Reversed and Remanded and Opinion filed November 5, 2019.




                                       In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00448-CR

                   ADRIENNE DERAY AUGUST, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

               On Appeal from the 506th Judicial District Court
                           Waller County, Texas
                    Trial Court Cause No. 17-04-16006

                                 OPINION

      Appellant Adrienne Deray August was convicted of burglary of a habitation
and sentenced to 20 years’ confinement. In three issues, Appellant asserts (1) the
trial court erred by denying his motion to suppress; (2) the evidence is legally
insufficient to support his conviction; and (3) the trial court erred by denying his
motion for new trial. For the reasons below, we reverse Appellant’s conviction
and remand the case for a new trial.
                                   BACKGROUND

      Appellant was arrested and charged with burglary of a Brookshire
apartment. Before he proceeded to trial, Appellant filed a motion to suppress
eyewitness Daniel Glover’s identification of Appellant as one of the suspects
involved in the burglary. Glover observed the burglary during the early-morning
hours of January 25, 2017; he said he heard glass breaking and watched three
individuals carrying plastic bags and other objects from a downstairs apartment to
a car parked out front. Glover later was presented with Appellant and two other
men at a show-up identification. After a hearing, the trial court denied Appellant’s
motion to suppress.

      Appellant’s three-day trial was held in May 2018.         After the close of
evidence, the jury found Appellant guilty. Appellant timely appealed.

                                       ANALYSIS

      Appellant asserts three issues on appeal:

      1.     The trial court abused its discretion by denying Appellant’s motion to
             suppress Glover’s out-of-court identification.
      2.     The evidence is legally insufficient to support Appellant’s conviction
             for burglary of a habitation.
      3.     The trial court abused its discretion by denying Appellant’s motion for
             new trial.

With respect to Appellant’s second issue, we conclude his conviction is supported
by legally sufficient evidence. Turning to Appellant’s first issue, we conclude the
trial court abused its discretion by denying Appellant’s motion to suppress. Based
on our disposition of this issue, we do not address Appellant’s third challenge with
respect to his motion for new trial.



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I.     Legally Sufficient Evidence Supports Appellant’s Conviction for
       Burglary of a Habitation.

       We begin by addressing Appellant’s second issue which, if sustained, would
 be dispositive of his appeal. See, e.g., Wyatt v. State, 367 S.W.3d 337, 340 (Tex.
 App.—Houston [14th Dist.] 2012, pet. dism’d). Appellant argues the evidence is
 legally insufficient to support his conviction for burglary of a habitation because
 “the only evidence linking appellant to this offense is the testimony of law
 enforcement that the witness identified appellant on the scene.”

       A.     Standard of Review and Governing Law

       For a legal-sufficiency challenge, we view the evidence adduced at trial in
 the light most favorable to the verdict and determine whether any rational trier of
 fact could have found the essential elements of the offense beyond a reasonable
 doubt. See Williams v. State, 937 S.W.2d 479, 482-483 (Tex. Crim. App. 1996)
 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). A person commits burglary of a
 habitation if, without the consent of the owner, the person enters the habitation and
 commits or attempts to commit theft. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon
 2019). The Penal Code defines “enter” as intruding with any part of the body or
 any physical object connected with the body. Id. at (b). A person commits theft if
 the person appropriates property without the owner’s effective consent with intent
 to deprive the owner of the property. Id. § 31.03(a), (b)(1) (Vernon 2019).

       B.     Evidence at Trial

       Four witnesses testified at Appellant’s trial: eyewitness Glover, Brookshire
 police officers Sheraz Khan and Robert Ruiz, and Lisa Woods.

       Glover testified regarding the burglary and his subsequent identification of
 Appellant as one of the individuals involved in the incident. Glover said he was
 awake in his apartment around 2:00 a.m. when he heard glass breaking; he looked
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out his dining room window and saw three individuals carrying bags or objects
from the downstairs apartment to a white car parked out front. Describing the
parking lot’s lighting as “not very good,” Glover said he could see only the
individuals’ silhouettes and could not make out their facial features. Glover also
described some of the individuals’ clothing.

      Glover testified that he watched the individuals for 30-35 minutes. When
they were closest to his dining room window, Glover said they were about three-
to-five feet away; at their vehicle, they were about 10-15 feet from Glover’s
window. On cross-examination, Glover stated he wears glasses to see distance but
was not wearing his glasses the night of the burglary. Glover said his lack of
glasses did not impact his perception of the incident.

