                            NO. 07-09-00344-CR; 07-09-00345-CR

                                IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    FEBRUARY 24, 2011


                              ROBERT TIJERINA, APPELLANT

                                             v.

                             THE STATE OF TEXAS, APPELLEE


                   FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

 NO. A17408-0710; A17409-0710; HONORABLE ROBERT W. KINKAID JR., JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                          OPINION

         Appellant, Robert Tijerina, was convicted of felony driving while intoxicated1 and

leaving the scene of an accident involving injury.2        A jury assessed punishment,

enhanced by prior felony convictions, at 55 and 60 years, respectively, to run

concurrently. We will affirm.




         1
             See TEX. PENAL CODE ANN. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp.
2010).
         2
             See TEX. TRANSP. CODE ANN. § 550.021(c) (West Supp. 2010).
                              Factual and Procedural History


       State trooper Guadalupe DeLuna responded to a report of an accident involving

two vehicles, a Focus and a Cavalier. The Focus was driven by Martina Beltran, who

was taken from the scene by ambulance. The driver of the Cavalier was not present

when DeLuna arrived, but the Cavalier was. Also present at the scene was Jonathan

Rogers, a witness to the accident. The missing driver had clipped Rogers’s motorcycle

just before colliding with Beltran.


       Rogers had spoken to the missing driver after the accident for five to seven

minutes. Rogers explained that, despite his efforts to direct the driver to stay at the

scene, the driver had left on foot in a northwesterly direction. Rogers described to

DeLuna the driver’s physical features and clothing and observed that the driver

appeared very intoxicated.       DeLuna testified that, upon entering the unoccupied

Cavalier, he could smell the lingering odor of alcohol. DeLuna ran the license plate

number, and it came back that the Cavalier was registered to appellant’s father, Pablo

Tijerina, whom DeLuna knew. From information gathered at the scene and from the

description of the missing driver, DeLuna thought he knew who the driver was.

DeLuna’s brother was acquaintances with a man who met witness Rogers’s description

and regularly drove a Cavalier similar in style and color to the one at the scene.

DeLuna broadcast the information he had gathered to area law enforcement.


       DeLuna got Rogers’s contact information, and Rogers left. Shortly thereafter,

sheriff’s deputies called DeLuna to say that they had located a man meeting the

description provided at his residence. That man was appellant. Appellant refused to

                                            2
leave his house and directed the officers to leave his property. DeLuna joined the

deputies at appellant’s residence.         DeLuna called Rogers to come over to the

residence, and Rogers looked into the residence from about ten to fifteen feet.3 Looking

through a window from a vantage point in the yard, apparently somewhere between the

circular drive and the residence in question, Rogers unequivocally identified appellant

as the missing driver.


      Prior to trial, in January, June, and October 2008, appellant filed three separate

sets of motions to suppress, inter alia, evidence of Rogers’s pretrial identification

resulting from the search of appellant’s residence. The trial court overruled the January

motions by written order. New counsel was appointed and filed the second and third

sets of motions, each being more specific than the previous motions. At the hearing on

the later motions, the trial court noted the evidentiary hearing on the first motions and

summarily denied the later motions to suppress.


      At trial, appellant admitted that he had been drinking that day.        He denied,

however, having used his father’s car that day although he admitted to having driven it

in the past. The jury found him guilty of driving while intoxicated and leaving the scene

of an accident involving injury and assessed punishment at 55 and 60 years,

respectively, to be served concurrently.



      3
         The record is not clear on how far away Rogers was from the window when he
identified appellant as the driver. Rogers testified that he was about ten to fifteen feet
away from the residence. An officer testified that Rogers was probably twenty feet
away from the window. Yet another officer present at the residence testified that
Rogers was as close as one to three feet away from the window when he identified
appellant.
                                              3
         Appellant appeals, bringing two issues for the Court’s consideration. First, he

contends that the trial court violated appellant’s rights under the Fourth Amendment and

article 38.234 by denying his motion to suppress the identification when the search

related to the identification was an unjustified warrantless search of a dwelling.

Secondly, he contends that the trial court violated appellant’s due process rights by

admitting in-court identification when such evidence was the product of an

impermissibly suggestive show-up procedure.


                            Search Leading to Pretrial Identification


         In his first issue, appellant argues that “[t]he identification by Rogers used to

convict appellant was obtained by an impermissible warrantless search of a dwelling, in

the absence of exigent circumstances or any other legal means of justifying the search.”

