                                                                  ACCEPTED
                                                              14-15-00164-CR
                                              FOURTEENTH COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                        11/12/2015 2:57:59 PM
    No. 14-15-00164-CR                                  CHRISTOPHER PRINE
                                                                       CLERK
            In the
       Court of Appeals
            For the
  Fourteenth District of Texas              FILED IN
                                     14th COURT OF APPEALS
         At Houston                     HOUSTON, TEXAS
                          11/12/2015 2:57:59 PM
                                     CHRISTOPHER A. PRINE
         No. 1396268                          Clerk

  In the 179th District Court
   Of Harris County, Texas
  
NICHOLAS OLIVER GOREE
           Appellant
              V.
  THE STATE OF TEXAS
           Appellee
  

STATE’S APPELLATE BRIEF
  

                           DEVON ANDERSON
                           District Attorney
                           Harris County, Texas

                           DAN MCCRORY
                           Assistant District Attorney
                           Harris County, Texas
                           mccrory_daniel@dao.hctx.net

                           CARA BURTON
                           MELISSA DICKSON
                           Assistant District Attorneys
                           Harris County, Texas

                           1201 Franklin, Suite 600
                           Houston, Texas 77002
                           Tel.: 713/274-5826
                           FAX No.: 713/755-5809

                           Counsel for Appellee

ORAL ARGUMENT WAIVED
              STATEMENT REGARDING ORAL ARGUMENT


      Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument since the

briefs adequately address all the legal issues and appellant also waived argument.




                                         i
                                     TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

SUMMARY OF THE ARGUMENTS ....................................................................... 4

REPLY TO POINT OF ERROR ONE ....................................................................... 5

CERTIFICATE OF SERVICE ................................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 15




                                                      ii
                                       INDEX OF AUTHORITIES


CASES

Bryant v. State,
  666 S.W.2d 124 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d) ...................10

Carvajal v. State,
  No. 04-94-00680-CR, 1995 WL 595802 (Tex. App.--San
  Antonio Oct. 4, 1995, no pet.) (not designated for publication) ............................9

Layton v. State,
  280 S.W.3d 235 (Tex. Crim. App. 2009) ................................................................6
Miles v. State,
 468 S.W.3d 719 (Tex. App.--Houston [14th Dist.] 2015, pet. filed) ......................6
Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002)................................................................ 11

Renfro v. State,
  822 S.W.2d 757 (Tex. App.--Houston [14th Dist.] 1992, pet. ref’d) ...................10

Simpson v. State,
  181 S.W.3d 743 (Tex. App.--Tyler 2005, pet. ref’d) ............................................13
Sneed v. State,
  955 S.W.2d 451 (Tex. App.--Houston [14th Dist.] 1997, pet. ref’d) .....................7

Sohail v. State,
  264 S.W.3d 251 (Tex. App.--Houston [1st Dist.] 2008, pet. ref’d)......................10

Wells v. State,
 880 S.W.2d 185 (Tex. App.--Texarkana 1994, pet. ref’d)......................................9

RULES

TEX. R. APP. P. 44.2 .................................................................................................10
TEX. R. APP. P. 39.7 .................................................................................................... i

                                                            iii
TEX. R. EVID. 401 .......................................................................................................6
TEX. R. EVID. 402 .......................................................................................................6




                                                           iv
TO THE HONORABLE COURT OF APPEALS:


                           STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of aggravated

robbery, enhanced by a prior felony conviction. (CR 17). After finding appellant

guilty of the charged offense and the allegation in the enhancement paragraph true,

the jury assessed punishment at 38-years confinement. (CR 151).


                            STATEMENT OF FACTS

      The complainant, Larry Rodriguez, lived with his mother in an apartment.

(RR V 91, 93). On one particular day, at about 5:00 p.m., Rodriguez was alone in

the apartment when he answered a knock on his door. (RR V 99-101). Upon

opening the door, he saw appellant’s codefendant, Paul Byrd, wearing a white tank

top and armed with a gun. (RR V 103, 255). The complainant tried to close the

door, but Byrd forced his way into the apartment. (RR V 104-105).

