Opinion issued February 25, 2014




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-13-00129-CR
                          ———————————
                REGINALD TYRONE HOLLINS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 177th District Court
                          Harris County, Texas
                      Trial Court Case No. 1342022


                        MEMORANDUM OPINION

     A jury convicted appellant, Reginald Tyrone Hollins, of aggravated robbery

with a deadly weapon 1 and, based on two enhancements, assessed his punishment

at confinement for life. In two issues, appellant argues that (1) the show-up

1
     See TEX. PENAL CODE ANN. §§ 29.02, 29.03(a)(2) (Vernon 2011).
procedure used by police officers to obtain the complainant’s identification of

appellant was so unduly suggestive as to warrant exclusion and (2) his custodial

statement was rendered involuntary because of promises made by the interrogating

officer. We affirm.

                                    Background

       On February 19, 2011, two armed men wearing ski masks robbed an Auto

Zone store located at the intersection of Seaford and Fuqua in Harris County.

George Blair, the complainant in this case, testified that he was working the

closing shift at the Auto Zone when the store was robbed. He testified that two

men wearing black and carrying firearms ran into the store. The second man in

particular approached Blair with his gun drawn and instructed Blair to lie down on

the floor. Blair testified that the man was wearing jeans, a black shirt, and a mask.

In spite of the mask, Blair could see the man’s eyes, nose, and skin color, and he

could see that the man was wearing glasses. Blair stated that he observed the man

“face-to-face” and “was looking directly at him.” At the suppression hearing, Blair

identified appellant as the second man who came into the store and robbed him.

He testified that, even though appellant wore a mask during the robbery, he was

able to identify appellant by “skin color, his nostril features and the glasses he had

on.”




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      Regarding the show-up procedure, Blair testified that the police did not

provide him with any information about the suspects; they only instructed him to

come outside and see if he recognized any of the suspects. Blair viewed three

suspects, but appellant was the only suspect he recognized. He stated that he

recognized appellant “instantly” and had no hesitation. Blair further testified that

his in-court identification of appellant was based on what he saw inside the Auto

Zone during the robbery. Blair also testified at trial and was cross-examined by

appellant’s attorney.

      Officer B. Graham testified that he responded to the call of a robbery in

progress at the Auto Zone. A witness at the scene informed him that the robbers

had left the parking lot in “a black Impala with rims” and had traveled north on

Seaford. Officer Graham immediately returned to his vehicle and pursued the

suspects. He testified that it took only seconds—“[w]ay less than a minute”—for

him to come into contact with a vehicle matching the witness’s description.

Graham testified that the occupants refused to comply with the officers’ verbal

commands to exit the vehicle, so the officers had to forcibly remove the suspects

from the vehicle. Appellant was one of the men officers removed from the Impala.

Officer Graham testified that, upon searching the car, officers discovered ski

masks, black gloves, firearms, and a bag of money.




                                         3
      Sergeant H. Meisel testified that after officers had stopped the vehicle they

put each suspect into a separate police vehicle and drove them back to the Auto

Zone. Sergeant Meisel testified that he returned to the Auto Zone with the suspects

within approximately ten to fifteen minutes after receiving the original dispatch

call. Meisel stated that when the officers returned to the Auto Zone they parked

their patrol vehicles on the south corner of the lot, “not in front of the door.” The

officers then brought the suspects forward, one at a time, to the door where Blair

was waiting, to see if he could identify any of the suspects. Sergeant Meisel

testified that the only instruction he gave Blair was to “[l]et me know if you

recognize anybody.” He did not inform Blair that the suspects had been stopped

down the street from the Auto Zone or that any of them might be one of the

suspects who had been involved in the robbery, nor did he give Blair any hint or

clue as to who the suspects were. Sergeant Meisel agreed that the suspects,

including appellant, were handcuffed when they were presented to Blair for

identification. Meisel stated that this was because “[w]e had just stopped them

from leaving the scene of a violent crime and in that vehicle there was three

weapons involved and which we recovered. So they were at that point detained.”

