                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                   NO. 2-09-098-CR


MARLON TYRONE ROBERSON                                                  APPELLANT

                                            V.

THE STATE OF TEXAS                                                            STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      Appellant Marlon Tyrone Roberson appeals his conviction for theft from a

person. In two points, Roberson argues that the trial court erred by not suppressing

identification evidence and that the evidence is legally and factually insufficient to

prove identity. W e will affirm.

                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND



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           See Tex. R. App. P. 47.4.
      On May 14, 2008, Cindy Miller was working at a Metro PCS store in Fort

W orth when she observed an individual, whom she later identified as Roberson,

enter the store and hand her a note. Roberson was wearing a blue shirt with white

stripes, a hat, and sunglasses. Miller saw the word “robbery” in the note, handed the

note back to Roberson, and turned over about $200 to him. Roberson ran out of the

store just as Shin Kim, the manager, was entering the store. Miller told Kim that she

had been robbed, and Kim turned around and chased Roberson. After alerting the

employees of a nearby business that she had been robbed, Miller entered her

vehicle to search for Kim and called 911.

      Jerry Griffith, a customer of the Metro PCS store, happened to be driving by

the store when he saw Kim chasing an individual, whom Griffith later identified as

Roberson, and yelling, “Please give me my money back.” Griffith grabbed his Taser

and joined the chase, eventually catching up with Kim. Kim and Griffith caught up

with and confronted Roberson after he had jumped a fence into a backyard and ran

to a gate, which was locked. Griffith “zapped” his Taser a few times and told

Roberson to turn over the money. Roberson threw the money at Kim and Griffith,

jumped over the fence, and ran off.

      Miller picked Kim up in her car and headed back to the Metro PCS store. As

Miller was waiting to cross a street, she observed Roberson, who was now wearing




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a white shirt, peeking out from a hole in a wooden fence. 2 Miller told the 911

operator that she had spotted the person who had robbed her. Meanwhile, Griffith,

who was also making his way back to the Metro PCS store, saw Roberson run from

the hole in the fence, across the street, and to a Cadillac that was parked next to an

Italian restaurant. Griffith observed Roberson look or reach into the Cadillac before

running into the Italian restaurant.

       Officer Carl Pollak was dispatched to the Metro PCS store. Just before

arriving at that location, an individual matching the suspect’s description (black male,

five-and-a-half-feet tall, weighing approximately 250 pounds) ran across the street

and in front of Officer Pollak’s patrol unit. Officer Pollak had to brake hard to avoid

hitting the person, whom he later identified as Roberson. Officer Pollak observed

Roberson run to a Cadillac and then into the Italian restaurant. Officer Pollak and

another officer made their way to the Italian restaurant, where they found Roberson

in a bathroom and arrested him.

       Griffith observed the officers taking Roberson out of the Italian restaurant. An

officer later escorted Griffith to a police unit, where Griffith identified Roberson, who

was sitting inside the police unit, as the person he had seen coming out of the Metro

PCS store and had chased, but Griffith noted that Roberson had removed his hat




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          A police officer testified that the part of the fence with the “hole” in it looked
like it had been knocked down or that it was a “pass-through.”

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and sunglasses and changed shirts. 3 Miller also observed officers taking Roberson

out of the Italian restaurant, and an officer escorted her to the police unit, where she

identified Roberson as the person who had taken the money at the Metro PCS store.

The following day, a detective showed Miller a photographic lineup, and she

identified Roberson as the person from the Metro PCS store. The detective testified

at a hearing to suppress Miller’s identification of Roberson that he was not familiar

with the Department of Justice’s “Study and Guide for Law Enforcement on

Recommendations for Conducting Identification Procedures.”

      Officers walked the area where the chase had occurred and found a hat,

sunglasses, and a blue-and-white striped shirt near a bush. The blue-and-white

striped shirt was a “Roca W ear” brand shirt, size 5X. Officers also discovered a

green-and-white striped shirt inside of the Cadillac that was a “Roca W ear” brand

shirt, size 5X.

