                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-16-00312-CR
                             _________________

                        JAMAIL WALLACE, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 252nd District Court
                          Jefferson County, Texas
                         Trial Cause No. 14-19168
________________________________________________________________________

                          MEMORANDUM OPINION

      On April 17, 2014, a Jefferson County Grand Jury indicted Jamail Wallace

for the offense of aggravated robbery, a first degree felony. See Tex. Penal Code

Ann. § 29.03(a)(2) (West 2011). The jury found Wallace guilty. Wallace elected to

have the jury assess punishment prior to trial: Wallace was sentenced to twenty

years. Wallace appeals his conviction. In five issues on appeal, Wallace argues: (1)

the trial court erred in denying the motion to suppress identification testimony

                                         1
because the pretrial identification procedures were impermissibly suggestive and led

to irreparable misidentification; (2) the trial court erred in allowing the State’s

investigating officer to testify about his analysis of phone tower data when the officer

was not an expert qualified to render those scientific opinions before the jury, and

the opinions were detrimental to him and had an irreparable effect on the jury’s

verdict; (3) the trial court erred by denying his request for a charge to the jury on the

factual issue of whether the witnesses’ identification of him was the result of

impermissibly suggestive pretrial identification procedures; (4) the trial court erred

by admitting hearsay testimony by Latashi Henry before the jury, which was not

proven to be co-conspirator statements, nor statements that were made in the

furtherance of the conspiracy; and (5) the evidence was insufficient to support a

finding of guilt. We affirm the trial court’s judgment.

                                     Background

      On the morning of February 17, 2014, the AT&T store on Dowlen Road in

Beaumont was robbed. Four employees arrived for work and met in the parking lot

to enter the building between 8:00 a.m. and 8:30 a.m. One of the four employees,

F.V. 1, remained outside the building to smoke a cigarette while her three co-workers



      1
         We use initials herein to identify the victims of this offense. See Tex. Const.
art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness and
                                            2
entered the building. The three employees unlocked the door and the security gate,

but they noticed the alarm was not on, which was unusual. In keeping with company

policy, and because the store was not yet open for business, the three employees

locked the door behind them once they were inside the building. The employees

proceeded towards the back of the store to the break room that was secured by a

keypad lock. When they entered the break room, the employees noticed that money

from a deposit was laying on the counter in the break room, which was also unusual.

This was against company policy since deposits were to be prepared by two

employees, and they did not observe anyone else in the building when they arrived.

      Still outside of the building, F.V. decided to not finish her cigarette, and as

she unlocked the door and entered the store, a man charged her from around the side

of the building. From inside the store, F.V. attempted to pull the door closed and

lock it while holding the handle, but the man jerked the door out of her hands and

pointed a gun at her. He then forced her toward the back of the store.

      At this point, Latashi Henry, a store manager, walked out of the conference

room, which was also at the back of the store. The man told Henry to unlock the safe

in the inventory room. The man did not accompany Henry to the inventory room,



with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
                                        3
but she did as she was told. Henry was in the inventory room alone for thirty-nine

seconds, but she did not trigger any of the three different alarms in that room, even

though she had ample time to do so.

         One of the other employees, T.R., heard a scream as she prepared to clock in

in the break room. The door to the break room opened suddenly and T.R. saw a man

standing with a gun to F.V.’s head. The man had his face partially covered, with only

his eyes and nose visible. F.V. told the others they were being robbed, and the man

told the employees that F.V.’s life depended upon how they responded.

         The man grabbed all of the cash off of the counter in the break room and

forced all of the women into the inventory room at gunpoint with Henry. The four

employees found it odd that Henry was there because she was not scheduled to work

that day. Moreover, Henry rarely arrived early. Her early entry and being alone were

violations of company policy.

         Once the safe opened after a three-minute timer delay, the man had Henry

shove the additional cash into the bag he carried. Then, he walked out of the back

door, triggering an alarm. One of the employees called 911, and the police arrived

shortly thereafter. The women all provided written statements to the officers on the

scene.