      Sergeant Meisel also testified that Blair made a positive identification of

appellant quickly, “[l]ess than 30 seconds” after officers brought him forward for




                                         4
Blair to see. He further testified that Blair told Officer Meisel “he was absolutely

sure” appellant had been involved in the robbery and did not equivocate at all.

        Appellant moved to suppress the show-up identification at the scene and any

subsequent identification as being tainted “by the police improperly showing one

person that’s in custody, handcuffed, to the witness and getting identification. We

think that’s improper and unduly suggestive.” The trial court denied the motion.

        At the suppression hearing to determine the admissibility of appellant’s

custodial statement, Officer S. Neal testified that he read appellant the mandatory

warnings and that appellant indicated he understood the warnings. Officer Neal

stated that he did not threaten or coerce appellant, and he testified that he made no

promises to appellant, stating, “I told him I wouldn’t be able to [make any

promises] because he asked quite a bit about that.” Officer Neal testified, “I don’t

remember the exact details of what he was asking for, but he was basically asking

if he gave up information we’d be lenient on him.” Officer Neal stated that he told

appellant he “didn’t have the authority to do that.”

        Officer Neal testified that appellant brought up the topic of his receiving a

bond.    Neal testified that he did not promise an exact amount or make any

promises regarding a bond. He stated that he repeatedly told appellant, in response

to appellant’s questions regarding getting a deal from the prosecutors for other

information and questions about a bond, that he did not have authority to make

                                          5
deals and that he could not advise appellant on what to do. On cross examination,

appellant’s counsel asked, “Did you not say the words, ‘You are getting a bond. I

guarantee you you’re getting a bond’? Did you not say that to him?” Officer Neal

replied, “I don’t know; but if did, I was right because he got one.”

      Appellant moved to suppress the statement, arguing that it was coerced

because Officer Neal led him to believe he could get some kind of deal in return

for cooperating and giving his statement. The trial court ruled that appellant’s

statement about the robbery was admissible and found, “[B]ased on what I saw on

the recorded statement, he did knowingly and voluntarily waive his rights and

agree to talk to Officer Neal.” A redacted version of his statement, in which

appellant acknowledged his participation in the robbery, was published to the jury.

The jury found him guilty, and this appeal followed.

                                Motion to Suppress

      In two issues, appellant argues that the trial court erred in denying his

motions to suppress evidence of the show-up identification and his custodial

statement.

A.    Standard of Review

      We review a denial of a motion to suppress evidence for an abuse of

discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citing

State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When we review a


                                          6
trial court’s denial of a motion to suppress, we give “almost total deference to a

trial court’s express or implied determinations of historical facts [while]

review[ing] de novo the court’s application of the law of search and seizure to

those facts.” Id. We view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial court is the

“sole trier of fact and judge of credibility of the witnesses and the weight to be

given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007). The trial court may choose to believe or disbelieve any part or all of a

witness’s testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).

We sustain the trial court’s ruling if it is reasonably supported by the record and

correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d

854, 857 (Tex. Crim. App. 2003).

B.    Show-Up Identification

      In his first issue, appellant argues that the trial court erred in denying his

motion to suppress Blair’s pre-trial and in-court identifications of him, arguing that

they were tainted by an impermissibly suggestive pre-trial identification procedure.

      “[A] pre-trial 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.” Barley v. State, 906 S.W.2d 27, 32–33


                                          7
(Tex. Crim. App. 1995) (citing Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967

(1967)). When faced with a challenge to an out-of-court identification, a trial court

should review all of the circumstances surrounding the identification and

determine whether a procedure was unduly suggestive and, if so, whether it was

conducive to an irreparable mistaken identification such that it denied the

defendant due process of law. Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim.

App. 1988); see Barley, 906 S.W.2d at 33–34. The defendant bears the burden to

show    both    impermissible       suggestion   and   a   substantial   likelihood   of

misidentification by clear and convincing evidence. See Barley, 906 S.W.2d at 33–

34. An analysis under these steps requires an examination of the totality of the

circumstances surrounding the particular case and a determination of the reliability

of the identification. Id. at 33.