      Roberson was charged with robbery, but a jury convicted him of theft from a

person. The trial court, having found the enhancement allegations true, sentenced

him to twenty years’ confinement.

                            III. IDENTIFICATION E VIDENCE



      3
         The State refers to this procedure as a field showup. See Pace v. State,
986 S.W .2d 740, 743 (Tex. App.—El Paso 1999, pet. ref’d) (stating that a showup
“is a police procedure where the actual victim of a crime or other witness is brought
to a location to look at a suspect to see if the victim or witness can identify the
suspect”).

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      In his first point, Roberson argues that the trial court erred by overruling his

motion to suppress Miller’s and Griffith’s in-court identifications of him. He contends

that the in-court identifications were tainted by impermissible pretrial identification

procedures that gave rise to a substantial likelihood of misidentification because

both showups occurred at a police unit in which Roberson sat alone and under

arrest, the detective who showed Miller the photographic lineup failed to follow

identification procedures as set by the Department of Justice, both Miller and Griffith

observed police escorting Roberson out of the Italian restaurant, Roberson was

wearing sunglasses when Miller saw him for only one or two minutes and when

Griffith saw him, and Miller identified Roberson based primarily on his body type

instead of his face.

      A.     Standard of Review

      W e review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim.

App. 2007); Guzman v. State, 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). W e give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W .3d at 673; Estrada v. State, 154

S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53



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(Tex. Crim. App. 2002). The point raised by Roberson—that the complained-of

pretrial procedures were impermissibly suggestive and gave rise to a substantial

likelihood of misidentification—is a mixed question of law and fact that we review de

novo. See Loserth v. State, 963 S.W .2d 770, 772–73 (Tex. Crim. App. 1998).

      In determining whether a trial court’s decision is supported by the record, we

generally consider only evidence adduced at the suppression hearing because the

ruling was based on it rather than evidence introduced later. See Gutierrez v. State,

221 S.W .3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State, 917 S.W .2d 799, 809

(Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996). However, when the parties

consensually relitigate the suppression issue during the trial on the merits, we

consider all evidence—from both the pretrial hearing and the trial—in our review of

the trial court’s determination. Gutierrez, 221 S.W .3d at 687. Here, the trial court

denied Roberson’s motion to suppress Miller’s in-court identification of him after it

had heard the testimony of Miller and an investigator with the Fort W orth Police

Department. The trial court denied Roberson’s motion to suppress Griffith’s in-court

identification after it had heard Griffith’s testimony.   The parties relitigated the

suppression issue at trial; therefore, we will consider the evidence presented at both

the suppression hearings and the trial.

      B.     Identifications




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      W e use a two-step analysis to determine whether the trial court was correct

in admitting an in-court identification: (1) whether the pretrial identification procedure

was impermissibly suggestive and, if so, (2) whether the suggestive pretrial

procedure gave rise to a substantial likelihood of irreparable misidentification. Ibarra

v. State, 11 S.W .3d 189, 195 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828

(2000); Delk v. State, 855 S.W .2d 700, 706 (Tex. Crim. App.), cert. denied, 510 U.S.

982 (1993). The appellant must show by clear and convincing evidence that the

witness’s in-court identification was so tainted. Madden v. State, 799 S.W .2d 683,

695–96 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991).

      In determining whether the suggestive procedure gave rise to a substantial

likelihood of irreparable misidentification, we examine the totality of the

circumstances. Delk, 855 S.W .2d at 706; Madden, 799 S.W .2d at 695. If the totality

of the circumstances reveals no substantial likelihood of misidentification despite a

suggestive pretrial procedure, then subsequent identification testimony will be

deemed reliable, and therefore admissible, as reliability is the linchpin in determining

the admissibility of identification testimony. Madden, 799 S.W .2d at 695. The

following five non-exclusive factors should be weighed against the corrupting effect

of any suggestive identification procedure in assessing reliability: (1) the witness’s

opportunity to view the criminal 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



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witness’s level of certainty at the time of confrontation, and (5) the time between the

crime and confrontation. Ibarra, 11 S.W .3d at 195 (citing Neil v. Biggers, 409 U.S.