                                           4
      The case was assigned to Detective Lewallen of the Beaumont Police

Department. Officers Gunn and Brinkmeyer, also both with the Beaumont Police

Department, assisted Detective Lewallen in the investigation. Detective Lewallen

testified he was suspicious upon receiving the report that a robbery had occurred in

broad daylight as most robberies occur at night.

      Later, Detective Lewallen and Officer Gunn met with the witnesses again, at

which time they provided sworn statements of the events. The women were able to

provide a detailed description of the perpetrator and his attire. However, none of the

women admitted to knowing the identity of the perpetrator at either interview.

      However, through the investigation, it was determined that on Mondays, the

store routinely has more cash on hand than any other day of the week, because the

cash from Friday, Saturday, and Sunday is on hand. Upon learning this information,

Detective Lewallen became even more suspicious that it might have been an “inside

job.” He focused particularly on Henry since she was not scheduled to work at the

time of the robbery and had performed tasks in violation of company policy, like

preparing deposits alone. There were also discrepancies between what she told

police initially and what the facts ultimately revealed.

      During the time of the robbery, it was discovered that Henry was on a thirty-

three minute phone call with Wallace. Both the robber and Henry were wearing

                                          5
wireless headsets at the time the robbery occurred. Additionally, Henry would not

allow police to examine her cellphone, and when they obtained a warrant to search

her phone, they observed that a factory reset had been conducted on the device,

which effectively cleared all of the data. Once it was discovered that Henry was on

the phone with Wallace during the robbery, Henry was questioned about why she

did not tell Wallace she was being robbed. According to detectives, Henry initially

acted confused and denied the call’s occurrence; but later, in trying to explain why

she did not tell Wallace she was being robbed, she told detectives that Wallace told

her he was asleep on the phone. Based upon his investigation, Detective Lewallen

ultimately concluded Wallace and Henry were on the phone during the robbery, and

that Henry aided Wallace in the robbery.

      Officers conducted photo lineups, during which F.V. and T.R. identified

Wallace by focusing on his eyes. The first picture presented to F.V., however, was

not done as part of a lineup. On February 25, 2014, Officer Gunn returned to the

store accompanied by another officer to obtain surveillance video. Upon arrival, the

officer saw F.V. and wanted to check on her. While talking, F.V. showed Officer

Gunn a photo on her phone of a man she believed was Henry’s boyfriend. Officer

Gunn responded by showing F.V. the Texas driver’s license photograph of Wallace

and telling F.V. that this was whom she believed was Henry’s boyfriend. Officer

                                           6
Gunn did not tell F.V. the man’s name or that he was a suspect. But, immediately

upon viewing the photo of Wallace, F.V. had a fierce, emotional reaction and

exclaimed that he was the man who robbed them. F.V. was adamant that she

recognized his eyes. F.V. further told police that if they would put together a lineup

and show her only the eyes, she would be able to identify the robber. The photograph

of Wallace was not shown to any other witnesses that day.

      Soon after, Officer Gunn indicated she became concerned she had tainted the

investigation by showing F.V. a photo of Wallace. Officer Gunn testified she was

concerned enough that she called Detective Lewallen to apprise him of her concerns.

Detective Lewallen testified that he did not believe Officer Gunn had tainted the

investigation, but he was concerned that she showed F.V. a photo of Wallace and

viewed it as a hurdle he had to overcome.

      On March 6, 2014, Detective Lewallen put together another photo lineup,

which included the same driver’s license photo of Wallace shown to F.V., along with

photos of five other individuals matching his general description. Prior to showing

F.V. the photographs, Detective Lewallen covered each photograph with two pieces

of paper. Detective Lewallen advised F.V. that the robber may or may not be

included in the lineup, and she should not feel compelled to choose any particular

photograph. Upon presenting each photo separately to F.V., Detective Lewallen slid

                                          7
the pieces of paper apart, revealing only the eyes in the photograph. F.V. identified

Wallace by his eyes with one hundred percent certainty. F.V. also had a very

emotional reaction when viewing Wallace’s photo during the lineup.

