
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-343 CR

____________________


JAMES LEE BOTLEY, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 252nd District Court
Jefferson County, Texas

Trial Cause No. 85679




OPINION
	A jury found James Lee Botley guilty of aggravated robbery and assessed
punishment at fifteen and one-half years of confinement in the Texas Department of
Criminal Justice, Institutional Division.  The sole point of error raised on appeal states,
"The eyewitness testimony in this case is insufficient to establish the appellant's identity
beyond a reasonable doubt." 
	In reviewing the legal sufficiency of the evidence, we view all of the evidence in
the light most favorable to the prosecution and inquire whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.  Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  In court, the
victim positively identified James Lee Botley as the robber.  The appellant concedes as
much, but argues that the in-court identification was unreliable.  The court, considering
a similar claim in Welch v. State, 993 S.W.2d 690, 693-94 (Tex. App.--San Antonio 1999,
no pet.), noted that evidentiary conflicts and credibility issues are resolved by the jury, not
the appellate court.  
	Botley argues, both in support of his claim that the evidence adduced at trial is
insufficient to establish identity and as an alternative argument for trial error, that the
victim's in-court identification was unreliable under the standard elucidated in Delk v.
State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993), which described a two-step analysis
used to determine the admissibility of an in-court identification.  First, the photographic
display must not be impermissibly suggestive.  Id.  Second, if the photographic display was
impermissibly suggestive, the in-court identification will still be admissible if, under a
totality of the circumstances, the suggestive procedure does not give rise to a very
substantial likelihood of irreparable misidentification.  Id.  Against the corruptive effect
of the suggestive identification itself, we consider: 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 the confrontation.  Id. 
	The photographic line-up admitted into evidence at trial depicts individuals who are
substantially similar in appearance.  Nothing in the testimony of the officer who presented
the line-up suggests that the manner of presentation affected the response.  No testimony
of the victim connects the in-court identification to the earlier viewing of the photographic
line-up.  The victim testified that he was familiar with the defendant, who patronized the
family convenience store where the robbery occurred and the encounter lasted ten to fifteen
minutes. 
	Botley suggests that the victim was relying upon his previous encounters with the
defendant, rather than the robbery itself.  He contends that in-court identification is
unreliable because the victim could not identify the defendant in a snapshot presented to
the victim during cross examination.  A careful review of the record, however, supports
an inference that the victim did identify the snapshot of the defendant.  

	The pertinent testimony, with emphasis added, reads as follows: 
	Q. [By Defense Counsel]: Do you know this man in this picture? (indicating)
	A. [By Victim:] No, sir.
	Q. That's Number 2 - Defense Number 2.  Do you know this man in this picture?
(indicating)
	A.  Him.
	Q.  Who is that?
	A.  That's him.
	From this exchange, we can discern that defense counsel displayed Defense Exhibit
No. 2 first, then displayed a different photograph, presumably Defense Exhibit No. 1,
which the victim identified as a photograph of the defendant.  Earlier in the trial, the
investigating officer testified that he knew both of the people depicted in Defense Exhibits
Nos. 1 and 2, and that Defense Exhibit No. 1 depicted the defendant, and Defense Exhibit
No. 2 did not depict the defendant. (1) 
	The appellant failed to demonstrate that the in-court identification of the defendant
by the victim of the offense was tainted by an impermissibly suggestive pre-trial
identification procedure.  The State established identity through in-court identification of
the defendant by the victim to the offense.  We hold that the jury could rationally find
beyond a reasonable doubt that James Lee Botley committed the offense as charged in the
indictment.  The point of error is overruled, and the judgment is affirmed.
	AFFIRMED.

							 _____________________________
								STEVE MCKEITHEN
								       Chief Justice


Submitted on February 28, 2003
Opinion Delivered March 12, 2003
Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.
1.   The words "that" and "this," as opposed to references to specific exhibit
numbers, are at times difficult to attribute to particular exhibits in the record.  There was
apparently no confusion on the part of the people present at trial.  During jury argument,
the prosecutor reminded the jury that both witnesses immediately picked out the
photograph of the defendant.  Defense counsel objected on the ground that it was never
established "whether those persons were Mr. Botley or not in fact." 
