      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00055-CR



                               Rickey Desean Walls, Appellant

                                                v.

                                 The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
     NO. D-1-DC-11-904086, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Rickey Desean Walls guilty of two counts of aggravated

robbery and two counts of aggravated assault. See Tex. Penal Code §§ 22.02, 29.03. After finding

that Walls had previously been convicted of a felony, the jury assessed punishment at forty years’

imprisonment for the first aggravated-robbery count, twenty years’ imprisonment for the second

aggravated-robbery count, fifty years’ imprisonment for the first aggravated-assault count, and

twenty-five years’ imprisonment for the second aggravated-assault count, with the sentences to

run concurrently. We affirm the judgment of the trial court.


                                        BACKGROUND

               Paul Parma, the complaining witness in this case, was a bus driver for Capital Metro

in Austin. On the day of the alleged assault, Parma was driving his route through downtown Austin

when a person—whom Parma later identified as Walls—boarded the bus. Parma stated that Walls
was very upset because Parma did not allow him to board the bus in between stops. Parma tried to

explain why he could not let Walls on earlier, to which Walls said “something like, yeah, keep

talking, keep talking,” which Parma perceived as a threat.

               Parma testified that Walls remained at the back of the bus until the last remaining

passenger exited at the second-to-last stop. Walls then moved to the front of the bus and Parma

became “very scared.” When Parma pulled into the last bus stop, he saw Sammy Salinas, a Capital

Metro mechanic. Parma let his guard down because Salinas “is a big guy” and Parma thought “[n]o

one is going to mess with me with Sammy there.” This was the last thing that Parma remembered

before the assault. When he regained consciousness, Parma was lying on his back and was surrounded

by other employees who were telling him to remain still. Parma’s face was numb and his memory

of the rest of the day remained “foggy,” but he recalled that he was transported to a local hospital

and received treatment for his injuries.

               The bus’s security cameras recorded the entire incident, from when Walls entered the

bus until Parma was removed by paramedics. The video shows Walls walking toward the front of

the bus as if to exit, then hitting and kicking Parma, dragging Parma to the ground, and continuing

to hit and kick Parma while he is down. When Salinas arrived at the scene, he saw Walls standing

over an unconscious Parma. Walls told him to “walk away,” and Salinas went to call for help.

Finally, Walls demanded that Parma give him money and then took Parma’s spiral note pad. By the

time Salinas returned with help, Walls was gone and Parma’s note pad was found on the ground

outside the bus.

               An investigating officer showed Salinas a photo array to see if Salinas could identify

the assailant. Salinas picked Walls’s picture out of the array and said that he was 80 to 90 percent

                                                 2
sure that the person in the picture was the person he saw standing over Parma. At trial, the State

informed the trial court that Salinas could not make an in-court identification.

               Police published video clips from the bus’s security camera on local news outlets in

an attempt to identify the assailant. Reginald Williams saw these images on a local news broadcast

and in a magazine called “Busted!,” and he recognized Walls as the assailant. Williams told his

aunt—who worked for Capital Metro—that he recognized the assailant. Williams was contacted by

the Austin Police Department, and when he met with the investigating officer, Williams identified

Walls as the suspect from the security camera. The police officer then showed Williams four pictures

of Walls—two “mugshots” in jail clothes and two in street clothes—and Williams confirmed that the

person in these photographs was the person that Williams believed was depicted in the security footage.

               Walls was indicted for three counts of aggravated robbery and three counts of

aggravated assault.1 Following a three-day trial, the jury found Walls guilty of Counts I, II, IV, and

V, but not guilty on Counts III and VI. See supra n.1. After finding that Walls had previously been

convicted of a felony, the jury assessed punishment as outlined above. This appeal followed.




       1
          Count I alleges that Walls committed aggravated robbery by causing serious bodily injury
in the course of committing theft, Count II alleges that Walls committed aggravated robbery by
causing bodily injury and using his hands as a deadly weapon in the course of committing theft, and
Count III alleges that Walls committed aggravated robbery by causing bodily injury and using his
feet as a deadly weapon in the course of committing theft. See Tex. Penal Code § 29.03(a)(1)–(2)
(defining aggravated robbery as robbery causing serious bodily injury or robbery where assailant
uses or exhibits a deadly weapon); see also id. § 1.07(a)(17) (defining deadly weapon). Similarly,
Count IV alleges that Walls committed aggravated assault by causing serious bodily injury, Count
V alleges that Walls committed aggravated assault by causing bodily injury while using his hands
as a deadly weapon, and Count VI alleges that Walls committed aggravated assault by causing bodily
injury while using his feet as a deadly weapon. See id. § 22.02(a) (defining aggravated assault).

