                          NUMBER 13-13-00197-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TERRANCE CAESAR,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 403rd District Court
                         of Travis County, Texas.


                          MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      Appellant Terrance Caesar challenges his conviction for burglary of a habitation,

a first-degree felony. See TEX. PENAL CODE ANN. § 30.02(a), (d) (West, Westlaw through

2013 3d C.S.). By two issues, appellant argues that: (1) the trial court erred in failing

to find that an impermissibly suggestive photo array created a substantial likelihood of
misidentification; and (2) the judgment nunc pro tunc in this case mistakenly states that

appellant pleaded true to the first enhancement paragraph in the indictment. We affirm

as modified.

                                           I. Background

        At the trial in this case, Jennifer Pinkston testified that on the morning of Sunday,

July 22, 2012, she was returning home from church when she noticed a man in the front

yard of her Austin, Texas home carrying a reusable grocery bag Pinkston recognized.1

Pinkston asked the man if she could help him, but the man replied that he was merely

looking for someone and then ran away. As Pinkston walked toward her home, she

found a pair of socks on her front porch, which she testified was unusual. Finding the

front door unlocked, Pinkston became alarmed and went to her neighbor's home to call

the police. After the police arrived and confirmed that there was no one in the home,

Pinkston went inside and discovered that the home had been burglarized. Pinkston and

her roommates testified that the house had obviously been searched and that many

belongings had been taken, including three laptops and a tablet computer.

        Franck Tappa testified that on July 24, 2012, he met up with a man at a Dairy

Queen in South Austin to complete the purchase of a laptop that he had arranged online

through Craigslist, an online classifieds service. Tappa testified that he was purchasing

the laptop for his sister who was about to begin college. When Tappa was paying the

man for the computer, he noticed another man, dressed in black and wearing a hat,



        1This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
                                                    2
standing in the foyer of the Dairy Queen; Tappa later identified that man as appellant.

After completing the purchase, Tappa took the laptop to a local Apple Store for repair,

and it was there discovered that the computer was one of the computers stolen from

Pinkston's home.

       Finally, there was testimony at trial that immediately after the suspicious man ran

away from Pinkston's home, the Austin police received a series of 911 calls reporting a

suspicious person hopping over fences and running through backyards. The officer who

initially responded to Pinkston's call was dispatched to investigate the calls.        He

questioned people in the area about the suspicious person, who responded that they had

seen a man they knew as Terrance Caesar running through the area. The officer then

researched that name in his patrol car computer and found a mug shot of Caesar and

learned that Caesar had family in the area. When the officer went to the family's home,

he encountered a male that matched Pinkston's description in the front yard; the man

immediately fled.   The officer pursued the man, but was unable to apprehend him.

During his pursuit, the officer found an empty bag, like the one Pinkston described.

Using a photo array arranged by the police, Pinkston identified appellant as the man in

her front yard that day, and Tappa identified appellant as the man with the hat standing

inside the Dairy Queen.

       Based on the chase incident and Pinkston's identification, appellant was arrested

shortly after the computer was discovered to be stolen. He was indicted on one count of

burglary of a habitation.   See id.   The indictment also included two enhancement

paragraphs based on two prior felonies committed by appellant. Appellant pleaded not

guilty to the charged offense.
                                            3
       Before trial, appellant filed a motion objecting to the identification testimony of any

witness unless the trial court conducted a hearing, outside the presence of the jury, to

determine whether, in relevant part, appellant's rights were violated by the identification

procedures used by police. The trial court held the hearing immediately before trial

commenced. At the hearing, Detective Eric Cleveland of the Austin Police Department

testified about the procedure he used to compile the photo array shown to Pinkston and

Tappa. Detective Cleveland testified that he was able to create an array with appellant's

photo plus five additional photos of men who were approximately the same age as

appellant and had similar skin tones, builds, and hair. Detective Cleveland testified that,

of the six photos, only appellant had a distinctive birth mark on his forehead.

       Next, Pinkston testified specifically about her identification of appellant in the array

and her memories of the man in her front yard on the day of the incident:

       [Prosecutor]:         Okay. Now, were all the individuals in the photos
                             males?

       [Pinkston]:           Yes, they were.

       [Prosecutor]:         Were they all African-American males?

       [Pinkston]:           Yes, they were.

       [Prosecutor]:         And were these photos handed to you one by one?

