Affirmed and Memorandum Opinion filed April 21, 2020.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00816-CR

                 BYRON DEMONTA COLEMAN, Appellant

                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 268th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 17-DCR-076513

                 MEMORANDUM OPINION

      A jury found Appellant Byron Demonta Coleman guilty of capital murder.
In a single issue, Appellant asserts the trial court erred in denying his motion to
suppress a witness’s pretrial photographic identification. For the reasons below,
we affirm.

                                  BACKGROUND

      Complainant Nerbert Frelow was shot to death in his parked vehicle on the
 afternoon of December 24, 2016. Jada Johnson, a passenger in Complainant’s
 vehicle, witnessed the shooting. Giving a statement to police later that afternoon,
 Johnson said she could identify the three individuals involved in Complainant’s
 death.

          After investigating the shooting, Detective Crowder compiled photo arrays
 for Johnson to see if she could identify any of the suspects as the individuals
 involved in Complainant’s death. One of the photo arrays contained Appellant’s
 picture along with pictures of five other men. This photo array was shown to
 Johnson at her residence on January 20, 2017. Johnson “pretty quickly” identified
 Appellant as the person who shot Complainant.           Johnson also wrote out the
 physical characteristics that supported her identification.

          Appellant was arrested and charged with murder.       Appellant moved to
 suppress Johnson’s pretrial photographic identification and the trial court held a
 hearing. After hearing testimony from Johnson and Detective Crowder, the trial
 court overruled Appellant’s motion. Testimony regarding Johnson’s identification
 and the photo array containing Johnson’s notes were admitted at Appellant’s trial.

          The jury found Appellant guilty of capital murder.         Appellant was
 automatically sentenced to life imprisonment with the possibility of parole. See
 Tex. Penal Code Ann. § 12.31(a)(1). Appellant timely appealed.

                                       ANALYSIS

          Appellant asserts the trial court erred by denying his motion to suppress
 Johnson’s pretrial photographic identification.

I.        Standard of Review and Governing Law

          We review a trial court’s ruling on a motion to suppress for an abuse of
 discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011);

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August v. State, 588 S.W.3d 704, 710 (Tex. App.—Houston [14th Dist.] 2019, no
pet.). We use a bifurcated standard of review, giving almost total deference to a
trial court’s determination of historical facts and mixed questions of law and fact
that turn on the credibility of a witness; we apply a de novo standard to questions
of law and mixed questions that do not depend on credibility determinations.
Martinez, 348 S.W.3d at 922-23; Zuniga-Hernandez v. State, 473 S.W.3d 845, 848
(Tex. App.—Houston [14th Dist.] 2015, no pet.).

      We view the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); August, 588
S.W.3d at 710. In a suppression hearing, the trial court is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. Zuniga-
Hernandez, 473 S.W.3d at 848.         We uphold the trial court’s ruling if it is
reasonably supported by the record and correct under any theory of law applicable
to the case. August, 588 S.W.3d at 710.

      A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that using the identification at trial would deny the accused
due process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001);
Fisher v. State, 525 S.W.3d 759, 762 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d). We apply a two-step analysis to determine the admissibility of a pretrial
identification:   (1) whether the out-of-court identification procedure was
impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a
very substantial likelihood of irreparable misidentification. Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999); Fisher, 525 S.W.3d at 762.              This
analysis requires an examination of the totality of the circumstances surrounding
the particular case. Conner, 67 S.W.3d at 200; Fisher, 525 S.W.3d at 762. The
burden is on the defendant to prove both prongs by clear and convincing evidence.

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  Aviles-Barroso v. State, 477 S.W.3d 363, 381 (Tex. App.—Houston [14th Dist.]
  2015, pet. ref’d).

         With respect to the first prong, suggestiveness may result from the manner in
  which the pretrial identification procedure was conducted; the content of the photo
  array; or the cumulative effect of the procedures and photographs used. Fisher,
  525 S.W.3d at 762 (citing Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App.
  1995)). All photo arrays must contain photographs of individuals who roughly fit
  the description of the suspect. Id. at 762-63.

