Opinion issued May 23, 2013




                                   In The

                              Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-12-00245-CR
                         ———————————
               MICHAEL CARSON ANDERSON, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 208th District Court
                          Harris County, Texas
                      Trial Court Case No. 1312318



                                OPINION

     Appellant, Michael Carson Anderson, was charged by indictment with

aggravated robbery. 1 Appellant pleaded not guilty. A jury found him guilty.

1
     See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011),
     § 31.03(a), (b)(1) (Vernon Supp. 2012).
Appellant pleaded true to two enhancement paragraphs, and the trial court assessed

punishment at 40 years’ confinement. In three issues, appellant argues (1) he

received ineffective assistance of counsel, (2) the appeal should be abated for

findings of fact and conclusions of law, and (3) the trial court erred by denying his

motion to suppress an impermissibly suggestive photographic array.

      We affirm.

                                   Background

      Michelle Fuoss was working as a bartender at the Litehouse Ice House in

Spring, Texas on June 23, 2011. She arrived shortly after 11:00 in the morning to

open the bar and get everything ready. Not long after she opened the bar, a man

came in, explaining he was waiting for a friend to show up. He came in and out of

the bar a couple of times. Eventually, he sat down and struck up a conversation

with Fuoss about how much the bar had changed. When Fuoss opened the register

to put the money in, the man walked around the bar, put a gun to her head, and told

her to give him the money. She complied. The man took the business’s telephone,

Fuoss’s purse, and the money, and left.

      Fuoss notified the police, and provided a description of the robber. The

police also obtained copies of the surveillance video. Officer V. Cook, then of the

Harris County Sheriff’s Office, released images from the surveillance video to the

media and later received an anonymous tip from Crime Stoppers identifying


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appellant as the possible robber. Officer Cook looked at a photograph in her

database of appellant. In the photograph, appellant had a bald head, a goatee, and a

tattoo on his neck. Officer Cook determined that he had features similar to the

description of the robber from Fuoss as well as to the images from the video

surveillance of the bar. She then compiled pictures of other white males in the

same approximate age range who also had bald heads, and tattoos on the neck or

upper chest. Two others, like the photo of appellant, had facial hair. Three did

not. Officer Cook testified that she was limited in her choices based on the

features but nevertheless was able to compile the array.

      Officer Cook presented the array to Fuoss while Fuoss was at her mother-in-

law’s house. She explained to Fuoss that “a suspect had been developed and that I

had prepared a photo array that I would like her to take a look at.” Before

presenting Fuoss with the photo array, Officer Cook provided her a list of written

instructions. Fuoss reviewed and signed the instruction sheet before she reviewed

the photographic array. Among other things, the instruction sheet explained that

she “should not conclude or guess that the photographs contain a picture of the

person who committed the crime” and that she was “not obligated to identify

anyone.” Fuoss explained at the hearing on appellant’s motion to suppress, “I was

under the impression that I didn't even have to pick a photo.” Finally, Fuoss was




                                         3
presented with the array. After reviewing it for about two minutes, Fuoss picked

appellant, stating that she was about 95% sure that appellant was the robber.

      Fuoss’s mother-in-law was present in the room while Fuoss reviewed the

instructions and array.       Officer Cook, Fuoss, and Fuoss’s mother-in-law all

testified during the suppression hearing that the mother-in-law did not comment on

the photographs, gesture in any suggestive way, or in any other way influence

Fuoss’s identification of appellant in the array. It was undisputed that the mother-

in-law was not present during the robbery and had no personal knowledge about

the identity of the robber.

      During the voir dire of the venire panel at trial, the prosecutor discussed the

meaning of the beyond-a-reasonable-doubt burden of proof. Specifically, she said,

“There is no definition for beyond a reasonable doubt, but you can use your own

common sense to decide for yourself what it is. You’re supposed to use your

common sense, your life experiences, your education to weigh the evidence. That’s

the point of being a juror.”       Appellant did not object to this explanation or

otherwise complain about the characterization at trial.

                          Ineffective Assistance of Counsel

      In his first issue, appellant argues he received ineffective assistance of

counsel.




