Opinion issued December 22, 2015




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-15-00261-CR
                            ———————————
                 LAWRENCE FLOYD MILLER III, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                         Trial Court Case No. 74039


                          MEMORANDUM OPINION

      Appellant was charged with driving while intoxicated, third offense.1 The

jury found him guilty and assessed punishment at 20 years’ confinement and a fine

of $5,000. In two issues on appeal, appellant argues (1) the evidence was insufficient


1
      See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West 2011).
to support his conviction and (2) the trial court abused its discretion by denying his

motion to suppress.

       We affirm.

                                  TRIAL EVIDENCE

       On the night of May 2, 2014, Aracely Macedo was driving a car in Freeport,

Texas around 11:00 p.m. when her vehicle was struck hard by a gray pickup truck.

Her airbags deployed, and she suffered fractures in her neck that sent her to the

hospital. She saw the vehicle that struck her and testified that it was a gray pickup

truck that immediately backed up and left the scene. She was not able to identify

the driver, but testified that the truck that hit her lost a tire in the collision.

        Bobby Robinette was sitting on his porch—on a street near the accident

scene—when he heard a grinding noise and saw a gray or silver truck, missing a tire,

pull up across the street from his house with the rim from the missing tire grinding

against the concrete and come to a stop. Robinette watched as one person exited the

passenger side door and ran away from the truck at a high rate of speed towards a

nearby business. Robinette then watched someone exit from the driver’s side door,

stumble, and then slowly walk—limping and wobbling—to a nearby tree.

       Deputy Adam Soto, an officer with the Freeport Police Department, was

called to the scene of Macedo’s hit and run. As he drove in the direction that Macedo

told him the truck had headed leaving the accident scene, Deputy Soto saw Robinette


                                              2
standing on the corner of the street, waving him down. Deputy Soto noticed a silver

pick-up truck with only three tires parked in the middle of the street. Robinette told

Deputy Soto that he saw a male with a limp2 exit the driver’s side door of that truck.

Deputy Soto parked his patrol car near the truck, exited, and saw appellant holding

onto a nearby fence.

      Deputy Soto approached appellant, saw his eyes were bloodshot, smelled

alcohol, and heard appellant speaking with slurred speech. Soto arrested appellant

and Robinette identified him as the driver of the gray truck.

      When Deputy Craig Graham, also with the Freeport Police Department,

arrived at the arrest scene, Deputy Soto asked Deputy Graham to perform a sobriety

evaluation on appellant. When he opened Deputy Soto’s patrol car door, Deputy

Graham immediately smelled alcohol coming from appellant. Graham also noticed

that appellant had red eyes, slurred speech, and seemed agitated. Graham found the

keys to the wrecked gray pick-up truck in appellant’s pocket.             Graham had

appellant’s blood drawn, and his blood alcohol concentration was 0.286.

      Robinette testified at trial that he never lost sight of appellant between the

time he saw him get out of the driver’s seat of the truck through the time he identified

appellant to police as the driver.      Appellant’s counsel renewed an objection



2
      Appellant has a prosthetic leg, and there was testimony that could have caused him
      to appear wobbly on his feet.
                                           3
(previously made in a denied pretrial motion to suppress) that Robinette’s in-court

identification of appellant violated his due process rights:

       Your Honor, we will object to this witness testifying or identifying any
       person in open court. We believe that any testimony that this witness
       would offer was tainted by an out-of-court identification procedure. We
       believe that any evidence that he has would violate my client’s due
       process rights. Also the out-of-court identification procedure I believe
       was impermissibly suggestive and because of that we would object to
       any in court identification by this witness as to violating Mr. Lawrence
       Miller’s right to due process.

       The trial court overruled the objection and permitted Robinette to identify

appellant as the driver of the truck at trial.

                        THE VERDICT AND JUDGMENT

       The jury found appellant guilty of “the offense of Driving While Intoxicated,

Third or More.” The jury assessed punishment at 20 years’ confinement and a

$5,000 fine. The trial court entered judgment on the jury’s verdict, and appellant

brought this appeal.

                                ISSUES ON APPEAL

       Appellant raises two issues on appeal:

       1.     “The evidence adduced at trial was legally insufficient.”

       2.     “The trial court abused its discretion in denying appellant’s
              motion to suppress evidence of this pretrial identification on the
              basis that the out-of-court identification procedure was
              impressible suggestive and the identification was unreliable.”




                                             4
                      SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant argues the evidence was insufficient to support his

conviction.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard

is only standard to use when determining sufficiency of evidence). The jurors are

the exclusive judges of the facts and the weight to be given to the testimony. Bartlett

v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury, as the sole judge of

credibility, may accept one version of the facts and reject another, and it may reject

any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (stating jury can choose to disbelieve witness

even when witness’s testimony is uncontradicted).

      We afford almost complete deference to the jury’s credibility determinations.

See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any

inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d


                                           5
394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (“When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the prosecution and

therefore defer to that determination.”). “Circumstantial evidence is as probative as

direct evidence in establishing guilt, and circumstantial evidence alone can be

sufficient to establish guilt.” Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim.

App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need not point directly

and independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Analysis

      Appellant argues that there is legally insufficient evidence to identify him as

the operator of the gray pickup truck. Specifically, Appellant argues that no one saw

him driving, nor did anyone ever see him exiting, the pickup truck. The State

responds that there was both sufficient direct and circumstantial evidence that

appellant operated the vehicle in question. We agree with the State.

