                                    NO. 07-06-0225-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                 NOVEMBER 30, 2007
                           ______________________________

                           MICHAEL A. WILLIAMS, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2006-412139; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Appellant, Michael A. Williams, appeals his conviction for burglary of a habitation,

enhanced by a previous felony conviction, and sentence of 45 years confinement in the

Institutional Division, Texas Department of Criminal Justice. Appellant contends that the

trial court erred in denying his motion to suppress, which alleged an impermissibly

suggestive pre-trial identification procedure tainted the in-court identification of appellant

in violation of the Due Process Clause of the 14th Amendment of the United States

Constitution. We affirm.
                                           Background


       Around 11:00 a.m. on July 7, 2005, Jean Jobe received a call from her alarm

company alerting her that her home alarm was going off at the backdoor. Jobe drove

immediately to her home and, upon arriving, witnessed a man coming out of the backdoor

of her house. Because he was not aware of her presence, she was able to observe the

burglar’s profile for about a minute and a half. She then yelled at the burglar, catching his

attention, and observed him face-to-face for another 45 seconds. The burglar fled the

scene and Jobe pursued him for half a block. While pursuing the burglar, she called 9-1-1

and described the man and identified the direction he was running.


       No more than thirty minutes after Officer Herrera was dispatched to investigate the

burglary call, he encountered appellant, who matched the description of the burglar, in an

alley about a block and a half or two blocks from Jobe’s home. Herrera told appellant that

he was going to place him in the patrol car and transport him to a different location for

identification, at which time, appellant stated, “I’ll tell you the truth. I tried to break into the

house.”


       Herrera took appellant back to Jobe’s home for a “showup.” Upon arriving at Jobe’s

house, Herrera told Jobe that “I need you to identify the man and then step away from the

car.” Jobe approached the patrol car, observed appellant, and told the officers, “That’s

him. He’s the one.” Appellant was then placed under arrest and transported to jail by

another officer on the scene.




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       At trial, appellant filed a motion to suppress both the showup identification and the

statement he made to Herrera. Following a jury trial, appellant was convicted of burglary

of a habitation, enhanced by a 1985 felony conviction of burglary of a habitation, and

sentenced to 45 years confinement in the Institutional Division, Texas Department of

Criminal Justice. In his appeal, appellant does not challenge the trial court’s denial of his

motion to suppress the statement he made to Herrera. Therefore, the statement is before

the appellate court for all purposes. In his sole point of error, appellant challenges only the

trial court’s denial of his motion to suppress his pretrial identification by Jobe, claiming that

the impermissibly suggestive pre-trial identification procedure utilized tainted the in-court

identification of appellant in violation of the Due Process Clause of the 14th Amendment

of the United States Constitution.


                                     Standard of Review


       Whether the trial court erred in admitting into evidence a witness’s identification of

the accused involves a mixed question of law and fact. Loserth v. State, 963 S.W.2d 770,

772 (Tex.Crim.App. 1998). Great deference is given to the trial court’s resolution of the

historical facts pertinent to the case; however, whether the historical facts render the

identification unreliable is reviewed de novo. Id. at 772-74. Thus, the appellate court need

not grant deference to the trial court’s determination that the “historical facts compelled or

supported the decision to admit or exclude the evidence.” Benitez v. State, 5 S.W.3d 915,

921 (Tex.App.–Amarillo 1999, pet. ref’d).




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                                     Law and Analysis


       The court makes two inquiries in determining whether a pre-trial identification should

be excluded: (1) whether the police used an impermissibly suggestive pre-trial identification

procedure in obtaining the out-of-court identification, and (2) if so, whether, under all the

circumstances, there was a very substantial likelihood of irreparable misidentification.

Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).


       The first inquiry in determining whether appellant’s due process rights were violated

is whether the police used an impermissibly suggestive procedure in obtaining the out-of-

court identification. Id. Upon apprehending appellant, Herrera brought him back to the

scene, seated in the back of the patrol car in handcuffs, and instructed Jobe that all she

needed to do was identify him and get away from the car. Jobe testified that she

approached the car, looked in, examined appellant, and then identified him with “no doubt,”

based on his facial features and with “no influence in identifying him from anyone involved.”


       In the present case, appellant asserts that, “this case should turn on the

impermissibly suggestive pre-trial identification alone.”     However, to show that the

statement made by Herrera was impermissibly suggestive, appellant relies solely on the

holding in Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). Appellant asserts

that, in Delk, the court held that a single picture shown to a witness was an impermissibly

suggestive method of identification. Id. Therefore, the appellant reasons that the method

used by Herrera, whereby only a single individual was shown to Jobe, was similarly

impermissibly suggestive. However, appellant misstates the Delk court’s holding. The


                                             4
Delk court did not conclusively determine that identification by a single picture was

impermissibly suggestive; rather, it held only that the single picture coupled with the

statements of the police made it “possible” that this procedure impermissibly suggested

that the Sheriff believed the person in the photo killed the witness’s husband. Id. The Delk

court went on to say that, even if this method was impermissibly suggestive, this does not

end the inquiry. Id. at 706. The court must also address whether there was a substantial

likelihood of irreparable misidentification. Id.