      Once inside the apartment, Byrd ordered the complainant to lay on the

ground. (RR V 106). The complainant laid down, but he “had [his] eyes up” so

that he could see. (RR V 109). As Byrd stood over the complainant, appellant

entered the apartment wearing a multicolored striped tank top. (RR V 56-57, 107-

108, 113, 170). The complainant saw something in appellant’s hand that appeared

to be a gun. (RR V 113).
       Appellant demanded to know the location of the complainant’s money and

safety deposit box. (RR V 110).        While Byrd continued to stand over the

complainant with a gun, appellant moved about the apartment collecting the

complainant’s wallet and other property (including jewelry, a TV, a laptop, and an

Xbox) and loaded the items into the complainant’s mother’s red Sentra which was

parked right outside the apartment. (RR V 17, 110-116, 151, 173-174). After

securing these belongings, appellant and Byrd left the apartment. (RR V 117-118).

A short time later, the complainant’s mother arrived home and called the police.

(RR V 118-119).

       Appellant and Byrd spent about ten or fifteen minutes inside the

complainant’s apartment. (RR V 115, 189). During this time, the complainant got

a “full view” of appellant. (RR V 112). He saw appellant in a well-lit room from a

distance of about two or three feet. (RR V 112).

       Meanwhile, the complainant’s mother, Norma Leal, arrived home at about

5:45 p.m. (RR V 12). As she approached her home from the bus stop across the

street from her apartment, Leal saw appellant loading property into a red car. (RR

V 12-16, 56-57). As she drew closer, Leal realized it was her car that appellant

was loading. (RR V 21). When Leal was about three parking spaces away from

him, appellant and his accomplice got in her car and drove away. (RR V 20-21,

66).



                                         2
      The suspects drove “right close to” Leal and almost hit her as they left. (RR

V 21, , 84). She had to jump out of the way to avoid being hit. (RR V 86, 88-89).

She looked at them for several seconds and “had a pretty clear look at their

face[s].” (RR V 22, 24). Leal then entered her home and found the complainant

lying face down on the floor. (RR V 24).

      Two police officers arrived shortly after Leal called for them. (RR V 25-26).

The complainant and his mother provided the officers a description of the suspects,

the stolen property, and the stolen car. (RR IV 31-33). One of the officers, Erica

Dean, learned that Leal’s car had crashed into a bus stop located about one mile

from the scene of the robbery. (RR IV 33-38; RR V 29-30). From there, the

suspects fled on foot. (RR IV 34).

      Appellant and Byrd soon were apprehended while hiding under a tarp in a

locked, fenced-in area behind a nearby Sam’s Club. (RR IV 39-41; RR V 208-209,

212-213, 222-223). They were in possession of some of the items stolen during the

robbery, as well as two guns. (RR IV 41-46; RR V 216-227, 240-243).

      Officers escorted appellant and Byrd back to the apartment in separate patrol

vehicles to see if Leal could identify them in a “show up” identification procedure.

(RR IV 45-47, 66, 75). This occurred about one hour after the officers initially left

the apartment. (RR V 58). While Leal observed, the two suspects were removed

from the patrol vehicles “one by one” in the parking lot. (RR IV 76). Leal got a



                                           3
good look at each suspect and immediately identified both of them as being

involved in the robbery. (RR IV 77-79; RR V 52). Leal was “a hundred percent”

certain of her identification of appellant. (RR V 55).

      The complainant did not participate in this show up identification procedure

because he was still in shock at the time. (RR V 155). However, he observed a

lineup the following morning and identified appellant as one of the robbers. (RR V

155-164, 190). The complainant was positive of his identification of appellant,

stating “I knew it was him.” (RR V 166, 190).


                      SUMMARY OF THE ARGUMENTS

      The complainant’s misidentification of a different defendant (Byrd) in a

different lineup identification procedure was not relevant to the accuracy of the

complainant’s identification of appellant in a separate lineup because different

circumstances underlie each identification procedure, meaning the complainant’s

performance in one lineup was not indicative of the accuracy of his identification

in the other lineup. Furthermore, even if the exclusion of evidence regarding the

Byrd lineup was erroneous, any error was harmless because such evidence, at best,

was only marginally relevant and the evidence establishing appellant’s identity as

one of the robbers was overwhelming.