                                                  3
                                           DISCUSSION

               Walls raises four issues on appeal. First, he asserts that the trial court erred in failing

to grant his motion to sever the offenses alleged in the indictment. Second, Walls complains that

the evidence is insufficient to support his convictions. Third, Walls argues that the trial court made

multiple evidentiary errors that, when viewed cumulatively, support reversal. Finally, Walls claims

that the State failed to give him adequate notice of the extraneous-offense evidence it intended to

introduce at the sentencing hearing. We address each of these issues separately.


Severance

               In his first issue on appeal, Walls asserts that the trial court erred in denying his

motion to sever the separate charges into separate trials. See Tex. Penal Code § 3.04(a) (giving

defendant absolute right to sever trial for offenses consolidated under section 3.02). The State

concedes that the trial court erred in denying Walls’s motion to sever. See id.; see also Werner v.

State, 412 S.W.3d 542, 546–47 (Tex. Crim. App. 2013) (explaining benefits and risks of defendant’s

exercising absolute right to sever). However, the State argues that such error was harmless because

all of the evidence in this case would have been admissible at separate trials as contextual evidence

of each offense.

               Because the State concedes that the trial court erred in denying Walls’s motion to

sever, we consider only whether that error was harmful. See Werner, 412 S.W.3d at 547. Failure

to grant a defendant’s motion to sever is non-constitutional error that will be disregarded “unless

it adversely affects a defendant’s substantial rights.” See id. (citing Rule 44.2(b) of the Rules of

Appellate Procedure). Neither party bears the burden of demonstrating harm. Id. Rather, appellate

                                                   4
courts “assess harm after reviewing the entirety of the record, including the evidence, jury

charge, closing arguments, voir dire, and any other relevant information.” Id. (citing Schutz v. State,

63 S.W.3d 442, 444–45 (Tex. Crim. App. 2001)).

               Although the entire record must be examined, generally, the most important factor

in determining whether a trial court’s failure to grant severance was harmful is the overlap in

evidence that would have been admissible had the trials been severed. See id. at 549 (citing Llamas

v. State, 12 S.W.3d 469, 471–72 (Tex. Crim. App. 2000), and Scott v. State, 235 S.W.3d 255,

259–61 (Tex. Crim. App. 2007), as “‘book-end’ cases” of when failure to grant severance is

harmful). As the court of criminal appeals explained, when “the jury would not have heard any

evidence about [one offense] but for the consolidated proceeding, . . . the error [is likely] harmful

because the jury might well have convicted the defendant” for being a “bad man” rather than because

the State proved the elements of each offense. Id. (quoting Llamas, 12 S.W.3d at 471–72, in which

evidence related to possession-of-drug offense would not have been admissible to prove traffic

offense). However, when there is “substantial overlap of evidence” that would have been admissible

to prove each offense, “the failure to sever is most likely harmless.” Id. at 548–49 (citing Scott, 235

S.W.3d at 258, in which evidence related to child-pornography charge would have been admissible

to prove inducing-sexual-performance-of-child charge).

               In this case, all of the charges relate to a continuous transaction against a single

victim—Walls’s assault of Parma and the attempted theft of Parma’s money. See supra n.1. The

State needed to introduce evidence of the assault and Parma’s resulting injuries to prove the

aggravated-robbery charges. See Tex. Penal Code § 29.02 (listing assault causing bodily injury as



                                                  5
element of robbery). Similarly, evidence that Walls attempted to steal money from Parma and then

stole Parma’s note pad after he assaulted Parma would have been admissible in separate aggravated

assault trials as “same transaction contextual evidence” to “show the circumstances surrounding

the particular offense.” Worthy v. State, 312 S.W.3d 34, 40–41 n. 28 (Tex. Crim. App. 2010)

(internal quotations omitted) (explaining that fact that murder was committed in bordello, although

not essential to proving elements of murder, admissible to show context of crime); see also Werner,

412 S.W.3d at 549–50 (explaining that evidence of earlier stalking offense would have been

admissible at trial for later stalking offense to show escalation of defendant’s harassing behavior).

