                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00101-CR
        ______________________________


       CARL LEONARD LIVELY, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 402nd Judicial District Court
                Wood County, Texas
           Trial Court No. 20,292-2008




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       A small fender bender in a Wal-Mart parking lot led to the fortuitous discovery of evidence

connecting Carl Leonard Lively to a gas station armed robbery. He was convicted of aggravated

robbery by a jury, sentenced by the trial judge to forty years‘ imprisonment, and was ordered to

pay a $10,000.00 fine. Lively appeals the judgment of the trial court on grounds that the evidence

was insufficient to support his conviction, his counsel rendered ineffective assistance, and the trial

court erred in denying his motion to suppress. He also argues that the trial court abused its

discretion in overruling Rule 404(b) objections to testimony and evidence obtained from his

vehicle after the accident. We affirm the trial court‘s judgment.

I.     Factual and Procedural History

       Barbara Ann Bryant worked as a clerk for J&J Fastop located in an Exxon gas station in

Hawkins, Texas. There were no customers in the store around 8:28 p.m. when she ―saw a

dark-colored SUV pull up.‖ ―[A] white man came in with a camouflage hat and a bandana . . .

covering up his nose.‖ The tall, slender man was in his late forties or early fifties, had uneven

ears, with one sitting higher than the other, ―salt-and-peppered colored hair, and bushy eyebrows

of the same color.‖ He was wearing sunglasses, blue jeans, dark work-style boots, and a black

belt with a rectangular metal buckle.       The man wielded a gun in Bryant‘s direction and

commanded her to ―[o]pen the drawer and give me your money.‖ A shocked Bryant frantically

placed the money from the cash register on the counter. She complied with the robber‘s requests



                                                  2
to retrieve more money from underneath the counter and stuff all the cash in a bag. While

grabbing the money and pointing the gun at Bryant, he said, ―Go to the back of the store and don‘t

look back.‖

         Bryant ran to the back of the J&J Fastop and called the police as soon as she was sure the

robber had left. Officer A. J. Randell and Officer Eileen Standfield arrived to find Bryant in a

hysterical, hypoglycemic state. Bryant calmed down after drinking a soft drink and told the

officers the man was in a dark-colored blue or black Chevy Tahoe. 1 The gas station was

monitored by several surveillance cameras placed at different angles both inside and outside the

J&J Fastop. Review of the video recordings confirmed the description given by Bryant. The

only car seen arriving and leaving the Exxon parking lot immediately before and after the robbery

was a dark blue Chevy Tahoe with a luggage rack, trailer hitch, bug shield, and brake light at the

top back of the vehicle. Randell took pictures from the surveillance cameras to a local mechanic

who identified the vehicle as a 2002 model. The officers issued a broadcast advising fellow law

enforcement to be on the lookout for a 2002 or newer model Suburban driven by a white male in

his late forties with gray hair. The broadcast described the man as five foot and ten or eleven

inches tall weighing approximately 190 to 200 pounds. Unfortunately, the robber absconded and

three months passed without leads on a suspect.

         Fortuitously, Sergeant Damon Boswell experienced a breakthrough on the case while


1
 Although Officer Standfield‘s report said, ―Barbara, the lady who worked at the store, told me he left in a two-tone,
brown and white Suburban,‖ Bryant denied identifying the vehicle as anything other than a dark-colored SUV.

                                                          3
monitoring the handicapped zones in a Wal-Mart parking lot in Gun Barrel City. He heard the

crash of a minor collision between a small white vehicle and dark blue 2002 Tahoe with a luggage

rack, trailer hitch, bug shield, and brake light at the top back of the vehicle. Lively, who was

driving the Tahoe, ―was outside of the vehicle and shaking, visibly nervous.‖ Boswell radioed the

Tahoe license plate to dispatch and asked for Lively‘s driver‘s license. The license plate did not

match the Tahoe and Lively‘s driver‘s license was expired. Boswell received reports that a blue

Tahoe had been involved in a robbery. He noted that the Tahoe ―had Scotch tape on the outside of

the windshield over the registration certificate where the license number is and VIN number.‖