188, 199–200, 93 S. Ct. 375, 382 (1972)); see Luna v. State, 268 S.W .3d 594, 605

(Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 72 (2009). 4

      C.     Miller’s In-Court Identification

      Assuming without deciding that the complained-of pretrial identification

procedures were impermissibly suggestive, we move directly to the second prong

of the inquiry and determine whether the alleged suggestive procedures gave rise

to a substantial likelihood of irreparable misidentification. See Winter v. State, No.

14-08-01138, 2010 W L 605330, at *4 (Tex. App.—Houston [14th Dist.] Feb. 23,

2010, no pet.) (mem. op., not designated for publication); Stokes v. State, No. 03-02-

00508-CR, 2003 W L 21401267, at *2 (Tex. App.—Austin June 19, 2003, no pet.)

(mem. op., not designated for publication). The record shows that the theft occurred


      4
         Roberson contends that “in light of the numerous, well publicized and quite
startling evidence of known misidentifications, a reassessment and examination of
the presently acceptable identification procedures should be considered.” He directs
us to a number of articles or publications and “calls upon the court to enter a judicial
ruling imposing a standard to eliminate continued use of what all scholars on the
subject agree is risky methodology.” W e decline Roberson’s request. None of the
articles or publications that he directs us to were admitted at trial. See Perkins v.
State, 902 S.W .2d 88, 102 (Tex. App.—El Paso 1995, pet. ref’d) (holding that
appellate court could not consider studies attached to appellant’s brief because they
were not introduced at trial). Further, as an intermediate appellate court, we are
bound to follow the law declared by the court of criminal appeals on matters
pertaining to the enforcement of criminal laws. See Flores v. State, 883 S.W .2d 383,
385 (Tex. App.—Amarillo 1994, pet. ref’d). The standards set forth above govern
the admissibility of the complained-of identifications.

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between 12:00 and 12:30 p.m. Miller testified that she saw Roberson just outside

of the Metro PCS store before he entered the store and that she “got a look at him”

when he was “in [her] face at the store.” Roberson was wearing sunglasses and a

hat and was in the store for “[n]o more than a minute or two,” but Miller was able to

see his body type and the parts of his face that were not covered by the sunglasses.

      Miller saw Roberson a second time peeking through the hole in the fence. She

observed that it was Roberson peeking through the fence even though he had

removed his hat and sunglasses and was wearing a white shirt instead of the blue-

and-white striped shirt that he wore at the Metro PCS store. Miller told the 911

operator that she had spotted the same person who had taken the money at the

Metro PCS store.

      Miller testified that before she went to the patrol unit to identify Roberson, she

had had “numerous times to see” him and had told the police that the person they

had taken out of the Italian restaurant was the same person who had robbed her.

Miller recognized “the body build, the length of his height[,] and his face.” W hen

Miller identified Roberson at the patrol unit, she based the identification on her

memory of Roberson from the Metro PCS store, even though she had observed

officers taking Roberson out of the Italian restaurant.

      Detective Lauren Tracy met with Miller the following day and showed her a

photographic lineup that contained six photographs, including one of Roberson.

Detective Tracy used photographs of individuals who resembled Roberson,

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instructed Miller that the person being investigated may or may not be in the

photographs, in no way suggested that Roberson was in the lineup, and did not say

anything to Roberson after showing her the photographs. Miller identified Roberson

within a matter of seconds as the person from the Metro PCS store. She testified

that she was “a hundred percent sure” of her identification, which she based on the

opportunities she had to observe Roberson at the Metro PCS store and peeking

through the fence.

