Opinion issued August 21, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00041-CR
                           ———————————
                  ADRIAN DEWAYNE GRAVES, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 1825747


                         MEMORANDUM OPINION

      A jury found appellant, Adrian Dewayne Graves, guilty of the offense of

indecent exposure. 1 After finding true the allegation in an enhancement paragraph


1
      See TEX. PENAL CODE ANN. § 21.08 (Vernon 2011).
that he had previously been convicted of the offense of indecent exposure, the trial

court assessed appellant’s punishment at confinement for 100 days.         In three

issues, appellant contends that the trial court erred in denying his motion to quash

the information, admitting identification testimony, and admitting perjured

testimony.

      We affirm.

                                   Background

      Harris County Sheriff’s Office (“HCSO”) Detention Officer L. McClain

testified that on May 4, 2012, she was assigned to the control center of an area of

the Harris County Jail known as “F Pod.” Her duties included observing the

inmates in their cells from her glass-enclosed station, maintaining order, and

alerting officers on the floor, referred to as “rovers,” when problems arose. That

morning, in her usual custom, McClain awoke the inmates at 7:00 a.m. over an

intercom. At approximately 7:30 a.m., she saw appellant standing next to his bunk

without his shirt on and with his “penis over the front of his boxers.” McClain was

able to “see the front part of his body” and his face. He was looking “directly” at

her and masturbating. McClain was “offended” and requested assistance over the

intercom.

      Officer McClain explained that in responding to the F-Pod area, the rovers

were required to come through a set of exterior doors that emit a “loud mechanical



                                         2
sound” as they open and close. She directed the rovers to appellant, who was in

cell “C1,” by gesturing with her hand at her window in the shape of the letter “C”

and then pointing at appellant. McClain denied telling HCSO Deputy U. Harden

that when she called appellant “out over the intercom, he ran to the back of his cell

. . . because she caught him in the act of doing something and he immediately

reacted.”

      Deputy Harden, who responded to Officer McClain’s call, testified that it

initially took him several seconds to get through the exterior sets of doors and into

the area of appellant’s cell. When he arrived at appellant’s cell, Harden saw him

standing at the back, shirtless, but wearing jumpsuit pants and tennis shoes. The

other inmates in the cell were asleep in their bunks. From appellant’s cell, Harden

could see into the interior of the control center and could hear the exterior doors

opening and closing. He explained that, based on the layout of appellant’s cell, an

inmate standing immediately in front of the bunks would be “about five feet” from

the toilet and “about fifteen to twenty feet from the control center.” Harden also

noted that McClain told him that she saw appellant standing at the toilet in his cell.

      HCSO Deputy K. Jones testified that he accompanied Deputy Harden to

appellant’s cell. He visually communicated with Officer McClain and then went to

cell “C.” Jones noted that there were three inmates in the cell. Appellant was

standing at the back, and the other two were in their bunks. Both Deputies Harden



                                          3
and Jones testified that they escorted appellant from his cell into a hallway, where

they checked his wristband and confirmed his identity.           And both deputies

identified appellant at trial.

                                    Information

       In his first issue, appellant argues that the trial court erred in denying his

motion to quash the information because it fails to allege the acts relied upon to

constitute the element of recklessness.

       We review a trial court’s ruling on a motion to quash a charging instrument

de novo.     Smith v. State, 309 S.W.3d 10, 13–14 (Tex. Crim. App. 2010).

Generally, a charging instrument that tracks the language of a criminal statute

possesses sufficient specificity to provide a defendant with notice of a charged

offense. State v. Edmond, 933 S.W.2d 120, 128 (Tex. Crim. App. 1996). A

motion to quash should be granted only when the language regarding an accused’s

conduct is so vague or indefinite that it fails to give the accused adequate notice of

the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.

Crim. App. 1988).

       “A person commits an offense [of indecent exposure] if he exposes . . . any

part of his genitals with intent to arouse or gratify the sexual desire of any person,

and he is reckless about whether another is present who will be offended or

alarmed by his act.” TEX. PENAL CODE ANN. § 21.08(a) (Vernon 2011). When, as



                                          4
here, “recklessness” is an element of the offense, the “information, . . . in order to

be sufficient in any such case must allege, with reasonable certainty, the act or acts

relied upon to constitute recklessness . . . , and in no event shall it be sufficient to

allege merely that the accused, in committing the offense, acted recklessly . . . .”

