICIENT?

                          REASON FOR GRANTING REVIEW

      The opinion of the Fourteenth Court of Appeals conflicts with decisions by

this Court and the Supreme Court of the United States in that its determination that

the evidence is legally sufficient conflicts with Jackson v. Virginia, 443 U.S. 307 (1979)

and Hooper v. State, 214 SW.3d 9 (Tex. Crim. App. 2007).

                                      ARGUMENT

      NO  RATIONAL JURY COULD HAVE FOUND BEYOND A REASONABLE
      DOUBT THAT MR. STEVENSON COMMITTED AN AGGRAVATED
      ROBBERY WITH A DEADLY WEAPON BASED ON THE ALIBI TESTIMONY
      COUPLED WITH THE WEAK AND TAINTED EVIDENCE PRESENTED.
      DID THE COURT OF APPEALS ERR WHEN IT CONCLUDED THAT THE
      EVIDENCE WAS LEGALLY SUFFICIENT?

      Mr. Stevenson challenged the legal sufficiency of the State’s evidence regarding

the aggravated robbery because the evidence presented at trial both established

reasonable doubt and was, at best, merely a “modicum” of evidence of an element of

the offense. Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.-Houston [1st Dist] 2010, pet.

ref’d). On appeal, the Court of Appeals found the evidence legally sufficient to

support the judgment because: “we defer to the jury's resolution of conflicting witness

testimony. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Stevenson v.

                                            2
State, 14-13-00690-CR, 2014 WL 6085583, at *5 (Tex. App.—Houston [14th Dist.]

Nov. 13, 2014).

       Under the indictment, the State was required to prove beyond a reasonable

doubt that Mr. Stevenson “did then and there unlawfully, while in the course of

committing theft of property owned by Rosendo Morales, and with intent to obtain

and maintain control of the property, intentionally and knowingly threaten and place

Rosendo Morales in fear of imminent bodily injury and death, and the Defendant did

then and there use and exhibit a deadly weapon, namely, a firearm.” (C.R. at 12).

       Cilia Green, Stevenson’s wife, was at home with Stevenson during the time this

incident occurred. (3 R.R. at 93). The two of them woke up around 1:30 in the

afternoon, ate lunch, and watched movies for the entire day. (3 R.R. at 93-94). At no

point during the afternoon was Stevenson out of her presence. (3 R.R. at 94).

Furthermore, no prints or other biological evidence linked Stevenson to the crime. (3

R.R. at 44, 50, 72). There was no testimony that Stevenson was found with any of the

items stolen from the shop. In fact, the only evidence tying Stevenson to the incident

was Morales’s problematic identification almost one year after the incident occurred

and the surveillance video accompanied by still photographs. (3 R.R. at 29, 32).

       The State must prove each element of an offense beyond a reasonable doubt. If

the State does not satisfy this burden on any element, then the evidence is legally

insufficient and the defendant is entitled to a judgment of acquittal. See Winfrey v. State,

393 S.W. 3d 763, 772-3 (Tex. Crim. App. 2013) (reversing capital murder conviction

                                             3
for insufficient evidence of D’s identity; reversing conspiracy conviction for

insufficient evidence of agreement).

      An appellate court is to apply a “rigorous” Jackson v. Virginia analysis of the

sufficiency of evidence. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). See, also, Temple v. State, 342 S.W.3d 572, 628 (Tex. App.--Houston. [14th Dist.]

2010, no pet.) (McCally, J., dissenting to denial of rehearing en banc). Under the

Brooks/Jackson standard:

      Legal sufficiency of the evidence in a criminal proceeding may be
      divided into two zones: evidence of such sufficient strength, character,
      and credibility to engender certainty beyond a reasonable doubt in the
      reasonable fact finder’s mind and evidence that lacks that strength.
      Appellate review of a jury’s verdict of criminal conviction focuses solely
      on that “either-or” character of evidentiary sufficiency because a
      defendant is entitled to an acquittal if the evidence lacks that strength.

Brooks at 918 (Cochran, J., concurring).

      This standard embraces two scenarios constituting insufficient evidence.

“Viewed in the light most favorable to the verdict, the evidence is insufficient under

this standard in two circumstances: (1) the record contains no evidence, or merely a

‘modicum’ of evidence, probative of an element of the offense; or (2) the evidence

conclusively establishes a reasonable doubt.” Ervin, 331 S.W.3d at 55.