      Each of the Biggers factors weighs in favor of finding that Miller’s in-court

identification was reliable: Miller had several opportunities to view Roberson; she

exercised a high degree of attention to Roberson’s appearance throughout the

ordeal, recognizing that he had changed clothes between the time that he was at the

Metro PCS store and the time that Miller saw him at the fence; she never offered

conflicting descriptions of Roberson; her level of certainty regarding the identification

was high; and the time between the crime and her identifications of Roberson at the

patrol unit and in the photographic lineup was minimal. See Biggers, 409 U.S. at

199–200, 93 S. Ct. at 382.         Accordingly, after reviewing the totality of the

circumstances, we conclude and hold that Roberson did not show by clear and

convincing evidence that the State’s alleged impermissibly suggestive pretrial

identification procedures (having Miller identify Roberson as he sat in the police unit

and Detective Tracy’s alleged failure to follow Department of Justice procedures in

showing Miller the photographic lineup) gave rise to a substantial likelihood of

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irreparable in-court misidentification by Miller. See Ibarra, 11 S.W .3d at 195. W e

overrule this part of Roberson’s first point.

      D.     Griffith’s In-Court Identification

      Griffith testified that he saw Kim chasing Roberson from the Metro PCS store.

He described Roberson at that point as “shorter than [him]” and wearing a hat,

sunglasses, and a blue or red striped shirt. Griffith caught up with Roberson in a

backyard and confronted him with a Taser. After Roberson discarded the money

and jumped the fence, Griffith watched Roberson run away.

      W hen Griffith was making his way back to the Metro PCS store, he saw

Roberson run from the hole in the fence, across the street, and to a Cadillac that was

parked next to an Italian restaurant. Griffith recalled that Roberson was no longer

wearing sunglasses and a hat and was maybe wearing a white shirt instead of the

striped shirt. He observed Roberson look or reach into the Cadillac before running

into the Italian restaurant, and he described Roberson as being “in a big hurry.”

      Before police arrested Roberson, they detained a different person; but Griffith

told police, “That’s the wrong guy. [Roberson] just ran into the Italian [restaurant].”

Griffith observed the officers taking Roberson out of the Italian restaurant, but he

testified that his in-court identification of Roberson was based on his memory of

seeing Roberson’s face in the backyard. He could not recall if anyone showed him

a photographic lineup.



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      The Biggers factors weigh in favor of finding that Griffith’s in-court

identification of Roberson was reliable. See Biggers, 409 U.S. at 199–200, 93 S. Ct.

at 382. Accordingly, after reviewing the totality of the circumstances, we conclude

and hold that Roberson did not show by clear and convincing evidence that the

State’s alleged suggestive pretrial identification procedures gave rise to a substantial

likelihood of irreparable in-court misidentification by Griffith. See Ibarra, 11 S.W .3d

at 195. W e overrule the remainder of Roberson’s first point.

                      IV. E VIDENTIARY S UFFICIENCY—IDENTITY

      In his second point, Roberson argues that the evidence is legally and factually

insufficient to prove his identity as the person who took the money from the Metro

PCS store.     He contends that the “corrupt pre-trial identification procedure[s]”

delineated in the first point negated Miller’s and Griffith’s in-court identifications of

him and that the evidence is, therefore, legally and factually insufficient to prove

identity. Having overruled Roberson’s first point challenging the admissibility of

Miller’s and Griffith’s in-court identifications, Roberson’s second point, which is

expressly contingent on our sustaining his first point, is accordingly unpersuasive.

Further, under the appropriate standards of review, 5 we hold that the evidence is




      5
        See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Steadman v. State, 280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Clayton v. State,
235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006).

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legally and factually sufficient to support Roberson’s identity.     W e overrule

Roberson’s second point.

                                 V. C ONCLUSION

      Having overruled Roberson’s two points, we affirm the trial court’s judgment.




                                             BILL MEIER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

LIVINGSTON, C.J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 3, 2010




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