                                          4
                        REPLY TO POINT OF ERROR ONE

        In his sole point of error, appellant contends the trial judge erred in

excluding evidence of the complainant’s misidentification during his observation

of Byrd’s lineup procedure. Appellant maintains such evidence is relevant to the

contested issue of appellant’s identity as the robber.

Relevant facts

        The complainant actually viewed two lineups the day after the robbery. (RR

V 131).      The two lineups were used to identify two separate individuals,

presumably appellant and Byrd. (RR V 131). The complainant identified appellant

in the second lineup. (RR V 130-131). He was positive of his identification. (RR V

131). He did not identify anyone other than appellant in that lineup. (RR V 130).

        In the first lineup, however, the complainant identified two people, neither of

whom were appellant or Byrd. (RR V 138). Since the complainant testified the

two lineups were used to identify separate individuals and appellant appeared in

the second one, evidently Byrd was in the first one and appellant was not. (RR V

131).

        Appellant attempted to cross-examine the complainant about his

misidentifications in the first lineup, explaining such evidence was relevant

because if the complainant “was incorrect in the first [lineup], he could have been




                                           5
incorrect in the second one.” (RR V 186-187). The judge determined evidence

relating to the first lineup was not relevant and excluded it. (RR V 186-187).

Standard of review

      A trial judge’s decision to exclude evidence is reviewed for an abuse of

discretion. Miles v. State, 468 S.W.3d 719, 724 (Tex. App.--Houston [14th Dist.]

2015, pet. filed). The ruling will not be reversed unless it falls outside the zone of

reasonable disagreement. Id.

Argument and authority

      The trial judge excluded evidence relating to the complainant’s

misidentifications during the Byrd lineup after determining it was not relevant.

(RR V 186-187). On appeal, appellant responds that the excluded evidence was

relevant to the complainant’s identification of appellant (which occurred during a

different lineup). (appellant’s brief, pp. 15-16).

      Generally, relevant evidence is admissible and evidence that is not relevant

is not admissible. TEX. R. EVID. 402. “Relevant evidence” means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence. TEX. R. EVID. 401. When determining whether evidence is

relevant, courts must examine the purpose for which the evidence is being

introduced. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). It is



                                           6
critical that there is a direct or logical connection between the actual evidence and

the proposition sought to be proved. Id. Questions of relevance should be left

largely to the trial court, relying on its own observations and experience. Sneed v.

State, 955 S.W.2d 451, 453 (Tex. App.--Houston [14th Dist.] 1997, pet. ref’d).

      The trial judge did not abuse her discretion by excluding evidence of the

complainant’s misidentification during the Byrd lineup.          The complainant’s

inability to accurately identify another defendant (Byrd) in another lineup (the first

lineup) is not relevant to the accuracy of the complainant’s identification of

appellant in a different lineup (the second lineup).

      There was no evidence that whatever circumstance may have prevented the

complainant from identifying the correct suspect in the first lineup existed in

relation to the second lineup as well. For example, the record indicates that the

complainant had a better opportunity to see appellant than Byrd during the robbery.

The complainant did see Byrd’s face when he initially opened his front door, but

the complainant’s attention was quickly diverted to the gun in Byrd’s hand. (RR V

103, 152). Byrd forced the complainant to lay down on his stomach and then stood

over the complainant’s prone body. (RR V 106, 109, 151). Byrd remained standing

over the complainant, straddling his body with his feet, during the entire robbery.

(RR V 108, 173-174). Byrd did not say anything during this time. (RR V 108).

Given Byrd’s position directly over the complainant, it would have been difficult



                                          7
for the complainant to see Byrd during the ten- to fifteen-minute period the robbers

were in the apartment. (RR V 174, 189).

