                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

                                                         §
 TERRELL RAY JACKSON,                                                      No. 08-09-00213-CR
                                                         §
                            Appellant,                                          Appeal from
                                                         §
 v.                                                                         297th District Court
                                                         §
 THE STATE OF TEXAS,                                                     of Tarrant County, Texas
                                                         §
                            Appellee.                                        (TC # 1107660D)
                                                         §

                                                 OPINION

        A jury convicted Terrell Ray Jackson of aggravated robbery with a deadly weapon and he was

sentenced by the trial court to life imprisonment together with a $10,000 fine.1 In two points of

error, Appellant complains that (1) the trial court abused its discretion by failing to suppress his

identification by two eyewitnesses because they were impermissibly tainted by improper pretrial

procedure; and (2) the evidence is both legally and factually insufficient to prove identity without

the allegedly tainted identifications. For the reasons that follow, we affirm.

                                          FACTUAL SUMMARY

        On April 2, 2008, at approximately 9:30 a.m., two men entered and robbed Sanjay Mehta’s

convenience store. The men were described as black males, early twenties, and one was wearing a

hooded sweatshirt and carrying a gun. The man with the gun--later identified as Appellant--crossed

over the counter, pointed the gun at Mehta, and ordered him to open the cash register. Mehta


        1
             Appellant was indicted and convicted on two aggravated robbery charges which were consolidated into a
single trial. The jury found him guilty of both charges and he was sentenced to life imprisonment and a $10,000 fine
for each charge. The judge elected to have the sentences run concurrently. Appellant appeals each charge separately
but in identical briefs. A separate opinion will be issued for each appeal.
complied. With the gun still pointed at Mehta, Appellant ordered him to get on the ground. Again,

Mehta complied. Mehta heard the man put the entire cash register drawer into what was described

as a black trash bag. Appellant also took Mehta’s wallet and cell phone. Meanwhile, Appellant’s

companion went through the store taking cigarettes, small novelty items, and knives.

       Kevin Pool, a regular customer and local fireman, then entered the store. He immediately

saw the men were robbing the place. Appellant pointed his gun at Pool and ordered him to get down,

but Pool turned and ran instead. A shot was fired in Pool’s direction, missing him but striking his

vehicle parked outside. Mr. Wicker, a postal worker, was standing on a corner across the street

having a cigarette when he heard the gunshot. He then headed toward the store as Pool ran by,

telling him a robbery was in progress. Wicker positioned his body behind a pole but kept his eyes

on the store as he called 911. He was approximately 100 feet from the entrance. He saw one man

wearing a hooded sweatshirt and carrying a black trash bag exit the store and climb into the

passenger side of a light blue vehicle. The car head north on Heights Street. Wicker was talking

with the 911 operator as these events unfolded and he related each of them to the operator as they

occurred. Wicker momentarily lost sight of the car as it made a left turn on Heights, but he soon

spotted it coming back toward him a few streets over. Wicker was certain the car he observed

leaving the store was the same one which the police pursued.

       Officers Thompson and Wallace were only blocks away when they received a dispatch of a

robbery with shots fired. The dispatch advised that the suspects were two black males driving a blue

four door vehicle west on Main. The officers immediately got into their respective patrol cars and

headed toward the crime scene. At the corner of Eagle and Main, the officers spotted the suspects.

The officers quickly made U-turns and a chase ensued for several blocks, picking up additional

patrol cars along the way. Appellant’s companion lost control of the car and ran into a ditch. The
two men exited the car and began to run. One ducked behind a house and was apprehended.

Appellant pulled a gun from his waistband, dropped it to the ground, hopped a fence and took off

toward some nearby soccer fields. Officers Wenman and Wallace pursued Appellant on foot and

were able to apprehend him. The total time lapse between the initial 911 call and the apprehension

was approximately thirty minutes.

       After police arrested the two men, they were handcuffed, placed in the back of separate squad

cars, and taken to the convenience store to see if Mehta or Pool could identify them. When

Appellant stepped outside of the car, Mehta quickly identified him as the man with the gun. A

second positive identification was subsequently made by Pool. Neither Mehta nor Pool observed

or overheard the other’s identification.

       All of the items stolen from the convenience store, including Mehta’s wallet, were found in

the blue car. A ballistics expert matched the bullet found lodged in Pool’s car to the gun Appellant

ditched before jumping the fence.

       Appellant was charged with the felony offense of aggravated robbery. He filed a motion to

suppress the pretrial and in-court identifications. After a hearing, the trial court found that, based

on the totality of the circumstances, the identifications were not impermissibly suggestive and denied

the motion to suppress.
                                    MOTION TO SUPPRESS

       We review a trial court’s ruling on a motion to suppress on the bifurcated standard of review

articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). This standard includes

review of a motion to suppress evidence based on a claim that an in-court identification should not

have been admitted due to the taint of an impermissibly suggestive pretrial identification procedure.

See Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App. 1998). We give almost total deference

to a trial court’s ruling on questions of historical fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673

(Tex.Crim.App. 2007). We review de novo mixed questions of law and fact that do not turn on the

credibility and demeanor of witnesses. Id.; Guzman, 955 S.W.2d at 88-89.

       A pretrial identification procedure may be so impermissibly suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny the accused due

process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247

(1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 1176,

116 S.Ct. 1271, 134 L.Ed.2d 217 (1996). Whether an identification procedure was so impermissibly

suggestive as to give rise to a substantial likelihood of misidentification is a mixed question of law

and fact which does not turn on an evaluation of credibility and demeanor. Loserth, 963 S.W.2d at

772-73. Accordingly we apply a de novo standard of review.

                                            Identification

       A two-step analysis is used to determine admissibility of an in-court identification. Delk v.

State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). First, we examine whether the pretrial

identification procedure was impermissibly suggestive. Id. at 706. Second, if we conclude the

identification was the result of an impermissibly suggestive procedure, then we examine the totality
of the circumstances to determine whether the impermissibly suggestive procedure gives rise to a

very substantial likelihood of irreparable misidentification. Id.

       While an in-field show-up identification is not per se a violation of due process, the courts

have expressed concern and noted such procedures can be problematic. See Neil v. Biggers, 409

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Garza v. State, 633 S.W.2d 508, 512

(Tex.Crim.App. 1982)(Opin. on reh’g); Scranton v. State, No. 2-09-242, 2010 WL 2721483, at *6

(Tex.App.--Fort Worth 2010, pet. filed)(not designated for publication); Stewart v. State, 198 S.W.3d

60, 63 (Tex.App.--Fort Worth 2006, no pet.). For purposes of this analysis, we assume without

deciding that the show-up was impermissibly suggestive and focus on whether, under the totality of

the circumstances, there was a very substantial likelihood of irreparable misidentification. See

Wilson v. State, 267 S.W.3d 215, 217 (Tex.App.--Waco 2008, pet. ref’d). In assessing the reliability

of the in-court identification, we weigh five nonexclusive factors against the corrupting effect of the

unduly suggestive identification procedure: (1) the opportunity of a witness to view the criminal at

the time of crime; (2) the witness’s degree of attention; (3) the accuracy of witness’s prior

description of the criminal; (4) the level of certainty demonstrated by witness upon confrontation;

and (5) the length of time between the crime and confrontation. Garza, 633 S.W.2d at 513; Loserth,

963 S.W.2d at 772. In weighing these factors, the burden is on the accused to show, by clear and

convincing evidence, that the witness’s identification was unreliable. See Pace v. State, 986 S.W.2d

740, 744 (Tex.App.--El Paso 1999, pet. ref’d).

                                               Analysis

       The trial court denied Appellant’s motion to suppress Mehta and Pool’s identification after

hearing testimony from Mehta, Pool, and several officers from the Crowley Police Department. Both

Mehta and Pool looked Appellant in the face and clearly observed his facial features. The robbery
occurred in broad daylight and both men viewed Appellant from only a few feet away. They both

described him to police as a younger, black male, wearing a hooded sweatshirt, and carrying a gun.

There were some inconsistencies regarding the color of the sweatshirt, but Appellant did discard a

hooded sweatshirt before his apprehension. Inconsistencies in testimony go toward the weight and

credibility of testimony. See Martinez v. State, 507 S.W.2d 223, 226 (Tex.Crim.App. 1974)(holding

that the fact that a witness cannot be positive in her identification goes to the weight of the

testimony, not its admissibility). Although neither witness saw Appellant for more than a minute

or two, each paid attention. The show-up identification occurred within a short period of time after

the robbery--only twenty or thirty minutes had elapsed. See Pinkston v. State, 744 S.W.2d 329, 334

(Tex.App.--Houston [1st Dist.] 1988, no pet.)(holding the fact that elderly aggravated robbery

victims saw perpetrator for approximately 35 to 45 seconds of the approximately 45 minutes that he

was in victims’ house, and that one victim’s glasses were knocked from his face went to weight of

their in-court identifications and not to admissibility).

       After being apprehended, Appellant and his cohort were brought back to the scene of the

robbery in separate cars. Mehta and Pool separately identified Appellant. In fact, when the police

brought Appellant back to the store, Mehta immediately identified him as the man who had robbed

him at gun point. Both witnesses were certain about Appellant’s identity. There was no evidence

the police prompted either witness or made any suggestive comments provoking their identifications.