       Under Delk, Herrera’s method, whereby only a single individual was shown to Jobe,

coupled with Herrera’s statement, made it “possible” that this procedure impermissibly

suggested that Herrera believed the person in the backseat of the squad car was the

burglar. However, as appellant cites no further authority to support his assertion that “this

case should turn on the impermissibly suggestive pre-trial identification alone,” under Delk,

even if it is “possible” that Herrera’s method was impermissibly suggestive, this does not

end the inquiry. The court must also address whether there was a substantial likelihood

of irreparable misidentification.


       Because under Delk it is only “possible” that the procedure was impermissibly

suggestive, the question thus becomes whether, under the totality of the circumstances,

the identification was reliable despite the suggestive nature of the confrontation’s

procedure. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d. 401 (1972). The

following five factors should be “weighed against the corrupting effect of any suggestive

identification procedure in assessing reliability under the totality of the circumstances”: (1)



                                              5
the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s

degree of attention, (3) the accuracy of the witness’s description of the criminal, (4) the

level of certainty demonstrated by the witness at the confrontation, and (5) the length of

time between the crime and confrontation. Id. at 199-200.


       Jobe had the opportunity to view the burglar’s profile during the minute and a half

that she witnessed him coming out of the backdoor of her house. After catching his

attention, she viewed him face-to-face for an additional 45 seconds, at which time, Jobe

testified that she was so close that she “could have tackled him.” Furthermore, Jobe

pursued the burglar for about half a block before terminating her pursuit, giving her

additional time to observe his clothing.


       Appellant asserts that nothing in the record indicates that Jobe had a heightened

degree of attention to the details of the burglar. However, after receiving the call from her

alarm company, Jobe had reason to believe that someone had entered her house through

the backdoor. Upon arriving at the backdoor of her home, she observed the burglar for the

minute and a half that he was unaware of Jobe’s presence, as well as for the 45 seconds

after Jobe confronted him. Furthermore, Jobe described the burglar and the direction in

which he was fleeing to the 9-1-1 operator as she was in pursuit of him. Thus, the record

indicates that, from the time Jobe received the phone call from the alarm company, she

had a heightened degree of attention that continued throughout her observation, pursuit,

and description of the burglar.




                                              6
       Jobe described the burglar to the 9-1-1 operator as a “skinny black male, about 5’9”,

with short black hair wearing a gray shirt and gray shorts with a thin white band running

across the bottom of his shorts. Appellant asserts he was “dressed somewhat differently

at the time he was encountered by law enforcement” than the description of the burglar

that Jobe gave because he had a small silver band going around the bottom of his shorts.

However, Jobe’s description of the burglar’s physical features, the direction in which he

was fleeing, and his clothing, other than the color of the band on the bottom of his shorts,

was sufficiently accurate to ensure no irreparable mistaken identity.


       When appellant was brought to Jobe’s home, Jobe testified that she looked in the

police car, observed the man, looked at his pants, knew he was the burglar and, with “no

doubt,” immediately indicated to police, “that’s him. He’s the one.” Appellant contends that

Herrera’s statement that he needed Jobe to identify the man and then step away from the

car was enough to suggest to Jobe that appellant was the burglar. Jobe testified that she

recognized the burglar based on her observations of him and that she “had no influence

[in] identifying him from anyone involved.” We construe Herrera’s request that Jobe

identify the man and then step away from the car as instructions to Jobe and not as a

suggestion regarding whether appellant was the burglar so as to affect Jobe’s level of

certainty. Herrera never made any statements suggestive that he believed appellant to be

the burglar; only that Jobe was to look into the car and determine whether this person, who

matched the description she gave in the 9-1-1 call, was the person she saw coming out of

her backdoor.




                                             7
       Jobe and appellant are in agreement that the length of time between Jobe’s

encounter with the burglar and appellant’s apprehension was no more than 30 minutes.

The record supports an even shorter length of time between the 11:36 a.m. 9-1-1 call, the

11:39 a.m. dispatch of Herrera, his two to three minute encounter with appellant a block

and a half to two blocks away from Jobe’s house, and his immediate return to Jobe’s

house to conduct the showup. Regardless, the lapse of time between Jobe’s viewing of

the burglar and her identification of appellant was insufficient for Jobe to forget the

burglar’s facial features or physical characteristics and to result in irreparable mistaken

identification.


       Having considered the factors for the determination of reliability of a suggestive

identification procedure under the totality of the circumstances, we find that the showup

procedure used by Herrera did not result in irreparable mistaken identification.

Furthermore, appellant does not appeal the denial of the motion to suppress his statement

to Herrera that “I’ll tell you the truth. I tried to break into the house." Therefore, this issue

is before the court for all purposes, including the identification of appellant and evaluation

of harm. Even assuming arguendo that the trial court judge erred in admitting the showup,

appellant does not assert that the trial court erred in admitting his inculpatory statement,

and, thus, we find no harm.




                                               8
                                      Conclusion


      For the foregoing reasons, we affirm the judgment of the trial court.




                                 Mackey K. Hancock
                                        Justice




Publish.




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