      Two of the other witnesses, J.D. and T.R., were also asked to view the photo

lineup. J.D. could not identify anyone. T.R. was shown the same photographs,

uncovered. She covered everything but the eyes herself, using the same method

Detective Lewallen utilized with F.V. T.R. identified Wallace with ninety percent

certainty. However, several days after T.R. identified Wallace in the photo lineup,

she called Officer Gunn and advised that a male co-worker at the AT&T store should

be considered a suspect.

      Prior to trial, Wallace filed a motion to suppress photographic identification,

arguing the procedure was impermissibly suggestive and there was a substantial

likelihood of misidentification. During pretrial, the trial court heard Wallace’s

motion to suppress. The motion generically said the procedure for the photo lineup

was wrong, but did not provide a reason. The judge denied the suppression motion.

The judge also denied Wallace’s request for an article 38.23 instruction in the jury

charge pertaining to the photo lineup.




                                         8
                   Issue One: Motion to Suppress Identification

       In his first issue, Wallace argues the trial court erred in denying his motion to

suppress identification testimony, both pretrial and in-court. Wallace argues the

pretrial identification procedures were impermissibly suggestive and lead to

irreparable misidentification.

A. Standard of Review

       Because the determination of an issue of whether a photographic

identification procedure was impermissibly suggestive does not turn on an

evaluation of credibility and demeanor of witnesses for purposes of the Guzman

categories, we review the mixed question of law and fact under a de novo standard.

See Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998) (citing Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). “The reviewing court should

therefore consider the five Biggers factors, which are all issues of historical fact,

deferentially in a light favorable to the trial court's ruling. The factors, viewed in this

light, should then be weighed de novo against ‘the corrupting effect’ of the

suggestive pretrial identification procedure.” Id. at 773–74; see also Neil v. Biggers,

409 U.S. 188, 199 (1972)). We may consider testimony from the motion to suppress

hearing and evidence adduced at trial when considering the identification. See Webb

v. State, 760 S.W.2d 263, 272 & n.13 (Tex. Crim. App. 1988).

                                            9
B. Analysis

      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. Simmons v. United States, 390 U.S. 377, 384 (1968);

Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). The United States

Supreme Court has developed a two-step analysis to determine the admissibility of

in-court identifications: “1) whether the out-of-court identification procedure was

impermissibly suggestive; and, if suggestive, 2) whether that suggestive procedure

gave rise to a substantial likelihood of irreparable misidentification.” Conner v.

State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001) (citing Simmons, 390 U.S. at 384;

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

      The Supreme Court has enunciated non-exclusive factors to consider in a

reliability analysis. Biggers, 409 U.S. at 199–200. The factors to be considered in

this analysis are issues of historical fact, and as such, will be considered deferentially

in a light most favorable to the trial court. Loserth, 963 S.W.2d at 773–74.

      The following five non-exclusive factors should be weighed against the
      corrupting effect of any suggestive identification procedure in assessing
      reliability under the totality of the circumstances: (1) the opportunity of
      the witness to view the criminal at the time of the crime; (2) the witness’
      degree of attention; (3) the accuracy of the witness’ 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
      confrontation.
                                            10
Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (internal quotations

omitted) (citing Manson v. Brathwaite, 432 U.S. 98 (1977); Biggers, 409 U.S. at

199). Reliability is the linchpin in determining the admissibility of the identification

testimony. Brathwaite, 432 U.S. at 114; Barley, 906 S.W.2d at 34. If the facts in

favor of reliability outweigh suggestiveness, then the identification is admissible.

Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992). Appellant has the

burden to show by clear and convincing evidence the identification has been

irreparably tainted before we will reverse a conviction. Id.; Barley, 906 S.W.2d at

34.