                                          4
A.    Standard of Review & Applicable Law

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,

2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.

2005). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. at 814. We presume that a counsel’s conduct falls within the

wide range of reasonable professional assistance, and we will find a counsel’s

performance deficient only if the conduct is so outrageous that no competent

attorney would have engaged in it. Andrews, 159 S.W.3d at 101.


                                        5
      The Court of Criminal Appeals has recently stated that “[i]n making an

assessment of effective assistance of counsel, an appellate court must review the

totality of the representation and the circumstances of each case without the benefit

of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The

court further stated that demonstrating ineffective assistance of counsel on direct

appeal is “a difficult hurdle to overcome.” Id. The court instructed, “[T]he record

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.

B.    Analysis

      Appellant argues that he received ineffective assistance of counsel during

voir dire of the venire panel when his attorney failed to object to a statement made

by the prosecutor to the venire panel. While she was asking the venire panel

questions, the prosecutor discussed the meaning of the beyond-a-reasonable-doubt

burden of proof. Specifically, she said, “There is no definition for beyond a

reasonable doubt, but you can use your own common sense to decide for yourself

what it is. You’re supposed to use your common sense, your life experiences, your

education to weigh the evidence. That’s the point of being a juror.”

      Appellant argues that the State impermissibly lowered its burden of proof by

telling the venire that they could use their common sense in deciding whether there


                                          6
was proof beyond a reasonable doubt. Due to his trial attorney’s failure to object,

which prevented appellant from fully presenting the issue on appeal, appellant

argues that he received ineffective assistance of counsel. Because we conclude

that there was no error in the prosecutor’s statement, we hold that his attorney’s

performance was not insufficient by failing to object.

       In Texas, courts are not required to give the jury a definition of beyond a

reasonable doubt. Rogers v. State, 795 S.W.2d 300, 306 (Tex. App.—Houston [1st

Dist.] 1990, pet. ref’d). Instead, it is meant to be understood in its common

meaning. Id. To that end, “each juror must decide for himself what amount of

proof would constitute the threshold of beyond a reasonable doubt.” Murphy v.

State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003) (citing Garrett v. State, 851

S.W.2d 853, 859 (Tex. Crim. App. 1993) (holding “an individual juror must

determine what proof beyond a reasonable doubt means to him, for the law does

not tell him”)). It follows from this body of law that the jurors must use their

common sense in determining whether proof beyond a reasonable doubt has been

met.   See Rogers, 795 S.W.2d at 306 (holding statement to jurors was not

erroneous because “[t]he trial court was merely telling the jurors to use their

common sense”).

       A prosecutor’s statement to the venire panel that they would have to use

their common sense to decide what constitutes proof beyond a reasonable doubt,

                                         7
then, is not erroneous.     Accordingly, appellant’s counsel’s assistance was not

deficient by failing to object to the statement. See Vaughn v. State, 931 S.W.2d

564, 566 (Tex. Crim. App. 1996) (holding “in order to argue successfully that . . .

counsel’s failure to object . . . amounted to ineffective assistance, appellant must

show that the trial judge would have committed error in overruling such an

objection”).

      Appellant relies on Wansing v. Hargett, a Tenth Circuit habeas corpus case,

to support his contention that the prosecutor’s statement was inappropriate. 341

F.3d 1207 (10th Cir. 2003). In Wansing, the trial court’s comments regarding the

meaning of reasonable doubt “implied that there [wa]s an extraordinarily broad

range of possible meanings, including some which are plainly unconstitutional, and

informed the jurors that they had to resolve the definitional issue for themselves, in

the ‘individuality’ of their own ‘conscience and reason.’” Id. at 1214. Wansing

applies Oklahoma law. Id. Under Texas law, however, jurors must decide what

proof beyond a reasonable doubt means to them. Murphy, 112 S.W.3d at 597. The

prosecutor’s comments were therefore consistent with Texas law. See Haro v.

State, 371 S.W.3d 262, 265–66 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(distinguishing Wansing).

      We overrule appellant’s first issue.