         For the second prong, we assess the reliability of the identification by
  weighing five non-exclusive factors against the corrupting effect of any suggestive
  identification procedures: (1) the opportunity of the witness to view the suspect at
  the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the
  witness’s prior description of the criminal; (4) the level of certainty demonstrated
  by the witness at the identification; and (5) the length of time between the crime
  and the identification. Balderas v. State, 517 S.W.3d 756, 792 (Tex. Crim. App.
  2016); Fisher, 525 S.W.3d at 763.1

II.      Evidence

         Testifying at the suppression hearing, Johnson described the events
  preceding the shooting. Johnson said she was sitting in the front passenger seat of
  Complainant’s car, which was “backed in by the park.” According to Johnson, it
  was around 2:00 or 3:00 p.m. when she and Complainant were approached by three
  men who Johnson had not previously met. Johnson testified that Complainant
  stepped out of the vehicle and had a conversation with the three men for “a good
         1
           Balderas and Fisher use the word “confrontation” (instead of “identification”) in their
  description of elements 4 and 5, but in both cases the court was reviewing an identification the
  witness made from a photo array (as here). “Identification” is the more specific and appropriate
  term.

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25, 30 minutes.”     While the men were conversing, Johnson said she would
alternate between looking at the men and just generally taking in her surroundings.
Johnson said she was not “doing anything else” while sitting in the car. When
asked if she had been looking at her phone during the encounter, Johnson replied
“[n]o” and said she “didn’t have a phone.”

      Johnson said she “duck[ed] down on the — under the dashboard” when one
of the men pointed a gun at her. Johnson said she “kept looking up” to check on
Complainant because he was “out there by himself.” According to Johnson, she
was “able to see who shot [Complainant] after that point.” After the shooting
started, Johnson said she “climbed into the [car’s] back and got on the floor” and
stayed there for about five minutes before leaving the car to get help.

      Johnson said she gave the police a description of the three men and the
clothes they were wearing. According to Johnson, she told the police she “thought
[she] could identify those three males” that Complainant had been talking to when
he was shot. When the State’s attorney asked Johnson to describe the men “in
general terms”, Johnson stated: “One was younger than both of them. Another
one was dark, darker than both of them. And then another one was light-skinned.”
Johnson described the men’s clothes as follows:

      One of them had on basketball shorts and a black shirt. And then the
      other had on a gray shirt and — I think with some sweats. And the
      little guy had on a jacket, but I can’t remember what kind of bottoms
      he had on.

When the detectives arrived at her house with the photo array, Johnson said they
instructed her to take her time and told her that the person from the shooting may
not be in the photos.      Johnson said she was “very certain” regarding her
identification of Appellant as the person who shot Complainant.

      Detective Crowder said he initially met Johnson at the crime scene the day
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of the shooting.     Detective Crowder said Johnson provided the following
description of the men:

      She described them — one of them as a brown-skinned black male,
      looked real young, as — like he was 16 years old, wearing a black
      hoodie or a black shirt and a small afro.
      One of them was a darker-colored male who was sort of fat, wearing a
      gray or black shirt, and a low-fade haircut.
      Light-skinned male wearing a gray shirt was the third individual.

Detective Crowder said he created the photo array using a computer program to
“pull up individuals in our database with similar physical characteristics” to those
of Appellant. When asked about the level of human interaction necessary for this
process, Detective Crowder said the person preparing the array can “decide which
photos should stay and which should go.” Detective Crowder said he selected five
other individuals and the computer “randomize[d] them on the actual array.” The
five other individuals included on Appellant’s photo array have appearances
similar to Appellant’s.

      Detective Crowder testified that he and Detective Benegrado arrived at
Johnson’s house on January 20, 2017, to show her the photo array. Detective
Crowder said Johnson was verbally admonished before presentment of the photo
array; these admonitions were not given to her in writing. Detective Crowder
testified that the person who prepared the array could not be the same person that
presented the array to the witness, so Detective Benegrado presented the array to
Johnson. Detective Benegrado did not look at the array before presenting it to
Johnson.   According to Detective Crowder, the photo array was in a manila
envelope and Johnson was instructed to open the array for her view only. If she
was able to make a selection, Johnson was instructed to circle the photograph,
initial it, and write out any comments or characteristics supporting her

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   identification.

