Affirmed and Memorandum Opinion filed May 6, 2014.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-12-00713-CV


                        BYRON KEITH HARMON, Appellant
                                             V.
                          THE STATE OF TEXAS, Appellee


                         On Appeal from 351st District Court
                               Harris County, Texas
                           Trial Court Cause No. 1355981


                    MEMORANDUM                         OPINION
      A jury convicted Byron Keith Harmon of aggravated robbery1 and the trial
court assessed his punishment at 35 years’ confinement. Appellant challenges his
conviction contending that (1) the evidence is legally insufficient to prove he
committed the offense; (2) his trial counsel was ineffective for failing to file a
motion to suppress or object to an out-of-court identification; (3) the trial court
      1
          See Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 2011).
erroneously failed to instruct the jury “on the unreliability of eyewitness
identification;” and (4) the trial court unlawfully assessed court costs. We affirm.

                                              Background

        Appellant was charged with aggravated robbery of the 69-year-old
complainant, Loi Phan. A jury trial was held from July 31, 2012 to August 1,
2012.

        At trial, Deputy Mark Gustafson testified that he was called “for an
aggravated robbery carjacking at the Shell station at Mount Houston and the
Eastex Freeway” on September 12, 2011. He testified that he arrived at the gas
station at 10:15 p.m. after the complainant’s relative had called the police at 10:13
p.m. to report that the complainant had been robbed. Gustafson testified that the
complainant was very excited, upset, and spoke “very, very little English . . . if
any.”

        Gustafson was able to “figure out” that the complainant was rear-ended
while he was stopped at a red traffic light at the intersection of Mount Houston and
the Eastex Freeway by a “large black male” wearing a black shirt and a “small
black male” wearing a white shirt. After the collision, one of the men hit the
complainant and the other man got into the complainant’s car and drove away.
Gustafson testified that the complainant’s description of the men was vague, but
Gustafson was able to “get the full make and model of [the complainant’s] vehicle”
and forwarded that information to dispatch.

        Gustafson testified that less than two hours later he was informed by
dispatch that the complainant’s car had been stopped by police officers based on a
“LoJack hit” 2 at Airline Drive and Rittenhouse Street, and that two males, who had


        2
            A LoJack is a security system and location device that is placed in vehicles. Some police cars
                                                     2
been in the stolen car, had been detained. Gustafson testified that when he arrived
at the scene he saw the taller of the two detained males was black, and the shorter
male was Hispanic with medium-brown skin who in the dark “could have been
mistaken to be a light black male.” Appellant was one of the males detained, and
the other male was Ezquiel Valdillez. Gustafson testified that he recalled appellant
was wearing a black t-shirt when he arrived at the scene, but Gustafson
acknowledged that he could have been mistaken about the shirt color. Gustafson
confirmed that a photo taken of appellant after Gustafson had taken appellant to
jail showed that appellant was wearing a white t-shirt, and that appellant had no
chance to change shirts.

        Police officer Scott Peak testified at trial that he stopped the complainant’s
car at approximately 11:45 p.m. on September 12, 2011, after he received a signal
from a LoJack device in his patrol car. Peak stopped the stolen car and detained
appellant and Valdillez. Peak testified that when he “pulled in behind” the stolen
car appellant was driving, appellant did not try to take any evasive action, “try to
run from” Peak, or give Peak “any problems at the time of the arrest.” Peak
testified that he handed over the investigation to Gustafson as soon as Gustafson
arrived at the scene.

        The complainant testified at trial through an interpreter. He testified that he
has difficulty hearing due to an ear injury he sustained a long time ago; he
explained that he has difficulty speaking and his voice is “pretty raspy” because he
had throat cancer. The complainant testified that he was driving home from his
nephew’s store and was stopped at a red traffic light at the intersection of Mount

are outfitted with LoJack monitors that pick up signals emitted from vehicles containing a LoJack. The
monitor will reveal a code which is matched up with a specific vehicle license plate, make, model, color,
and any other relevant vehicle information. Equipped with this information and an increasing signal
emitting from the LoJack, the police are able to locate a stolen vehicle. This is referred to as a “LoJack
hit.”

                                                    3
Houston and the Eastex Freeway when another car crashed into his car. He exited
his car and saw one “really tall” and one short black male jump out of the car that
rear-ended him. He testified that the tall male immediately started hitting him in
the head, and the short male drove off with his car. The complainant testified that
he managed to run away to a nearby gas station and called his nephew to call 9-1-1
because he “can’t speak very well.”

      The complainant testified that a police officer arrived at the gas station, and
he was able to relate information to the police officer through his nephew who was
there to translate for him. The complainant testified that he understands English “a
little bit” but a person has to “speak extremely, extremely slow for [him] to
understand.” He stated that a police officer visited him at his home. The police
officer brought two photo spreads with him — State exhibits 1 and 2.             The
complainant could not confirm that he was given any instructions regarding the
photo spreads. The complainant stated that there was no one at home who could
translate for him, but he was able to communicate with the police officer.