      The alibi testimony coupled with the lack of physical evidence and the

problematic photo array that was not presented to the complainant until almost one

year after the incident occurred conclusively establishes reasonable doubt. Although

the jury is the sole judge of the weight of the evidence and may choose to believe all,

                                           4
some, or none of it and reconciliation of conflicts in the evidence is within the

exclusive province of the jury, this Court’s decision in Ervin, which envisions a

situation in which the evidence can conclusively establish reasonable doubt, surely

limits even the jury’s powers when the evidence so clearly militates against a verdict of

guilt. Wade v. State, 951 S.W.2d 886, 889 (Tex. App. – Waco, 1997, pet. ref’d). Some

“conflicts” cannot be resolved by rational jurors. This point is supported by Justice

Jenning’s policy argument for a “rigorous” legal sufficiency review in his concurrence

in Ervin:

      Although the right to trial by jury is indeed the bulwark of our liberties,
      no one has ever seriously argued that juries always ‘get it right,’ even
      when there is, at a bare minimum, legally-sufficient evidence to support
      their verdict. Even today, the reality is that there are individuals who
      have been convicted by juries of criminal offenses with legally sufficient
      evidence only to be later exonerated after spending a considerable
      amount of time in prison. Thus, an additional judicial check, as
      contemplated in the factual-conclusivity clause, on a jury’s authority to
      decide questions of fact is not inappropriate and serves to further
      protect against wrongful conviction.
Ervin, 331 S.W.3d at 59 (Jennings, J., concurring.).

      Legal sufficiency is judged by the quality, not the quantity, of evidence

supporting the adequacy of the verdict. Brooks at 917. “In criminal cases, only that

evidence which is sufficient in character, weight, and amount to justify a factfinder in

concluding that every element of the offense has been proven beyond a reasonable

doubt is adequate to support a conviction.” Id. An appellate court defers to the fact

finder’s resolution of conflicting evidence, unless the resolution is not rational. See


                                            5
Temple, 342 S.W.3d at 584. In this case, resolution of the conflicting statements is not

rational. The Court of Appeals erred in holding that the evidence was legally sufficient

to prove that Mr. Stevenson committed an aggravated robbery.

                                       PRAYER

      Mr. Stevenson asks the Court to grant his petition and conduct a full review of

his appeal in the Fourteenth Court of Appeals.

                                               Respectfully submitted,

                                               ALEXANDER BUNIN
                                               Chief Public Defender
                                               Harris County Texas


                                                 s/Frances Bourliot
                                               FRANCES BOURLIOT
                                               Assistant Public Defender
                                               Harris County, Texas
                                               Texas Bar No. 24062419
                                               1201 Franklin, 13th Floor
                                               Houston, Texas 77002
                                               Phone: (713) 368-0016
                                               Fax: (713) 437-4317
                                               frances.bourliot@pdo.hctx.net




                                           6
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing petition for discretionary review
has been served on the District Attorney of Harris County, Texas, by e-file on the 14th
day of January, 2015. A copy has also been sent by e-file to the State Prosecuting
Attorney, also on the 14th day of January, 2015.



                                          s/Frances Bourliot
                                         Frances Bourliot



                              Certificate of Compliance

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.     This brief contains 1,963 words printed in a proportionally spaced typeface.
2.     This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 13 point font in footnotes produced by
Microsoft Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.       Undersigned counsel understands that a material misrepresentation in
completing this certificate, or circumvention of the type-volume limits in Tex. R. App.
Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.



                                                 s/Frances Bourliot
                                                Frances Bourliot




                                            7
Affirmed and Memorandum Opinion filed November 13, 2014




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00690-CR

                  CORDERO JARREAL STEVENSON, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 179th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1299880

                    MEMORANDUM                          OPINION


      A jury convicted appellant Cordero Jarreal Stevenson of aggravated robbery
with a deadly weapon1 and sentenced him to confinement in the Institutional
Division of the Texas Department of Criminal Justice for thirty-three years.
Appellant filed a timely notice of appeal. We affirm.


      1
          See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (West 2011).
      Appellant raises four issues. In his first issue, appellant claims the trial court
erred in denying his motion to suppress an out-of-court identification because the
procedure was unconstitutionally suggestive. Appellant’s second issue argues the
trial court erred in admitting the complainant’s in-court identification because it
was unreliable considering the totality of the circumstances. Issue three contends
the trial court violated appellant’s right to due process by admitting evidence of the
complainant’s out-of-court identification without instructing the jury on the
unreliability of eyewitness identification. Finally, appellant asserts the evidence is
insufficient to support his conviction.