Appellant’s first point is premised on Rogers’s act of peering through the window to

identify appellant constituting a search for Fourth Amendment purposes.         Appellant

points out that he requested that the officers leave the premises before the search

occurred and contends that, therefore, Rogers was trespassing when the identification

occurred.


Standard and Scope of Review


         We review the trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.

2007).       We give almost total deference to the trial court’s rulings on questions of

historical fact and application-of-law-to-fact questions that turn on an evaluation of

         4
             See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
                                               4
credibility and demeanor, but we review de novo application-of-law-to-fact questions

that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v.

State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). When the trial court does not make

a finding on a relevant fact, we view the evidence in the light most favorable to the trial

court’s ruling and assume the trial court made implicit findings of fact supported by the

record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007).


       In determining whether a trial court’s ruling on a motion to suppress is supported

by the record, we generally only consider evidence adduced at the suppression hearing

because the trial court’s ruling was based on that evidence rather than evidence

presented later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996).

However, when the suppression issue has been consensually re-litigated by the parties

during the trial on the merits, we may also consider relevant trial evidence in our review.

See id. Because it appears that the issues raised in the motions to suppress were

raised again during trial and were again overruled by the trial court, we will consider the

evidence adduced at the suppression hearing and relevant trial evidence.


Search By Private Citizen Issue


       As a preliminary matter raised by appellant, we address the issues concerning

the application of the Fourth Amendment in light of the fact that it was Rogers, a private

citizen, who performed the conduct at issue. The Fourth Amendment protects the “right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. CONST. amend. IV. For purposes of the

Fourth Amendment, a “search” occurs when the government violates a subjective

                                            5
expectation of privacy that society considers objectively reasonable.     See Kyllo v.

United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The Fourth

Amendment applies only to governmental action, not to action by a private individual

who is not acting as an agent of the government or with the knowledge and participation

of a government official. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct.

1652, 80 L.Ed.2d 85 (1984). Even a wrongful search or seizure by a private citizen

does not deprive the government of the right to use evidence obtained from the

wrongful search. See Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 65

L.Ed.2d 410 (1980).


      The government may not encourage conduct by private persons that the

government itself cannot do, and if the government encourages a search, or the private

citizen searches solely for the purpose of aiding in law enforcement, the search is

illegal. See Coolidge v. New Hampshire, 403 U.S. 443, 487–88, 91 S.Ct. 2022, 29

L.Ed.2d 564 (1971). To determine whether a person is acting as an instrument or agent

of the government, we determine (1) whether the government knew of, and acquiesced

in, the intrusive conduct; and (2) whether the party performing the search intended to

assist law enforcement efforts or, instead, to further his own ends. Dawson v. State,

106 S.W.3d 388, 392 (Tex.App.—Houston [1st Dist.] 2003, no pet.).


      From the record, it would appear that Rogers was acting as an instrument of the

State, and the State makes no contention to the contrary. Although it is unclear whether

DeLuna drove Rogers to the residence or whether Rogers drove himself, the record is

clear that DeLuna called Rogers and asked him to come to that certain address to see if

                                           6
the person at the residence was the driver of the vehicle he witnessed at the scene of

the accident.5 There is no indication that Rogers came to the residence and looked in

the window on his own accord or to further his own ends.6 That said, we agree with

appellant and analyze the identification procedure in terms of the Fourth Amendment.


Standing


      Proof of “a reasonable expectation of privacy” is at the forefront of all Fourth

Amendment claims. Kothe v. State, 152 S.W.3d 54, 59 (Tex.Crim.App. 2004). Any

defendant seeking to suppress evidence obtained in violation of the Fourth Amendment

must first show that he personally had a reasonable expectation of privacy that the

government invaded. Id. (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58

L.Ed.2d 387 (1978)). A defendant must prove that he or she was a “victim” of the

unlawful search or seizure and has no standing to complain about the invasion of

someone else’s personal rights. Id. Only after a defendant has established standing to

complain may a court consider whether he or she has suffered a substantive Fourth

Amendment violation. Id. Although we defer to the trial court’s factual findings and view

them in the light most favorable to the ruling, we review de novo the legal issue of

standing. Id.