      He testified that he identified Valdillez immediately as one of the men on the
first photo spread (State exhibit 1) and therefore signed his name next to
Valdillez’s photo. He acknowledged that he could not identify appellant on the
second photo spread (State exhibit 2) the police officer showed him.             The
complainant testified that he was called to the police station several days later to
look at a live line-up. He stated that the live line-up consisted of six males, and
that he identified the male who hit him the night of the robbery. The complainant
testified that he was sure the male he identified in the live line-up was the person
who hit him. The complainant could not identify appellant in court as one of the
robbers and stated that “if he doesn’t have the shirt, I don’t remember.”

      During cross-examination, the complainant testified that he did not

                                          4
remember what color shirts the men were wearing and did not remember telling the
investigating police officer about the men’s shirt colors. He testified that he only
could identify appellant in the live line-up, and that he told the police officer that
he recognized appellant’s face.       The complainant stated that there was no
interpreter at the police station during the live line-up, and that his nephew was
there to translate for him. Complainant was asked at trial: “Just so I’m clear, as
we sit here today, you can’t say this is the man that hit you?” He responded, “The
other guy is skinnier, skinnier.”

      Sergeant Robert Minchew, who was assigned to investigate the robbery,
testified at trial that he used appellant’s and Valdillez’s booking photos to
assemble two computer-generated photo spreads. Minchew testified that he and
his partner visited the complainant at his home four days after the robbery to show
complainant the two photo spreads. Minchew testified that Deputy Gustafson had
told him that the complainant “spoke limited English or there was a translation
problem, but [Minchew] didn’t know [the complainant] was — [the complainant]
was strictly Vietnamese or almost Vietnamese only.” Minchew stated that he and
his partner did not speak Vietnamese, did not bring an interpreter, and had “a lot of
trouble communicating” with the complainant.           He acknowledged that the
complainant was unable to read the instructions that are usually given before a
photo spread is shown.

      Minchew testified that the complainant immediately identified Valdillez in
State exhibit 1 as the male who took his car and then signed his name next to
Valdillez’s photo. When Minchew showed the complainant State exhibit 2, the
complainant studied the photo spread for about 30 seconds; pointed to photo #1
and photo #6 as if he could not decide between the two photos; and then made a
shrugging gesture.    Minchew stated that appellant was pictured in photo #6.

                                          5
Minchew stated that he considered the complainant’s identification to be a
tentative one “that needs more — a lot more than just the photo line-up.”
Minchew testified that he asked the complainant’s daughter to bring the
complainant to the police station for a live line-up because he wasn’t “happy with
the photo line-up.”

        Minchew testified that the complainant came with his daughter to the police
station for the live line-up and that she was there to translate for him. Minchew
instructed the complainant through his daughter not to be scared because the males
in the line-up could not see him, and to “sit back and relax and watch all five
inmates, try not to say anything or do anything” until the line-up is completed.
Minchew testified that four males with physical characteristics similar to
appellant’s were chosen for a live line-up; appellant was given the choice of which
of the five positions he wanted to stand in during the line-up; appellant chose to
stand in position #1; the video camera was turned on to videotape; and the police
officer called out instructions to each of the males in the line-up to step forward
and make slow turns. A videotape of the live line-up was admitted into evidence
as State exhibit #3 and played for the jury; the line-up took place on September 20,
2011.

        According to Minchew, the complainant said “number one” to his daughter
at the start of the line-up and stared at appellant in position #1 “for quite a while
until everybody started doing their turns. And then as soon as it was over and the
fifth inmate stepped back, he starts saying: Number one again. Number one,
number one, number one.”        Minchew also testified that the complainant was
“ringing his hands and he was clenching his fists repeatedly and he would close his
eyes and open them back up, but he just continued to look at number one off and
on.” Minchew considered the complainant’s identification of appellant to be a

                                         6
positive one. Minchew also testified that appellant’s appearance had changed
between September 2011 and the time of trial because appellant had “maybe
gained 30 to 40 pounds, maybe 30” and “got some facial hair.”

      During cross-examination, Minchew acknowledged that there are several
written instructions he normally gives a person before showing a photo spread, and
these instructions are initialed by the person. Minchew did not have a copy of
these instructions with him in court but discussed the following four he could
remember: (1) “not to assume that the — the person who — or the suspect in this
case is in the photos” on the photo spread; (2) “this case does not hinge or does not
rely solely on your photo identification;” (3) “not feel that you need to pick out
anybody;” and (4) “not speak about this photo line-up to anyone else that may be
related to the case.”      Minchew acknowledged that none of these written
instructions were given to the complainant before he was shown the photo spreads.

      Minchew also testified that the complainant “emphatically picked out
Valdillez;” the complainant did not definitively pick out appellant from the photo
spread but instead pointed to appellant’s photo and another person’s photo.
Minchew acknowledged not knowing what the complainant meant when he
pointed to two photos because Minchew does not speak Vietnamese and the
complainant does not speak English. Minchew testified that did not believe the
live line-up was suggestive; he acknowledged that appellant was the only person
whose photo appeared in the photo spread shown to the complainant and who also
appeared in the live line-up.