      On the other hand, the complainant was able to observe appellant during the

lengthy robbery. Although he was laying on his stomach, the complainant’s “face

wasn’t completely down” and he had his “eyes up.” (RR V 109). So he could see

appellant “going back and forth” as he asked the complainant the location of

certain items. (RR V 108-109, 176-177). In fact, the complainant gained a “full

view of” appellant as appellant entered Leal’s bedroom in search of jewelry. (RR V

112). He saw appellant from a distance of only several feet. (RR V 112). The

complainant also heard appellant speak a couple of phrases during the robbery

which the second lineup participants were required to repeat during the

identification procedure. (RR V 110; RR VII - SX 41).

      Given the disparity in the complainant’s opportunity to observe the two

robbers, the complainant’s inability to accurately identify Byrd in the first lineup

speaks to the complainant’s lack of opportunity to sufficiently view Byrd.

Similarly, having heard appellant speak certain phrases during the crime and during

the lineup procedure, the complainant had more tools with which to accurately

identify appellant.

      So the complainant’s inability to accurately identify Byrd in the first lineup

was not relevant to the complainant’s ability to accurately identify appellant in the



                                          8
second lineup since the complainant’s failure to correctly identify Byrd likely was

caused by circumstances unique to the first lineup. In other words, since the

lineups involved different situations (i.e., the extent of the complainant’s ability to

see the individuals during the robbery and the availability of a voice comparison,

and perhaps circumstances relating to how the two lineups were constructed and

administered), the complainant’s performance at one particular suspect’s lineup

had no bearing on the accuracy of his identification at a different defendant’s

lineup.


      A somewhat analogous issue was addressed in Wells v. State, 880 S.W.2d

185 (Tex. App.--Texarkana 1994, pet. ref’d). The defendant was charged with the

offense of possessing cocaine. Id. at 186. The defendant attempted to ask one of

the arresting officers if he had ever made a mistake in a drug arrest by questioning

him about a prior arrest that allegedly had not resulted in a conviction. Id. at 187.

The trial judge determined this evidence was not relevant to the defendant’s case

and excluded it.     Id.   The reviewing court ruled that evidence of a prior

misidentification was not relevant to any fact issue in the case. Id. at 188; see also

Carvajal v. State, No. 04-94-00680-CR, 1995 WL 595802, at *2 (Tex. App.--San

Antonio Oct. 4, 1995, no pet.) (not designated for publication) (interpreting Wells

as rendering prior misidentifications irrelevant).




                                          9
      Similarly, in the instant case, the complainant’s inability to identify Byrd in

the context of his unique lineup procedure was not relevant to the complainant’s

ability to identify appellant in a separate lineup procedure. While evidence of prior

misidentifications of a particular defendant may be relevant to show in a specific

case that that particular defendant has been incorrectly identified, the

misidentification of people other than the defendant is not relevant to the issue of

whether the defendant was correctly identified. Id.; Bryant v. State, 666 S.W.2d

124, 125-26 (Tex. App.--Houston [14th Dist.] 1983, pet. ref’d); Compare Renfro v.

State, 822 S.W.2d 757 (Tex. App.--Houston [14th Dist.] 1992, pet. ref’d).


      Since the evidence of the complainant’s misidentification during the Byrd

lineup was not relevant, the trial judge did not abuse her discretion by excluding it.

Absent any error, appellant’s point of error is meritless and should be overruled.

      Moreover, even assuming the exclusion of the misidentification evidence

was erroneous, any error was harmless. The Texas Rules of Appellate Procedure

require appellate courts to disregard any error in the exclusion of evidence that

does not affect the defendant’s substantial rights. Sohail v. State, 264 S.W.3d 251,

262 (Tex. App.--Houston [1st Dist.] 2008, pet. ref’d) (citing TEX. R. APP. P.

44.2(b)). Substantial rights are affected only when the error has a significant and

injurious effect on the jury. Sohail, 264 S.W.3d at 262. If there is no influence or

only a slight effect on the jury, reversal is not required. Id.


                                           10
      Even assuming the complainant’s misidentification of Byrd in a separate

identification procedure was somehow relevant to the complainant’s identification

of appellant in an entirely different lineup procedure, any relevance was minimal

for the same reasons argued above for the proposition that evidence of the Byrd

lineup was without any relevance.             Namely, given the disparity in the

complainant’s ability to see and hear appellant and Byrd during the commission of

the robbery and any possible differences in the manner in which the two lineups

were conducted, any relevancy assigned to the complainant’s performance at the

Byrd lineup was marginal, at best.