Boswell knew Scotch tape is used to blur numbers so they cannot be captured by surveillance

cameras. He asked for consent to search the Tahoe. Lively asked why Boswell wanted to

search, and Boswell stated it was due to the way Lively was acting. Lively then responded,

―[W]ell, if you feel like looking in there, look in there.‖

       Boswell found a loaded and chambered gun in the Tahoe, along with bandanas, four or five

license plates, and hats, including a camouflage hat. He took pictures of the evidentiary items and

of Lively, who was wearing blue jeans, sunglasses, dark work-style boots, and a belt with a

rectangular metal buckle. He radioed the license plate to dispatch again. This time, the license

plate matched the Tahoe and confirmed Boswell‘s suspicions that Lively switched the license

plates while Boswell was speaking with the owners of the other car involved in the accident.

Lively was arrested for his expired driver‘s license.



                                                   4
       Randell travelled to Gun Barrel City, saw that the evidence from the Wal-Mart stop

matched the description of the gun, person, and vehicle involved in the J&J Fastop robbery, and

obtained a warrant for Lively‘s arrest.


II.    The Evidence Was Legally and Factually Sufficient

       A.      Standard of Review

       We review the legal and factual sufficiency of the evidence supporting a conviction under

well-established standards. In conducting a legal sufficiency review, we consider the evidence in

the light most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d

512, 517 (Tex. Crim. App. 2009). We must give deference to ―the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not required to

determine whether we believe that the evidence at trial established guilt beyond a reasonable

doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved

any such conflict in favor of the prosecution, and we must defer to that resolution. State v. Turro,

867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In conducting a factual sufficiency review, we

consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim.

App. 2006).    We may find evidence factually insufficient in two ways:           (1) the evidence


                                                 5
supporting the conviction is ―too weak‖ to support the fact-finder‘s verdict, or (2) considering the

conflicting evidence, the fact-finder‘s verdict is against the great weight and preponderance of the

evidence. Laster, 275 S.W.3d at 518. In so doing, we may only find the evidence insufficient

when necessary to prevent manifest injustice.         Id.   Both legal and factual sufficiency are

measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273,

280 (Tex. Crim. App. 2008).

       In Lively‘s case, the State had to prove that (1) Lively; (2) committed

theft of property; (3) intended to obtain or maintain control over that property; (4) intentionally or

knowingly threatened or placed Bryant in fear of imminent bodily injury or death; (5) while

exhibiting or using a deadly weapon (here, a firearm). TEX. PENAL CODE ANN. §§ 29.02, 29.03

(Vernon 2003).

       B.      Analysis

       Lively‘s appellate challenge to the sufficiency of the evidence focuses solely on identity

and does not challenge the remaining elements.

       At trial, all of the facts above were relayed to the jury. Specifically, Bryant testified to the

robber‘s description and told the jury he was driving a dark colored SUV. Bryant identified

Lively in court and said she was certain he was the person who robbed her at the J&J Fastop. She

identified him ―from the nose up and the side of his hair,‖ by the top of his cheekbones, and



                                                  6
―[b]ecause as far as his ears goes, one sits higher than the other.‖

       Randell testified the pictures taken by Boswell matched the vehicle and description of the

robber at the J&J Fastop. He told the jury that he believed the gun found at Wal-Mart was the

same as the gun used in the robbery. The jury viewed the videos of the robbery, admitted without

objection, and was able to compare them to the pictures of evidence recovered by Boswell during

the Wal-Mart accident.

       We conclude this evidence was legally sufficient to allow the jury, who was free to resolve

conflicts in the testimony and evidence, to determine whether Lively was the person who robbed

the J&J Fastop.

       In addressing factual sufficiency, Lively points out that the robber was wearing a bandana

covering his face, that Bryant was looking at the gun in the robber‘s hands, and that Bryant may

have said initially that the robber was driving a two-tone brown and white Suburban, and

misidentified the color of the gun as black instead of blue steel. Lively also complains that

Bryant‘s in-court identification, which was not objected to at trial, was tainted by her attending

another robbery trial in which Lively was the defendant and that Bryant‘s identification of the

getaway vehicle as a dark Tahoe after viewing the surveillance videos was based on circumstantial

proof. Examining the contrary evidence in a neutral light, we cannot conclude the proof of

Lively‘s guilt was obviously weak as to undermine confidence in the verdict.