      The identity of a perpetrator can be proved by direct or circumstantial

evidence; eyewitness identification is not necessary. Earls v. State, 707 S.W.2d 82,

85 (Tex. Crim. App. 1986); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d). Here, Robinette testified at trial that, after the


                                           6
three-tire, gray truck came to a stop, he saw appellant exit the truck from the driver’s

side, walk over to a tree, and saw police arrest that same person as the driver of the

truck. Deputy Graham also testified that he found the keys for the gray pickup truck

on appellant’s person. Finally, there was trial evidence that appellant was the

registered owner of the truck. With this direct and circumstantial evidence, the jury

could have rationally concluded that appellant was the driver of the truck. E.g.,

Duenez v. State, 735 S.W.2d 563, 566 (Tex. App.—Houston [1st Dist.] 1987, pet.

ref’d) (witness testimony that appellant exited the driver’s side door within seconds

after van came to a stop was sufficient evidence to support jury’s finding that

appellant operated vehicle); Hernandez v. State, 13 S.W.3d 78, 80–81 (Tex. App.—

Texarkana 2000, no pet.) (witnesses’ testimony that appellant was walking along

driver’s side of truck belonging to him immediately after an accident was sufficient

evidence to support finding that appellant operated vehicle, despite lack of testimony

by anyone who had seen appellant behind the wheel of the truck).

      We overrule appellant’s first issue.

                             MOTION TO SUPPRESS

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

motion to suppress on the basis that an in-court identification of him was tainted by

an impermissibly suggestive pretrial identification procedure.            Specifically,

appellant’s counsel argued in support of the motion to suppress that Robinette’s


                                           7
identification process “amounted to a one-on-one lineup” that allegedly “tainted the

entire process” and, thus, he requested that the trial court suppress Robinette’s in-

court identification. The trial court denied the motion.

A.    Standard of Review

      Typically, we review a trial court’s factual determinations on a motion to

suppress for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.

Crim. App. 2008). We review de novo, however, the trial court’s ruling on whether

the suggestiveness of a pre-trial identification procedure influenced an in-court

identification. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009). Even

if a pretrial identification is found to be impermissibly suggestive, “identification

testimony [is] nevertheless . . . admissible where the totality of the circumstances

shows no substantial likelihood of misidentification.” Adams v. State, 397 S.W.3d

760, 764 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Ibarra v. State, 11

S.W.3d 189, 195 (Tex. Crim. App. 1999)).

B.    Analysis

      Robinette testified at the suppression hearing that he was sitting on his back

porch when he heard a grinding sound. He looked a saw a truck driving down the

adjoining road. The truck was missing one tire and the rim of the wheel scraping

against the road as the truck moved caused the sound he heard. The truck came to a

stop under a light near Robinette. He saw one person jump out of the truck from the


                                          8
passenger side and run off. He saw another person get out of the truck from the

driver’s side and slowly hobble to a nearby tree, where the person remained.

      The first officer on the scene was Officer Soto. Robinette waved at Officer

Soto and identified the truck and the driver to him. Appellant was the person located

under the tree. Robinette testified that, after Officer Soto arrested appellant, Officer

Soto had Robinette confirm that appellant was the person that Robinette saw exit the

driver’s side of the truck. Robinette confirmed this. Robinette testified that it was

at this point that he was close enough to appellant to discern appellant’s physical

appearance with any level of detail. Robinette also confirmed that he approached

Deputy Soto with an identification of appellant, and that he was not shown a lineup

to pick him out and no officer suggested to him that appellant was the driver.

Robinette observed the arrest and “got a good view” of appellant. He testified that

he had no doubt that appellant was the driver.

      Appellant argued in his motion to suppress, and argues on appeal here, that

Officer Soto’s request for Robinette to confirm that appellant was the person

Robinette saw leaving the driver’s side of the truck was impermissibly suggestive

and tainted Robinette’s in-trial identification of appellant as the driver.        The

authority appellant relies upon, however, is inapposite.

      Determining whether an in-court identification of a defendant is inadmissible

due to an impermissibly suggestive pre-trial identification procedure depends on (1)


                                           9
whether the pre-trial identification procedure was impermissibly suggestive and (2)

whether the procedure gave rise to a very substantial likelihood of irreparable

misidentification. Santiago v. State, 425 S.W.3d 437, 440 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d). The cases applying this test, however, involve situations in

which a witness sees the alleged perpetrator, the perpetrator leaves the scene, the

witness describes the perpetrator to the police, and the police show the witness one

or more persons (or images of persons) who match either the description provided

by the witness or information developed in the investigation. See, e.g., Gamboa,

296 S.W.3d at 581–82; Santiago, 425 S.W.3d at 440–41; Mendoza v. State, 443

S.W.3d 360, 364 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

      Here, instead of the police identifying possible drivers to Robinette, Robinette

identified the driver to police. The evidence presented at the motion to suppress

indicates that Robinette saw appellant exit the driver’s side of the car and then

remain under the tree until Officer Soto arrived. The dash-cam video from Officer

Soto’s patrol car showed Robinette standing within view of appellant. Robinette

himself testified that he did not leave the scene, and neither did appellant.

      Because Officer Soto did not make any suggestions to Robinette, there can be

no basis for an improper suggestion. Nor do we find any indication that is was

suggestive for Officer Soto to later ask Robinette to confirm that the person that

Officer Soto took into custody was the same person that appellant saw leave the


                                          10
truck. Even in situations in which the perpetrator has fled the scene, courts have

approved in-person identifications of a single suspect caught shortly after in a nearby

location. Mendoza, 443 S.W.3d at 363–64. Here, appellant did not leave the scene

where Robinette saw him. Given the continuity of Robinette’s observation of

appellant, we hold nothing in the identification process was impermissibly

suggestive.

      We overrule appellant’s second issue.

                                  CONCLUSION

      We affirm the judgment of the trial court.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




                                           11