TEX. CRIM. PROC. CODE ANN. art. 21.15 (Vernon 2009).

      Here, the State, in its third amended information, alleged that appellant

      Unlawfully expose[d] part of his genitals, namely penis, to L.
      McClain with the intent to arouse and gratify the sexual desire of the
      defendant, and the defendant was reckless about whether another
      person was present who would be offended and alarmed by the act, to-
      wit: exposing his penis while facing the station from which jail
      personnel monitor jail inmates.

(Emphasis omitted.)

      In support of his assertion that the charging instrument failed to allege an act

of recklessness, appellant relies on Gengnagel v. State, 748 S.W.2d 227 (Tex.

Crim. App. 1988), superseded by constitutional amendment on other grounds,

TEX. CONST. art. V, § 12.         In Gengnagel, the defendant stood accused by

information of committing the offense of indecent exposure as follows:

      [The defendant] did then and there expose to [the complainant], his
      genitals with intent to arouse and gratify the sexual desire of the
      defendant, and the said defendant did so recklessly and in conscious
      disregard of whether another person was present who would be
      offended and alarmed by such act, to-wit: exposition of his genitals by
      the defendant to complainant.




                                           5
Id. at 228. On appeal, the defendant argued that the information was defective

because it failed to “allege with reasonable certainty the acts relied upon to

constitute recklessness.” Id. (citing TEX. CRIM. PROC. CODE ANN. art. 21.15).

      The Texas Court of Criminal Appeals concluded that the information was

defective because it failed to inform the defendant of the nature of his alleged

recklessness. Id. at 230. Although it alleged that the defendant exposed himself to

another person, the information did not allege any act or circumstances that would

show that his exposition was done in a reckless manner, as required by article

21.15. Id.; see also State v. Rodriguez, 339 S.W.3d 680, 684 n.17 (Tex. Crim.

App. 2011) (explaining State’s allegation in Gengnagel that “the defendant

recklessly exposed his genitals because he exposed his genitals to ‘the

complainant’” tautological). The court explained that to comply with article 21.15,

the State must allege circumstances that indicate a defendant’s awareness of the

risk of the presence of another person who would be offended by his act of

exposing himself and the defendant acted in conscious disregard of that risk.

Gengnagel, 748 S.W.2d at 230.

      In further support of his position, appellant also relies on Smith v. State, 309

S.W.3d 10 (Tex. Crim. App. 2010). In Smith, as in Gengnagel, the information

alleged that the defendant

      unlawfully expose[d] his genitals to [the complainant] with intent to
      arouse and gratify the sexual desire of the Defendant, and the

                                          6
      Defendant was reckless about whether another person was present
      who would be offended and alarmed by the act, to-wit: the Defendant
      exposed his penis and masturbated.

309 S.W.3d at 12 (emphasis omitted).         The defendant moved to quash the

information on the ground that the State had failed to allege acts constituting

recklessness, as required by article 21.15. Id. at 13. The court of criminal appeals

noted that the “information [there] differed from the one in Gengnagel only in that

it added ‘and masturbated,’ as opposed to only alleging exposure.” Id. at 16. And

it concluded that the additional language did not cure the defect presented in

Gengnagel. Id. It explained that the information would have sufficiently apprised

the defendant of the acts constituting recklessness if the State had alleged that “he

exposed himself and masturbated in a public place.”           Id. (emphasis added)

(explaining that article 21.15 requires that circumstances be alleged that would

show exposition was done in reckless manner).