      A jury convicted appellant of aggravated robbery, and the trial court
assessed appellant’s punishment at 35 years’ confinement. The trial court certified
appellant’s right to appeal, and appellant filed a timely notice of appeal.



                                           7
                                        Analysis

I.       Sufficiency of the Evidence

         Appellant argues in his first issue that the evidence was insufficient to
support his conviction because the State could not prove beyond a reasonable
doubt that he was one of the two men who committed the aggravated robbery in
this case.

         We must address sufficiency challenges regardless of our disposition of the
other issues in a case. See Graham v. State, 643 S.W.2d 920, 924 (Tex. Crim.
App. 1981). Accordingly, we begin our analysis by examining appellant’s first
issue.

         When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19
(1979)). In making this review, an appellate court considers all evidence in the
record, whether it was admissible or inadmissible. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740
(Tex. Crim. App. 1999)). This standard of review applies to cases involving both
direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007).

         The jury is the exclusive judge of the credibility of witnesses and the weight
of the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
We defer to the jury’s responsibility to fairly resolve conflicts in the evidence, and
we draw all reasonable inferences from the evidence in favor of the verdict. Id.


                                            8
Therefore, the testimony of a single eyewitness can be enough to support a
conviction. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.]
2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). In addition, because it is
the sole judge of the weight and credibility of the evidence, the jury may find guilt
without physical evidence linking the accused to the crime. See id. In conducting
a sufficiency review, we do not engage in a second evaluation of the weight and
credibility of the evidence, but only ensure the jury reached a rational decision.
Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d).

          A person commits robbery if, in the course of committing theft and with
intent to obtain or maintain control of the property, he intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death. Tex. Penal
Code Ann. § 29.02(a)(2) (Vernon 2011). A person commits aggravated robbery if
he commits robbery and causes bodily injury to another person or threatens or
places another person in fear of imminent bodily injury or death, if the other person
is 65 years of age or older. Tex. Penal Code Ann. § 29.03(a)(3)(A) (Vernon 2011).

          Appellant argues that the evidence was insufficient to prove beyond a
reasonable doubt that appellant was the person who committed aggravated robbery
because the complainant (1) could not positively identify appellant on the photo
spread police showed him and pointed to two photos on the photo spread; (2) was
not given any instructions by police before he was given the photo spread; (3)
identified appellant in a live line-up, but appellant was the only person who
appeared in both the photo spread and the live line-up; and (4) could not identify
appellant in court. Appellant also points to inconsistencies in testimony regarding
whether appellant wore a white or black t-shirt during the robbery, and whether the
complainant’s nephew or daughter accompanied him to the live line-up at the

                                          9
police station. We disagree and hold that the evidence in this case is legally
sufficient to prove appellant was the person who committed aggravated robbery.

      The complainant tentatively identified appellant on a photo spread four days
after the robbery.      Shortly thereafter, the complainant positively identified
appellant in a live line-up at the police station. He testified that he was sure that
the male he identified in the line-up was the person who hit him during the
robbery. He testified that he got a “good look” at both men, and told Sergeant
Minchew at the police station that he remembered appellant’s face.

      The complainant was not able to positively identify appellant in court during
trial; he indicated his assailant was “skinnier.” Minchew testified that appellant’s
appearance had changed between the time of the robbery and trial because
appellant had “maybe gained 30 to 40 pounds, maybe 30” and “got some facial
hair.” Minchew testified that the complainant had tentatively identified appellant
on a photo spread, and positively identified Valdillez on a photo spread. Minchew
testified that the complainant positively identified appellant in a live line-up.

      According to Minchew, the complainant said “number one” to his daughter
at the start of the line-up and stared at appellant in position #1 “for quite a while
until everybody started doing their turns. And then as soon as it was over and the
fifth inmate stepped back, he starts saying: Number one again. Number one,
number one, number one.”         Minchew also testified that the complainant was
“ringing his hands and he was clenching his fists repeatedly and he would close his
eyes and open them back up, but he just continued to look at number one off and
on.” Minchew characterized the complainant’s reaction as “a typical reaction for
someone who’s been in a — been in something like a robbery and they’re that
close to the defendant. It just brings back all those memories. Kind of like a post-
traumatic stress disorder or something similar where they’re reliving the incident.”

                                           10
        Evidence also established that appellant and Valdillez, the second man
whom complainant “emphatically picked out” in a photo spread, were stopped in
the complainant’s car two hours after the robbery. Appellant claims that it is “well
known that stolen cars get passed around a lot in the neighborhood where this
incident occurred;” this assertion is contradicted by Minchew’s testimony.
Minchew testified that “if you have a two to three-day gap between the stolen car
and the recovery, then there’s no telling how many times it’s changed hands, but
whenever the car is found, almost immediately then, you know, that gives more
weight to the — to the belief that the people in the car are the ones that took the
car.”