                                          BACKGROUND

      An aggravated robbery occurred on April 8, 2010, at the Java Gold store.
The business was owned by Hehmood Ghaznavi. Ghaznavi was deceased at the
time of trial. Rosendo Morales was present in the store to fix Ghaznavi’s computer.
Two men came into the business. Approximately five minutes later a third man
entered. All three men pulled guns out and pointed them at Ghaznavi and Morales.
The men started asking for money and searching for it. Morales identified
appellant as the third person that came into the store and as the man in the video
surveillance wearing a red shirt. Morales testified appellant searched Ghaznavi’s
pockets and took what Morales had in his pockets, a wallet containing “probably
couple hundred dollars” in cash and a silver cross. The men took Morales’s two
cell phones and two guns from inside the store. One of the other men took
Morales’s keys and they stole his car. The car was found about four or five blocks
from the store, but everything in it was taken – a computer, computer screens, and
laptops. Fingerprints were taken at the scene but none were identified as
appellant’s.



                                            2
      Sergeant Antonio Guzman, an investigator with the robbery division of the
Houston Police Department, testified that he first spoke with Morales and
Ghaznavi six days after the robbery. He obtained a surveillance video and it was
shown on local television around April 16, 2010. On March 22, 2011, Guzman
received a Crime Stoppers tip regarding appellant. He obtained a photograph of
appellant and prepared a photo array. When Guzman showed the array to Morales,
he immediately identified appellant.

      DENIAL OF MOTION TO SUPPRESS OUT-OF-COURT IDENTIFICATION

      Appellant’s first issue contends the trial court erred in denying his motion to
suppress his out-of-court identification by Morales. Appellant claims the out-of-
court identification procedure gave rise to a substantial likelihood of an irreparable
misidentification.

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). “[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.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). We apply a two-step analysis to determine the admissibility of an in-
court identification: (1) whether the pretrial identification procedure was
impermissibly suggestive, and, if so, (2) whether that suggestive procedure gave
rise to a substantial likelihood of an irreparable in-court misidentification. Id. An
appellant must establish both of these elements by clear and convincing evidence.
Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)).

      Suggestiveness may arise from the manner in which a pretrial identification
procedure is conducted. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App.
                                          3
1995). For example, a police officer may point out the suspect or suggest that a
suspect is included in a lineup or photographic array. Id. Also, the content of a
lineup or photographic array itself may be suggestive if the suspect is the only
individual who closely resembles the description given by the witness. Id. An
individual procedure may be suggestive or the cumulative effect of procedures may
be suggestive. Id.

      In his motion to suppress, appellant claimed the photo spread did not contain
photos of other individuals who are similar in appearance to the defendant.
Sergeant Guzman testified that he prepared the photo array from a database of mug
shot photographs in the Houston Police Department (“HPD”) criminal files.
Appellant was placed in the No. 6 position. He then contacted the victims of the
robbery, Morales and Ghaznavi. Guzman testified that he usually gives witnesses a
standard HPD admonishment. He instructs them the suspect or the person who
committed the crime may or may not be in the array, to look at each photo
carefully, to take their time and, if they see the individual, point him out. Guzman
testified that he did not, in any way, point out the individual that he wanted
identified. Further, he testified that all the individuals in the photo array are of the
same race, around the same age, and have similar facial hair. Guzman testified that
he handed Morales the array and after a few seconds, Morales pointed at the No. 6
position and said, “That’s him.” Guzman identified appellant as the individual
Morales selected from the array.

      Appellant argued at the hearing that only the person in position No. 5 had a
complexion as dark as his, but that person’s features were much broader and
bulkier than appellant’s slender build. On appeal, appellant asserts that he and the
person in position No. 5 were the two darkest-complexioned individuals in the
array and that the face of the person in position No. 5 was noticeably “thicker”.