       [Pinkston]:           They were given to me stacked and, yes, that was a lot
                             of work going one by one.

       [Prosecutor]:         Okay. So as opposed to being shown them in a group
                             of six, you were given them in a stack and allowed to
                             look at one at a time?

       [Pinkston]:           Yes, that's correct.

                             ....
                                               4
        [Prosecutor]:            Tell me how you went through this process. So if you
                                 are being shown photos and you have got these six
                                 photos in front of you, kind of walk us through the
                                 process of how you went through deciding if there was
                                 the suspect in this particular lineup.

        [Pinkston]:              I remember seeing six photos, and the first four I
                                 eliminated quickly because either their skin was too
                                 dark or because their body type looked like they were
                                 too heavyset.

        [Prosecutor]:            After you eliminated those four, what did you do next?

        [Pinkston]:              Then I had two photos remaining and I looked at them
                                 side by side. I noticed there was an unusual birthmark
                                 on one; and since I didn't notice whether there was a
                                 birthmark that day or not in the yard, I covered up the
                                 foreheads of both men with my hands like this
                                 (indicating) and I just looked at the rest of their faces.[2]
                                 And then I noticed they were making very different
                                 facial expressions from each other. One man looked
                                 extremely angry, where the other man was making a
                                 smirk on his face, kind of a smug look, and kind of
                                 looking off to the side a little bit with his eyes and that
                                 looked like the look that the man was making that day
                                 in the yard to me, that smug smirk facial expression.

        [Prosecutor]:            Okay. And you said that you covered up their
                                 foreheads. Did you observe a birthmark on the
                                 forehead of the individual that was in your yard that
                                 day, or did you have an opportunity to do so?

        [Pinkston]:              I didn't notice one, but it was hard to have an
                                 opportunity to because of the shade, the shadows from
                                 the tree that he was underneath. There may have
                                 been one. I didn't notice.

        [Prosecutor]:            Did he look at you straight on? Was his face at an
                                 angle as he was talking to you? Do you remember?
                                 And if you don't, that's okay.


        2 Detective Cleveland testified that he observed Pinkston's photo array identification and confirmed
that Pinkston was attempting to take the birth mark out of consideration as she examined the photos.
                                                     5
       [Pinkston]:          I'm trying to remember. I looked at him slightly at an
                            angle, just slightly, but mostly I saw him straight on
                            because I turned my head to the side to look at him.

       [Prosecutor]:        So is it fair to say that you were not able to determine
                            that day whether or not there was a birthmark on the
                            head?

       [Pinkston]:          Yes, that would be fair to say.

       [Prosecutor]:        Okay. And so is that why you covered up the
                            foreheads?

       [Pinkston]:          Uh-huh.

       [Prosecutor]:        Did an officer ever insinuate to you that there may have
                            been a birthmark?

       [Pinkston]:          Yes. I got a call the day of the burglary, over the
                            course of the next maybe hour or so, saying — asking
                            did the man that you saw have an unusual birthmark.
                            And I said, I don't know. . . . And I wanted to make my
                            decision independent of that conversation.

       [Prosecutor]:        Okay. And so when you covered up their foreheads,
                            were you trying to eliminate that kind of idea in your
                            head that there may have been a birthmark?

       [Pinkston]:          Yes, that's exactly what I was trying to do.

       [Prosecutor]:        I believe you said that their expression, the expression
                            of the individual that you picked out matched the
                            expression of the individual you saw in your yard.
                            Describe that expression for me.

       [Pinkston]:          Well, I do photography on the side and so I study
                            people's faces and their facial expressions, kind of
                            what story they are telling through their faces, what
                            feelings they are conveying. The feeling he seemed
                            to be conveying to me was almost going to use the
                            phrase like pull the wool over your eyes. It seemed
                            like he was making this smirk, almost like a—kind of a
                            smart-aleck sort of expression.

At this point, the prosecutor asked Pinkston if she could identify in the courtroom the man
                                             6
she saw that day in her front yard, and she pointed to appellant. Pinkston confirmed that

her identification was "based upon [her] observations of him at the time of the offense."

       At the conclusion of the hearing, the trial court ruled that the photo array shown to

Pinkston was impermissibly suggestive but then concluded, "[T]he next question is

whether [Pinkston's] identification is made independent of [the suggestive birth mark], and

I think that the evidence indicates that, in fact, she went to some length to make sure that

happened." In short, the trial court ruled that the suggestive nature of the array was not

the basis for Pinkston's identification of appellant. The case then proceeded to trial.