        That the complainant may have been mistaken regarding whether his
nephew or his daughter accompanied him to the police station to translate during
the live line-up goes to credibility, which is a matter for the jury to determine. The
jury likewise was able to assess credibility in light of complainant’s inability to
identify appellant at trial as his assailant, and the proffered explanation that
appellant’s appearance had changed significantly by the time of trial. Equally a
matter of credibility is Deputy Gustafson’s testimony that he recalled appellant
wearing a black t-shirt at the time of his arrest while acknowledging that this
memory could be mistaken because appellant’s booking photo showed appellant
wearing a white t-shirt.

        The determination of the weight to be given to testimonial evidence rests
within the jury’s sole province because it turns on an evaluation of credibility and
demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.]
2005, no pet.). The jury is free to believe or disbelieve all or any part of witnesses’
testimony. Id. Viewing all of the evidence in the light most favorable to the
verdict, we conclude that a jury reasonably could have found that the evidence was

                                          11
legally sufficient to establish beyond a reasonable doubt that appellant was the
person who committed aggravated robbery.

      We overrule appellant’s first issue.

II.   Ineffective Assistance

      Appellant argues in his second issue that his trial counsel was “ineffective
for failing to move to suppress, or object to, out-of-court identification, because the
identification technique was unconstitutionally suggestive.”

      The Sixth Amendment to the United States Constitution, and section ten of
Article 1 of the Texas Constitution, guarantee individuals the right to assistance of
counsel in a criminal prosecution. See U.S. Const. amend. VI; Tex. Const. art. 1, §
10. The right to counsel requires more than the presence of a lawyer; it necessarily
requires the right to effective assistance. Lopez v. State, 343 S.W.3d 137, 142
(Tex. Crim. App. 2011). The right does not provide a right to errorless counsel,
but rather to objectively reasonable representation. Id.

      To prevail on a claim of ineffective assistance of counsel, an appellant must
meet the two-pronged test established in Strickland v. Washington, 466 U.S. 668,
687 (1984), and adopted two years later in Hernandez v. State, 726 S.W.2d 53, 57
(Tex. Crim. App. 1986). Lopez, 343 S.W.3d at 142. Appellant must show that (1)
trial counsel’s representation fell below an objective standard of reasonableness;
and (2) the deficient performance prejudiced his defense. Id. Unless appellant can
establish both prongs, an appellate court must not find counsel’s representation to
be ineffective. Id.

      In order to satisfy the first prong, appellant must prove by a preponderance
of the evidence that trial counsel’s performance fell below an objective standard of
reasonableness under the prevailing professional norms.         Id.   To demonstrate

                                          12
prejudice, the defendant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012).

      “An appellate court must make a ‘strong presumption that counsel’s
performance fell within the wide range of reasonably professional assistance.’”
Lopez, 343 S.W.3d at 142 (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex.
Crim. App. 2006)). An ineffective assistance claim must be firmly founded in the
record and the record must affirmatively demonstrate the meritorious nature of the
claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). It is
insufficient for appellant to show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence. Lopez,
343 S.W.3d at 142-43.

      Direct appeal usually is not an adequate vehicle for raising an ineffective
assistance claim because the record often is undeveloped. Menefield, 363 S.W.3d
at 592-93. This is true with regard to the question of deficient performance, when
counsel’s reasons for failing to do something do not appear in the record.
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Trial counsel
ordinarily should be given an opportunity to explain his actions before being
denounced as ineffective.     Menefield, 363 S.W.3d at 593.        Absent such an
opportunity, the appellate court should not find deficient performance unless the
challenged conduct was so outrageous that no competent attorney would have
engaged in it. Id.

      Appellant argues that his trial counsel was ineffective because he failed to
file a pretrial motion to suppress and failed to object during trial to “testimony
about the live line-up or the video of the live line-up” on the ground that the
pretrial identification procedure used by the police was unduly suggestive. The

                                         13
record is silent regarding trial counsel’s trial strategy.

      A trial counsel’s failure to file a motion to suppress or object to admission of
evidence is not per se ineffective assistance of counsel. See Ingham v. State, 679
S.W.2d 503, 509 (Tex. Crim. App. 1984); Wert v. State, 383 S.W.3d 747, 753
(Tex. App.—Houston [14th Dist.] no pet.). To satisfy the Strickland test and
prevail on an ineffective assistance claim premised on counsel’s failure to file a
motion to suppress, “an appellant must show by a preponderance of the evidence
that the motion to suppress would have been granted and that the remaining
evidence would have been insufficient to support his conviction.” Wert, 383
S.W.3d at 753 (citing Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App.
1998)). For an appellant to succeed on an ineffective assistance claim premised on
the failure to object, he must demonstrate that if trial counsel had objected, the trial
court would have erred in overruling the objection. Oliva v. State, 942 S.W.2d
727, 732 (Tex. App.—Houston [14th Dist.] 1997), pet. dism’d, improvidently
granted, 991 S.W.2d 803 (Tex. Crim. App. 1998) (citing Vaughn v. State, 931
S.W.2d 564, 566 (Tex. Crim. App. 1996)).