                Given that the evidence of each offense substantially—if not completely—overlaps

with evidence of the other offenses, we conclude that the trial court’s failure to grant Walls’s motion

to sever was harmless. See Werner, 412 S.W.3d at 549. We overrule Walls’s first appellate issue.


Sufficiency of the evidence

                In his second issue on appeal, Walls asserts that the evidence is insufficient to support

his convictions in two respects. First, Walls claims that the alleged assault was completed before

he attempted to steal from Parma, and thus he did not cause bodily injury “in the course of

committing theft.” Tex. Penal Code § 29.02 (defining elements of robbery). Therefore, according

to Walls, the evidence is insufficient to establish that he committed robbery. Second, Walls argues

that the record fails to show that he caused serious bodily injury, and thus the evidence is insufficient

to support a conviction for aggravated robbery or aggravated assault. See id. §§ 22.02(a)(1)–(2)

(requiring serious bodily injury or deadly weapon to prove aggravated assault), 29.03(a)(1)–(2)

(requiring same to prove aggravated robbery).

                                                   6
                In reviewing the sufficiency of the evidence to support a conviction, we determine

whether a rational trier of fact could have found that the essential elements of the crime were proven

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In

making this determination, we consider all evidence that the trier of fact was permitted to consider,

regardless of whether it was rightly or wrongly admitted. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); Allen v. State, 249 S.W.3d 680, 688–89 (Tex. App.—Austin 2008, no pet.).

We view this evidence in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778.

                As charged in this case, Walls committed aggravated robbery if, during the commission

of robbery, he caused serious bodily injury or used or exhibited a deadly weapon. See Tex. Penal

Code § 29.03(a)(1)–(2). A person commits robbery if “in the course of committing theft” and “with

intent to obtain or maintain control of the property,” he “intentionally, knowingly, or recklessly

causes bodily injury to another.” Id. § 29.02(a)(1). “‘In the course of committing theft’ means

conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after

the attempt or commission of theft.” Id. § 29.01(1). Generally, “theft occurring immediately after

an assault will support an inference that the assault was intended to facilitate the theft.” Cooper v.

State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). That “inference will not be negated by evidence

of an alternative motive that the jury could rationally disregard.” Id. Furthermore, although the motive

in committing assault can be probative of the connection between the assault and theft, the ultimate

issue is whether the assault occurred during the course of theft, not whether the theft was the primary

motive behind the assault. See Sorrels v. State, 343 S.W.3d 152, 158 (Tex. Crim. App. 2011).

                In this case, the record reflects that Walls attempted to steal Parma’s money—and did

steal Parma’s note pad—immediately after the assault. This evidence supports an inference that

                                                   7
the assault was intended to facilitate the theft. See Cooper, 67 S.W.3d at 224. Although there is

evidence that Walls’s assault was also motivated by anger toward Parma, the jury could have either

disregarded this competing inference or found that regardless of which motive predominated Walls’s

actions, the assault occurred during the course of the theft. See id.; see also Sorrels, 343 S.W.3d at

158. Therefore, the evidence is sufficient to support the jury’s implied finding that Walls’s assault

of Parma occurred during the course of committing theft.

               Similarly, there is sufficient evidence to support the jury’s finding that the assault

caused serious bodily injury. Serious bodily injury is injury that “creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” Tex. Penal Code § 1.07(46). Permanent impairment is

determined based on the injury “as it was inflicted, not after the effects had been ameliorated or

exacerbated by other actions such as medical treatment.” Stuhler v. State, 218 S.W.3d 706, 714

(Tex. Crim. App. 2007) (internal citations omitted).

               Parma’s treating physician testified that had he not performed surgery to relieve

the pressure near Parma’s optic nerve, Parma could have suffered permanent impaired vision or

blindness. Furthermore, Parma testified that as a result of the assault, his balance has been impaired

to the point that he falls down occasionally. Based on this record, there is sufficient evidence that

Walls’s assault caused serious bodily injury. See id. Having concluded that the evidence is sufficient

to support the jury’s finding that the assault occurred during the course of committing theft and that

Parma suffered serious bodily injury, we conclude that the evidence is sufficient to support Walls’s

convictions. Walls’s second appellate issue is overruled.



                                                  8
Evidentiary complaints

               In his third appellate issue, Walls asserts that the trial court committed multiple

errors in admitting various evidence and testimony. First, Walls complains that the State failed to

authenticate the video recording and still images of the assault taken from the bus’s security camera.