      5
         DeLuna could not recall if he or any other officer escorted Rogers closer to the
house. If an officer did accompany Rogers, the record does not clearly identify who that
officer was.
      6
        The record shows that Rogers did not complete an accident report in connection
with superficial damage to his motorcycle as a result of the minor collision with the
Cavalier immediately before the collision between Beltran and the Cavalier. Such
evidence would suggest that he had no personal interest in locating the driver.
                                           7
       The record suggests that the officers at the residence recognized appellant’s

possessory right to exclude others from the property when, as appellant directed, the

officers left the property for some time to await Rogers’s arrival.      Further, it would

appear that the State recognized appellant’s possessory interest in the house, having

referred to the residence several times during trial as appellant’s house.


       Consistent with the apparent recognition that appellant had, at a minimum, a

possessory interest in the residence, it appears the State never challenged standing in

the trial court. That being the case, we are presented with options: (1) we may address

standing as part of appellant’s Fourth Amendment claim, without regard to preservation

concerns, or (2) we may conclude that the State has forfeited that argument because it

failed to raise it in the trial court. See Coleman v. State, 246 S.W.3d 76, 84 n.30

(Tex.Crim.App. 2008); Kothe, 152 S.W.3d at 60, 60 n.15.7             Based on the facts

presented in this case, we conclude that, by tacitly recognizing appellant’s possessory

interest in the property at issue and by failing to raise the issue of standing in the trial

court, the State forfeited its contention that appellant lacked standing to challenge the

search.




       7
        Both Coleman and Kothe quote United States v. Price, 54 F.3d 342, 346 (7th
Cir. 1995), for the proposition that, “because Rakas’ principle of ‘standing’ is rooted in
the substantive law of the Fourth Amendment and not Article III [jurisdiction of courts],
the government may waive these types of standing objections.”
                                             8
Fourth Amendment Concerns


      Next, we are called on to determine whether there was a search on these facts.

In other words, we must determine whether the actions taken by Rogers, as an

instrument of the state, invoked the protections of the Fourth Amendment.


      The Fourth Amendment protects one’s home. Oliver v. United States, 466 U.S.

170, 176, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Washington v. State, 152

S.W.3d 209, 214 (Tex.App.—Amarillo 2004, no pet.). The curtilage, which is the land

immediately surrounding and associated with the home, warrants the same Fourth

Amendment protections that attach to the house. Oliver, 466 U.S. at 182 n.12. The

protection afforded a home’s curtilage is not unlimited though. See Washington, 152

S.W.3d at 214. In other words, an officer’s entry onto the curtilage or approach to the

entrances of a residence does not necessarily rise to the level of a search as

contemplated by the Fourth Amendment.          Rodgers v. State, 162 S.W.3d 698, 709

(Tex.App.—Texarkana 2005), aff’d, 205 S.W.3d 525 (Tex.Crim.App. 2006).


      Absent express orders from a person in possession of property not to trespass, a

law enforcement officer, like any other member of the public, has the right to enter on

residential property and knock on the front door for the purpose of contacting the

occupants.   Cornealius v. State, 900 S.W.2d 731, 733–34 (Tex.Crim.App. 1995);

Washington, 152 S.W.3d at 214. Because entry is impliedly authorized, there is no

reasonable expectation of privacy with regard to things observed by those on the

pathway to the front door. Washington, 152 S.W.3d at 214 (citing Bower v. State, 769

S.W.2d 887, 897 (Tex. Crim. App. 1989)). While a law enforcement officer may enter

                                           9
upon the curtilage of a house in an effort to contact its occupants, the authorization may

not exist if the occupant has manifested his intent to restrict access to the area. See id.

at 215; Buchanan v. State, 129 S.W.3d 767, 773 (Tex.App.—Amarillo 2004, pet. ref’d).