       The use of a single photograph for purposes of identification is generally

disfavored. See Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (holding

that showing complainant’s wife a single photograph after she asked to see a picture

of the man arrested for her husband’s murder was impermissibly suggestive); Bond

v. State, 29 S.W.3d 169, 172 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)

(concluding pretrial identification was impermissibly suggestive when police officer

showed complainant single photograph faxed from police department while officer

was at complainant’s home investigating crime less than one hour after incident);

Wilkerson v. State, 901 S.W.2d 778, 782 (Tex. App.—Beaumont 1995, no pet.)

(noting that while use of a single photograph is suggestive, it does not necessarily
                                        11
render identification testimony inadmissible per se). Nevertheless, even if a lineup

is found to be impermissibly suggestive, that is not the end of the inquiry, as the

court must also evaluate whether there was a substantial likelihood of irreparable

misidentification. Delk, 855 S.W.2d at 706.

      In the present case, even if we concede that showing F.V. a single photograph

of Wallace eight days after the robbery and telling her the police suspected he was

the boyfriend of Henry was impermissibly suggestive, that does not end our inquiry.

See id.; Wilkerson, 901 S.W.2d at 782. We must also determine whether the

indicators in favor of reliability outweigh the suggestiveness. See Delk, 855 S.W.2d

at 706; see also Brathwaite, 432 U.S. at 114–16; Biggers, 409 U.S. at 199–200.

      1. The opportunity to view. F.V. was in the robber’s presence for several

minutes within inches of him, as he held her at gunpoint. The robbery occurred in

broad daylight, shortly before 8:30 a.m. Although the perpetrator had his face

partially covered, his eyes and nose were uncovered. F.V. testified she recognized

him by his eyes before trial, and during trial, she identified him by his eyes as well.

      2. The degree of attention. F.V. was not a passing observer. Indeed, she was

the primary victim; as such, she could be expected to pay attention to details.

Moreover, F.V. paid careful enough attention to the perpetrator that she observed

cracks in the face paint he applied and testified it looked like the paint had begun to

                                          12
dry. T.R., another witness who identified Wallace, also indicated she paid special

attention to his appearance.

      3. The accuracy of the description. F.V. and the other witnesses provided

descriptions to the police within minutes of the robbery. While their descriptions of

the height of the perpetrator varied, their other testimonies were consistent. They

described him as wearing a hoodie, black pants, black gloves, black leather dress

shoes, face paint, red headphones, and something pulled up over part of his face.

This information was provided to police before they had an opportunity to review

the security footage, and it was consistent with the images caught on video of the

suspect, which confirms the accuracy of their descriptions.

      4. The witnesses’ level of certainty. When shown the single photo of

Wallace, F.V. expressed her certainty that he was the perpetrator as evidenced by

her spontaneous emotional response. At the police photo array, F.V. identified

Wallace with one hundred percent certainty just by examining his eyes. She also

identified him with one hundred percent certainty in-court. T.R. identified Wallace

with ninety percent certainty during the photo lineup. But, she would later call the

police and suggest they look into another co-worker, which would certainly detract

from her level of certainty in her identification.



                                          13
      5. The time between the crime and the confrontation. The single photo was

shown to F.V. eight days after the robbery. The photo array viewed by F.V., J.D.,

and T.R. occurred less than one month after the robbery. The in-court identifications

occurred approximately two and a half years after the robbery.

      The great majority of these factors weigh in favor of the reliability of the

witnesses’ identification. See Brathwaite, 432 U.S. at 114–16; Biggers, 409 U.S. at

199–200; Delk, 855 S.W.2d at 706; Wilkerson, 901 S.W.2d at 782. Beyond this, the

detective went to great lengths to cover the faces when the photo lineup at the police

station was presented to F.V., the only witness to previously see a photo of Wallace.

By doing so, the detective gave her an opportunity to only view the eyes, which was

how she indicated she identified the robber. We conclude the photo lineup at the

police station was not impermissibly suggestive.

      While the showing of the single photo of Wallace to F.V. was arguably

impermissibly suggestive, in examining the totality of the circumstances

surrounding the identifications, we conclude that it is outweighed by the linchpin of

reliability in this case. See Brathwaite, 432 U.S. at 114; Barley, 906 S.W.2d at 34.

