Affirmed and Memorandum Opinion filed August 18, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00165-CR

                         HAROLD BROWN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 208th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1362106

                 MEMORANDUM                       OPINION


      Following a jury trial, appellant Harold Brown was found guilty of capital
murder. The trial court sentenced appellant to life in prison without parole. In three
issues, appellant contends that the trial court erred by (1) permitting an in-court
identification of appellant because police used a suggestive out-of-court procedure;
(2) admitting appellant’s statement to the police because he did not expressly
waive his rights on the audio recording; and (3) including a voluntary intoxication
instruction in the charge because no evidence suggested appellant was intoxicated.
We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

         On September 2, 2012, Club ICU at 9500 Mesa Drive hosted two birthday
parties. One of the parties was for the complainant, Gilbert Kibble, and his sister
Yvette Kibble (the Kibble party) and the other party was for Serena Wheatley (the
Wheatley party). Shortly before the club closed, a woman from the Kibble party
and a woman from the Wheatley party were involved in a verbal altercation on the
dance floor. After the altercation, the club owner turned on the lights and Gilbert
told the DJ to stop playing music because they were going to leave. Both parties
exited the club and everyone began fighting with each other in the parking lot. A
person started shooting a handgun during the fight, killing Gilbert, Felipe Castro,
and Curtis Steward and wounding several others. Multiple people saw the shooter
and described him as a tall male with light-complected skin, cornrows, and
wearing a white t-shirt and jeans. One witness testified that she heard people
yelling “Scooby don’t do it.” Several witnesses testified that appellant’s nickname
is Scooby. Appellant also matched the physical description given by people at the
scene.

         On September 27, 2012, police officers arrested appellant and conducted an
interview. Appellant stated that when he exited the club, he saw multiple people
jumping on an old man. Appellant explained that he attempted to help by telling
them to stop but a man pulled out a gun. Appellant stated that he and the man
struggled over the gun and that he ended up with the gun and shot him. He stated
that he also shot another man who was running toward him.

         Appellant was indicted for capital murder on December 14, 2012. See Tex.
Penal Code § 19.03(a)(7). Appellant pleaded not guilty. The jury found appellant
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guilty as charged in the indictment. The trial court sentenced appellant to life in
prison without parole.

                               ISSUES AND ANALYSIS

      In three issues, appellant contends that the trial court erred by (1) allowing
an in-court identification of appellant because the police used a suggestive out-of-
court procedure when showing the witness a photo array; (2) admitting appellant’s
statement to the police because he did not expressly waive his Miranda rights on
the audio recording of the interview; and (3) including a voluntary intoxication
instruction in the jury charge because no evidence suggested appellant was
intoxicated on the night of the shooting.

      I.     In-Court Identification

      In his first issue, appellant asserts that the trial court erred by admitting an
in-court identification of appellant because a witness’s identification of appellant
was based on an impermissible, out-of-court procedure. Appellant contends that
the identification was inadmissible because the witness stated that police told him
that the shooter was in the photo spread and that he was required to pick someone
from the photo spread.

      A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. Barley v. State, 906 S.W.2d 27, 32−33 (Tex. Crim.
App. 1995). To challenge the admissibility of a pretrial identification, an appellant
has the burden to show, by clear and convincing evidence and based on the totality
of circumstances, that (1) the pretrial identification procedure was impermissibly
suggestive; and (2) it created a very substantial likelihood of irreparable
misidentification. Id. at 33 (citing Simmons v. United States, 390 U.S. 377, 384


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(1968)).

      Under the first Barley prong, we examine the manner in which the pretrial
procedure was conducted, as well as the content of the line-up or photo spread. See
Burns v. State, 923 S.W.2d 233, 237−38 (Tex. App.—Houston [14th Dist.] 1996,
pet. ref’d). Suggestiveness may arise from the manner in which a pretrial
identification procedure was conducted. Barley, 906 S.W.2d at 33. For example, a
police officer may point out the suspect or suggest that a suspect is included in a
line-up or photo array. Id. In addition, the content of a line-up or photo array itself
may be suggestive if the suspect is the only individual who closely resembles the
witness’s description. Id. A pretrial identification may be suggestive in a single
procedure or by the cumulative effect of multiple procedures. Id.

      If it is determined that the pretrial identification procedure was
impermissibly suggestive, we then determine whether the procedure created a
“very substantial likelihood of irreparable misidentification.” Id. at 34. Under the
second Barley prong, we weigh the following five nonexclusive factors against the
corrupting effect of a suggestive identification procedure: (1) the opportunity of the
witness 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 criminal; (4) the
level of certainty demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. Luna v. State, 268 S.W.3d
594, 605 (Tex. Crim. App. 2008).