      The ineffective assistance arguments at issue here focus on pretrial
identification.   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).

      To determine the admissibility of a pretrial identification, we use a two-step
analysis asking (1) whether the pretrial procedure was impermissibly suggestive;
and (2) if so, whether the suggestive pretrial procedure gave rise to a very
substantial likelihood of misidentification. Santos v. State, 116 S.W.3d 447, 455
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also Neil v. Biggers, 409

                                            14
U.S. 188, 198 (1972). If the indicia of reliability outweigh the influence of an
impermissibly suggestive pretrial identification, then the identification testimony is
admissible. Santos, 116 S.W.3d at 451, 455-56; see Neil, 409 U.S. at 199.

      Therefore, even if the pretrial procedure is found to be impermissibly
suggestive, identification testimony nevertheless is admissible if the totality of the
circumstances shows no substantial likelihood of misidentification. See Ibarra v.
State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999); Adams v. State, 397 S.W.3d
760, 764 (Tex. App.—Houston [14th Dist.] 2013, no pet.). If the totality of the
circumstances indicates that a substantial likelihood of misidentification exists,
then admission of the identification of the defendant amounts to a denial of due
process. See Neil, 409 U.S. at 198-99; Adams, 397 S.W.3d at 764.

      Relying on this court’s opinion in Santos, appellant argues that “showing a
complainant multiple lineups, without a particular reason to do so, is unduly
suggestive.” According to appellant, the video line-up in this case was
impermissibly suggestive because Sergeant Minchew showed the complainant
“two lineups in which only [the appellant’s] image recurred. As in Santos, the
identification procedure was unduly suggestive.”

      We begin by determining whether the pretrial video line-up procedure was
impermissibly suggestive. Suggestiveness may arise from the manner in which a
pretrial identification procedure was conducted. Barley v. State, 906 S.W.2d 27,
33 (Tex. Crim. App. 1995). For example, a police officer may point out the
suspect or suggest that a suspect is included in the line-up or photo spread. Id.
The content of a line-up or photo spread itself may be suggestive if the suspect is
the only individual who closely resembles the description given by witnesses. Id.
An identification may be suggestive based on a single procedure or the cumulative
effect of multiple procedures. Id.

                                         15
      Even if a pretrial identification procedure may have been suggestive, a
defendant must establish by clear and convincing evidence that the procedure was
impermissibly suggestive.     See Santos, 116 S.W.3d at 451, 455-56.         To be
impermissibly suggestive, “the identification procedure utilized must in some way
be so defective as to indicate or suggest the [individual whom] the witness is to
identify.” See Ward v. State, 474 S.W.2d 471, 475 (Tex. Crim. App. 1972).
“Suggestiveness must be determined by the circumstances of each case.” Cantu v.
State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) (holding that showing a
witness several photo spreads containing the same photo of defendant on different
occasions was impermissibly suggestive).

      Appellant does not argue that the photo spread was suggestive; he argues
that the video line-up was impermissibly suggestive because he was the only
person who appeared in both the photo spread and the video line-up. Appellant
misplaces his reliance on Santos to support this contention.

      In Santos, the police showed robbery victim Luis Paz a videotaped line-up,
and Paz tentatively identified the defendant as one of the robbers. Santos, 116
S.W.3d at 451. The police then showed Paz a 35-minute home video, which
contained seven distinct scenes mainly and prominently featuring the defendant.
Id. at 452-53. Paz positively identified the defendant after watching the first six-
minute scene of the video and continued watching the video in its entirety. Id. In
some of the video scenes, the defendant was the only person shown for several
minutes; in other scenes, the defendant drank from a liquor bottle while driving,
and displayed a gun along with a companion. Id.

      Santos recognized that the police found it necessary to show Paz a second
image of the defendant but stated that “the means selected brought attention to
[defendant] and might have suggested to Paz that the police believed [defendant] to

                                         16
be the culprit.” Id. at 453. The court was concerned because the defendant was the
only person in the video line-up who also appeared in the home video; the
defendant was “featured prominently throughout the home video;” and the
defendant’s actions in some of the home video scenes suggested that “he is a
criminal or a gangster.” Id. The court concluded that the identification procedure
was impermissibly suggestive, and noted that showing Paz the home video was
equivalent to showing him “a lone photograph of [the defendant] or a series of
lineups in which only [the defendant’s] photograph recurred.” Id.

      Here, the complainant tentatively identified appellant as his assailant in a
photo spread Sergeant Minchew showed to him four days after the robbery.
Several days later, the complainant came to the police station with his daughter to
view a live line-up. He was instructed to “sit back and relax and watch all five
inmates” until the line-up was completed. Minchew never told the complainant
that the suspect was one of the males in the line-up. The complainant positively
identified appellant as soon as appellant completed his turns during the live line-
up, and confirmed his positive identification after all the other males completed
their turns. The complainant testified at trial that he looked at the robbers’ faces;
he got a “good look” at appellant during the robbery; and he was sure appellant
was the person who hit him the night of the robbery.