Wallace has not shown by clear and convincing evidence that the showing of a single

photo, even if impermissibly suggestive, led to a substantial likelihood of irreparable

misidentification that would thus taint the in-court identifications. See Ibarra, 11

                                          14
S.W.3d at 195. Moreover, while Wallace repeatedly asserted at trial the photo

lineups were not conducted in accordance with the law and Beaumont Police

Department procedure, article 38.20 of the Code of Criminal Procedure explicitly

states that this alone “does not bar the admission of eyewitness identification

testimony in the courts of this state.” See Tex. Code Crim. Proc. Ann. art. 38.20 §

5(b). (West Supp. 2017).2

      The trial court did not err in denying Wallace’s motion to suppress the pretrial

and in-court identification testimony. We overrule issue one.

                    Issue Two: Phone Tower Data Testimony

      In his second issue, Wallace contends the trial court erred by allowing

Detective Lewallen to testify as an expert regarding his analysis of phone tower data

because the detective was not qualified as an expert.

A. Standard of Review

      “We review a trial court’s decision regarding the admissibility of evidence

under an abuse of discretion standard.” Cameron v. State, 241 S.W.3d 15, 19 (Tex.

Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991)). Trial courts are in the best position to resolve questions of


      2
         We cite the current version of the statute, as the 2017 amendments did not
affect section 5(b) of article 38.20. See Tex. Code. Crim. Proc. Ann. art. 38.20 § 5(b)
(West Supp. 2017).
                                           15
admissibility, therefore appellate courts will uphold a trial court’s decision on

admissibility as long as the decision is not outside the “zone of reasonable

disagreement.” Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006);

Montgomery, 810 S.W.2d at 391.

B. Analysis

      In the present case, Wallace’s trial counsel took Detective Lewallen on voir

dire regarding his qualifications to discuss cell phone tower data. Detective Lewallen

testified that his analysis would tell what cell towers a phone hit. Detective Lewallen

indicated the process was not scientific, and the data was provided to him by the

phone company. Detective Lewallen also testified during voir dire that he was not

an expert in triangulation and that he could not pinpoint Wallace’s exact location.

Detective Lewallen indicated that all he did was type a GPS coordinate into a map

and find the location of the nearest tower. The trial court noted that Detective

Lewallen was not testifying as an expert and Daubert3 would not apply. The trial

court further pointed out that the detective’s testimony was that “he puts in

something and it just spits out what tower it was[,]” and that any person could do

that. The court explained that Detective Lewallen was only testifying about facts and

not triangulation, with which Detective Lewallen agreed. Wallace objected based on


      3
          Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993).
                                        16
Texas Rule of Evidence 702 and on the ground that Detective Lewallen was

testifying as an expert. The judge overruled this objection.

      Texas Rule of Evidence 702 governs the testimony of expert witnesses. See

Tex. R. Evid. 702. However, in the present case, the trial court determined that the

subject of Detective Lewallen’s testimony was not that of an expert, and he was

testifying about facts. Therefore, Detective Lewallen’s opinions would be that of a

lay person and governed by rule 701. See Tex. R. Evid. 701. Rule 701 provides that

the opinion testimony of a witness who is not an expert is limited to one rationally

based on the witness’s perception and helpful to clearly understanding the witness’s

testimony or to determining a fact in issue. Id.

      In front of the jury, Detective Lewallen testified regarding Wallace’s general

whereabouts during the robbery, and defense counsel again objected that it called

for an expert opinion, which was overruled. Detective Lewallen testified that

Wallace had a thirty-three minute phone call with Henry during the time of the

robbery, and during that call, Wallace’s phone was using a tower that was 1500 yards

from the AT&T store. Detective Lewallen further indicated that Wallace’s phone

did not leave the general vicinity or transfer to another tower during that time period.