       In the instant case, the implied authority to approach the house to contact the

occupant had been revoked by appellant’s directions for the officers to leave the

property. Here, the record shows that appellant instructed the officers at his residence

to leave his property, and the record further shows that, upon such instruction, at least

some of the officers complied. We take appellant’s instructions as a manifestation of his

intent to restrict access to the residence. See Washington, 152 S.W.3d at 215. With

that, as Rogers approached the residence and stood somewhere in or near the yard of

the back residence8 after appellant had directed the officers to leave his property, they

no longer enjoyed the implied authority to approach appellant’s residence, and neither

did Rogers, acting at their behest. So, we will treat the conduct as a search for the

purposes of the Fourth Amendment. Even assuming that Rogers was standing on a

pathway to which implied authority to approach would apply, once appellant made clear

his intent to restrict access to the property, continued or further presence on that

property was not authorized.9



       8
         The record suggests that Rogers’s position lay within the curtilage of that
residence. Whether his position was on the pathway to approach the residence is less
clear and complicated by the fact that there were two houses in the immediate area.
The front residence, a portable structure of some variety, was located on a circular drive
and the residence in which appellant was located was behind the front residence.
       9
          The State does not advance any other justification for the warrantless search. It
relies, instead, on the implied authorization for Rogers to approach the residence. The
State does not contend that the search was justified by exigent circumstances or was
                                            10
       If evidence is obtained by an officer or other person in violation of any provision

of the Constitution or laws of the State of Texas or of the Constitution or laws of the

United States, it is not admissible. TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Because

appellant expressed his intent to restrict access to the residence and, despite that

intent, the officers, through their instrument, approached his residence, they lacked the

authority to remain on the property, and their presence on the property violated

appellant’s constitutional right to be free of unreasonable searches.10 See U.S. CONST.

amends. IV, XIV.


       After having reviewed the relevant evidence both from the pretrial suppression

hearing and the trial and having concluded that Rogers, acting as an instrument of the

state, lacked authority to be in the position from which he identified appellant, we

conclude that the trial court erred when it denied appellant’s motion to suppress

evidence of the pretrial identification.




otherwise a legally justified warrantless search. It instead maintains that there was no
search because Rogers stood on the circle drive leading to appellant’s residence and
that they were authorized to be there by implication.
       10
         Further, appellant contends, the conduct violated state law. If evidence is
obtained by officers as a result of a criminal trespass, that evidence must be
suppressed. See Martin v. State, 67 S.W.3d 340, 344 (Tex.App.—Texarkana 2001, pet.
ref’d). Criminal trespass occurs when a person enters or remains on property after
being notified that entry is forbidden or received notice to depart but failed to do so. TEX.
PENAL CODE ANN. § 30.05(a) (West Supp. 2010). Written or oral notice, fencing, signs
forbidding entry, purple paint marks on trees or posts, and crop cultivation all effectively
place a person on notice that entry is forbidden. See id. § 30.05(b)(2).

                                             11
Harm analysis


      Having concluded that the trial court erred when it overruled appellant’s motions

to suppress and keeping in mind that it was evidence of Rogers’s pretrial identification

that should have been suppressed, we turn to a harm analysis.


      We review the harm resulting from a trial court’s erroneous denial of a motion to

suppress and subsequent admission of evidence obtained in violation of the Fourth

Amendment under the constitutional standard of Texas Rule of Appellate Procedure

44.2(a). See Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). Under

Rule 44.2(a), we evaluate the entire record in a neutral, impartial, and even-handed

manner, not in the light most favorable to the prosecution. Harris v. State, 790 S.W.2d

568, 586 (Tex.Crim.App. 1989). We must reverse a judgment of conviction and remand

for a new trial unless we determine beyond a reasonable doubt that the error did not

contribute to appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a); Hernandez,

60 S.W.3d at 108. Constitutional error may, however, be held harmless if there is

“overwhelming” untainted evidence to support the conviction. Harrington v. California,

395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In our analysis, we must

consider the source and nature of the error and its probable collateral implications, as

well as whether declaring it harmless would be likely to encourage the State to repeat it

with impunity. Harris, 790 S.W.2d at 587. We do not focus on the propriety of the

outcome, but calculate, to the degree possible, the probable impact of the error on the

conviction in light of the existence of other evidence.    See Wesbrook v. State, 29

S.W.3d 103, 119 (Tex.Crim.App. 2000). We are called on to examine the likelihood that

                                           12
the constitutional error was actually a contributing factor in the jury’s deliberations in

arriving at its verdict, that is, whether the error adversely affected “the integrity of the

process leading to the conviction.” Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App.

2007) (citing Harris, 790 S.W.2d at 587). Our primary concern is whether there is a

“reasonable possibility” that the error might have contributed to the conviction. Mosley v.

State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).


       Appellant contends that he was harmed by the admission of evidence of

Rogers’s identification because Rogers was the sole identification witness available to

the State that would show appellant was driving the vehicle at the time of the accident.