                                          8
                                Photographic Array

      In his third issue, appellant argues the trial court erred by denying his motion

to suppress an impermissibly suggestive photographic array. In his second issue,

appellant argues we should abate the appeal and remand the case to the trial court

for findings of fact and conclusions of law relevant to the photographic array.

A.    Standard of Review

      We review a trial court’s ruling on a motion to suppress using a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000). Although we give almost total deference to the trial court’s determination

of historical facts, we conduct a de novo review of the trial court’s application of

the law to those facts. Id. At a hearing on a motion to suppress, the trial court is

the sole trier of fact and judge of the credibility of the witnesses as well as the

weight to be given their testimony. Smith v. State, 236 S.W.3d 282, 289 (Tex.

App.—Houston [1st Dist.] 2007 pet. ref’d). The trial court may choose to believe

or disbelieve all or any part of a witness’s testimony. Id. On appeal, we review

the evidence in the light most favorable to the trial court’s ruling. Id.

B.    Abatement

      In his second issue, appellant argues we should abate the appeal and remand

the case to the trial court for findings of fact and conclusions of law relevant to the




                                           9
photographic array. Appellant acknowledges that he did not request findings of

fact and conclusions of law when the trial court denied his motion to suppress.

      The Court of Criminal Appeals held in State v. Ross that “when the trial

court fails to file findings of fact, we view the evidence in the light most favorable

to the trial court’s ruling and assume that the trial court made implicit findings of

fact that support its ruling as long as those findings are supported by the record.”

32 S.W.3d 853, 855 (2000). Later, in State v. Cullen, the court held that, “upon the

request of the losing party on a motion to suppress evidence, the trial court . . . .

must make findings of fact and conclusions of law adequate to provide an appellate

court with a basis upon which to review the trial court’s application of the law to

the facts.” 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). It clarified the limitation

of this holding, however. “If the non-prevailing party fails to make the request,

and the trial court does not enter findings of fact and conclusions of law of its own

accord, . . . . our opinion in Ross will continue to control.” Id.

      Appellant’s argument for why we should abate the proceedings and remand

the case to the trial court for findings of fact and conclusions of law when they

were not previously requested is contrary to the body of law set out above. We

hold the trial court was not obligated to file findings of fact and conclusions of law

without a proper request. We overrule appellant’s second issue.




                                           10
C.    Analysis

      In his third issue, appellant argues the trial court erred by denying his motion

to suppress an impermissibly suggestive photographic array. Officer Cook, who

compiled and presented the array, testified during the suppression hearing that she

had received a crime stoppers tip that appellant might be the robber. She looked at

a photograph in her database of appellant. In the photograph, appellant had a bald

head, a goatee, and a tattoo on his neck. Officer Cook determined that he had

features similar to the description of the robber from Fuoss as well as to the images

from the video surveillance of the bar. She then compiled pictures of other white

males in the same approximate age range who also had bald heads, and tattoos on

the neck or upper chest. Two others, like the photo of appellant, had facial hair.

Three did not. Officer Cook testified that she was limited in her choices based on

the features but nevertheless was able to compile the array.

      Officer Cook presented the array to Fuoss while Fuoss was at her mother-in-

law’s house. She explained to Fuoss that “a suspect had been developed and that I

had prepared a photo array that I would like her to take a look at.” Before

presenting Fuoss with the photo array, Officer Cook provided her a list of written

instructions. Fuoss reviewed and signed the instruction sheet before she reviewed

the photographic array. Among other things, the instruction sheet explained that

she “should not conclude or guess that the photographs contain[ed] a picture of the


                                         11
person who committed the crime” and that she was “not obligated to identify

anyone.” Fuoss explained at the hearing on appellant’s motion to suppress, “I was

under the impression that I didn't even have to pick a photo.” Finally, Fuoss was

presented with the array. After reviewing it for about two minutes, Fuoss picked

appellant, stating that she was about 95% sure that appellant was the robber.

      Fuoss’s mother-in-law was present in the room while Fuoss reviewed the

instructions and array.       Officer Cook, Fuoss, and Fuoss’s mother-in-law all

testified during the suppression hearing that the mother-in-law did not comment on

the photographs, gesture in any suggestive way, or in any other way influence

Fuoss’s identification of appellant in the array. It was undisputed that the mother-

in-law was not present during the robbery and had no personal knowledge about

the identity of the robber.