       We conclude the evidence was both legally and factually sufficient to support the jury‘s



                                                  7
verdict that Lively was the person who committed aggravated robbery at the J&J Fastop. Lively‘s

sufficiency points of error are overruled.

III.    The Trial Court Did Not Err in Denying the Motion to Suppress

        Next, Lively‘s counsel moved to suppress the pictures and evidence found in the Wal-Mart

parking lot. He argues that the trial court erred in determining Lively gave his consent to search

the Tahoe.

        The trial court‘s decision to deny Lively‘s motion to suppress will be reviewed for abuse of

discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Villarreal v. State, 935

S.W.2d 134, 138 (Tex. Crim. App. 1996); Maysonet v. State, 91 S.W.3d 365, 369 (Tex.

App.—Texarkana 2002, pet. ref‘d). This particular review of the motion to suppress only

involves the fact question of whether Lively gave consent to search. Because the trial court is the

exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost

total deference to its determination of facts supported by the record. State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Since all evidence is viewed

in the light most favorable to the trial court‘s ruling, we are obligated to uphold it if that ruling was

supported by the record and was correct under any theory of law applicable to the case. Ross, 32

S.W.3d at 856; Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim.

App. 1999); Maysonet, 91 S.W.3d at 369.



                                                   8
          Lively‘s consent to search the vehicle, if otherwise voluntary, was effective to legalize the

search of the Tahoe if given within the scope of the accident traffic stop. See Florida v. Royer,

460 U.S. 491, 501 (1983). In Texas, the State is required to prove the voluntariness of consent by

clear and convincing evidence based on the totality of the circumstances. See Reasor v. State, 12

S.W.3d 813, 818 (Tex. Crim. App. 2000); Malone v. State, 163 S.W.3d 785, 800 (Tex.

App.—Texarkana 2005, pet. ref‘d).

          Whether consent was given freely and voluntarily is to be answered by looking at the

totality of the circumstances surrounding the consent. See Schneckloth v. Bustamonte, 412 U.S.

218, 226 (1973); Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983). For consent to

be valid, the State must show by clear and convincing evidence that it was not ―coerced, by explicit

or implicit means, by implied threat or covert force.‖ Schneckloth, 412 U.S. at 228; Allridge v.

State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991) (en banc). In determining whether consent

was voluntary, courts consider various factors, including whether the consenting person was in

custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing

consent, the constitutional advice given to the accused, the length of detention, the repetitiveness

of the questioning, and the use of physical punishment. See Flores v. State, 172 S.W.3d 742, 749

(Tex. App.—Houston [14th Dist.] 2005, no pet.). The voluntariness of consent to search does not

require proof of the defendant‘s knowledge of a right to refuse the search. Schneckloth, 412 U.S.

at 234.



                                                   9
        During the hearing on the motion to suppress, Lively was merely asked, ―Did you give

consent for the search of your vehicle,‖ to which he replied, ―No, I did not.‖ Lively provided no

other testimony or explanation of the situation involving consent. There was no testimony or

argument in Lively‘s brief that he was in custody when Boswell asked for consent, was arrested at

gunpoint, was the subject of physical force, suffered a lengthy detention, or was given any advice

regarding consent.

        The State chose not to cross-examine Lively. Instead, it introduced a stipulation in which

both parties agreed Lively had been previously convicted of a crime of moral turpitude. Next, the

State called Boswell, who testified that he asked for consent and Lively asked why he needed it.

After Boswell explained he wanted to search the Tahoe because of the way Lively was acting,

Lively said, ―[W]ell, if you feel like looking in there, look in there.‖2

        The trial court was the exclusive trier of fact and judge of witness credibility at the

suppression hearing. It found Lively consented to the search. As the fact-finder, the court was

free to believe Boswell‘s testimony and disregard Lively‘s testimony.                       Because the record

supports the trial court‘s finding of consent, we afford the proper deference to its determination

and conclude that it did not abuse its discretion in overruling Lively‘s motion to suppress the

evidence obtained as a result of the accident investigation.