                                           4
      The photo array is comprised of six pictures of black men of similar age,
facial features, skin color, and hair styles. All are dressed in white t-shirts. The
person in position No. 2 is also wearing a collared shirt or jacket and the person in
position No. 5 has on a black jacket. The person in position No. 5 does have the
darkest complexion but appellant’s complexion is also similar to that of the person
in position No. 3. All six men have the same haircut and very similar facial hair.
The face of the person in positon No. 5 is broader than appellant’s but his face is
also closer to the camera. The faces of the other men reflect a similar build to
appellant.

      A photo array is not improperly suggestive merely because the photographs
of six individuals can be distinguished in some manner. See Mungia v. State, 911
S.W.2d 164, 168 (Tex. App.—Corpus Christi 1995, no pet.). “[L]ineup participants
need not be identical to satisfy due process requirements.” Luna v. State, 268
S.W.3d 594, 607–08 (Tex. Crim. App. 2008). We conclude appellant did not
prove, by clear and convincing evidence, that the out-of-court identification
procedure used here was impermissibly suggestive. Accordingly, the trial court did
not abuse its discretion in denying appellant’s motion to suppress. Because
appellant did not establish the photo array was unduly suggestive, we need not
address whether the procedure gave rise to a very substantial likelihood of
irreparable misidentification. Issue one is overruled.

                    ADMISSION OF IN-COURT IDENTIFICATION

      In his second issue, appellant claims the trial court erred in allowing Morales
to identify him in-court because, considering the totality of the circumstances, it
was unreliable. The record reflects Morales identified appellant in court as one of
the men who came into the store to commit the robbery. There was no objection to
his testimony. Subsequently, Morales was asked if “the man in the red shirt in

                                          5
State’s Exhibit 7” was appellant. An objection was made to “a leading question”
after Morales answered, “Yes.”

      The record does not reflect any objection was made to Morales’s in-court
identification of appellant. Generally, to preserve error, a party must make a
timely, specific objection to apprise the trial court of the basis for the request,
objection, or motion and receive an adverse ruling. See Tex. R. App. P. 33.1(a)(1).
Accordingly, appellant’s argument presents nothing for our review and we overrule
issue two.

       INSTRUCTION ON UNRELIABILITY OF EYEWITNESS IDENTIFICATION

      Appellant’s third issue claims the trial court erred in failing to instruct the
jury on the unreliability of eyewitness identification. Appellant neither requested
such an instruction nor objected to its omission at trial.

      We first determine whether there was error in the charge when reviewing a
claim of charge error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If the appellant objected at trial, we must reverse if there was error and the
error caused some harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App.1985); Barrios, 283 S.W.3d at 350. If the appellant did not object, however,
we reverse only if there was error and it caused egregious harm. Almanza, 686
S.W.2d at 171. The analytical framework for assessing harm does not apply unless
we first find error in the jury charge. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim.
App. 1998).

       “[A] defendant must object to the charge before he may be heard to
complain on appeal about ‘errors claimed to have been committed in the charge, as
well as errors claimed to have been committed by omissions therefrom or in failing
to charge upon issues arising from the facts.’” Id. (quoting Tex. Code Crim. Proc.


                                           6
art. 36.14). Therefore, “when Almanza speaks of ‘erroneous’ omissions of issues in
the court’s charge, it speaks of omissions of issues upon which a trial court has a
duty to instruct without a request from either party or issues that have been timely
brought to the trial court’s attention.” Id. at 63–64. And although the trial judge has
“an absolute sua sponte duty to prepare a jury charge that accurately sets out the
law applicable to the specific offense charged,” he does not have a “similar sua
sponte duty to instruct the jury on all potential defensive issues, lesser-included
offenses, or evidentiary issues. These are issues that frequently depend upon trial
strategy and tactics.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007); see Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (“We
have previously held that [a]rticle 36.14 imposes no duty on trial courts to sua
sponte instruct the jury on unrequested defensive issues.... An unrequested
defensive issue is not the law applicable to the case.”) (citing Posey, 966 S.W.2d at
62).

       In this case, appellant neither requested an instruction on the unreliability of
eyewitness identification nor objected to the omission of such an instruction at
trial. Because the trial court had no duty to sua sponte instruct the jury regarding
all potential defensive issues and evidentiary theories, appellant cannot complain
of this omission for the first time on appeal. See Delgado, 235 S.W.3d at 249–50;
Posey, 966 S.W.2d at 61–64. See also Webber v. State, 29 S.W.3d 226, 233 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (“a defensive issue is not part of the
law applicable to the case unless the accused requests it to be or objects to its
omission.”). Accordingly, appellant’s third issue is overruled.