      The five males in the live line-up all were black males of similar age, height,
skin tone, and features; all had shaved heads. Unlike appellant, three had facial
hair. The males in the live line-up looked similar to the males pictured in the photo
spread. The live line-up format did not suggest the individual that the complainant
was to identify, nor did the police at any time suggest that the suspect was in the
photo spread or the live line-up. Further, the police conducted a relatively short
line-up which was less than three minutes long. Appellant was not singled out or

                                         17
prominently featured in the live line-up.        Under these circumstances, the
identification was not so suggestive that it amounted to “a lone photograph of
appellant or a series of lineups in which only appellant’s photograph recurred.”
See Santos, 116 S.W.3d at 453.

       The facts and circumstances here more closely parallel Goldberg v. State, 95
S.W.3d 345 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In Goldberg, the
police showed a photo spread to a witness shortly after a murder had occurred. Id.
at 378. The witness stated that the defendant pictured in one of the photos looked
like the person who ran away from the murder scene; the witness stated he could
not be sure, but then stated he was 80 percent sure. Id. One week after the murder,
police met the witness at his house and showed him a videotaped line-up. Id. at
378-79. The witness indicated that he was 80 percent sure that the defendant in the
videotaped line-up was the person who ran away from the murder scene. Id. at
379.

       The court rejected the defendant’s argument that the videotaped line-up was
impermissibly suggestive because the defendant was the only person who appeared
in both the photo spread and the videotaped line-up. Id. The court distinguished
Cantu and held that the identification procedure was not suggestive because “the
police did not show the same or similar photograph of appellant in both line-ups.”
Goldberg, 95 S.W.3d at 379. The court stated that the witness’s first identification
was made based on the photo spread, and the second line-up “clearly presented a
different image of [defendant] because it was not simply a ‘head shot’ photograph
of [defendant], but a live action, albeit videotaped, image of [defendant] walking
through the line-up procedure.” Id. The court concluded that the identification
procedure was not suggestive because “the images presented of [defendant] were
sufficiently different.” Id.

                                        18
      Here, the photo spread contained a flat, one-dimensional head shot photo of
appellant and five other black males. In the live line-up, appellant and four other
black males were shown from the waist up as they walked through the line-up
procedure; they turned for the complainant to observe the males’ movement and
faces, as well as their body height, type, and shape. Further, appellant was wearing
a white t-shirt in the photo spread while the other males wore different color t-
shirts or polo shirts. In the live line-up, all males were wearing the same orange
jump suits. The images of appellant presented to the complainant in the photo
spread and the live line-up were sufficiently different so that the identification
procedure was not impermissibly suggestive. See id.

      Based on the facts and circumstances in this case, we conclude that appellant
cannot show that the pretrial identification procedure used by the police was
unduly suggestive. See id.; see also Benitez v. State, 5 S.W.3d 915 (Tex. App.—
Amarillo 1999, pet. ref’d) (identification procedure was not impermissibly
suggestive when complainant was shown two photo spreads containing two
different photos of the defendant); Washington v. State, No. 01–11–00615–CR,
2013 WL 2299179, at *5-6 (Tex. App.—Houston [1st Dist.] May 21, 2013, pet.
ref’d) (mem. op., not designated for publication) (showing complainants two still
photos of defendant and later a photo spread with defendant’s photo did not
constitute an impermissibly suggestive pretrial identification procedure).

      Even assuming for argument’s sake that the pretrial identification procedure
used by the police was unduly suggestive, we cannot conclude that it would have
given rise to a substantial likelihood of misidentification and thus would have been
inadmissible.

      In determining whether an impermissibly suggestive identification procedure
gave rise to a substantial likelihood of misidentification, a court weighs the

                                         19
following factors: (1) the witness’s opportunity to view the criminal at the time of
the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s
prior description of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between the crime and the
confrontation. See Neil, 409 U.S. at 199; Santos, 116 S.W.3d at 453, 455-56.
Because this list of factors is not exhaustive, a court also may consider these
additional factors: (1) any identification prior to the lineup of another person; (2)
the identification by photograph of the defendant prior to the line-up; and (3) any
failure to identify the defendant on a prior occasion. Santos, 116 S.W.3d at 453,
455-56.

      The complainant gave a general description of his assailant, describing him
as a “large black male,” and the complainant did not have a prolonged amount of
time to view his assailant at the time of the robbery. Nonetheless, the complainant
tentatively identified appellant as his assailant on a photo spread four days after the
robbery. Shortly thereafter, the complainant positively identified appellant in a
live line-up at the police station. The complainant testified that he was sure that he
identified his assailant in the live line-up. He testified that he got a “good look” at
both men who robbed him, and told Sergeant Minchew at the police station that he
remembered appellant’s face.