2
 Lively attempted to impeach Boswell by introducing a transcript of a prior proceeding in a different county in which
Boswell stated he asked Lively for consent twice. Boswell said his comment was taken out of context, that he only
asked for Lively‘s consent once and that Lively never refused consent.


                                                        10
IV.      The Trial Court Did Not Err in Admitting Evidence from the Gun Barrel City
         Arrest

         Lively contends the trial court ―erred in admitting 404(b) evidence obtained during

Appellant‘s Gun Barrel City arrest to prove his identity as the suspect‖3 in the J&J Fastop robbery.

A trial court‘s decision to admit or exclude evidence is reviewed only for abuse of discretion.

McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d

841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as the decision to

admit evidence is within the ―zone of reasonable disagreement.‖ Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‘g). We may not substitute our own decision

for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the

trial court‘s decision on the admission of evidence is supported by the record, there is no abuse of

discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex.

Crim. App. 2002); Montgomery, 810 S.W.2d at 379.

         The general rule is that all evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more or less probable is admissible. TEX.

R. EVID. 401, 402. However, unless admitted ―for other purposes, such as . . . identity,‖ evidence

of other crimes, wrongs, or acts is not admissible ―to prove the character of a person in order to

show action in conformity therewith.‖ TEX. R. EVID. 404(b). ―Rule 404(b) is a rule of inclusion

rather than exclusion.‖ De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). The

3
 Contrary to Lively‘s assertion that the trial court denied his motion in limine based on Rule 404(b) with respect to the
photographic evidence obtained at Wal-Mart, the record demonstrates his motion in limine was granted.

                                                          11
rule only excludes evidence that is offered or will be used solely for the purpose of proving bad

character and hence conduct in conformity with that bad character. Id. at 343 (citing Rankin v.

State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996) (―if evidence (1) is introduced for a purpose

other than character conformity, (2) has relevance to a ‗fact of consequence‘ in

the case and (3) remains free of any other constitutional or statutory prohibitions, it is

admissible‖)).

         The photographs of Lively, his Tahoe, and its contents were relevant. Identity of the J&J

Fastop robber was a fact of consequence in the case, and the evidence obtained at Wal-Mart made

the determination of whether Lively was the robber more probable, a fact pointed out by the State.

Contrary to Lively‘s contention, because the incident at Wal-Mart was not another robbery, the

photographs could not have been shown to the jury ―to prove the character of a person in order to

show action in conformity therewith.‖ In making its ruling, the trial court understood that the

―photographs . . . are not going to the other crime, it‘s going to go to the things found at the scene

of the accident.‖ We conclude the trial court did not journey beyond the zone of reasonable

disagreement in concluding Rule 404(b) did not preclude inclusion of the photographs taken

during the Wal-Mart accident and arrest.4

         During the guilt/innocence phase, Boswell testified he heard reports while working the


4
 Lively argues that Rule 404(b) should have prevented Boswell from testifying he received reports that a blue Tahoe
was used in a robbery near his location. The only objection raised to Boswell‘s statement, which did not mention that
the other robbery involved Lively or his Tahoe, was a hearsay objection. We need not address Lively‘s unpreserved
Rule 404(b) contention.

                                                         12
accident that a blue Tahoe was used in a previous robbery nearby. Counsel‘s objection to

admission of this type of testimony was overruled. On appeal, Lively argues the trial court erred

in allowing Boswell‘s testimony because it constituted an inadmissible extraneous offense. We

disagree.

       Again, evidence of other crimes, wrongs, or acts is not admissible ―to prove the character

of a person in order to show action in conformity therewith.‖ TEX. R. EVID. 404(b) (emphasis

added). To constitute an extraneous offense, the evidence must show a bad act or crime, and that

the defendant was connected to it. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)

(quoting Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992)). Where the State does

not tie the defendant to a previous act, it is not being used to show ―that person’s actions in

conformity with such character.‖          Rodriguez v. State, 975 S.W.2d 667, 684 (Tex.