                             SUFFICIENCY OF THE EVIDENCE

       Appellant’s fourth issue claims the evidence is insufficient to support his
conviction. Appellant points to evidence that he had an alibi, there was no physical

                                           7
evidence linking him to the crime, and he was not found with any of the stolen
items.

         Cilia Green, appellant’s wife, testified that on the day in question he was
home with her for the entire day. On cross-examination Green admitted that she
had never talked to the police or the prosecutors and told them of appellant’s alibi.

         Appellant argues “the only evidence tying [him] to the incident was
Morales’s problematic identification almost one year after the incident occurred.”
“The testimony of a single eyewitness can be enough to support a conviction.”
Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d). The jury resolves any conflicts or inconsistencies in the evidence and
decides whether to believe eyewitness testimony. Id. The jury weighs the evidence
and may find guilt without physical evidence linking the accused to the crime. Id.
In addition to Morales’s identification of appellant, the record reflects the
surveillance video from the store was admitted into evidence, as well as seventeen
still photographs from the video. The jurors were able to view the video and the
photographs before determining whether appellant was one of the robbers.

         Although Green provided appellant with an alibi, we defer to the jury’s
resolution of conflicting witness testimony. See Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). The jury was free to credit the testimony of the
eyewitness and disbelieve Green’s testimony. See Losada v. State, 721 S.W.2d
305, 309 (Tex. Crim. App. 1986) (holding jury is sole judge of witness credibility
and may believe some witnesses and refuse to believe others).

         Viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. See Isassi, 330 S.W.3d at 638; and Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We hold the evidence is
                                          8
legally sufficient to support appellant’s conviction. Appellant’s fourth issue is
overruled.

                                  CONCLUSION

      Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.




                                      /s/       Marc W. Brown
                                                Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                            9
Affirmed and Memorandum Opinion filed November 13, 2014




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00690-CR

                  CORDERO JARREAL STEVENSON, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 179th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1299880

                    MEMORANDUM                          OPINION


      A jury convicted appellant Cordero Jarreal Stevenson of aggravated robbery
with a deadly weapon1 and sentenced him to confinement in the Institutional
Division of the Texas Department of Criminal Justice for thirty-three years.
Appellant filed a timely notice of appeal. We affirm.


      1
          See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (West 2011).
      Appellant raises four issues. In his first issue, appellant claims the trial court
erred in denying his motion to suppress an out-of-court identification because the
procedure was unconstitutionally suggestive. Appellant’s second issue argues the
trial court erred in admitting the complainant’s in-court identification because it
was unreliable considering the totality of the circumstances. Issue three contends
the trial court violated appellant’s right to due process by admitting evidence of the
complainant’s out-of-court identification without instructing the jury on the
unreliability of eyewitness identification. Finally, appellant asserts the evidence is
insufficient to support his conviction.

                                          BACKGROUND

      An aggravated robbery occurred on April 8, 2010, at the Java Gold store.
The business was owned by Hehmood Ghaznavi. Ghaznavi was deceased at the
time of trial. Rosendo Morales was present in the store to fix Ghaznavi’s computer.
Two men came into the business. Approximately five minutes later a third man
entered. All three men pulled guns out and pointed them at Ghaznavi and Morales.
The men started asking for money and searching for it. Morales identified
appellant as the third person that came into the store and as the man in the video
surveillance wearing a red shirt. Morales testified appellant searched Ghaznavi’s
pockets and took what Morales had in his pockets, a wallet containing “probably
couple hundred dollars” in cash and a silver cross. The men took Morales’s two
cell phones and two guns from inside the store. One of the other men took
Morales’s keys and they stole his car. The car was found about four or five blocks
from the store, but everything in it was taken – a computer, computer screens, and
laptops. Fingerprints were taken at the scene but none were identified as
appellant’s.



                                            2
      Sergeant Antonio Guzman, an investigator with the robbery division of the
Houston Police Department, testified that he first spoke with Morales and
Ghaznavi six days after the robbery. He obtained a surveillance video and it was
shown on local television around April 16, 2010. On March 22, 2011, Guzman
received a Crime Stoppers tip regarding appellant. He obtained a photograph of
appellant and prepared a photo array. When Guzman showed the array to Morales,
he immediately identified appellant.