Second, Walls argues that the police officer who responded to the alleged assault should not have

testified about information relayed to him from the 911 dispatcher because the information was

hearsay and violated the Confrontation Clause. Third, Walls asserts that Williams’s and Salinas’s

identifications of Walls as the assailant were unreliable. Finally, Walls complains that the State

failed to establish the proper chain of custody for sandals purportedly belonging to Walls that

were recovered from the Travis County Jail. Walls contends that the cumulative effect of these

evidentiary errors denied him a fair trial.2 See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.

Crim. App. 1999) (“It is conceivable that a number of errors may be found harmful by their

cumulative effect.”); Davis v. State, 413 S.W.3d 816, 837 (Tex. App—Austin 2013, pet. ref’d)

(reviewing cumulative effect of counsel’s deficient performance to determine harm).




       2
          We caution parties bringing cumulative-harm claims to brief each alleged error separately
before discussing their cumulative effect, with appropriate citations to the record and relevant
legal authority. See Tex. R. App. P. 38.1(i) (requiring appellate briefs to “contain clear and concise
argument for the contentions made); see also Werdlow v. State, No. 13-04-00004-CR, 2005 WL
2008423, at *2 (Tex. App.—Corpus Christi Aug. 22, 2005, no pet.) (mem. op., not designated for
publication) (treating cumulative-error claim as single legal theory). Otherwise, the party runs the
risk of having the claim dismissed as multifarious. See Davis v. State, 329 S.W.3d 798, 803 (Tex.
Crim. App. 2010) (concluding that single point of error asserting constitutional and statutory claims
was multifarious); Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d)
(noting that appellate court may refuse to review multifarious issue).

                                                  9
                  Before conducting a harm analysis, we must first determine whether the trial court

erred in admitting the complained-of evidence. See Chamberlain, 998 S.W.2d at 238 (“[W]e are

aware of no authority holding that non-errors may in their cumulative effect cause error.”). We

review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion

when its decision lies outside the zone of reasonable disagreement. See Layton v. State, 280 S.W.3d

235, 240 (Tex. Crim. App. 2009). We will uphold a trial court’s ruling if it is supported by the

record and is correct under any theory of applicable law. Martin v. State, 173 S.W.3d 463, 467

(Tex. Crim. App. 2005).


Authentication of security footage

                  Walls complains that the trial court erred in admitting the video recording and still

images from the bus’s security cameras. Specifically, Walls argues that Laurie McCaleb—Capital

Metro’s “records management officer”—failed to authenticate the recording because she did not

specifically testify that the footage is from the day of the alleged assault. Furthermore, according

to Walls, McCaleb could not authenticate the videotape because she had no first-hand knowledge

of the assault.

                  Texas Rule of Evidence 901 establishes the authentication requirements for the

admissibility of evidence. “[A]uthentication or identification as a condition precedent to admissibility

is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent

claims.” Tex. R. Evid. 901(a). A videotape can be authenticated by testimony of a witness with

knowledge that the video is what it is claimed to be as well as by its “contents, substance, internal

                                                   10
patterns, or other distinctive characteristics.” See id. 901(b)(1), (4); see also Page v. State, 125

S.W.3d 640, 648 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (concluding that convenience-

store clerk adequately authenticated security footage of robbery). The authenticating witness is not

required to have observed the events depicted in the videotape firsthand, and she can authenticate

the video by explaining how the recording was made and verifying that the recording has not been

tampered with. See Angleton v. State, 971 S.W.2d 65, 68 (Tex. Crim. App. 1998) (witness who did

not observe underlying events verified that security footage was not “spliced” or altered); Page,

125 S.W.3d at 648 (upholding admission of security footage where store clerk testified about how

store security system recorded images and verified that footage had not been altered).

                In this case, McCaleb testified that the bus’s security cameras record footage from

the bus as it occurs, the videos are then transferred to McCaleb’s hard drive “near the time of the

incident,” and the hard drive is kept in a secure location. Furthermore, McCaleb stated that she

reviewed the relevant security footage and verified that it “depicts what was going on on the bus

during that person’s shift during that period of time.” Finally, the security footage itself has a date

and time stamp that corresponds to the time of the alleged assault, and the jury could have reasonably

determined that Walls and Parma were clearly depicted in the video. See Crivello v. State, 4 S.W.3d

792, 802 (Tex. App.—Texarkana 1999, no pet.) (noting that time stamp on video recording and

jury’s ability to verify that person depicted in video is defendant was sufficient to authenticate

video). Based on McCaleb’s testimony and the content of the video itself, we cannot conclude that

the trial court abused its discretion in finding that the security footage was properly authenticated and

therefore admissible.