      Here, the charging instrument alleges circumstances that show that

appellant’s exposition was done in a reckless manner, specifically, that he

“expos[ed] his penis while facing the station from which jail personnel monitor jail

inmates.” (Emphasis added.) This allegation sufficiently describes circumstances

indicating that appellant was aware of the risk that another person was present who

would be offended by his act of exposing himself and he acted in conscious

disregard of that risk. See Smith, 309 S.W.3d at 15–16; see e.g., Henery v. State,



                                         7
No. 14-09-00996-CR, 2012 WL 5964394, at *2 (Tex. App.—Houston [14th Dist.]

Nov. 29, 2012, no pet.) (mem. op., not designated for publication). We conclude

that the information alleges, with reasonable certainty, the act or acts relied upon to

constitute recklessness. See TEX. CODE CRIM. PROC. ANN. art. 21.15. Accordingly,

we hold that the trial court did not err in denying appellant’s motion to quash the

information.

      We overrule appellant’s first issue.

                                   Identification

      In his second issue, appellant argues that the trial court erred in denying his

motion to suppress Officer McClain’s in-court identification of him because it was

unreliable and “tainted” by her observation of him at the defense table.

      The standard of review pertaining to a trial court’s denial of a motion to

suppress an in-court identification depends upon the type of question presented to

the reviewing court. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App.

1998). We give almost total deference to a trial court’s determination of historical

facts supported by the record, especially when the trial court’s fact findings are

based on an evaluation of the credibility and demeanor of the witnesses. Id. And

we give the same deference to the trial court’s rulings on “mixed questions of law

and fact,” if the resolution of those questions turns on an evaluation of credibility




                                          8
and demeanor. Id. Finally, we review de novo “mixed questions of law and fact”

that do not turn on an evaluation of credibility and demeanor. Id.

      Generally, we apply a two-step analysis to determine the admissibility of an

in-court identification and ask (1) whether a pretrial identification procedure was

impermissibly suggestive and, if so, (2) whether that procedure created a

substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d

27, 32–33 (Tex. Crim. App. 1995). “An analysis under these steps requires an

examination of the totality of the circumstances surrounding the particular case and

a determination of the reliability of the identification.” Id. at 33.

      Officer McClain testified that on the day of the incident, she observed,

through the window of the control center, appellant committing the offense from

fifteen to twenty feet away from her. She noted that his cell door was open, “all

the lights [were] on,” there were no objects obstructing her view of him, and she

could see his face and the front of his body. McClain explained that she “glanced”

at him and turned away, but “could still see from the left side.” She requested

assistance, and Deputies Harden and Jones arrived within “minutes.” McClain

identified appellant to the deputies by gesturing with her hand at the window in the

shape of a “C,” indicating cell C, and then “pointing at [appellant].” The deputies

then escorted appellant from his cell to a hallway, where they obtained appellant’s

name from his identification bracelet.          McClain explained that she had seen



                                            9
appellant regularly for two months prior to the incident. And she noted that there

was no question that appellant was the person that she saw exposing himself.

      During her testimony on the first day of trial, Officer McClain was not asked

to identify appellant in the courtroom. On the second day, she testified as follows:

      [State]:     Detention Officer McClain, before we started this trial
                   yesterday, did you think that you would be able to
                   recognize the person who was masturbating in a cell in
                   court?
      [McClain]: Not until we came in and then I recognized, I
                 remembered who he was.
      [State]:     So now that you have come in here and recall who he
                   was, could you tell us whether the person who you saw
                   masturbating and looking at you on May 4, 2012 is in the
                   courtroom today?
      [McClain]: Yes.
      [Defense]: Judge, I’m going to object to this tainted identification.
                 She wasn’t able to identify him the day of. Here we are
                 seven months later and there is only one person sitting
                 next to me.

      At a hearing outside the presence of the jury, appellant moved to suppress

Officer McClain’s identification as “tainted,” arguing that it was “impermissibly

suggestive based on there [was] only one person on trial and he [was] sitting right

next to [defense counsel] and she’s already testified she wasn’t able to identify

[appellant] that day.” Defense counsel then cross-examined McClain as follows:

      [Defense]:          So you testified today that from the date in
                          question you are unable to identify Inmate Graves
                          as the person who was masturbating; is that true?
      [McClain]:          I didn’t know his name.