      Minchew confirmed that the complainant tentatively had identified appellant
on a photo spread, and positively identified Valdillez on a photo spread. Minchew
testified that the complainant positively identified appellant in a live line-up.
According to Minchew, the complainant said “number one” to his daughter at the
start of the line-up and stared at appellant in position #1 “for quite a while until
everybody started doing their turns. And then as soon as it was over and the fifth
inmate stepped back, he starts saying: Number one again. Number one, number

                                          20
one, number one.” Minchew also testified that the complainant was “ringing his
hands and he was clenching his fists repeatedly and he would close his eyes and
open them back up, but he just continued to look at number one off and on.”

       The complainant never failed to identify appellant before trial, even though
the photo spread identification was tentative. The time period between the pretrial
identifications and the robbery was short. Both the complainant and Minchew
confirmed that the complainant was certain of his identification of appellant as his
assailant at the line-up.

       We conclude that appellant cannot show that the pretrial identification
procedure used by the police gave rise to a very substantial likelihood of
misidentification so as to deny appellant due process, even if it was unduly
suggestive. Appellant therefore cannot show that the pretrial identification was
inadmissible, and that a trial court would have erred in not granting a motion to
suppress or sustaining an objection challenging the pretrial identification’s
admissibility had trial counsel taken these steps.3


       3
          Appellant also states in his second issue that article 38.20 of the Texas Code of
Criminal Procedure requires law enforcement agencies to (1) adopt policies ensuring that the
officer who administers an identification procedure does not know who the suspect is in an
investigation; and (2) “adopt instructions for officers to give to witnesses before lineups.” See
Tex. Code Crim. Proc. Ann. art. 38.20, §3(c)(2)(B), (E) (Vernon Supp. 2013). Appellant states
that the complainant did not receive any instructions before viewing the photo spread and the
“instructions before the live line-up generally involved reassurances that he would be safe. Both
the procedure and his testimony about it were highly unreliable.” We reject appellant’s attempt
to challenge the pretrial identification procedure in this case on the basis that the police did not
adopt or follow identification procedure policies outlined in article 38.20. The statute applies
“only to a photograph or live lineup identification procedure conducted on or after September 1,
2012.” Tex. Code Crim. Proc. Ann. art. 38.20 historical note [Act of May 18, 2011, 82nd Leg.,
R.S., ch. 219, §2(c), 2011 Tex. Gen. Laws 793, 795]; see also Washington v. State, No. 01–11–
00615–CR, 2013 WL 2299179, at *6 n.6 (Tex. App.—Houston [1st Dist.] May 21, 2013, pet.
ref’d) (mem. op., not designated for publication). Here, the identification procedure was
conducted in September 2011.


                                                21
       Accordingly, appellant cannot satisfy the Strickland test and prevail on an
ineffective assistance claim premised on counsel’s failure to file a motion to
suppress or to object during trial to “testimony about the live line-up or the video
of the live line-up” on the ground that the pretrial identification procedure used by
the police was impermissibly suggestive.

       We overrule appellant’s second issue.

III.   Jury Instruction

       Appellant contends in his third issue that he was egregiously harmed by the
trial court’s failure to instruct the jury sua sponte on the “unreliability of
eyewitness identification.” Appellant argues that his pretrial identification was
“tainted and unreliable,” and that therefore the trial court’s failure to instruct the
jury “about the scrutiny it needed to give that evidence” deprived him of a due
process protection recognized in Perry v. New Hampshire, 132 S. Ct. 716, 730
(2012).

       Contrary to appellant’s assertion that the pretrial identification procedure
was tainted, we already have determined that the police’s pretrial identification
procedure in this case was not impermissibly suggestive.           Additionally, the
Supreme Court in Perry did not hold that a trial court is required to instruct a jury
sua sponte that eyewitness identifications are unreliable.

       In Perry, the Court was asked to decide the question whether the Due
Process Clause requires a trial court to conduct a preliminary assessment of the
reliability of an eyewitness identification made under impermissibly suggestive
circumstances not arranged by the police; in other words, there was no state action.
See id. at 723. The Court held that, when no improper law enforcement activity is
involved, reliability is sufficiently tested “through the rights and opportunities


                                         22
generally designed for that purpose, notably, the presence of counsel at
postindictment lineups, vigorous cross-examination, protective rules of evidence,
and jury instructions on both the fallibility of eyewitness identification and the
requirement that guilt be proved beyond a reasonable doubt.” Id. at 721. The
Court highlighted its prior holdings that due process concerns arise only after a
defendant establishes improper police conduct, i.e., that police used an
identification procedure that is “both suggestive and unnecessary.” Id. at 724, 726