      Wallace argues on appeal that Robinson v. State supports the proposition that

the cell phone tower testimony was “acknowledged to be scientific evidence[.]”368

                                          17
S.W.3d 588, 599–601 (Tex. App.—Austin 2012, pet. ref’d). However, the court in

that case noted the process “involved reading and analyzing cell phone records based

on a general understanding that cell phones connect to the nearest tower location

when a call is placed[, and] [t]he analysis is straightforward and not particularly

complex.” Id. at 601 (emphasis added). Moreover, although some of the officer’s

testimony in that case was similar to that of Detective Lewallen, the officer in

Robinson testified further that he could pinpoint the defendant’s location within a

two-mile radius. See id. Detective Lewallen made no such claim here. In fact, he

testified he could not pinpoint Wallace’s exact location. Rather, Detective Lewallen

simply testified Wallace’s phone did not transfer to another tower that was located

within a certain distance of the robbery location for the duration of the thirty-three

minute phone call with Henry. Wallace overlooks our sister appellate court’s

ultimate conclusion that the trial court did not abuse its discretion in allowing the

officer to testify regarding the cell phone tower data and analysis in that case. See

id.

      “The degree of education, training, or experience that a witness should have

before he can qualify as an expert is directly related to the complexity of the field

about which he proposes to testify.” Rodgers v. State, 205 S.W.3d 525, 528 (Tex.

Crim. App. 2006). In this case, Detective Lewallen testified he simply typed in a

                                         18
GPS coordinate into a map and found where the cell tower was located. In a number

of other cases, courts have allowed law enforcement officers with training and

experience similar to Detective Lewallen’s to offer similar testimony regarding cell

tower data. See Thompson v. State, 425 S.W.3d 480, 488–89 (Tex. App.—Houston

[1st Dist.] 2012, pet. ref’d) (concluding no abuse of discretion when the trial court

allowed an officer with forty hours of training to interpret phone records to testify

as an expert when the technique used was not complex); Ward v. State, No. 14-15-

00473-CR, 2016 WL 6238339, at *10 (Tex. App.—Houston [14th Dist.] Oct. 25,

2016, pet. ref’d) (mem. op, not designated for publication) (concluding the trial court

did not abuse its discretion in letting an officer testify as an expert to render an

opinion on general location of defendant’s cell phone around the time of robbery);

Patterson v. State, No. 05-13-00450-CR, 2015 WL 2400809, at *9 (Tex. App.—

Dallas May 19, 2015, pet. ref’d) (not designated for publication) (concluding the

trial court did not abuse its discretion in allowing an officer to testify as an expert in

interpretation of cell phone and cell tower data although the officer had little specific

expertise since the process used was simple, forthright, and easily understood by the

jury and the officer had substantial experience in law enforcement); Saenz v. State,

No. 13-10-00216-CR, 2011 WL 578757, at *3 (Tex. App.—Corpus Christi Feb. 17,

2011, pet. ref’d) (mem. op., not designated for publication) (determining analysis of

                                           19
cell phone records was relatively simple and four years as a police officer, a three-

day course in phone tracking, and performing analysis on twelve prior occasions

were sufficient qualifications, and because the analysis of cell phone records was

relatively simple, the required degree of education, training, and experience was not

extremely high).

      Detective Lewallen’s lay opinion testimony regarding the cell tower data and

the fact that Wallace’s phone remained connected to a tower near the AT&T store

during the thirty-three minute call with Henry while the robbery occurred, was

certainly relevant. See Tex. R. Evid. 401. Moreover, any opinion testimony by

Detective Lewallen as a lay witness would have been helpful to clearly

understanding his testimony or determining a fact at issue. See Tex. Rule Evid. 701.

Accordingly, we cannot say the trial judge’s decision to admit his testimony as lay

opinion fell outside the “zone of reasonable disagreement.” See Cameron, 241

S.W.3d at 19; Montgomery, 810 S.W.2d at 391. There was no objection made by

Wallace to Detective Lewallen offering a lay opinion. See Tex. R. Evid. 701; Tex.

R. App. P. 33.1(a)(1)(A).

      We overrule issue two.