                                         10
[Defense]:   But when they pulled him out of the cell, you said
             that you were not able to identify the person pulled
             out of the cell alleged as the same person
             masturbating on that day?
[McClain]:   I knew who he was and where he was located
             because he was the only one up, but yes, I didn’t
             know what his name was.
....
[Defense]:   At any point in time, when the guards pulled him
             out of his cell, you never said that’s the one who
             was masturbating.
[McClain]:   I told him that was the one, where he was, and I
             told them he’s right there.
[Defense]:   Yes, you said which cell and when they pulled him
             out of the cell you never made a subsequent
             identification, you never said that the person you
             just pulled out of that cell was the person who was
             masturbating. You never did that; did you?
[McClain]:   I don’t remember, but I told them that’s the one
             right there. I pointed him out.
[Defense]:   You pointed to the cell he was in?
[McClain]:   No, I saw where he was and he was the one up and
             so I said that’s him.
[Defense]:   When he was brought out of the cell by the rovers,
             you never said that was the man who was
             masturbating?
....
[McClain]:   No.
[Defense]:   You never said that. And prior to trial, did you
             have an opportunity to see photographs of him,
             whether it was a mug shot or otherwise?
[McClain]:   [Appellant], no.
[Defense]:   And when we started this trial, you were sitting
             here when we made reference to him being named
             Adrian Graves; is that true?

                            11
      [McClain]:          I guess, yes.
      [Defense]:          . . . so you knew the man sitting next to me is
                          [appellant]?
      [McClain]:          Yes.
      [Defense]:          And you knew that because it’s been said over and
                          over in this courtroom?
      [McClain]:          No, because I knew who he was.

      During the State’s re-direct, Officer McClain testified that she recognized

appellant by his facial features when he walked into the courtroom and not because

he was sitting next to defense counsel. She explained that when the rovers came in

on the day of the incident, she identified appellant by pointing at him.

      On re-cross, the following colloquy took place:

      [Defense]: Did you have a conversation with the prosecutor between
                 yesterday and today that caused you to feel comfortable
                 identifying the defendant?
      [McClain]: No.
      [Defense]: Did you and the prosecutor discuss between your
                 testimony yesterday and today whether or not you would
                 make an in court [identification] of the defendant?
      [McClain]: No.
      [Defense]: So at no point did you talk to the prosecutor and say I
                 didn’t identify him yesterday but I can today?
      [McClain]: Not to my knowledge.

      The State then asked Officer McClain, “[A]fter you testified yesterday, did

you inform [State’s counsel] that you would after all be able to identify the




                                          12
defendant in court?” And McClain responded in the affirmative. The following

discussion then took place:

      [Defense]: You said after all. Does that mean at some point you
                 were unable to identify him or uncomfortable doing so?
                 At some point between the offense date and today was
                 there a point in time when you were not comfortable
                 identifying—you just said after all.
      ....
      [McClain]: No, I wasn’t uncomfortable.
      [Defense]: So why did you just tell [State’s counsel] I could
                 identif[y] him after all implying there was a period where
                 you couldn’t?
      [McClain]: I don’t remember saying after all. . . .
      [Defense]: You just testified that you did.

      Appellant argued that Officer McClain’s testimony constituted an

“impermissibl[y] suggestive in court identification” because she was “unable to

identify [appellant] at any point in time” during her testimony, or in her offense

report, but later told the prosecutor that she could “do it after all, after she spent an

entire day in the courtroom.” The State asserted that McClain “wasn’t unable to

identify” appellant before trial. (Emphasis added.) Rather, she testified that she

had not looked at any photographs prior to trial and was not sure whether she

would recognize appellant until she saw him walk into the courtroom.           And she

then recognized him by his facial features.

      The trial court denied appellant’s motion to suppress, finding “sufficient

basis” that Officer McClain had made an independent identification of appellant

                                           13
and the matter went to the weight of her testimony and not to its admissibility.

And it granted the State’s request that the record reflect that McClain had

identified appellant.

      On appeal, appellant does not assert that Officer McClain’s pretrial

identification of him was induced by impermissibly suggestive means. Rather, he

argues that he was denied due process because her in-court identification of him

was unreliable, based on the factors set out in United States v. Wade, 388 U.S. 218,

87 S. Ct. 1926 (1967).

      “[T]he admission of identification testimony does not violate due process so

long as the identification possesses sufficient aspects of reliability.” Garza v.