         Detective Crowder testified that Johnson identified Appellant “pretty
   quickly”, had a “strong emotional response”, and “began crying.” Johnson circled
   Appellant’s picture and wrote down the following notes: “his face”; “his eyes”;
   “his skin color”; “his lips”; and “I believe that he is the shooter.” According to
   Detective Crowder, Johnson said “she was 100 percent sure that [Appellant] was
   the shooter.”

III.     Analysis

         In his brief, Appellant does not direct any argument to the first prong of the
   applicable analysis, i.e., whether the identification procedure was impermissibly
   suggestive. See Fisher, 525 S.W.3d at 762. Appellant confines his argument to
   the second prong of the analysis and asserts Johnson’s identification was not
   reliable. See id.

         Beginning with the first prong, our review of the record does not indicate the
   identification procedure at issue here was impermissibly suggestive. Detective
   Crowder testified that the photo array was generated using a computer program
   and he selected five individuals with appearances similar to Appellant’s. Detective
   Crowder said the computer program randomized the order in which the pictures
   were placed in the array. The photo array was presented to Johnson by Detective
   Benegrado, who did not participate in its creation, did not look at it, and did not
   know where in the array Appellant’s picture was located. Detective Crowder and
   Johnson testified that Johnson was admonished before presentment of the array.
   Johnson was instructed to take her time and, if she could make an identification,
   circle the picture and write out any comments or characteristics supporting her
   determination. Considered altogether, this evidence does not show that the photo
   array or the manner in which the identification procedure was conducted were
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suggestive.

      Even presuming that the identification procedure was impermissibly
suggestive, the record does not show a substantial likelihood that Johnson
misidentified Appellant. According to Johnson, the shooting occurred on a sunny
afternoon; Johnson said Complainant stood outside the car for 25-30 minutes
conversing with the men before he was shot. Johnson said she alternated between
looking at the men and looking at her other surroundings. Johnson said she was
not “doing anything else” while sitting in the car. After the shooting, Johnson
provided a description of the men and their clothing and said she could identify
them. Johnson was “very certain” regarding her identification of Appellant and, on
Appellant’s photograph, wrote that her identification was supported by Appellant’s
face, eyes, skin color, and lips. According to Detective Crowder, Johnson had a
“strong emotional response” and “began crying” when she saw Appellant’s picture.

      Asserting that Johnson’s identification is not reliable, Appellant argues that
Johnson’s “degree of attention [wa]s called into question” because Johnson said
she “would look off” while Complainant was conversing with the three men.
Appellant also asserts that Johnson did not “have sufficient time to view the
criminal act at the time of the crime” because Johnson said she “duck[ed]” under
the dashboard when the shooting started.

      But this evidence does not show a substantial likelihood that Johnson’s
identification was in error. Johnson said that while Complainant and the three men
conversed for 25-30 minutes, she would alternate between looking at the men and
just generally taking in her surroundings. Johnson said she was not doing anything
else while she was sitting in the car. That Johnson occasionally looked away
during the encounter and “duck[ed]” under the dashboard only after the gun was
pointed at her does not negate the time she spent observing the men. Johnson also

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stated that she was able to see who shot Complainant after she ducked under the
dashboard, suggesting that she was still able to view the incident.          Further
supporting the reliability of her identification, Johnson provided a description of
the men and their clothing to the police; stated that she would be able to identify
the men; was confident in her identification of Appellant as the shooter; and listed
several of Appellant’s facial features that supported her identification. Considering
this evidence in the light most favorable to the trial court’s ruling, the evidence
does not support the conclusion that Johnson misidentified Appellant.

      We overrule Appellant’s issue on appeal.

                                   CONCLUSION

      We affirm the trial court’s final judgment.




                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Justices Bourliot, Hassan, and Poissant.

Publish — Tex. R. App. P. 47.2(b).




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