      We review de novo whether an identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of
misidentification, but we review historical issues of fact in the light most favorable
to the trial court’s ruling. Loserth v. State, 963 S.W.2d 770, 773−74 (Tex. Crim.
App. 1998).

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      Here, appellant does not complain about the content of the photo spread; he
challenges only the process used by the police in conducting the photo spread.
Appellant argues that Allen Brown’s1 in-court identification of appellant was
impermissibly suggestive because the police told him that the suspect was in the
photo spread and that he was required to choose someone.

      Allen testified at trial that he attended the Wheatley Party at Club ICU on
the night of the shooting. He stated that he left the club around 2:00 a.m. to put
food in his car when several men jumped on him and started fighting. Allen stated
that he was fighting with Curtis, heard gunshots, and then saw that Curtis had been
shot. Allen saw the shooter run by him, carrying a gun. Allen described the shooter
as being around six-feet tall with cornrows. The police showed Allen a photo
spread approximately two weeks after the shooting and Allen selected two photos
but eventually selected appellant’s photo from the number one position and told
the police that he was the shooter. When the prosecutor asked him why he initially
selected two photographs, Allen stated the following:

      Because I told him that I was blurred and I told him I didn’t know
      who it was. And he was like: You know it ain’t him. I said: Well, they
      said it was him. So, I’m like, I want to be sure, you know, I want to
      make sure --
The prosecutor immediately asked to approach the bench and informed the judge
that she believed that Allen was about to perjure himself and that they should get
him an attorney. The trial court then conducted a hearing outside the presence of
the jury on the admissibility of Allen’s in-court identification.

      At the hearing, Allen stated that he did not want to be involved in the case
and that he did not want to testify at trial. Allen testified that although he selected


      1
          Allen Brown is not related to appellant.

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two photographs, he told the police “off the record” that the person in the number
one position was the shooter. Allen also stated that the police gave him a piece of
paper with his warnings, which included the instruction that he was not required to
pick anyone from the photo spread. Allen stated that the police did not read him
the warnings and that although he signed them, he did not read them. Allen then
clarified that the police did not tell him that he had to pick someone, rather, the
police told him to pick one of the two photographs he circled. Allen stated that the
police told him the individual was in the photo spread, but that they did not tell him
which photograph to select. Allen then identified appellant in the courtroom as the
shooter.

      On cross-examination, Allen stated “[n]o, they weren’t telling me to pick out
Mr. Brown. I picked out Mr. Brown because that’s who it was.” At the conclusion
of the hearing, defense counsel objected to Allen’s in-court identification, arguing
that it was tainted by the improper police identification procedures. The trial court
overruled the objection. Trial resumed and Allen identified appellant as the
shooter. Allen stated that he selected appellant’s photograph from the photo spread
because he was the person who ran by him with a gun on the night of the shooting.

      Officer JC Padilla testified about the procedure used to show Allen the photo
spread. Officer Padilla stated that in order to keep the process fair and objective, a
blind administrator showed Allen the photo spread. Officer Padilla explained that a
blind administrator is a detective who is not involved in the case and administers
the photo spread but does not know which position the suspect is located and does
not know what the suspect looks like. When asked about Allen’s identification,
Officer Padilla stated that a blind administrator showed him the photo spread and
that it would have been impossible for him to suggest who to pick because he did
not know who the suspect was or which position he was located. After Allen

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selected two photographs from the spread, Officer Padilla met with Allen. Officer
Padilla recalled that Allen told him “off the record” the shooter was in the number
one position, which contained appellant’s photograph. Officer Padilla stated that he
believed that Allen did not want to be involved in the investigation and that he
wanted to distance himself as much as possible. Officer Padilla also stated that he
never told Allen who to pick from the photo spread.

      Appellant complains that the photo spread was impermissibly suggestive
because Allen claimed that the police told him the suspect was in the photo spread.
However, “[a] lineup is not rendered unnecessarily suggestive simply because the
complainant is told that it contains a suspect, because a complainant would
normally assume that to be the case.” Harris v. State, 827 S.W.2d 949, 959 (Tex.
Crim. App. 1992). Further, Officer Padilla testified that a blind administrator
would not have known the suspect’s identity or where he was in the spread and that
he never told Allen who to pick. The trial court was free to believe Officer
Padilla’s testimony. See Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App.
1991).