                                         20
                             Issue Three: Jury Charge

      In his third issue, Wallace contends the trial court erred in denying his request

for a charge to the jury on the issue of whether the witnesses’ identification of him

was the result of impermissibly suggestive pretrial identification procedures in

violation of the United States Constitution and the Code of Criminal Procedure.

During trial, Wallace submitted a requested jury instruction pursuant to article 38.23.

See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). Wallace argued that whether

the photo identification was unduly suggestive was a question of fact. The court

denied the requested instruction reasoning that whether the identification was unduly

suggestive was a matter of law and article 38.23 only applies if there is a fact issue

for the jury to resolve.

A. Standard of Review

      Our first step when we review allegations of charge error is to determine if

error actually exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

If we find error in the court’s charge to the jury, we must then determine if it resulted

in sufficient harm to require reversal. See id. at 744. When an appellant preserved

alleged charge error at trial, any harm is sufficient to require reversal. See Gibson v.

State, 726 S.W.2d 129, 133 (Tex. Crim. App. 1987).



                                           21
B. Analysis

      Evidence obtained in violation of the laws or the Constitution of the United

States or Texas may not be admitted in criminal cases. See Tex. Code Crim. Proc.

Ann. art. 38.23. Specifically, the article provides that a jury instruction should be

submitted if a fact issue is raised about whether such a violation occurred, and the

requisite instruction directs the jury to disregard evidence it finds was obtained in

violation of the Constitutions or the law. Id.; Hamal v. State, 390 S.W.3d 302, 306

(Tex. Crim. App. 2012). In order for an appellant to be entitled to an article 38.23

instruction, “three predicates must be met: (1) the evidence heard by the jury must

raise an issue of fact, (2) the evidence on that fact must be affirmatively contested,

and (3) the contested factual issue must be material to the lawfulness of the

challenged conduct.” Hamal, 390 S.W.3d at 306.

      Article 38.23 is only applicable if there is a disputed fact issue regarding the

alleged violation. Jones v. State, 493 S.W.2d 933, 936 (Tex. Crim. App. 1973);

Poulos v. State, 799 S.W.2d 769, 772 (Tex. App.—Houston [1st Dist.] 1990, no

pet.). In Hamal, the Court of Criminal Appeals determined that the appellant was

not entitled to the article 38.23 instruction because there was no dispute about what

the law enforcement officer did in that case. 390 S.W.3d at 307. Such is the case

here as well. With respect to the single photo being shown to the witness on February

                                         22
25, 2014, the testimonies of F.V. and Officer Gunn are consistent. Additionally, the

testimony adduced at trial was consistent with the video recording of the witnesses

going through the photo lineup procedure. There was no dispute in evidence

regarding what occurred pretrial with the photo identification procedures, and

Wallace’s objection to the photo lineup procedures as being impermissibly

suggestive is a legal issue not a factual one. See Poulos, 799 S.W.2d at 772. Without

a factual dispute, it is not error for the trial court to refuse an article 38.23 instruction.

Id.; Withers v. State, 902 S.W.2d 122, 125 (Tex. App.—Houston [1st Dist.] 1995,

pet. ref’d).

       Because there was no factual dispute as to how the evidence was obtained, the

trial court did not err in refusing to provide the article 38.23 requested by Wallace.

Accordingly, we overrule issue three. See Tex. Code Crim. Proc. 38.23(a); see also

Hamal, 390 S.W.3d at 306; Jones, 493 S.W.2d at 936; Withers, 902 S.W.2d at 125;

Poulos 799 S.W.2d at 772.

                            Issue Four: Hearsay Testimony

       In issue four, Wallace complains the trial court erred by admitting hearsay

statements of Henry which he asserts were not proven to be co-conspirator

statements or statements made in furtherance of the conspiracy.



                                             23
A. Standard of Review

      In reviewing the admission of testimony or evidence, we employ an abuse of

discretion standard, as outlined in issue two above. See Cameron, 241 S.W.3d at 19;

Montgomery, 810 S.W.2d at 391.

B. Analysis

      Wallace complains of testimony provided by J.D. and Detective Lewallen.