Rogers did identify appellant in court. Rogers’s identification was consistent throughout

the investigation and trial, and he testified that his in-court identification was based on

his interaction and observation of appellant at the scene of the accident, independent of

any visit to appellant’s residence the day of the accident. That Rogers also identified

appellant through a window at appellant’s house is cumulative of his in-court

identification.


       Further, we have testimony from DeLuna regarding his familiarity with appellant

through appellant’s relationship with DeLuna’s brother. He testified that he recognized

the green Cavalier as the vehicle he had seen appellant drive on previous occasions.

The record also shows that DeLuna learned at the scene that the abandoned vehicle

was registered to appellant’s father. With respect to the identification element, there

was a great deal of other evidence pointing to appellant as the missing driver. Based

on the volume and probative value of this other evidence, we conclude there is no

                                            13
“reasonable possibility” that the error might have contributed to appellant’s conviction,

and we hold the trial court’s erroneous denial of appellant’s motion to suppress to be

harmless. See Mosley, 983 S.W.2d at 259.


                                   In-Court Identification


       In addition to his direct challenge to the procedure leading to Rogers’s pretrial

identification, appellant relies on the impropriety of that procedure to challenge Rogers’s

in-court identification. Appellant also attacks Rogers’s pretrial identification of appellant

as an impermissibly suggestive show-up procedure.            He maintains that the pretrial

identification was tainted by law enforcement’s impermissibly suggestive show-up

procedure and was the product of only a partial view at some distance and extensive

priming by law enforcement that strongly suggested to Rogers that the man he was

about to see was, in fact, the missing driver. The taint of this procedure, appellant

seems to contend, extended to Rogers’s in-court identification of appellant, making it

inadmissible as well.


Applicable Law


       Appellant relies on the reasoning in Webb v. State, 760 S.W.2d 263, 269

(Tex.Crim.App. 1988), to support his position. In Webb, the Texas Court of Criminal

Appeals observed that “[a] pretrial identification procedure may be so unnecessarily

suggestive and conducive to mistaken identification that to use that identification at trial

would deny the accused due process of law.” Id. (citing Stovall v. Denno, 388 U.S. 293,

87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). That is to say, an in-court identification is

inadmissible if it has been tainted by an impermissibly suggestive pretrial identification
                                             14
procedure. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). However, it

is the “substantial likelihood of misidentification” that may be engendered by such

suggestive procedure that works the deprivation of due process. Webb, 760 S.W.2d at

269. Therefore, if the totality of the circumstances reveals no substantial likelihood of

misidentification, despite a suggestive pretrial procedure, subsequent identification

testimony will be deemed “reliable.” Id. And “reliability is the linchpin in determining the

admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97

S.Ct. 2243, 53 L.Ed.2d 140 (1977); Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App.

1995); Webb, 760 S.W.2d at 269.


       A defendant who claims that an in-court identification is inadmissible due to

improper out-of-court identification procedures must show that (1) the procedures used

were impermissibly suggestive and (2) the procedures gave rise to a substantial

likelihood of irreparable misidentification. Webb, 760 S.W.2d at 269; Williams v. State,

243 S.W.3d 787, 789 (Tex.App.—Amarillo 2007, pet. ref’d). A defendant bears the

burden of establishing by clear and convincing evidence that the pretrial identification

procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33–34; Harris v. State,

827 S.W.2d 949, 959 (Tex.Crim.App. 1992). In making a determination as to whether a

very substantial likelihood for irreparable misidentification has been created, we

consider several non-exclusive factors: (1) the witness’s opportunity to view the criminal

act, (2) the witness’s degree of attention, (3) the accuracy of the description of the

suspect, (4) the level of certainty at the time of confrontation, and (5) the time between

the crime and confrontation. Barley, 906 S.W.2d at 34–35 (citing Neil v. Biggers, 409

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).
                                            15
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); Williams, 243 S.W.3d at 789. The factors used to

determine whether an impermissibly suggestive identification procedure gives rise to a

substantial likelihood of irreparable misidentification are treated as historical issues of

fact and are viewed in the light most favorable to the trial court’s ruling. Loserth, 963

S.W.2d at 773. We, therefore, afford great deference 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. See id. at 773–74; Williams, 243 S.W.3d

at 789.