State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981) (citing Neil v. Biggers, 409

U.S. 188, 199, 93 S. Ct. 375, 382 (1972)); see also Barley, 906 S.W.2d at 34

(“Reliability is the linchpin in determining admissibility of identification

testimony.”). We assess the reliability of an in-court identification by looking to

the factors set forth in Wade. 388 U.S. 241–42, 87 S. Ct. at 1940.          The non-

exclusive list of factors include: (1) the prior opportunity to observe the alleged

criminal act, (2) the existence of any discrepancy between any pre-lineup

description and the defendant’s actual description, (3) any identification prior to

the lineup of another person, (4) the identification by picture of the defendant prior

to the lineup, (5) failure to identify the defendant on a prior occasion, and (6) the



                                         14
lapse of time between the alleged act and the lineup identification. See id. at 241,

87 S. Ct. at 1940; Barley, 906 S.W.2d at 35 n.8. We also consider the witness’s

degree of attention and the level of certainty at the time of the confrontation. See

Biggers, 409 U.S. at 199–200, 93 S. Ct. at 382; see also Brown v. State, 29 S.W.3d

251, 254–55 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (applying Wade and

Biggers factors).   We consider these factors and all issues of historical fact

deferentially in the light most favorable to the trial court’s ruling. Ibarra v. State,

11 S.W.3d 189, 195 (Tex. Crim. App. 1999). Ordinarily, these factors are then

weighed de novo against “the corrupting effect” of the suggestive pretrial

identification procedure. Id. at 195–96.

      Appellant first argues that Officer McClain’s identification of him was

unreliable because she did not have a good opportunity to see him, as he was

“about 20 feet away, looking through both glass and bars,” he was in “bad

lighting,” and she only glanced at him.         The record shows that when McClain

observed appellant on the day of the incident, “all the lights [were] on,” there were

no objects obstructing her view of him, and she could see his face and the front of

his body. See Wade, 388 U.S. at 241, 87 S. Ct. at 1940 (considering opportunity to

observe accused). She explained that she “glanced” at him and turned away, but

“could still see from the left side.” See Biggers, 409 U.S. at 199–200, 93 S. Ct. at

382 (considering witness’s degree of attention); Brown, 29 S.W.3d at 254.



                                           15
      Appellant also asserts that Officer McClain did not identify him, “even at the

time of the alleged incident.” The record shows that McClain identified appellant

in his cell to Deputies Harden and Jones by gesturing with her hand at the window

in the shape of a “C,” indicating cell C, and then “pointing at [appellant].” The

deputies then escorted appellant from his cell to a hallway, where they obtained his

name from his identification bracelet.       McClain testified that she had seen

appellant regularly for two months prior to the incident, and she noted that there

was no question that appellant was the right person. See Biggers, 409 U.S. at 199–

200, 93 S. Ct. at 382 (considering level of certainty at time of confrontation).

Appellant also complains that there was “no pre-trial lineup.” A defendant does

not, however, have the right to a pre-trial lineup or photographic array. See

Maxwell v. State, 10 S.W.3d 785, 787 (Tex. App.—Austin 2000, no pet.) (citing

Sapp v. State, 476 S.W.2d 321, 323 (Tex. Crim. App. 1972)).

      Appellant next asserts that Officer McClain demonstrated her uncertainty by

not identifying him in court until the second day of testimony. The record shows,

however, that she was not asked to identify appellant on the first day of testimony.

Although she expressed initial uncertainty through her testimony on the second day

with regard to whether she would recognize appellant after the seven months that

had passed between the incident and trial, she testified that her in-court

identification of him was based on her memory of the events, specifically, his



                                        16
facial features. Any uncertainty goes to the weight to be afforded her identification

testimony and not to its admissibility. See Garza, 633 S.W.2d at 513.