       At trial, Pinkston testified similarly about the method she used to identify appellant.

Tappa also testified about his identification of appellant. On direct examination, Tappa

testified that he was able to identify appellant with eighty-percent certainty because of

what Tappa characterized as a scar; Tappa testified that the man he saw standing outside

the Dairy Queen the night he bought the laptop had a distinctive scar on his forehead.

On cross-examination, Tappa testified that he passed right by the man on his way out the

door and that the man's demeanor intimidated him, so he walked quickly to his car and

drove away. Tappa testified that when he looked back as he was leaving the restaurant,

the man had walked inside and was interacting with the person who sold Tappa the

laptop. The following exchange then occurred between Tappa and defense counsel:

       [Defense counsel]: Do you think that [the birthmark] was the primary thing
                          that identified the individual to you when you were
                          looking through the array?

       [Tappa]:             That was, yes, and also the—I was going to say the
                            look, his face, the eyes.

       [Defense counsel]: The eyes. The shape of the eyes?

                                              7
       [Tappa]:             Yeah, the shape of the eyes, the way he—you know,
                            just the way he is staring. That is kind of what it was.

       [Defense counsel]: Okay. When you saw him for that brief moment, that
                          suspect going through the foyer, how long was your
                          interaction? How long were you face-to-face with
                          him?

       [Tappa]:             I was going out, he was standing there, just sitting and
                            standing and staring, and then I walked by and I looked
                            at him. You know, I looked at him and walked out until
                            I was about 20, 30 feet away and then looked back and,
                            you know, that was about it.

       [Defense counsel]: Okay. But I'm trying to figure out the amount of time
                          that you were in the foyer with him?

       [Tappa]:             I would say 10, 20 seconds max.

       [Defense counsel]: So less than 10 seconds?

       [Tappa]:             I would say — yeah, I'm not sure.

Finally, Tappa confirmed to defense counsel that the man's hat had not obscured the scar

or mark on his forehead.

       The State presented the remainder of its evidence, including testimony by an

expert that the socks found on Pinkston's front porch were tested for DNA and that

appellant could not be ruled out as a source of the DNA. The parties then presented

their closing arguments.    The State made the following statements specific to the

identification issue:

              And so [Pinkston] tells you, you know, it was—the sun was high up
       that day, I remember that the sun was kind of coming through the trees, the
       canopy there; and I didn't get a very clear view of his face, but, I mean, I
       knew what he looked like, I could give a description of him.

              ....

              So then we hear that [the initial investigating officer] calls Jennifer
                                             8
Pinkston later on and he says, hey, this guy, do you remember if he had a
birthmark on his head? And she says, it's possible. She doesn't say no
and she doesn't say yes. She told you, I really couldn't tell. I mean, I
couldn't tell based on the sun, the way that the light was that day. I really
couldn't tell so I wasn't going to say yes, but I couldn't say no. I couldn't
rule it out.

       And the Defense is going to argue, I anticipate, that that's the big
sticking point here, that she didn't see the birthmark; the birthmark is
predominant, she should have seen it; if she didn't see it, then there is no
way it could be him. I would suggest to you that the evidence shows
otherwise.

       ....

        We heard also from Detective Cleveland who told you that he started,
you know, piecing the evidence together, he went through [the initial
investigating officer]'s report, and he was able to put a lineup together. He
calls Jennifer Pinkston in the next day. So July 23rd, the very next day,
she comes in, she looks at the lineup and—which was given to her by a
different officer, Detective Crozier, so there was no suggestion. And she
tells you . . . . She looks through the lineup, and she picks out Terrance
Caesar. The important thing is that Jennifer told you, yes, I knew that
Borunda had told me that there was a particular—there was a possibility
there might be a birthmark. And she said, I didn't want that to influence me
in any way so I put my hands over the foreheads of the individuals and that's
how I determined, and I determined based on the expression on his face.

        Who else did you hear that from? Franck Tappa. He said he had
that smug, smirkness [sic] on his face and that's what made me pick him
out of the lineup. Because that's what he looks like when he is involved in
criminal activity, he's got that smirk, that smug look on his face, like you're
not going to catch me, you can't do anything to me. And they both picked
him out of the lineup based on that. I think that is really interesting.

       ....