      Glover’s wife called the police while he continued to watch the burglars
from his window. Glover testified that the police responded to his apartment
complex about five minutes after the burglars left.          Three men, including
Appellant, were transported to Glover’s complex for a show-up identification.
Glover said he was not able to identify the individuals he had seen by their facial
features or looks, but recognized their heights, builds, and some of their clothing.
On cross-examination, Glover acknowledged that, during the motion-to-suppress
hearing held the previous month, he was not able to “formally identify” Appellant
as one of the individuals who committed the burglary. Prior to trial, the State filed
a “Formal Notice of All Known Potential Brady Evidence” stating, at that time,
Glover was unable to identify Appellant in open court.

      Officer Khan began his testimony by describing a traffic stop he made
around 2:00 a.m. approximately one block from Glover’s apartment complex.
Officer Khan pulled over a white car for making an illegal U-turn; three men were
riding in the car, including Appellant.        Officer Khan testified that the car’s

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occupants said they were out looking at horses in the area; Officer Khan said the
occupants’ stories were “kind of . . . out of place” and differed from one to another.
Officer Khan searched the vehicle and found in the trunk a crowbar, a bolt cutter,
black gloves, a “do-rag” which “is basically a hair cap,” and some other clothing
items. Officer Khan did not find any property in the car that later was reported
missing from the burglarized apartment.

      Officer Khan said he became aware of the burglary at Glover’s complex
about 15 minutes after initiating the traffic stop.      This testimony is directly
contradicted by the video evidence admitted at the motion-to-suppress hearing but
not admitted at trial. The video evidence shows that, between the time Officer
Khan made the stop and the time he became aware of the burglary, approximately
40 minutes had elapsed. Officer Khan testified that the three men from the traffic
stop were transported to Glover’s complex and Glover “was able to positively
identify” the men as the individuals involved in the burglary. This testimony is
directly contradicted by the video evidence admitted at the motion-to-suppress
hearing but not admitted at trial. Specifically, when asked “How sure are you?”
about the individual in the orange t-shirt, Glover responds, “Not that sure.” When
asked next about the individual in the black t-shirt, Glover says, “I don’t know if
that’s one for sure.” He then positively identified the driver (the third individual)
by the pants he was wearing. Appellant was the individual in the black t-shirt.

      Officer Ruiz also responded to the traffic stop and testified that the men in
the white car were “very nervous.” Towards the end of the traffic stop, Officer
Ruiz received the dispatch about the burglary and drove to Glover’s apartment
complex. Investigating the burglarized apartment, Officer Ruiz said the living
room and bedroom had been “ransacked.” Officer Ruiz was present during the
show-up identification and testified that Glover positively identified Appellant and

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  the other two men as the individuals involved in the burglary. This testimony is
  directly contradicted by the video evidence admitted at the motion-to-suppress
  hearing but not admitted at trial.

        Lisa Woods, the tenant in the burglarized apartment, was the last witness to
  testify at Appellant’s trial. Stating that she did not give anyone permission to enter
  her apartment, Woods stated the burglars stole TVs, jewelry, purses, a tablet, and
  games.

        C.     Application

        Appellant’s burglary-of-a-habitation conviction is supported by legally
  sufficient evidence at the trial. Without any evidence to the contrary, the jury
  reasonably could have believed the testimony of the officers regarding Glover’s
  positive identification of Appellant. Contrary to Appellant’s position, a police
  officer may testify about another witness’s out-of-court identification of the
  alleged wrongdoer. See Smith v. State, 520 S.W.2d 383, 385 (Tex. Crim. App.
  1975) (“No expertise is required to testify that a ‘positive identification’ was
  made.”); see also, e.g., Rodriguez v. State, 975 S.W.2d 667, 682 (Tex. App.—
  Texarkana 1998, pet. ref’d); and Smith v. State, 830 S.W.2d 328, 329 (Tex. App.—
  Houston [14th Dist.] 1992, no pet.).       Even though this testimony is directly
  contradicted by video evidence admitted in the motion-to-suppress hearing, the
  applicable video evidence was not admitted (or offered) into evidence in the trial
  on the merits. Therefore, the jury did not have the opportunity to consider it.

        Having found the evidence presented to the jury sufficient to support the
  conviction, we overrule Appellant’s second issue.

II.     The Trial Court Erred by Denying the Motion to Suppress.

        We turn now to Appellant’s first issue, in which he asserts the trial court

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erred in denying his motion to suppress because (1) the show-up identification was
unnecessarily suggestive, and (2) Glover’s identification was unreliable.