                                                   11
Information from 911 dispatcher

               Walls next complains that the trial court erred in admitting testimony about

information relayed to a police officer by a 911 dispatcher. Specifically, Walls complains that the

officer’s testimony that he was responding to a call that “stated that a bus driver had been

attacked” was inadmissible hearsay. Furthermore, Walls complains that the testimony violated the

Confrontation Clause because he was not allowed to confront the witness who relayed that

information to law enforcement authorities.

               Hearsay is an out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” Tex. R. Evid. 801(d). Generally, a hearsay statement is not admissible unless the

statement falls within a recognized exception to the hearsay rule. See Pena v. State, 353 S.W.3d 797,

814 (Tex. Crim. App. 2011). In this case, the officer’s testimony about the information he received

from the dispatcher was not offered to prove that a bus driver had been attacked. Rather, the statement

was admitted to explain how the officer came to investigate this offense. This is an acceptable, non-

hearsay purpose for admitting an out-of-court statement. See Dinkins v. State, 894 S.W.2d 330, 347

(Tex. Crim. App. 1995) (concluding that victim’s appointment book indicating that she met with

defendant was admissible for non-hearsay purpose of explaining how defendant became suspect);

McCreary v. State, 194 S.W.3d 517, 521 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Therefore,

we cannot conclude that the trial court abused its discretion in overruling Walls’s hearsay objection.

               Similarly, we conclude that the trial court did not err in overruling Walls’s

Confrontation Clause objection. See Wall v. State, 184 S.W.3d 730, 742–43 (Tex. Crim. App. 2006)

(noting that courts review alleged violations of Confrontation Clause de novo). The Confrontation



                                                  12
Clause to the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.” U. S. Const. amend. VI. Generally,

courts have construed the Confrontation Clause to prohibit prosecutors from admitting “testimonial”

out-of-court statements against a defendant unless the defendant has been afforded the opportunity

to cross-examine the declarant. See De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.

2008). A statement is testimonial “when the surrounding circumstances objectively indicate that

the primary purpose” for the declarant making the statement was “to establish or prove past events

potentially relevant to later criminal prosecution.” Id. (internal citations omitted). Once the defendant

raises a Confrontation Clause objection, the burden shifts to the State to prove either (1) that

the proposed statement does not contain testimonial hearsay and thus does not implicate the

Confrontation Clause or (2) the statement does contain testimonial hearsay but is nevertheless

admissible. Id. at 680–81 (citing Crawford, 541 U.S. at 59).

                In this case, the trial court overruled Walls’s Confrontation Clause objection before

the State offered an explanation as to why the statement was admissible. See id. (concluding that

trial court erred in admitting evidence that was “not obviously non-testimonial” after State failed

to explain why evidence was admissible). However, “[s]tatements made to police during contact

initiated by a witness at the beginning of an investigation are generally not considered testimonial.”

Cook v. State, 199 S.W.3d 495, 497–98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also

Garcia v. State, 212 S.W.3d 877, 882 (Tex. App.—Austin 2006, no pet.). For this reason, typical

911 calls initiated to summon police assistance are generally non-testimonial because they are “a cry

for help” or “the provision of information enabling officers to end a threatening situation.” See



                                                   13
Davis v. Washington, 547 U.S. 813, 832 (2006); Cook, 199 S.W.3d at 498; see also Rodgers v. State,

No. 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex. App.—Beaumont Aug. 4, 2010, no pet.)

(mem. op., not designated for publication) (listing cases that conclude 911 calls are non-testimonial).

               The officer’s testimony in this case indicates that he was responding to a typical 911

call in which the victim or witness was seeking assistance in an emergency. Therefore, we conclude

that the officer’s statement about what information the 911 dispatcher relayed to him was clearly

non-testimonial, and the trial court did not err in overruling Walls’s objection on that basis. See

De la Paz, 273 S.W.3d at 680. Having already concluded that the testimony was offered for a non-

hearsay purpose, we conclude that the trial court did not err in admitting the officer’s testimony. We

overrule Walls’s second evidentiary complaint.