      Appellant also argues that the photo spread was impermissibly suggestive
because the police told Allen that he was required to pick someone. During the
hearing, Allen admitted that he had previously told the prosecutor that the police
followed proper procedures and that he was given a sheet with instructions. Allen
also signed the witness admonishment sheet, which states the following: “You are
not required to select any individual and that it is equally important to clear
persons not involved in the crime from suspicion as it is to identify persons
believed to be responsible for the crime.” When testifying before the jury, Allen
stated that the officer did not tell him he was required to pick someone from the
photo spread.

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      We conclude that the procedure was not impermissibly suggestive. Although
Allen gave conflicting statements at trial, he testified that the officers did not tell
him who to pick and that they did not tell him he was required to pick someone.
Allen identified appellant as the shooter based on his independent recollection of
the shooting. Thus, appellant did not meet his threshold burden to present clear and
convincing evidence of a totality of the circumstances showing that the pretrial
photo spread was impermissible suggestive. See Barley, 906 S.W.2d 34−35.
Accordingly, we need not address whether the procedure used to identify appellant
presented a likelihood of misidentification. See id. at 33.

      We overrule appellant’s first issue.

      II.    Admissibility of Appellant’s Statement to Police

      In his second issue, appellant contends that the trial court erred by admitting
his recorded statement to the police because the record did not contain an express
waiver of appellant’s Miranda rights as required by Article 38.22 of the Texas
Code of Criminal Procedure.

      We review the trial court’s admission of evidence for an abuse of discretion.
Nickerson v. State, 312 S.W.3d 250, 255 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d). While a trial court has substantial discretion, it abuses its discretion if
its ruling is outside of that zone within which reasonable persons might disagree.
Id. A trial court’s ruling on the admissibility of evidence will be upheld if the
record reasonably supports the ruling. Id.

      Article 38.22 of the Texas Code of Criminal Procedure establishes the
procedural safeguards for securing the privilege against self-incrimination. Tex.
Code Crim. Proc. art. 38.22; Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App.
2010). No oral statement of an accused made as a result of custodial interrogation


                                             8
is admissible against the accused in a criminal proceeding unless (1) the statement
was recorded and (2) prior to the statement but during the recording, the accused
was warned of his rights and knowingly, intelligently, and voluntarily waived those
rights. Tex. Code Crim. Proc. art. 38.22, § 3; Joseph, 309 S.W.3d at 23−24.
Subsection 2 requires that the defendant be informed of the following rights:

      (1) he has the right to remain silent and not make any statement at all
          and that any statement he makes may be used against him at his
          trial;
      (2) any statement he makes may be used as evidence against him in
          court;
      (3) he has the right to have a lawyer present to advise him prior to and
          during any questioning;
      (4) if he is unable to employ a lawyer, he has the right to have a
          lawyer appointed to advise him prior to and during any
          questioning; and
      (5) he has the right to terminate the interview at any time.
Tex. Code Crim. Proc. art. 38.22, § 2(a). The State bears the burden of establishing
by a preponderance of the evidence that a defendant knowingly, intelligently, and
voluntarily waived his Miranda rights. Joseph, 309 S.W.3d at 24.

      Generally, a defendant’s confession is inadmissible without a valid waiver.
See Tex. Code Crim. Proc. art. 38.22, § 3(a). However, neither a written nor oral
express waiver is required. Joseph, 309 S.W.3d at 24. Rather, a waiver may simply
be inferred from the actions and words of the person interrogated. Id. at 24−25
(quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Nonetheless, the
waiver must still be knowingly, intelligently, and voluntarily made. In evaluating
whether appellant knowingly, intelligently, and voluntarily waived his Miranda
rights, we employ a two-prong test, asking: (1) whether the relinquishment of the
right was voluntary by determining whether it was the product of a free and


                                          9
deliberate choice rather than intimidation, coercion, or deception; and (2) whether
the waiver was made with full awareness of the nature of the rights being
abandoned and the consequences of the decision to abandon it. Id. at 25 (citing
Moran v. Burbine, 475 U.S. 412, 421 (1986)). We look to the totality of the
circumstances in determining whether a statement was made voluntarily. Id. We
may consider the defendant’s background, experience, and conduct in our review
of the totality of the circumstances. Id.