App.—Texarkana 1998, pet. ref‘d).

       Rodriguez was convicted of aggravated robbery for theft of a wallet accomplished by

threat of a handgun. Id. at 671. In that case, the arresting officer testified the vehicle Rodriguez

was in had been reported stolen, a fact which the officer claimed Rodriguez later admitted. Id. at

683. This Court reasoned that because the officer‘s statements were not specifically connected to

Rodriguez, and nothing in the evidence suggested he stole the car or knew the car was stolen

before his arrest, the officer‘s statements could not be interpreted as testimony of any prior bad act

by Rodriguez. Id. at 684. Thus, we ruled that Rule 404(b) did not apply to bar the officer‘s



                                                 13
testimony. Id.

       Here, the State did not allege, and Boswell did not testify that it was Lively‘s blue Tahoe

that was used in the previous robbery or that Lively had committed the robbery. As in Rodriguez,

we conclude Boswell‘s testimony, which did not refer to any prior bad act by Lively, was not

barred by Rule 404(b) because it was not being used to show action in conformity therewith.

       These points of error are overruled.

V.     Ineffective Assistance of Counsel

       Allegations of ineffectiveness must be firmly founded in the record. Wallace v. State, 75

S.W.3d 576, 589 (Tex. App.—Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003);

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).       Absent an opportunity for the attorney to explain the

questioned conduct, we will not find deficient performance unless the challenged conduct was ―so

outrageous that no competent attorney would have engaged in it.‖ Goodspeed, 187 S.W.3d at

392; Fox v. State, 175 S.W.3d 475, 486 (Tex. App.—Texarkana 2005, pet. ref‘d). For this reason,

direct appeal is usually an inadequate vehicle for raising such a claim because the record is

generally undeveloped. Thompson, 9 S.W.3d at 813–14; Fox, 175 S.W.3d at 485.

       We evaluate ineffective assistance of counsel claims using the two-part Strickland test

formulated by the United States Supreme Court, which requires a showing of both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Thompson,



                                               14
9 S.W.3d at 812; Fox, 175 S.W.3d at 485.             First, Lively must show that his counsel‘s

representation fell below an objective standard of reasonableness. Fox, 175 S.W.3d at 485 (citing

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). There is a strong presumption that

counsel‘s conduct fell within the wide range of reasonable professional assistance and that the

challenged action could be considered sound trial strategy. Strickland, 466 U.S. at 689; Ex parte

White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong, 25 S.W.3d at 712. Therefore, we will

not second-guess the strategy of Lively‘s counsel through hindsight. Blott v. State, 588 S.W.2d

588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana

2005, pet. ref‘d).

        The second Strickland prong requires a showing that the deficient performance prejudiced

the defense to the degree that there is a reasonable probability that, but for the attorney‘s

deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 689; Tong, 25

S.W.3d at 712. Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez,

195 S.W.3d 713, 730 (Tex. Crim. App. 2006).




                                                15
       Before trial, Bryant was subpoenaed by a court in Tyler, Texas, on another robbery case in

which Lively was the defendant. Bryant did not testify in that trial. A motion in limine was

granted preventing the State from mentioning or alluding to any pretrial identification. The State

told the court it did not anticipate discussing any pretrial identification.                     During

cross-examination of Bryant, the following exchange occurred:

       Q. Now, you have never seen that man that took your money on June 26th of
       2007, since that time; is that correct?

       A. Yes.

       Q. But after all this time -- and this is the very first time that you‘ve seen this man
       sitting right here in this courtroom right?