Identification of Walls as assailant

               In his third evidentiary complaint, Walls asserts that the trial court erred in

admitting Williams’s and Salinas’s identification of Walls because the identifications were

unreliable. “Reliability is the linchpin in determining admissibility of identification testimony.”

Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). “The burden is on the defendant to

show by clear and convincing evidence that the in-court identification is unreliable.” Harris v. State,

827 S.W.2d 949, 959 (Tex. Crim. App. 1992); see also Jackson v. State, 657 S.W.2d 123, 127–28

(Tex. Crim. App. 1983) (quoting Neil v. Biggers, 409 U.S. 188, 198 (1972), for proposition that

standard for determining admissibility of out-of-court identification is same as standard for

determining admissibility of in-court identification). We address the reliability of each witness’s

identification separately.

                                                  14
                An identification is inadmissible when, under the totality of the circumstances, it has

been tainted by an impermissibly suggestive pretrial photographic identification. Luna, 268 S.W.3d

at 605. This review involves a two-step analysis: (1) whether the out-of-court identification was

impermissibly suggestive; and, if so, (2) whether that suggestive procedure gave rise to a very

substantial likelihood of irreparable misidentification. See id.; Barley v. State, 906 S.W.2d 27, 33

(Tex. Crim. App. 1995). This is a mixed question of law and fact that does not turn on the

determination of a witness’s credibility or demeanor, and we therefore review the trial court’s

determination de novo. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 2008).

                “Suggestiveness may be created by the manner in which the pre-trial identification

procedure is conducted, for example by police pointing out the suspect or suggesting that a suspect

is included in the line-up or photo array.” Barley, 906 S.W.2d at 33. “Or it may also be created by

the content of the line-up or photo array itself if the suspect is the only individual closely resembling

the pre-procedure description.” Id. However, the “mere fact that lineup participants do not perfectly

match the physical description of the accused does not render a lineup impermissibly suggestive.”

Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.—Dallas 1999, pet. ref’d). Even if the out-of-court

identification procedure is impermissibly suggestive, “the identification testimony will be admissible

if the indicia of reliability outweigh the apparent corrupting effect of the unnecessarily suggestive

pretrial occurrence.” Harris, 827 S.W.2d at 959.

                Walls complains that Williams’s identification was tainted because the investigating

officer showed Williams “highly suggestive” mugshots of Walls in jail clothes and then asked

Williams to verify that the man in the mugshot was the same person Williams knew as Walls.



                                                   15
However, Williams testified that he recognized the person in the security footage as Walls before

he was contacted by investigators, that he knew Walls personally, and that he had socialized with

Walls on several occasions. Furthermore, Williams unequivocally reaffirmed at trial that Walls was

the person depicted in the security footage and that he knew it was Walls before he spoke to

the police. Therefore, Williams testimony demonstrates strong indicia of reliability that outweigh

any potential corrupting effect of the police officer’s showing Williams pictures of Walls in jail

clothing. See id.; see also Ross v. State, 715 S.W.2d 55, 56 (Tex. App.—Dallas 1986, no pet.)

(concluding identification reliable where witness was familiar with defendant and never expressed

any equivocation as to identification). Thus, we conclude that the trial court did not err in admitting

Williams’s identification testimony.

                Similarly, we conclude that the trial court did not err in admitting Salinas’s testimony

about his prior identification of Walls in a photo array. Walls argues that Salinas’s identification

was unreliable because (1) Walls was the only person depicted in the photo array with “downcast

eyes,” (2) Salinas indicated that he was instructed to choose “which one fits the best,” (3) Salinas

told investigators that he was only 80% to 90% sure the person he identified in the photo array was

the assailant, and (4) Salinas could not identify Walls at trial. Walls’s first two complaints relate to

the suggestiveness of the pretrial identification procedures, and Walls’s third and fourth complaints

relate to the overall reliability of Salinas’s identification.