       Single suspect show-up identifications can be impermissibly suggestive. See

e.g., Stovall, 388 U.S. at 302, 87 S. Ct. at 1972. However, such confrontations

have been acknowledged as being necessary in many cases. See, e.g., Garza v.

State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981); Fite v. State, 60 S.W.3d 314,

318 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); Louis v. State, 825 S.W.2d

752, 756–57 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d); see also Jackson

v. State, 682 S.W.2d 692, 695 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d)

(“The very nature of a single show-up identification conducted in the presence of

                                            8
police officers is suggestive, but the real inquiry in such a case is whether the

particular confrontation was so unnecessarily suggestive as to deny due process.”).

      As explained by the Court of Criminal Appeals, even a one man “on-the-

scene” show-up, without more, does not necessarily violate due process:

      While it must be conceded that an on-the-scene confrontation has
      some degree of suggestiveness, in many situations its use is necessary.
      First of all by viewing the alleged perpetrator of the offense
      immediately after the commission of the offense, the witness is
      allowed to test his recollection while his memory is still fresh and
      accurate.     Additionally the quick confirmation or denial of
      identification expedites the release of innocent suspects. Thus the
      innocent suspect need not be transported to jail and detained until a
      lineup can be constructed. Furthermore the police would be able to
      release the innocent suspect and continue their search for the criminal
      while he is still within the area and before the criminal can
      substantially alter his looks and dispose of evidence of the crime.
      Finally, any possible prejudice resulting from such a confrontation can
      be exposed by rigorous cross-examination of the witness.

Garza, 633 S.W.2d at 512 (internal citations omitted).

      Suggestiveness may be created by the manner in which the pre-trial

identification procedure is conducted, for example by police pointing out the

suspect or suggesting that a suspect is included in the line-up or photo array.

Barley, 906 S.W.2d at 33. Or it may also be created by the content of the line-up

or photo array itself if the suspect is the only individual closely resembling the pre-

procedure description. Id. (citing Williams v. State, 675 S.W.2d 754, 756 (Tex.

Crim. App. 1984)). Furthermore, an individual procedure may be suggestive or the

cumulative effect of the procedures may be suggestive. Id.
                                          9
      If the trial court determines that an out-of-court identification was

impermissibly suggestive, then the court should consider the factors enumerated in

Neil v. Biggers to determine whether the suggestive procedure created a substantial

likelihood of irreparable misidentification. 409 U.S. 188, 199–201, 93 S. Ct. 375,

382–83 (1972); Barley, 906 S.W.2d at 34–35. These factors are: (1) the witness’s

opportunity to view the criminal act; (2) the witness’s degree of attention; (3) the

accuracy of the suspect’s description; (4) the level of certainty at the time of

confrontation; and (5) the time between the crime and confrontation. Neil, 409

U.S. at 199–201, 93 S. Ct. at 382–83; Barley, 906 S.W.2d at 34–35. These factors

are weighed against the corrupting effect of any suggestive identification

procedures. Barley, 906 S.W.2d at 34.

      Reliability is the “linchpin” in determining admissibility of such

identification testimony. Id. (quoting Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct.

2243 (1977)).      If indicia of reliability outweigh suggestiveness, then an

identification is admissible. Id.

      1.     Was the procedure unduly suggestive?

      We begin our analysis by determining whether the show-up procedure used

in this case was unduly suggestive.      Appellant argues that the show-up was

impermissibly suggestive because appellant was removed from a police car and

was wearing handcuffs at the time he was presented to Blair for identification.


                                        10
Thus, he argues, “the custodial nature” in which he was shown to Blair lent a

suggestion of guilt and was impermissibly suggestive.

       However, the record shows that appellant was not the only suspect shown to

Blair. Rather, Blair testified that he was shown three suspects total but only

identified appellant as one of the robbers. Although the record indicates that

appellant was handcuffed and accompanied by law enforcement officers when

shown to Blair at the scene, so were all of the suspects shown to Blair at the scene.