      Further, Officer McClain’s in-court identification of appellant rested on her

independent recollection of her observations of him on the day of the incident. In-

court testimony of an identification witness is admissible as long as the record

clearly reveals that the witness’ prior observation of the accused was sufficient to

serve as an independent origin for the in-court identification. Jackson v. State, 657

S.W.2d 123, 130 (Tex. Crim. App. 1983). Applying the pertinent Wade and

Biggers factors deferentially in the light most favorable to the trial court’s ruling,

and there being no suggestive pretrial identification procedure alleged, we

conclude that McClain’s prior observation of appellant was sufficient. See Ibarra,

11 S.W.3d at 195; see also Biggers, 409 U.S. at 199–200, 93 S. Ct. at 382; Wade,

388 U.S. at 241, 87 S. Ct. at 1940; Brown, 29 S.W.3d at 254–55.

      Relying on Harrison v. State, appellant further asserts that his presence at

defense counsel’s table rendered Officer McClain’s in-court identification of him

“too unreliable.” No. 14-10-00254-CR, 2011 WL 5589532, at *7 (Tex. App.—

Houston [14th Dist.] Nov. 17, 2011, no pet.) (mem. op., not designated for

publication). In Harrison, the defendant argued that because law enforcement

officers had failed to conduct a lineup or show a photographic array to the

witnesses, any in-court identification of him could only have been based on the



                                         17
fact that the witnesses saw him “in the defendant’s chair.” Id. The court noted that

the defendant had failed to cite Texas precedent, and it had found none, holding

that a witness’s in-court identification of a defendant seated at the defense table

constitutes an impermissibly suggestive procedure, which may lead to a very

substantial likelihood of irreparable misidentification.       See id. at *8; see also

Maxwell v. State, 10 S.W.3d 785, 787–88 (Tex. App.—Austin 2000, no pet.)

(rejecting argument that in-court identification of defendant seated at defense table

violates due process); Shaw v. State, 846 S.W.2d 482, 485 (Tex. App.—Houston

[14th Dist.] 1993, pet. ref’d) (concluding in-court identification not rendered

unreliable by witness having viewed defendant at defense table prior to making

identification at trial).

       We hold that the trial court did not err in denying appellant’s motion to

suppress Officer McClain’s testimony identifying appellant as the person she saw

committing the offense of indecent exposure.

       We overrule appellant’s second issue.

                                        Perjury

       In his third issue, appellant argues that the trial court erred in allowing

Officer McClain’s in-court identification testimony because she “perjured herself

on the stand . . . , thus violating his Due Process rights.”




                                           18
      A person commits perjury if, with intent to deceive and with knowledge of

the statement’s meaning, she makes a false statement under oath or swears to the

truth of a false statement previously made and the statement is required or

authorized by law to be made under oath.            See TEX. PENAL CODE ANN.

§.37.02(a)(1) (Vernon 2011). An offense is aggravated if a false statement is made

in connection with an official proceeding and the statement is material.          Id.

§ 37.03. “A statement is material, regardless of its admissibility under the rules of

evidence, if it could have affected the course or outcome of the official

proceeding.” Id. §.37.04(a).

      The State may not obtain a conviction through the use of perjured testimony.

Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986). Knowing use of

perjured testimony violates due process. Ex parte Castellano, 863 S.W.2d 476,

479 (Tex. Crim. App. 1993). If the State presents a false picture of the facts by

failing to correct its offered testimony when it became apparent that the testimony

was false, then the conviction must be reversed. Losada, 721 S.W.2d at 311. The

defendant bears the burden of showing that the testimony used by the State was in

fact perjured. Id.

      Appellant asserts that Officer McClain “contradicted herself numerous times

on the stand, at one point changing her answer regarding whether she informed the

State that she would be able to identify [appellant].”       And he directs us to



                                         19
McClain’s testimony, discussed above, regarding whether she had discussed with

the prosecutor her identification of appellant.

      The record shows that Officer McClain was able to identify appellant. She

testified that she had not looked at any photographs in the seven months prior to

trial and was not sure whether she would recognize appellant until she saw him

walk into the courtroom. And McClain then recognized him by his facial features.

She did demonstrate confusion between identifying appellant by sight versus

identifying him by name. However, confusion or discrepancies in testimony alone

do not constitute perjury. Id. at 312.

      We overrule appellant’s third issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




                                          20