      DENIAL OF MOTION TO SUPPRESS OUT-OF-COURT IDENTIFICATION

      Appellant’s first issue contends the trial court erred in denying his motion to
suppress his out-of-court identification by Morales. Appellant claims the out-of-
court identification procedure gave rise to a substantial likelihood of an irreparable
misidentification.

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). “[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.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). We apply a two-step analysis to determine the admissibility of an in-
court identification: (1) whether the pretrial identification procedure was
impermissibly suggestive, and, if so, (2) whether that suggestive procedure gave
rise to a substantial likelihood of an irreparable in-court misidentification. Id. An
appellant must establish both of these elements by clear and convincing evidence.
Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)).

      Suggestiveness may arise from the manner in which a pretrial identification
procedure is conducted. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App.
                                          3
1995). For example, a police officer may point out the suspect or suggest that a
suspect is included in a lineup or photographic array. Id. Also, the content of a
lineup or photographic array itself may be suggestive if the suspect is the only
individual who closely resembles the description given by the witness. Id. An
individual procedure may be suggestive or the cumulative effect of procedures may
be suggestive. Id.

      In his motion to suppress, appellant claimed the photo spread did not contain
photos of other individuals who are similar in appearance to the defendant.
Sergeant Guzman testified that he prepared the photo array from a database of mug
shot photographs in the Houston Police Department (“HPD”) criminal files.
Appellant was placed in the No. 6 position. He then contacted the victims of the
robbery, Morales and Ghaznavi. Guzman testified that he usually gives witnesses a
standard HPD admonishment. He instructs them the suspect or the person who
committed the crime may or may not be in the array, to look at each photo
carefully, to take their time and, if they see the individual, point him out. Guzman
testified that he did not, in any way, point out the individual that he wanted
identified. Further, he testified that all the individuals in the photo array are of the
same race, around the same age, and have similar facial hair. Guzman testified that
he handed Morales the array and after a few seconds, Morales pointed at the No. 6
position and said, “That’s him.” Guzman identified appellant as the individual
Morales selected from the array.

      Appellant argued at the hearing that only the person in position No. 5 had a
complexion as dark as his, but that person’s features were much broader and
bulkier than appellant’s slender build. On appeal, appellant asserts that he and the
person in position No. 5 were the two darkest-complexioned individuals in the
array and that the face of the person in position No. 5 was noticeably “thicker”.

                                           4
      The photo array is comprised of six pictures of black men of similar age,
facial features, skin color, and hair styles. All are dressed in white t-shirts. The
person in position No. 2 is also wearing a collared shirt or jacket and the person in
position No. 5 has on a black jacket. The person in position No. 5 does have the
darkest complexion but appellant’s complexion is also similar to that of the person
in position No. 3. All six men have the same haircut and very similar facial hair.
The face of the person in positon No. 5 is broader than appellant’s but his face is
also closer to the camera. The faces of the other men reflect a similar build to
appellant.

      A photo array is not improperly suggestive merely because the photographs
of six individuals can be distinguished in some manner. See Mungia v. State, 911
S.W.2d 164, 168 (Tex. App.—Corpus Christi 1995, no pet.). “[L]ineup participants
need not be identical to satisfy due process requirements.” Luna v. State, 268
S.W.3d 594, 607–08 (Tex. Crim. App. 2008). We conclude appellant did not
prove, by clear and convincing evidence, that the out-of-court identification
procedure used here was impermissibly suggestive. Accordingly, the trial court did
not abuse its discretion in denying appellant’s motion to suppress. Because
appellant did not establish the photo array was unduly suggestive, we need not
address whether the procedure gave rise to a very substantial likelihood of
irreparable misidentification. Issue one is overruled.

                    ADMISSION OF IN-COURT IDENTIFICATION

      In his second issue, appellant claims the trial court erred in allowing Morales
to identify him in-court because, considering the totality of the circumstances, it
was unreliable. The record reflects Morales identified appellant in court as one of
the men who came into the store to commit the robbery. There was no objection to
his testimony. Subsequently, Morales was asked if “the man in the red shirt in

                                          5
State’s Exhibit 7” was appellant. An objection was made to “a leading question”
after Morales answered, “Yes.”

      The record does not reflect any objection was made to Morales’s in-court
identification of appellant. Generally, to preserve error, a party must make a
timely, specific objection to apprise the trial court of the basis for the request,
objection, or motion and receive an adverse ruling. See Tex. R. App. P. 33.1(a)(1).
Accordingly, appellant’s argument presents nothing for our review and we overrule
issue two.