                With respect to Walls’s first two complaints, we conclude that the pretrial procedures

were not overly suggestive. The fact that Walls’s picture was the only one with downcast eyes does

not make it sufficiently suggestive as to taint the photo array. See Wilson, 15 S.W.3d at 553 (noting



                                                    16
individuals in photo lineup need not be identical); see also Reed v. State, No. 14-02-00671-CR,

2003 WL 21782537, *1 (Tex. App.—Houston [14th Dist.] July 31, 2003, pet. ref’d) (mem. op., not

designated for publication) (concluding that photo array not overly suggestive where defendant was

only person with braided hair and different hair line). Furthermore, with respect to Walls’s second

complaint, Salinas testified that he was instructed to identify “which [photo] fits best, you know, fits

the person that I saw.” Salinas and the officer who showed him the array also testified that Salinas

was read and signed a set of instructions before reviewing the photo array. These instructions, which

were admitted at trial, informed Salinas that the suspect may not be any of the individuals in the

photo array and “[i]f you do not recognize the subject, simply alert the investigator that you are

done.” Given this evidence, coupled with Salinas’s testimony, the trial court could have reasonably

found that Salinas was properly instructed that the suspect might not be in the photo array and that

if none of the photographs were the suspect, Salinas should inform the police officer. See Barley,

906 S.W.2d at 33 (noting that officer did not indicate suspect was in array). Therefore, we conclude

that Walls has failed to show that the pretrial identification procedures were unfairly suggestive.

                Finally, we conclude that Walls has failed to show that Salinas’s identification was

unreliable. Walls asserts that Salinas’s identification was unreliable because Salinas could only say

that he was between 80% and 90% sure that the person in the photograph was the suspect he saw

standing over Parma. However, a witness’s level of certainty about the identification is only one

factor in determining the identification’s admissibility. See id. at 35 (noting that witness’s in-court

identification was admissible even though he could not identify suspect in photo array). Similarly,

Walls’s complaint that Salinas could not identify Walls at trial is only one factor in determining



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whether Salinas’s identification was reliable. Given Salinas’s relative certainty about his identification

at the time he viewed the photo array, along with our conclusion that the photo array was not

impermissibly suggestive, we conclude that Walls has failed to show by clear and convincing

evidence that Salinas’s identification was unreliable. Therefore, we conclude that the trial court did

not err in admitting Salinas’s identification. We overrule Walls’s complaint about Salinas’s and

Williams’s identifications of Walls as the suspect.


Sandals recovered from jail

                In his final evidentiary complaint, Walls asserts that the trial court erred in admitting

testimony about sandals allegedly belonging to Walls that contained both Walls’s and Parma’s DNA.

Specifically, Walls argues that the State failed to establish the beginning of the chain of custody for

the sandals because the detective who retrieved the sandals from the Travis County Jail could not

identify who originally collected the sandals from Walls. Thus, according to Walls, any evidence

relating to the sandals was inadmissible because the State failed to establish a proper chain of

custody for the sandals.

                “[A]lthough the evidentiary rules do not specifically address proper chain of custody,

they do state that identification for admissibility purposes is satisfied if the evidence is sufficient

to support a finding that the matter in question is what its proponent claims.” Druery v. State, 225

S.W.3d 491, 503–04 (Tex. Crim. App. 2007) (citing Tex. R. Evid. 901(a); Kingsbury v. State,

14 S.W.3d 405, 407–08 (Tex. App.—Waco 2000, no pet.)). The State may authenticate a piece of

evidence by establishing the beginning and end of a chain of custody to show that the item presented

at trial is the same one that was involved in the events at issue. See Porter v. State, 969 S.W.2d 60,

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66 (Tex. App.—Austin 1998, pet. ref’d) (noting that beginning and end of chain of custody establish

admissibility and any gaps in chain go to weight of evidence). However, “[a]bsent evidence of

tampering or other fraud . . . problems in the chain of custody do not affect the admissibility of the

evidence.” Druery, 225 S.W.3d at 503–04 (concluding letter and envelope admissible even though

State did not establish who originally seized letter or envelope).

               In this case, the detective who retrieved the sandals from the jail explained that based

on his knowledge of the jail’s intake procedure, the sandals were taken from Walls by someone with

the Travis County Sheriff’s Office when Walls was booked into the jail. Furthermore, the detective

explained that whoever originally collected the shoes marked them and Walls’s other clothing with

a tag indicating that they belonged to Walls. Given that the State clearly established the remaining

links in the chain of custody and there is no indication in the record that the sandals were tampered

with, we cannot conclude that the trial court abused its discretion in concluding that the State

sufficiently authenticated the sandals. See id. We overrule Walls’s complaint concerning the

admissibility of the sandals.

               Having concluded that the trial court did not err in admitting any of the complained-of

evidence, we need not proceed to a cumulative harm analysis. See Chamberlain, 998 S.W.2d at 238

(“[W]e are aware of no authority holding that non-errors may in their cumulative effect cause error.”).