The show-up identification of appellant occurred no more than thirty minutes after

the robbery.     See Garza, 633 S.W.2d at 512 (on-scene identification can be

necessary to allow police to “continue their search for the criminal”).

       Furthermore, nothing in the record shows that the officers at the scene

encouraged Blair, by word or action, to identify appellant as the suspect; in fact,

Blair specifically testified that the police asked only if he recognized any of the

suspects and did not make any other suggestions or comments. Nor did appellant

assert that he was treated differently than the two other suspects that Blair was

unable to identify. See Barley, 906 S.W.2d at 33 (suggestiveness can be created by

manner in which identification procedure is conducted or by content). Also, Blair

testified that he based his in-court identification of appellant on his observations of

the assailant at the time of the robbery, and he was cross-examined by appellant’s

attorney at trial.

                                          11
      We conclude that appellant has not shown by clear and convincing evidence

that there was any abuse of the show-up procedure. See id. (holding that “the

procedures utilized might have been suggestive, but not impermissibly so” where

photo array, out of necessity, contained photos with slightly different lighting and

background or suspects of slightly different heights); Louis, 825 S.W.2d at 754,

756 (concluding on-scene identification not impermissibly suggestive when

confrontation occurred one hour after offense, witness immediately identified

defendant, and cross-examination could have exposed any possible prejudice

resulting from show-up identification).

      2.     Was there a substantial likelihood of irreparable misidentification?

      We also conclude that Blair’s identification of appellant was sufficiently

reliable to be admissible. See Garza, 633 S.W.2d at 512.

      Here, Blair had an opportunity to view the criminal act, as he was the

complainant. He testified that he stood face-to-face with appellant during the

robbery and looked directly at him. He saw the man’s eyes, nose, and skin color,

and he could see that the man was wearing glasses. Blair testified that he was able

to identify appellant in spite of the ski mask by “skin color, his nostril features and

the glasses he had on.” See id. at 513 (“It is true that the witnesses were not able to

view the facial features of the appellant at the time of the offense. . . . However,

such matters go to the weight to be given the evidence and not to its


                                          12
admissibility.”). Both Blair and Sergeant Meisel testified that Blair immediately

recognized appellant and was confident of his identification. Furthermore, Blair

testified that police returned to conduct the show-up identification approximately

twenty to thirty minutes after the robbery had occurred. All of these facts weigh in

favor of the reliability of Blair’s identification of appellant as one of the assailants.

      Furthermore, other indicia of reliability support the admission of Blair’s

identification. See Barley, 906 S.W.2d at 34 (stating that reliability is “linchpin” in

determining admissibility of out-of-court identification and that, if indicia of

reliability outweigh any suggestiveness, identification is admissible). The record

demonstrates that a witness at the scene informed the police that three black males

in a black Impala with rims had just left the scene driving north on Seaford.

Officer Graham testified that he immediately returned to his vehicle and pursued

the suspects. He testified that it took only seconds—“[w]ay less than a minute”—

for him to come into contact with the vehicle matching the witness’s description.

Appellant was one of the three men riding in the Impala, and, upon searching the

car, officers discovered ski masks, black gloves, firearms, and a bag of money.

Officers returned to the Auto Zone with the three men from the vehicle, and Blair

immediately identified appellant as the assailant who had held him at gun point

during the robbery.




                                           13
      Considering the totality of the circumstances, we conclude that appellant has

not shown a substantial likelihood of misidentification by clear and convincing

evidence. See Barley, 906 S.W.2d at 33–34.

      We overrule appellant’s first issue.

C.    Custodial Statement

      In his second issue, appellant argues that the trial court erred in denying his

motion to suppress his custodial statement. Appellant argues that his statement

was coerced because the interrogating officer promised that appellant would

receive a bond in exchange for his statement and that the officer would inform the

prosecutors of appellant’s cooperation.