      Furthermore, the evidence of appellant’s identity as one of the robbers was

overwhelming. Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002)

(overwhelming evidence is factor in harm analysis). The complainant testified that

he got a “full view” of appellant during the commission of the offense. (RR V 112).

Appellant was in the complainant’s apartment for about ten or fifteen minutes and

the complainant saw appellant in a well-lit area from a distance of several feet. (RR

V 112, 189). The complainant also heard appellant’s voice when he made a couple

of comments. (RR V 110).

      During the live lineup, appellant and the other lineup participants were

presented to the complainant in a variety of poses so that the he could view their

features from a number of different angles. (RR V 162; RR VII – SX 41). The



                                         11
lineup participants also were made to recite the same comments the robber made

during the robbery. (RR V 162; RR VII – SX 41). So the complainant was

provided a very detailed image of all the lineup participants.

      The complainant testified at trial that he was positive of his lineup

identification of appellant, explaining that he recognized appellant’s body frame.

(RR V 165-166). The complainant “saw [appellant] in the lineup and [he] knew

him. [He] knew it was him.” (RR V 190). He also closely looked at the faces of

the five men in appellant’s lineup. (RR V 178). He identified appellant during the

lineup based on his memory of the robbery and he would have been able to identify

appellant in court even if he had not viewed the lineup. (RR V 164).           The

complainant did, in fact, identify appellant in court. (RR V 164). Accordingly, the

record demonstrates that the complainant’s identification of appellant was very

strong.

      Leal also provided compelling evidence relating to appellant’s identification

as one of the robbers. She saw appellant load her car with stolen property and then

drive away from the apartment with Byrd. (RR V 13-22). She saw appellant three

times during the entire episode. (RR V 22). Leal was “right in front of them” as

they drove away and she clearly saw their faces. (RR V 22-24, 69).            Leal

immediately identified appellant and Byrd as the robbers about an hour later during

the show-up identification procedure. (RR IV 78; RR V 54-55, 58). She was “a



                                         12
hundred percent” certain of her identification of appellant. (RR V 55). She also

identified appellant in court as the robber. (RR V 56-57).

      In addition to this convincing identification testimony from these two

eyewitnesses, appellant and Byrd were apprehended a short time after the robbery

at a location near the complainant’s apartment (and near the wrecked stolen car)

while in possession of two guns and property stolen from the complainant’s

apartment. (RR IV 34-41, 44; RR V 123-126, 152). Appellant and Byrd matched

the description provided to police by Leal. (RR IV 41-42). Appellant’s possession

of the recently stolen property provides compelling evidence establishing his

identity as the robber. Furthermore, appellant’s attempt to hide from the police

further strengthens the evidence of his guilt and his identity as the robber. (RR 212-

213, 223). Simpson v. State, 181 S.W.3d 743, 755 (Tex. App.--Tyler 2005, pet.

ref’d) (attempt to hide evinces a consciousness of guilt).

      Therefore, at best, evidence of the complainant’s misidentification during

Byrd’s lineup was only marginally relevant to the complainant’s identification of

appellant. More importantly, the evidence establishing appellant’s identity as the

robber was overwhelming. Therefore, the admission of the excluded evidence

would not have influenced the jury’s assessment of the identity issue. As such, any

error in the exclusion of the evidence was harmless.

      Point of error one is meritless and should be overruled.



                                         13
                                CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Dan McCrory
                                                 DAN McCRORY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 274-5826
                                                 TBC No. 13489950
                                                 mccrory_daniel@dao.hctx.net




                                         14
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following email address via TexFile:

      Mark A. Rubal
      Attorney at Law
      mrubal@ws-law.com


                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 274-5826
                                                TBC No. 13489950



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 2,974 words, based upon the representation provided by the
word processing program that was used to create the document.


                                                /s/ Dan McCrory
                                                DAN McCRORY
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 274-5826
                                                TBC No. 13489950
Date: 11/12/2015


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