       A. I‘ve seen him one time. That‘s when I had to go to Tyler.

       Q. That was when?

       A. When I went to Tyler when he was brought over there.

       Q. You went to Tyler, Texas?

       A. That‘s --

       Q. Let‘s talk about that.

Counsel immediately asked to approach the bench and asked for a hearing outside the presence of

the jury. On appeal, Lively complains his counsel was ineffective because ―he failed to request a

hearing outside the presence of the jury prior to opening the door on cross-examination to

testimony surrounding an impermissibly suggestive pretrial identification by the victim.‖



                                                 16
       Although Lively argues counsel‘s questions ―invited evidence of an impermissibly

suggestive pretrial identification,‖ the trial court confirmed that counsel‘s questions did not open

the door to any pretrial identification. We agree with the trial court on this matter. Bryant‘s

nonresponsive answer to the question of whether she had seen Lively ―in this courtroom‖ made no

reference to the Tyler court trial. She merely stated that she saw Lively in Tyler, Texas, and did

not suggest that she identified Lively as the robber at that time. In his brief, Lively did not expand

on the need for a hearing outside the jury‘s presence on this issue; counsel had already obtained a

favorable ruling on a motion in limine regarding pretrial identification testimony. We find no

ineffective assistance of counsel in this matter.

       Lively also complains his counsel was ineffective in failing to object to the in-court

identification by Bryant, which was tainted by allegedly impermissibly suggestive identification

procedures in Tyler. Before trial, counsel stated to the court his ―position . . . that a pretrial

identification procedure was impermissibly suggestive and tainted the in-court identification

procedure.‖ After Bryant‘s in-court identification, counsel objected and asked ―the Court to

exclude her in-court identification of Carl Lively here in the court today because it was tainted in

an impermissibly suggestive way by the pretrial identification procedures down in Tyler, Texas.‖

Trial counsel objected to the pretrial identification as being tainted, obtained a hearing to develop

the issue, and obtained an adverse ruling by the trial court. The fact that the hearing and ruling by

the court occurred after the in-court identification by the witness did not preclude the trial judge



                                                    17
from excluding and striking the testimony had he agreed that the identification was improper.

Contrary to Lively‘s assertion, we find that counsel sufficiently objected to the in-court

identification.

        Nevertheless, counsel would not be considered ineffective in this case had he failed to

object to the in-court identification. An in-court identification is examined based on the totality

of the circumstances to determine if a ―suggestive procedure gave rise to a substantial likelihood of

irreparable misidentification.‖ Wallace, 75 S.W.3d at 584.

        Bryant‘s in-court identification was admissible if it was based on her observations at the

time of the offense and was not affected by the pretrial procedures. Neil v. Biggers, 409 U.S. 188,

198–99 (1972). We look to the opportunity of the witness to view the accused at the time of the

crime, the witness‘ degree of attention, the accuracy of the witness‘ prior description of the

accused, the level of certainty demonstrated by the witness at the confrontation, and the length of

time between the crime and confrontation. Wallace, 75 S.W.3d at 585 (citing Loserth v. State,

963 S.W.2d 770, 772 (Tex. Crim. App. 1998)).

        Bryant said that her presence in the Tyler courtroom did not have any effect on her in-court

identification of Lively. The surveillance cameras demonstrated that Bryant was close to Lively

at the time of the robbery. Although his face was covered by a bandana and sunglasses, Bryant

identified Lively based on characteristics such as his hair color, eyebrows, top of his cheekbones,

dissimilar ears, approximate age, and height. As to the degree of attention, Bryant stated, ―When



                                                 18
somebody‘s [sic] robs you at gunpoint and you can see what you could see when they rob you,

that‘s something that does not go away.‖ Bryant‘s statements given to Randell, which formed the

basis of the police broadcast, and her written statement to the police also demonstrated her degree

of attention and accuracy relating to Lively‘s physical description. Although the length of time

between the robbery and trial does not favor admission of the in-court identification, Bryant

reiterated her certainty throughout trial that Lively was the person who robbed her. She claimed

―if I wouldn‘t have been in Tyler when he was there, I still would have recognized him from the

sideburns and the ears. Some facial descriptions, you don‘t—they—they don‘t go away.‖ Based

on the totality of the circumstances, Bryant demonstrated her in-court identification was

independently reliable.

       We overrule this last point of error.

VI.    Conclusion

       We affirm the judgment of the trial court.




                                                            Jack Carter
                                                            Justice

Date Submitted:       April 29, 2010
Date Decided:         May 5, 2010

Do Not Publish



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