Impermissibly suggestive


       An in-field show-up procedure is generally considered to be suggestive, to some

degree. See Wilson v. State, 267 S.W.3d 215, 217 (Tex.App.—Waco 2008, pet. ref’d)

(“generally considered to be impermissibly suggestive”); Stewart v. State, 198 S.W.3d

60, 63 (Tex.App.—Fort Worth 2006, no pet.) (carries “a degree of suggestiveness”);

Pace v. State, 986 S.W.2d 740, 744 (Tex.App.—El Paso 1999, pet. ref’d) (“dubious

because of its suggestiveness”); see also Williams, 243 S.W.3d at 789–90 (reviewing

an in-field show-up procedure and observing that, under Delk v. State, 855 S.W.2d 700,

706 (Tex.Crim.App. 1993), it is “possible” that such a method was impermissibly

suggestive).    We will assume, without deciding, that the show-up identification

procedure used in the instant case was impermissibly suggestive and focus on the

                                            16
second prong of the Barley test: whether, under the totality of the circumstances, there

was a very substantial likelihood of irreparable misidentification. See Williams, 243

S.W.3d at 789 (observing that, even if the procedure used was possibly impermissibly

suggestive, such a conclusion does not end the inquiry).


Very Substantial Likelihood of Irreparable Misidentification


       Again, to determine whether the suggestive identification procedure created a

very substantial likelihood of irreparable misidentification, we consider the non-

exhaustive factors outlined in Barley, 906 S.W.2d at 35. We first note that Rogers had a

good opportunity to view the criminal act. Rogers first came into contact with appellant

when appellant clipped Rogers’s motorcycle. Then, Rogers watched the more serious

collision between appellant and Beltran. Rogers came to the accident scene and spoke

with appellant. He directed appellant to stay at the scene and also refused appellant’s

requests that Rogers not call the police. Rogers testified that he was in appellant’s

presence for five to seven minutes before appellant left the scene. He added that he

was between three and four feet of appellant at one point during that time period and

that he was about seven feet from appellant when Rogers made the call to 9-1-1. The

accident occurred midday on what Rogers described as a nice, clear day.


       With respect to Rogers’s degree of attention, we note that he expressed concern

about the status of the drivers upon arriving at the scene. His concern would suggest




                                            17
that his attention was focused on the individuals involved in the accident, though it

perhaps became more focused on the nonresponsive Beltran.11


       When DeLuna arrived, Rogers provided him a description of the driver as a

Hispanic male, 5’6’’ to 5’7’’ in height, with black hair and a medium build, wearing a blue

shirt and denim jeans.      DeLuna confirmed that appellant met Rogers’s description.

Appellant points out that Rogers failed to note the extensive tattoos on appellant’s arms.

Nonetheless, it appears that Rogers description was an accurate one, and serves to

add indicia of reliability to Rogers’s identification.


       Rogers has never equivocated on his identification of appellant, neither at the

residence nor at the time of trial.       During his trial testimony, Rogers was certain,

regardless of any observation of appellant at the residence, that appellant was the

driver. We cannot discount the fact that Rogers testified that his in-court identification

was based solely on what he had observed at the scene of the collision. See Barley,

906 S.W.2d at 35.


       We do note that it appears that trial was held about two years after the accident,

a relatively long time frame which could weigh in favor of appellant’s position. However,

considering the detail and certainty of Rogers’s testimony on this matter, it would seem

that the time elapsed “had no recognizable effect” on Rogers’s in-court identification.

See id. In light of the other indicia of reliability, we do not consider the time between the

collision and the confrontation conclusive.

       11
           Further, in response to defense counsel sidebar comment on Rogers’s
“amazing recall,” Rogers responded with an explanation that his previous experience as
a certified pharmacy technician demanded that he have good recall.
                                               18
       We conclude that, on these facts, the indicia of reliability of the in-court

identification outweigh the apparent corrupting effect of any unnecessarily suggestive

pretrial identification procedure. See Harris, 827 S.W.2d at 959. Because appellant

failed to prove by clear and convincing evidence that the pretrial identification procedure

was so impermissibly suggestive that it posed a very substantial risk of misidentification,

the trial court did not err in admitting Rogers’s in-court identification.   We overrule

appellant’s second point of error.


                                       Conclusion


       Having overruled appellant’s points of error, we affirm the trial court’s judgments

of conviction.




                                                        Mackey K. Hancock
                                                             Justice



Publish.




                                            19