      A.      Standard of Review and Governing Law

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion, viewing the evidence in the light most favorable to the trial court’s
ruling. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Mendoza
v. State, 443 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The trial court is the sole judge of the witnesses’ credibility and the weight to be
given their testimony, and we afford almost total deference to its express or
implied determinations of historical fact unless those determinations are not
supported by the record. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013); Scott v. State, 572 S.W.3d 755, 760 (Tex. App.—Houston [14th Dist.] 2019,
no pet.). We sustain the trial court’s ruling if it is reasonably supported by the
record and correct under any theory of law applicable to the case. Laney v. State,
117 S.W.3d 854, 857 (Tex. Crim. App. 2003).

      A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial constitutes
a denial of due process. Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App.
1995).     We review de novo the question of whether a pretrial identification
procedure amounted to a denial of due process. Mendoza, 443 S.W.3d at 363. To
satisfy this burden, Appellant must show by clear and convincing evidence that
(1) the pretrial identification procedure was impermissibly suggestive, and (2) the
pretrial identification procedure gave rise to a substantial likelihood of irreparable
misidentification. Tutson v. State, 530 S.W.3d 322, 326 (Tex. App.—Houston
[14th Dist.] 2017, no pet.).

      “On the scene” or “show up” identifications do not necessarily violate a
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defendant’s right to due process but tend to be suggestive to some degree. Id. at
327. We consider the totality of the circumstances in determining whether a show-
up identification was impermissibly suggestive. Mendoza, 443 S.W.3d at 364.

      To determine whether an impermissibly suggestive identification procedure
gave rise to a substantial likelihood of irreparable misidentification, we consider
five nonexclusive factors: (1) the witness’s opportunity 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 suspect; (4) the level of certainty demonstrated
by the witness at the confrontation; and (5) the length of time between the crime
and the confrontation. Tutson, 530 S.W.3d at 327. Because these factors are
nonexclusive, we may consider any other appropriate factor. See Loserth v. State,
985 S.W.2d 536, 543 (Tex. App.—San Antonio 1998, pet. ref’d); Jimenez v. State,
787 S.W.2d 516, 522-23 (Tex. App.—El Paso 1990, no pet.). These factors are
weighed deferentially in a light favorable to the trial court’s ruling. Loserth, 985
S.W.2d at 543; Jimenez, 787 S.W.2d at 522-23.               “If the totality of the
circumstances    indicates    that   a   substantial   likelihood    of   irreparable
misidentification exists, admission of the identification amounts to a denial of due
process.” Adams v. State, 397 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.]
2013, no pet.). If the pretrial procedure is found to be impermissibly suggestive,
identification testimony would nevertheless be admissible if the totality of the
circumstances shows no substantial likelihood of misidentification. Ibarra v. State,
11 S.W.3d 189, 195 (Tex. Crim. App. 1999). Reliability is the critical question.
Id.

      B.     Evidence and Application

      The trial court ruled on the motion to suppress after the suppression hearing
but before Appellant’s trial began. The trial court did not exercise its discretionary

                                          8
authority to reopen the suppression hearing, and the parties did not consensually
relitigate the motion to suppress during trial. See Black v. State, 362 S.W.3d 626,
635-36 (Tex. Crim. App. 2012). Therefore, in reviewing the trial court’s denial of
appellant’s motion to suppress, the only evidence we consider is the evidence
presented at the pretrial suppression hearing. See id. In our analysis of this issue,
we are to examine two factors: the suggestiveness of the show-up identification
and the reliability of Glover’s identification. See Tutson, 530 S.W.3d at 326.

             1.    The Show-Up Identification Was Impermissibly Suggestive.

      Our analysis of this prong begins with a summary of relevant testimony
from Glover and Officers Khan and Ruiz.

      According to Officer Ruiz, Appellant and the other two men detained in the
traffic stop were transported to Glover’s apartment complex and presented to
Glover “one by one” as they were pulled out of a patrol vehicle. Officer Ruiz
testified that the men were illuminated by spotlights and flashlights. Officer Ruiz
did not recall whether the men were handcuffed during the show-up identification.

      Similarly, Officer Khan testified the three men were pulled out of a patrol
vehicle and illuminated with spotlights during the identification. Officer Khan
stated the men were handcuffed and there were four officers at the scene.

      Glover testified he was unable to see the burglars’ facial features during the
burglary but could make out their silhouettes and describe some of the clothing
they were wearing. Glover recalled that one of the individuals was wearing dark
blue or black pants with a white fadeout. Glover stated the individuals were in a
white car.

      Glover also said that, before the show-up identification took place, the
officers told him “they were bringing three individuals over to see if [he] could

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identify them.” Glover testified that he knew the men had been in a traffic stop.
Glover stated the men were handcuffed when they were shown to him, but he did
not recall seeing a patrol car. Glover said there were three or four officers at the
scene.