       INSTRUCTION ON UNRELIABILITY OF EYEWITNESS IDENTIFICATION

      Appellant’s third issue claims the trial court erred in failing to instruct the
jury on the unreliability of eyewitness identification. Appellant neither requested
such an instruction nor objected to its omission at trial.

      We first determine whether there was error in the charge when reviewing a
claim of charge error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If the appellant objected at trial, we must reverse if there was error and the
error caused some harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App.1985); Barrios, 283 S.W.3d at 350. If the appellant did not object, however,
we reverse only if there was error and it caused egregious harm. Almanza, 686
S.W.2d at 171. The analytical framework for assessing harm does not apply unless
we first find error in the jury charge. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim.
App. 1998).

       “[A] defendant must object to the charge before he may be heard to
complain on appeal about ‘errors claimed to have been committed in the charge, as
well as errors claimed to have been committed by omissions therefrom or in failing
to charge upon issues arising from the facts.’” Id. (quoting Tex. Code Crim. Proc.


                                           6
art. 36.14). Therefore, “when Almanza speaks of ‘erroneous’ omissions of issues in
the court’s charge, it speaks of omissions of issues upon which a trial court has a
duty to instruct without a request from either party or issues that have been timely
brought to the trial court’s attention.” Id. at 63–64. And although the trial judge has
“an absolute sua sponte duty to prepare a jury charge that accurately sets out the
law applicable to the specific offense charged,” he does not have a “similar sua
sponte duty to instruct the jury on all potential defensive issues, lesser-included
offenses, or evidentiary issues. These are issues that frequently depend upon trial
strategy and tactics.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007); see Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (“We
have previously held that [a]rticle 36.14 imposes no duty on trial courts to sua
sponte instruct the jury on unrequested defensive issues.... An unrequested
defensive issue is not the law applicable to the case.”) (citing Posey, 966 S.W.2d at
62).

       In this case, appellant neither requested an instruction on the unreliability of
eyewitness identification nor objected to the omission of such an instruction at
trial. Because the trial court had no duty to sua sponte instruct the jury regarding
all potential defensive issues and evidentiary theories, appellant cannot complain
of this omission for the first time on appeal. See Delgado, 235 S.W.3d at 249–50;
Posey, 966 S.W.2d at 61–64. See also Webber v. State, 29 S.W.3d 226, 233 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (“a defensive issue is not part of the
law applicable to the case unless the accused requests it to be or objects to its
omission.”). Accordingly, appellant’s third issue is overruled.

                             SUFFICIENCY OF THE EVIDENCE

       Appellant’s fourth issue claims the evidence is insufficient to support his
conviction. Appellant points to evidence that he had an alibi, there was no physical

                                           7
evidence linking him to the crime, and he was not found with any of the stolen
items.

         Cilia Green, appellant’s wife, testified that on the day in question he was
home with her for the entire day. On cross-examination Green admitted that she
had never talked to the police or the prosecutors and told them of appellant’s alibi.

         Appellant argues “the only evidence tying [him] to the incident was
Morales’s problematic identification almost one year after the incident occurred.”
“The testimony of a single eyewitness can be enough to support a conviction.”
Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d). The jury resolves any conflicts or inconsistencies in the evidence and
decides whether to believe eyewitness testimony. Id. The jury weighs the evidence
and may find guilt without physical evidence linking the accused to the crime. Id.
In addition to Morales’s identification of appellant, the record reflects the
surveillance video from the store was admitted into evidence, as well as seventeen
still photographs from the video. The jurors were able to view the video and the
photographs before determining whether appellant was one of the robbers.

         Although Green provided appellant with an alibi, we defer to the jury’s
resolution of conflicting witness testimony. See Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). The jury was free to credit the testimony of the
eyewitness and disbelieve Green’s testimony. See Losada v. State, 721 S.W.2d
305, 309 (Tex. Crim. App. 1986) (holding jury is sole judge of witness credibility
and may believe some witnesses and refuse to believe others).

         Viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. See Isassi, 330 S.W.3d at 638; and Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We hold the evidence is
                                          8
legally sufficient to support appellant’s conviction. Appellant’s fourth issue is
overruled.

                                  CONCLUSION

      Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.




                                      /s/       Marc W. Brown
                                                Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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