      The Due Process Clause of the Fourteenth Amendment of the United States

Constitution protects an accused from the admission of a pretrial identification into

evidence if it is “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). “When

challenging the admissibility of a pretrial identification, an accused has the burden

to show, based on the totality of the circumstances and by clear and convincing

evidence, that (1) the pretrial identification procedure was impermissibly

                                          12
suggestive   and    (2)   it   created   a    substantial   likelihood   of   irreparable

misidentification.” Sierra v. State, 266 S.W.3d 72, 75 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d) (citing Barley, 906 S.W.2d at 32–33).

      Appellant relies on what are referred to as the Biggers factors to argue the

photo array should have been suppressed. See Neil v. Biggers, 409 U.S. 188, 199,

93 S. Ct. 375, 382 (1972). These factors are weighed against the corrupting effect

of any suggestive identification procedure in assessing reliability under the totality

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

1998). In other words, they are relevant to the second factor of whether the

impermissibly suggestive identification procedure created a substantial likelihood

of irreparable misidentification. See id. at 772 (analyzing trial court’s admission of

in-court identification of defendant following an impermissibly suggestive pretrial

photographic identification); Sierra, 266 S.W.3d at 76 (analyzing Biggers factors

under second prong of pretrial identification test). These factors are not relevant,

then, to the initial determination of whether the pretrial identification procedure

was, in fact, impermissibly suggestive. It is to this first element that we now turn.

      Appellant argues that three factors rendered Fuoss’s pretrial identification of

him impermissibly suggestive. First, appellant argues that the photographic array

did not provide good comparison subjects. Second, appellant argues that the

investigator’s statement to Fuoss that a suspect had been developed and an array

                                             13
had been put together as a result was impermissibly suggestive. Finally, appellant

argues that Fuoss’s mother-in-law’s presence in the room during the review of the

array created a “subtle pressure” on Fuoss.

       Taking appellant’s last point first, there is no support in the record for

appellant’s theory of “subtle pressure” on Fuoss by the presence of her mother-in-

law.    Officer Cook, Fuoss, and Fuoss’s mother-in-law all testified at the

suppression hearing. All of them testified that the mother-in-law did not comment

on the photographs, gesture in any suggestive way, or in any other way influence

Fuoss’s identification of appellant in the array. Appellant’s claim that “Fuoss

would not want to disappoint her mother-in-law by failing to help the police

through identification of someone already believed by the police to be a suspect” is

pure conjecture.

       Likewise, we find no support for appellant’s claim that the comparison

subjects were not sufficiently similar to appellant. Appellant’s complaint that each

person has some distinguishing characteristics from him is insufficient to establish

that the array was impermissibly suggestive. “Neither due process nor common

sense requires that the individuals in a lineup exhibit features exactly matching the

accused.    Rather, a photo array must contain individuals who fit a rough

description of the suspect.” Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (internal citations omitted).

                                          14
         All of the individuals in the photographic array are white males who appear

to be roughly the same age as appellant as he is depicted in the picture. All of

them are bald. All of them appear to have some tattoos on their neck or upper

chest. Three of them, including appellant, have facial hair. We hold that each of

the individuals in the photographic array fits a rough description of appellant, the

robber as described by Fuoss, and the image of the robber in the surveillance

video.

         Finally, we find no error in Officer Cook’s explanation to Fuoss that a

suspect had been developed and that the array had been created as a result. “The

fact that an eyewitness knows that the police have developed a suspect does not by

itself make a line-up impermissibly suggestive so as to give rise to a substantial

likelihood of irreparable misidentification.” Hughes v. State, 962 S.W.2d 689, 696

(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (citing Webb v. State, 760

S.W.2d 263, 272 (Tex. Crim. App. 1988)). This is especially true when the

witness was told that she was under no obligation to pick anyone out of the line-up

and that the suspect might or might not be present. See id.

         We overrule appellant’s third issue.




                                           15
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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