         Officer Ruiz’s patrol car’s dashboard camera footage from the night of the
burglary was admitted into evidence without objection during the suppression
hearing. Footage from Officer Khan’s dashboard and body cameras and an audio
recording of an interview with Glover also were admitted into evidence at the
suppression hearing. Although this footage and audio recording were in evidence,
they were not discussed or played during the suppression hearing. The footage and
recording were not offered into evidence during Appellant’s trial.

         Officer Ruiz’s dashboard camera footage shows Officer Ruiz arriving at the
scene of Officer Khan’s traffic stop before he proceeds to Glover’s apartment
complex. Officer Ruiz arrives at the complex and exits his patrol car; outside of
the camera’s frame, Officer Ruiz can be heard talking to another law enforcement
officer and Glover. Discussing Officer Khan’s traffic stop, Officer Ruiz describes
the three men that were detained, the clothing they were wearing, and the white car
they were in. Officer Ruiz then asks Glover if he can make an identification of the
individuals involved in the burglary, and Glover acknowledges that he could
identify them by their silhouettes.

         Considering the totality of the circumstances and the evidence presented at
the suppression hearing, we conclude the show-up identification was
impermissibly suggestive.

         A show-up identification is not impermissibly suggestive merely because,
during the identification, the suspects were handcuffed, illuminated by spotlights,
and surrounded by police officers. See, e.g., Nunez-Marquez v. State, 501 S.W.3d
                                          10
226, 236 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (show-up identification
was not impermissibly suggestive where the appellant was handcuffed to a fence
and illuminated with spotlights from two patrol cars); Mendoza, 443 S.W.3d at
363-64 (show-up identification was not impermissibly suggestive where five
suspects found near scene of robbery were presented one-by-one to the
complainants).    But as discussed in Nunez-Marquez and Mendoza, these
identifications also employed certain safeguards to mitigate the procedures’
suggestiveness. Nunez-Marquez, 501 S.W.3d at 235-37 (the complainants were
kept separate before and after the identifications and were informed the suspect
“may or may not” have been involved in the crime); Mendoza, 443 S.W.3d at 364
(the complainants were kept separate en route to the show-up identification and
were told the suspects “may or may not have been the persons who committed the
crime”).

      In contrast here, the evidence shows the specific interactions between
Officer Ruiz and Glover prior to the show-up identification rendered the procedure
impermissibly suggestive. Glover testified that, during the burglary, he could not
make out the individuals’ facial features but was able to identify their silhouettes,
some of their clothing, and that they were in a white car. Because Officer Khan
and Ruiz had allowed two of the men to walk away from the traffic stop
approximately five minutes before, only the driver of the white car was in custody
at the time Officer Ruiz was questioning the witness. Immediately after Glover
told Officer Ruiz that the individuals were three black men in a white car, Officer
Ruiz can be heard on his dashboard video requesting that another patrol car find
the two men they just released and transport them to the scene for identification.
While on his radio, and in Glover’s presence, he identified some of the men’s
clothing (black shirt, orange shirt, black pants) and the white car they were in.


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These statements directly supplied the components central to Glover’s description
of the individuals he had watched during the burglary and their car and therefore
contaminated the reliability of his recollection.         Additionally, while he is
questioning Glover and a woman on the scene before Appellant arrived for the
show-up identification, Officer Ruiz tells them that patrol officers are bringing
back the other people (besides the arrested driver) so that “somehow we can get
them identified”. The woman then asks whether anything was found in their car,
and Officer Ruiz responds that they did have some items but that they didn’t know
if what they had was from the burglarized apartment or was from their own homes.
Moreover, Glover testified that he knew prior to the show-up identification that
Appellant and the other two men were detained as part of a traffic stop. Because
Glover saw the individuals drive away from the complex after the burglary, this
knowledge regarding the circumstances of the men’s apprehension further tainted
the reliability of his identification.   See, e.g., Tutson, 530 S.W.3d at 326-27
(identification procedure was “more suggestive” where witness aware of
circumstances surrounding suspect’s apprehension).

      Considering the totality of the circumstances in a light favorable to the trial
court’s ruling, we conclude the evidence at the suppression hearing proved that the
show-up identification procedure was impermissibly suggestive. Appellant met his
burden with respect to the first prong of the applicable test.

             2.     The Show-Up Identification Gave Rise to a Substantial
                    Likelihood of Irreparable Misidentification.