Specifically, J.D. indicated in her testimony that she observed Henry and Wallace in

the inventory room one night talking about a gate. At trial, defense counsel objected

based on hearsay and the right to confront, which was overruled. Detective Lewallen

testified at trial regarding the suspicions he had about the robbery being an inside

job and how those suspicions were heightened based on the personal observations

of other witnesses who testified at trial and the lack of truthful information Henry

provided during the course of the investigation.

      Hearsay is defined as a statement that the declarant does not make while

testifying at the current trial or hearing, and the party offers the statement in evidence

to prove the truth of the matter asserted. Tex. R. Evid. 801(d). None of the statements

complained of by Wallace were offered “to prove the truth of the matter asserted[.]”

See id. J.D.’s testimony was offered to prove Wallace’s presence in the inventory

room at the store prior to the robbery with Henry, not what was said. Moreover, the

                                           24
testimony of Detective Lewallen regarding Henry’s statements were to establish why

his suspicions were heightened, not to establish the truth of what Henry said.

Accordingly, the complained of testimony did not constitute hearsay. See id. We

overrule issue four.

                            Issue Five: Legal Sufficiency

      In his fifth issue Wallace complains that the evidence was legally insufficient

to support a finding of guilt.

A. Standard of Review

      We review a challenge to the sufficiency of the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have

found the essential elements of the offense beyond a reasonable doubt. See Brooks

v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307 (1979). We look to all evidence in the record, including

admissible and inadmissible evidence, and direct and circumstantial evidence. See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The jury is the sole

judge of the witnesses’ credibility and weight to be given to their testimony. Tate v.

State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). We defer to the jury’s

determinations of weight and credibility of the witnesses. See Brooks, 323 S.W.3d

at 899–900. Juries may draw multiple reasonable inferences from facts so long as

                                         25
each inference is supported by the evidence presented at trial. Tate, 500 S.W.3d at

413.

B. Analysis

       Wallace argues that without the identification testimony and cell phone tower

testimony, the evidence is insufficient to prove Wallace is guilty of the robbery. This

is not a correct articulation of the law. As outlined above, we consider all evidence

whether properly or improperly admitted. See Dewberry, 4 S.W.3d at 740.

       At trial, multiple witnesses testified regarding the robbery. Two witnesses

identified Wallace in a pretrial photo lineup and proceeded to identify him in court.

The detective in charge of the case testified about all of the circumstances leading

them to believe the robbery was an inside job and that Henry and Wallace were

involved. This included the fact that the robbery occurred in broad daylight on a

busy street, it occurred on a Monday morning when the store had the most cash on-

hand, Henry was at the store when she was not scheduled to work, that Henry had

left currency unattended in the break room and was preparing a deposit without

another employee present, Henry was alone in the inventory room for an extended

time and did not sound an alarm, Wallace and Henry were on the phone together the

entire time the robbery took place but Henry never told Wallace the robbery was

occurring, Henry refused to cooperate with police and her phone was erased before

                                          26
a warrant was served to seize it, and Wallace’s phone was connected to a tower near

the AT&T store while the robbery occurred.

      In viewing all of the evidence in the light most favorable to the verdict, we

conclude the evidence was legally sufficient, and the jury was rationally justified in

finding Wallace guilty beyond a reasonable doubt. See Brooks, 323 S.W.3d at 895.

We overrule Wallace’s fifth issue.

                                     Conclusion

      Based on our analysis above, we conclude the trial court did not err when it

refused to suppress the identification evidence, both pretrial and during trial. We

further determine that the trial court did not err in allowing the detective to testify

regarding cell phone tower data and his analysis of that data. Additionally, we

conclude the trial court did not err when it refused Wallace’s requested 38.23

instruction. The hearsay statements Wallace complain of do not meet the definition

of hearsay. Finally, we conclude the evidence in this case was legally sufficient to

support the jury’s verdict. The judgment of the trial court is affirmed.

      AFFIRMED.



                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice


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Submitted on December 4, 2017
Opinion Delivered May 23, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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