      The Court underscored the jury’s role in making credibility determinations,
stating, “[o]ur unwillingness to enlarge the domain of due process . . . rests, in
large part on our recognition that the jury, not the judge, traditionally determines
the reliability of evidence.” Id. at 728. The Court further stated, “[w]e take
account of other safeguards built into our adversary system that caution juries
against placing undue weight on eyewitness testimony of questionable reliability,”
including (1) “the defendant’s Sixth Amendment right to confront the eyewitness;”
(2) “the defendant’s right to the effective assistance of an attorney, who can expose
the flaws in the eyewitness’ testimony during cross-examination and focus the
jury’s attention on the fallibility of such testimony during opening and closing
arguments;” (3) “[e]yewitness-specific jury instructions, which many federal and
state courts have adopted, [that] warn the jury to take care in appraising
identification evidence;” (4) “the constitutional requirement that the government
prove the defendant’s guilt beyond a reasonable doubt;” (5) state and federal rules
of evidence that permit trial courts to “exclude relevant evidence if its probative
value is substantially outweighed by its prejudicial impact or potential for
misleading the jury;” and (6) “expert testimony on the hazards of eyewitness
identification evidence.” Id. at 728-29.

      Accordingly, Perry does not require a trial court to instruct a jury on the

                                           23
reliability of eyewitness identifications, and appellant misplaces his reliance on
Perry for his argument that he was egregiously harmed by the trial court’s failure
to sua sponte “instruct the jury on the reliability of eyewitness identification.”

      Additionally, several of the safeguards noted in Perry were present and
utilized in this case. Appellant’s trial counsel confronted the complainant and
vigorously cross-examined the complainant and the police officers involved in the
investigation of the offense. Further, trial counsel began his closing argument by
stating, “[t]his case is all about eyewitness identification” and continued to focus
his closing argument almost entirely on the asserted fallibility and unreliability of
the complainant’s identification; he pointed out asserted flaws in the way the
police conducted the pretrial identification procedures along with asserted
weaknesses in the complainant’s testimony. Finally, the jury charge instructed the
jurors that appellant’s guilt be established beyond a reasonable doubt, and that the
jurors are “the exclusive judges of the facts proved, of the credibility of the
witnesses and the weight to be given their testimony.”

      Appellant also points to the discussion of eyewitness identification in
Tillman v. State, 354 S.W.3d 425, 436 (Tex. Crim. App. 2011). However, Tillman
did not require a trial court to instruct the jury sua sponte on the “unreliability of
eyewitness identification,” nor did it address a jury instruction issue. Instead, the
court addressed the admissibility of expert testimony regarding eyewitness
identifications.

      In Tillman, the defendant proffered the testimony of Dr. Roy Malpass as an
expert on eyewitness identifications. Id. at 429–32. After a hearing outside the
presence of the jury, the trial court excluded the testimony. Id. at 433. The court
of criminal appeals granted review to address whether proffered expert testimony
regarding eyewitness identification was properly excluded by the trial court. Id. at

                                          24
434. It concluded that the expert testimony was reliable and relevant, and held that
“the trial court abused its discretion when it excluded reliable, relevant evidence
that would ‘assist the trier of fact’ by increasing the jurors’ awareness of biasing
factors in eyewitness identification.” Id. at 442. Thus, Tillman concerned the
admissibility of expert testimony relating to eyewitness identification; it did not
consider whether a jury instruction on eyewitness identification is required or even
appropriate.

      We overrule appellant’s third issue.

IV.   Court Costs

      Appellant argues in his fourth issue that the trial court’s assessment of court
costs was unlawful because the record does not contain a bill of costs. Appellant
asks this court to modify the trial court’s judgment to delete the assessed court cost
in the amount of $304 and “specifically order the Texas Department of Criminal
Justice to reimburse him all money that has been withdrawn from his inmate trust
account under TEX. GOV’T CODE ANN. § 501.014 (e)(4), and to refrain from
withdrawing any other funds from his account for the purpose of satisfying court
costs.”

      The judgment was signed on August 1, 2012, and includes an assessment of
$304 in court costs. The supplemental clerk’s record contains a certified, signed
bill of costs listing $304 in court costs. We review the assessment of court costs on
appeal to determine if there is a basis for the costs, not to determine whether there
was sufficient evidence offered at trial to prove each cost. Johnson v. State, No.
PD-0193-13, 2014 WL 714736, at *2 (Tex. Crim. App. Feb. 26, 2014). Traditional
sufficiency-of-the-evidence standards of review do not apply. Id.

      Generally, a bill of costs must (1) contain the items of cost, (2) be signed by


                                         25
the officer who charged the cost or the officer who is entitled to receive payment
for the cost, and (3) be certified. Id. at *5; see Tex. Crim. Proc. Code Ann. arts.
103.001, 103.006 (Vernon 2006). The record supports the assessment of costs in
this case because the record contains a bill of costs that contains each item of cost,
is signed by a representative of the district clerk’s office who is entitled to receive
payment of the costs, and is certified. See Johnson, 2014 WL 714736 at *4. There
being no challenge to any specific cost or the basis for the assessment of such cost,
the bill of costs supports the costs assessed in the judgment. Id. at *8.

      We overrule appellant’s fourth issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                        /s/      William J. Boyce
                                                 Justice
Do Not Publish — TEX. R. APP. P. 47.2(b).
Panel consists of Justices Boyce, Christopher, and Brown.




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