      We turn now to the second prong, which examines whether the
impermissibly suggestive show-up identification procedure gave rise to a
substantial likelihood of irreparable misidentification. See id. at 326. As with the
discussion above, our analysis of this prong focuses on evidence that was admitted


                                          12
only at Appellant’s motion to suppress hearing, namely, dashboard camera footage,
an audio recording of Glover’s interview, and the Brookshire Police Department
Incident Report completed with respect to the burglary. Based on this evidence,
we conclude the record does not support the trial court’s implied finding that
Appellant did not meet his burden of proving that the show-up identification
procedure gave rise to a substantial likelihood of irreparable misidentification.

      Glover met with a Brookshire police department investigator the morning of
the burglary and discussed his recollection of the incident. On the audio recording
of this interview, Glover states he and his wife were falling asleep when he heard
glass breaking.    Glover looked out his dining room window and saw two
individuals removing black trash bags and other objects from a downstairs
apartment to a white car parked out front. Glover said that, approximately five
minutes after hearing the glass break, he asked his wife to call the police using his
cell phone. Checking his cell phone call log, Glover said the call to police was
placed at 2:26 a.m. Glover estimated he watched the suspects for a total of 20-25
minutes before they drove away form the complex.

      At the hearing on the motion to suppress, Glover testified that he continued
to watch the suspects for 10-15 minutes after he called the police and that within
five minutes of them leaving, the police arrived.

      The Brookshire Police Department Incident Report states the call reporting
the burglary was received at 2:27 a.m.; the call was dispatched at 2:29 a.m.; and a
responding officer arrived at 2:42 a.m.

      Glover’s statement and the incident report both indicate the call to police
was made at approximately 2:27 a.m. This timing is consistent with the footage
from Officer Khan’s patrol car dashboard camera: at time stamp “02:28:05,” a
dispatch comes over Officer Khan’s car radio stating a burglary had occurred at
                                          13
Glover’s apartment complex, specifically at “Apartment 104-A”.         But Officer
Khan initiated the traffic stop on the white vehicle with Appellant and the other
two men at time stamp “02:12:47” — approximately 15 minutes before the call to
police reporting the burglary. The traffic stop was ongoing when the dispatch was
received.   Therefore, beginning at least 15 minutes before the burglary was
reported, Appellant and the other two men riding in the white car were detained by
Officer Khan. This elapsed timeline is further corroborated by Officer Khan’s
body camera footage, because even though its time stamp is set 40 minutes ahead
of the two dashcam videos, the body cam footage shows exactly the same sequence
of events from almost the beginning of the traffic stop to the end. The body cam
footage starts at time stamp “02:58:12” after Officer Khan has already walked up
to the vehicle and asked for the driver’s license and insurance information but
before he asks for the passenger’s identification. At time stamp “02:59:16” Officer
Khan speaks into his radio (this is consistent with the recording from his dashboard
camera video which records the same event at time stamp “02:17:06”, almost
exactly 5 minutes after his dashboard camera first activated.”) At time stamp
“03:09:59” on the body camera footage, the same dispatch call can be heard over
Officer Khan’s police radio reporting the break in at “Apartment 104-A”. No
matter what time the trial judge could have believed was the correct one, all the
video evidence in the record shows the same thing: that when the burglary call for
Apartment 104-A was issued through dispatch, Appellant already had been
detained on the side of the road by Officer Khan for at least fifteen minutes.
Further, toward the end of the first dashcam video (at the end of the traffic stop,
when nearly twenty-five minutes had elapsed since the dispatch call came across
the police radio), Officer Khan and Officer Ruiz allow Appellant and the other
passenger to walk away and they are seen on the video walking in the opposite
direction of the complex. The video then shows, in an unbroken timeline, Officer
                                        14
Ruiz driving around the corner to the location of the burglary.

      Even when viewed in the light most favorable to the trial court’s implied
finding, this evidence shows Appellant already was being detained when the
burglary in process was reported and could not have been one of the individuals
involved in the burglary.     Satisfying the second prong of the applicable test,
Appellant has met his burden to show by clear and convincing evidence that the
pretrial identification procedure gave rise to a substantial likelihood of irreparable
misidentification. See Loserth, 985 S.W.2d at 544-48; Jimenez, 787 S.W.2d at
521-23.

      We sustain Appellant’s first issue. Because of our disposition of this issue,
we do not reach Appellant’s third issue addressing the trial court’s denial of his
motion for new trial.

                                    CONCLUSION

      Having held the trial court erred in denying Appellant’s motion to suppress,
we reverse the trial court’s judgment and remand this cause to the trial court for a
new trial.




                                      /s/        Meagan Hassan
                                                 Justice

Publish – Tex. R. App. P. 47.2(b)
Panel consists of Chief Justice Frost and Justices Wise and Hassan.




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