      The totality of the circumstances surrounding the interrogation shows that
appellant’s waiver was voluntary and resulted from a free and deliberate choice
without intimidation, coercion, or deception. Officer Padilla testified that when he
interviewed appellant, he read him his Miranda rights and built up a rapport.
Officer Padilla stated that he again read appellant his Miranda rights when they
started recording the interview. The recording reflects that after Officer Padilla
read aloud each right, he asked appellant if he understood the right. Appellant
verbally indicated that he understood each right by responding with “yes sir.” After
receiving the warnings and indicating that he understood each right, appellant
participated in an interview which lasted approximately eleven minutes. Appellant
did not ask for an attorney nor did he ask to terminate the interview. The recording
reflects that appellant acknowledged that the police were respectful and that he was
treated fairly. Appellant was offered food and water and was free to use the
restroom. The recording shows no evidence of intimidation or coercion or that
appellant was under duress. The parties remained calm throughout the entire
interrogation process.

      We also conclude that the totality of the circumstances demonstrates that
appellant’s waiver was made with full awareness of both the nature of the rights
being abandoned and the consequences of the decision to abandon them. Appellant

                                            10
was given all of the required warnings mandated by Article 38.22, including that
appellant was not required to say anything and could stop the interview at any
time. After each right was given, appellant was asked if he understood his right.
Appellant consistently answered in the affirmative, indicating his understanding of
each right. Appellant freely answered all of the officers’ questions. By indicating
his understanding of the rights and then freely answering the questions without
ever asking the interview to terminate, appellant’s conduct demonstrated his
awareness of his rights and his knowing waiver of those rights. See id. at 27.

      The totality of the circumstances reflects that appellant knowingly,
intelligently, and voluntarily waived his rights. Thus, appellant’s recorded
statement was admissible and the trial court did not abuse its discretion by
admitting the statement at trial.

      We overrule appellant’s second issue.

      III.   Jury Instruction

      In his third issue, appellant asserts that the trial court erred by including a
voluntary intoxication instruction in the jury charge because there was no evidence
to suggest that appellant was intoxicated and that the intoxication somehow
excused his behavior.

      Appellate review of alleged jury charge error involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731−32 (Tex. Crim. App. 1994). First, we must
determine whether error occurred. Id. at 731. If so, we must then analyze whether
sufficient harm resulted from the error to require reversal. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). Under this second step, the degree of
harm necessary for reversal depends on whether the appellant properly preserved
the objection. Id. When, as here, error in the charge is preserved for review,


                                         11
reversal is required if the error caused “some harm.” Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1984) (op. on reh’g).

      The first issue is whether there was error in the jury charge. Abdnor, 871
S.W.2d at 731. If there was no error, we need not pursue the harm analysis. The
court’s instruction at issue, derived from Texas Penal Code section 8.04, provides:

      Voluntary intoxication does not constitute a defense to the
      commission of a crime. “Intoxication” means disturbance of mental or
      physical capacity resulting from the introduction of any substance into
      the body.
Tex. Penal Code § 8.04(a) & (d). Jury instructions are meant to lead a jury and
prevent confusion. See Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).
Such an instruction is appropriate if there is evidence from any source that might
lead a jury to conclude that a defendant’s intoxication somehow excused his
actions. Id.; see also Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994)
(providing that defendant need not rely upon intoxication as a defense for charge to
include section 8.04 instruction).

      The jury heard testimony from one witness who saw appellant walking in
and out of the club throughout the entire night. The witness stated that “he just
looked crazy.” The jury also heard from the bartender of the club who stated that
appellant purchased a “set up.” The bartender stated that Club ICU is a “bring your
own bottle club,” meaning that patrons are allowed to bring their own alcohol. The
bartender explained that a set up consists of juice, ice, and cups that patrons can
buy to mix with their liquor. Although the testimony of the lay witnesses does not
establish unequivocally that appellant was intoxicated on the night of the shooting,
the testimony is sufficient to make intoxication an issue in the case. See Dana v.
State, 420 S.W.3d 158, 168 (Tex. App.—Beaumont 2012, pet. ref’d) (holding that
voluntary intoxication instruction was proper where witness testified that defendant

                                        12
“was on something” and that defendant had used methamphetamine in the past).
Based on the testimony, the trial court could reasonably conclude that a juror might
find that intoxication somehow excused appellant’s actions. The trial court
properly utilized the charge to prevent confusion. The inclusion of the instruction
did not constitute error.

      We overrule appellant’s third issue.

                                   CONCLUSION

      We overrule appellant’s issues and affirm the trial court’s judgment.




                                      /s/    Ken Wise
                                             Justice



Panel consists of Justices Christopher, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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