We overrule Walls’s third appellate issue.


Notice of extraneous offense evidence

               In his fourth and final issue on appeal, Walls complains that the trial court erred in

admitting extraneous-offense evidence during the punishment phase of trial. Specifically, Walls

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argues that the State failed to adequately identify the victim, date, and county of the alleged

extraneous offense as required by the Code of Criminal Procedure. See Tex. Code Crim. Proc.

art. 37.07, § 3(g). Thus, according to Walls, the trial court erred in overruling his objection to the

extraneous-offense evidence.

                As with other evidentiary rulings, we review a trial court’s decision to admit or

exclude extraneous-offense evidence for an abuse of discretion. Roethel v. State, 80 S.W.3d 276,

280 (Tex. App.—Austin 2002, no pet.). However, article 37.07, section (g) of the Code of Criminal

Procedure “limits the trial court’s discretion to admit evidence of extraneous offenses at the

punishment phase.” Id. The statute specifies that if the State “intends to introduce an extraneous

crime or bad act that has not resulted in a final conviction . . . notice of that intent is reasonable only

if the notice includes the date on which and the county in which the alleged crime or bad act occurred

and the name of the alleged victim of the crime or bad act.” Tex. Code Crim. Proc. art. 37.07, § 3(g).

                In this case, the State provided notice that it intended to introduce evidence about

three pending robbery cases against Walls. The notice included the following description of the

indicted—but unadjudicated—offenses:


                1.      The defendant is charged with the Offense of Robbery
                        committed on or about June 12, 2011 in cause number D1DC
                        11203159 in the 403rd Judicial District Court of Travis
                        County, Texas.

                2.      Defendant is charged with the offense of Aggravated Robbery
                        committed on our about June 12th, 2011 in cause number
                        D1DC 11301523 in the 403rd Judicial District in Travis
                        County, Texas.




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               3.      The Defendant is charged with the offense of Aggravated
                       Robbery committed on or about June 10th, 2011 in cause
                       number D1DC 11301320 in the 403rd Judicial District Court
                       of Travis County.


Although this notice lists the dates, county, and nature of the alleged extraneous offenses, the notice

fails to list the name of the victims of any of the alleged robberies. Therefore, we must conclude that

the State failed to comply with the notice requirements of article 37.07, section 3(g). See id.

               However, as this Court has made clear, failure to comply with this statutory-notice

requirement does not render extraneous-offense evidence per se inadmissible. See Roethel, 80 S.W.3d

at 282. Unlike the rules of evidence, “[t]he notice requirement found in section 3(g) . . . does not

relate to the substantive admissibility of the evidence.” Id. (internal citations omitted). Rather, the

“purpose of the notice requirement is to enable the defendant to prepare to meet extraneous offense

evidence.” Id. (citing Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d)).

“Thus, we must analyze how the deficiency of the notice affected appellant’s ability to prepare for

the evidence.” Id.; see also West v. State, No. 03-05-00371-CR, 2008 WL 4899189, at *6–7 (Tex.

App.—Austin Nov. 14, 2008, pet. ref’d) (mem. op., not designated for publication) (concluding that

notice of intent to introduce evidence of recent conviction was reasonable under circumstances

where State did not act in bad faith and defendant was aware of facts of extraneous offense).

               In this case, the State’s notice informed Walls that it intended to introduce evidence

of three extraneous offenses for which Walls had been indicted. The notice provided the cause

number and identified the court where those indictments were pending. Furthermore, during a

discussion outside the presence of the jury, the trial court took judicial notice of the fact that these



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indictments were pending in the same court as the current offenses; Walls had been arraigned for

those indictments; Walls had previously received copies of the indictments in those cases; and those

indictments provided greater detail about the alleged extraneous offenses, including the victims’

names. Based on this record, we conclude that the State’s failure to comply with section 3(g) of

article 37.07 did not affect Walls’s ability to prepare for the extraneous-offense evidence. See id.

Therefore, we conclude that the trial court did not abuse its discretion in admitting the extraneous-

offense evidence at the punishment phase of trial. We overrule Walls’s fourth appellate issue.


                                          CONCLUSION

                 Having overruled Walls’s four issues on appeal, we affirm the trial court’s judgment

of conviction.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: March 20, 2014

Do Not Publish




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