      “A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion.” TEX. CODE. CRIM. PROC. ANN. art. 38.21 (Vernon 2005). When

considering whether a statement was voluntarily made, we consider the totality of

the circumstances in which the statement was obtained. Creager v. State, 952

S.W.2d 852, 855 (Tex. Crim. App. 1997). A defendant’s statement is involuntary

if it is induced by a promise that was positive, made or sanctioned by someone in

authority, and of such an influential nature that it would cause a defendant to speak

untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). We

must determine whether the officially sanctioned positive promise would be likely


                                          14
to influence the defendant to speak untruthfully and not whether the defendant in

fact spoke untruthfully. Id. at 794–95. To determine if the alleged promise was

likely to influence the defendant to speak untruthfully, we must consider whether

the circumstances surrounding the promise made the defendant inclined to confess

to a crime he did not commit. See e.g., Garcia v. State, 919 S.W.2d 370, 388 (Tex.

Crim. App. 1994) (en banc) (op. on reh’g).

      Courts have held that general, unspecific offers to help are not likely to

induce one to make an untruthful statement and will not invalidate a confession.

See Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983). Likewise,

general statements made to a suspect regarding how a confession can sometimes

result in leniency do not render a confession involuntary. See Muniz v. State, 851

S.W.2d 238, 253–54 (Tex. Crim. App. 1993). Nor is a prediction about future

events a promise. See Mason v. State, 116 S.W.3d 248, 261 (Tex. App.—Houston

[14th Dist.] 2003, pet. ref’d) (holding that officer’s statements that situation would

“go better” for appellant if he confessed was prediction about future event that did

not amount to promise).

      Here, Officer Neal testified that he did not threaten or coerce appellant, and

he testified that he made no promises to appellant, stating, “I told him I wouldn’t

be able to [make any promises] because he asked quite a bit about that.” Officer

Neal repeatedly told appellant that he “didn’t have the authority” to make a deal

                                         15
with appellant, in spite of appellant’s repeated inquiries into the availability of a

bond and his repeated volunteering of information in unrelated cases. Officer Neal

testified that he did not promise an exact amount or make any promises regarding a

bond. Although appellant argues that Officer Neal said, “You are getting a bond. I

guarantee you you’re getting a bond,” Neal stated that he did not know if he had

said that, but if he did, “[he] was right because [appellant] got one.”

      Considering the totality of the circumstances, we conclude that the record

does not support appellant’s argument that Officer Neal made appellant a promise

of a bond or of leniency in exchange for his statement. Any statement that Neal

would inform the prosecutor of appellant’s cooperation did not invalidate

appellant’s statement. See Johnson v. State, 68 S.W.3d 644, 654–55 (Tex. Crim.

App. 2002) (officer’s statement to defendant that his cooperation would be

conveyed to trial court was not promise that induced confession); Garcia, 919

S.W.2d at 388 (detective’s statements that he would try to “help” defendant and

that he would talk to prosecutor did not render confession involuntary). Appellant

argues that Officer Neal made an “emphatic” and “repeated” promise that appellant

would receive a bond. However, Officer Neal testified that it was appellant who

repeatedly offered information about unrelated cases and asked for a bond, and

each time, Neal informed appellant that he did not have the authority to make a

deal. Officer Neal also testified that he never promised an exact amount or made

                                          16
any promises regarding appellant’s bond. See Dykes, 657 S.W.2d at 797 (stating

that non-specific offers to help are unlikely to elicit false statement by suspect and

will not render confession invalid); see also St. George, 237 S.W.3d at 725

(holding that trial court is sole judge of credibility of witnesses and weight to be

given to their testimony).

      Given the context, any statements Officer Neal made regarding the

availability of a bond were not specific promises, but were merely predictions

about future events. See Mason, 116 S.W.3d at 260–61 (stating that predictions

about future events are not promises). Nothing that Officer Neal said to appellant

constituted a promise that was positive, made or sanctioned by someone in

authority, and of such an influential nature that it would cause appellant to speak

untruthfully. See Martinez, 127 S.W.3d at 794.

      We conclude that the trial court did not erred in denying appellant’s motion

to suppress his custodial statement.

      We overrule appellant’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.



                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Bland, and Brown.

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




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