We conclude the trial court did not abuse its discretion in ruling that the out-of-court identification

procedure was not impermissibly suggestive such as to give rise to a very substantial likelihood of

misidentification. We overrule Issue One.

                            INSUFFICIENCY OF THE EVIDENCE

       In his second issue, Appellant challenges the legal and factual sufficiency of the evidence to
support his conviction. After the parties filed their briefs, the Court of Criminal Appeals held in

Brooks v. State that the Jackson v. Virginia legal-sufficiency standard is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks

v. State, --- S.W.3d ----, 2010 WL 3894613 (Tex.Crim.App. 2010). In light of Brooks, we will

review only legal sufficiency.

        Appellant maintains that the evidence is insufficient to prove his identity because the in-court

identification was made based on impermissible pretrial identification procedures. Because we have

found no abuse of discretion with regard to denial of the motion to suppress, the identification

testimony was properly admitted. Testimony of either eyewitness, standing alone, would be

considered legally sufficient to support the jury’s conviction. See Aguilar v. State, 468 S.W.2d 75,

77 (Tex.Crim.App. 1971)(holding that testimony of eyewitness alone sufficient to support jury’s

verdict). However, even if the identification testimony had been suppressed, the evidence is legally

sufficient.

                                         Standard of Review

        In reviewing the legal sufficiency of evidence, we consider all evidence in the light most

favorable to the verdict to determine whether, based on that evidence and any reasonable inferences

therefrom, any rationale trier of fact could have found the defendant guilty of all the elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789,

61 L.Ed.2d 560, 573 (1979); Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009);

Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13

(Tex.Crim.App. 2007). This standard illustrates the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 318-19. We do not resolve any conflict of fact or reevaluate the

weight and credibility of the evidence, nor may we substitute our own judgment for that of the fact

finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Instead, our duty is only to

determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of

the evidence admitted at trial in a light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex.Crim.App. 1992). When the record supports conflicting inferences, we presume that

the fact finder resolved any inconsistencies in favor of the verdict and defer to such determination.

Clayton, 235 S.W.3d at 778; Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). The same

standard of review is applicable for both direct and circumstantial evidence cases. Geesa v. State,

820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28

S.W.3d 570 (Tex.Crim.App. 2000).

                                  Elements of Aggravated Robbery

        A person commits aggravated robbery if he commits robbery and he: (1) causes serious

bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another

person or threatens or places another person in fear of imminent bodily injury or death. TEX .PENAL

CODE ANN . § 29.03 (Vernon 2003). A deadly weapon is defined as a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything

that in the manner of its use or intended use is capable of causing death or serious bodily injury.

TEX .PENAL CODE ANN . § 1.07(a)(17)(A) and (B)(Vernon Supp. 2010). The essential element of an

aggravated robbery is the threat or fear of imminent bodily injury or death “generated simply by the

presence of a deadly weapon, its use or exhibition being merely incidental to its presence.” Maxwell

v. State, 756 S.W.2d 855, 858 (Tex.App.--Austin 1988, pet. ref’d). Specifically, the indictment

alleged that Appellant:
        INTENTIONALLY OR KNOWINGLY, WHILE IN THE COURSE OF
        COMMITTING THEFT OF PROPERTY AND WITH INTENT TO OBTAIN OR
        MAINTAIN CONTROL OF SAID PROPERTY, THREATEN OR PLACE
        SANJAY MEHTA IN FEAR OF IMMINENT BODILY INJURY OR DEATH, AND
        THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, TO-WIT: A
        FIREARM.

                                               Analysis

        Appellant’s sole argument is that the identification testimony should have been suppressed,

and without that testimony, the evidence is both legally and factually insufficient. However, even

without the actual identification, Mehta testified that a man matching Appellant’s description came

into his store, pointed a gun at him, and demanded he open the cash register. He and Pool both

testified that the robber shot at Pool when he ran from the store. Another witness watched a man

carrying a black trash bag enter a light blue vehicle and drive away, only to be spotted by police

officers at a nearby intersection. Several police officers testified they spotted the car at the

intersection and chased it for several blocks until the car lost control and both occupants abandoned

the vehicle and fled on foot. They also testified that Appellant pulled a gun from his waistband and

discarded it before he was arrested. A ballistics expert matched the gun to the bullet fired during the

robbery. He also testified that the gun met the legal definition of a firearm. Finally, all of the items

stolen, including Mehta’s wallet, cell phone, and cash register drawer, were found in the suspects’

car. Reviewing all the evidence in the light most favorable to the verdict, we conclude that any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt and therefore the evidence is legally sufficient. See Hooper, 214 S.W.3d at 13.

        We overrule Issue Two and affirm the judgment of the trial court.



January 5, 2011
                                                        ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