        So [Tappa and the Craigslist contact] meet up . . . at the Dairy Queen
and, you know, Mr. Caesar has somebody else do his dirty work for him.
He has a younger kid go in, meets with Mr. Tappa, makes the exchange,
but Mr. Tappa sees Mr. Caesar. [Appellant] kind of gives [Tappa] that
weird feeling. [Tappa] says, I just—I don't know what it was, I looked back
at him. And he got a good look at him. He saw he had that hat on with
the flipped up bill and he saw the birthmark on his head, and it stuck out to
him. He thought, man, you know, that look on his face. And, yes, he
                                      9
       picked him out of the lineup.

       In his argument, defense counsel called into question the reliability of Pinkston and

Tappa's identifications of appellant. Counsel also emphasized appellant's birthmark.

He pointed out that appellant was the only person in the photo array who had a birthmark.

He argued that appellant's birthmark was his most distinguishable feature, and because

appellant was the only person in the array with such a mark, Pinkston and Tappa's

identifications were irreparably tainted by that fact.

       Finally, in its closing response, the State emphasized that the jury must consider

the totality of the circumstances.      It then made the following statement about the

identification issue:

              What's the first thing we have? We have a man matching Mr.
       Caesar's description in that front yard with a bag that came from inside the
       house. [Defense counsel] is making this huge deal about Jennifer
       Pinkston's—how she viewed him, what angle was it, this, that, or the other,
       and then the birthmark. And she told you how she covered up their
       foreheads because she didn't want it to factor in. She said, I didn't describe
       him with a birthmark; I'm not saying yes or no, but I'm going to eliminate that
       in my choice.

               And it is real interesting, you didn't hear it from us, you didn't hear it
       from [defense counsel], you heard it from both civilian witnesses how they
       identified him, that unique look on his face.

       The jury then returned a verdict of guilty and sentenced appellant to eighteen

years' incarceration. This appeal followed.

                                       II. Photo Array

       By his first issue, appellant argues that the trial court erred in refusing to find that

the impermissibly suggestive photo array shown to Pinkston and Tappa created a

substantial likelihood of misidentification. We disagree.

                                              10
         We review de novo the question of whether a pretrial identification procedure was

impermissibly suggestive. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App.

2009).    Reliability is the linchpin in determining the admissibility of an identification.

Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). In our review, our first

inquiry is whether the pretrial identification procedure was impermissibly suggestive.

Gamboa, 296 S.W.3d at 581. If we conclude that the procedure was impermissibly

suggestive, we then determine if the impermissibly suggestive nature of the pretrial line-

up gave rise to a substantial likelihood of irreparable misidentification. Id. at 581–82. In

other words, if the pretrial procedure is found to be impermissibly suggestive,

identification testimony would still be admissible where the totality of the circumstances

shows no substantial likelihood of misidentification. See Luna v. State, 268 S.W.3d 594,

605 (Tex. Crim. App. 2008) (citing Ibarra, 11 S.W.3d at 195). Appellant must show by

clear and convincing evidence that the identification has been irreparably tainted before

his conviction can be reversed. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App.

1995).

         In this case, the trial court determined at a pretrial hearing that the photo array

shown to Pinkston and Tappa was impermissibly suggestive.               Therefore, the only

question before us is whether appellant has shown by clear and convincing evidence that

these procedures gave rise to a substantial likelihood of irreparable misidentification.

We consider the following factors when determining the likelihood of irreparable

misidentification: (1) the witness's opportunity to view the perpetrator at the time of the

offense; (2) the witness's degree of attention during the offense; (3) the accuracy of the

witness's prior description of the perpetrator; (4) the witness's level of certainty regarding
                                             11
the identification at the time of confrontation; and (5) the lapse of time between the offense

and the subsequent confrontation. Gamboa, 296 S.W.3d at 582; Luna, 268 S.W.3d at

605.       Here, there were sufficient indicia of reliability in Pinkston and Tappa's

identifications such that we cannot conclude there was a substantial likelihood of

irreparable misidentification in this case. See Ibarra, 11 S.W.3d at 195; see also Luna,

268 S.W.3d at 605.

          As to the first factor, Pinkston's interaction with the man outside her home that she

later identified as appellant was not insubstantial. She had a brief conversation with him

about his purpose in her yard. Although it is true that the man was standing in the shade

of a tree, Pinkston testified that he was only a short distance from her, ten to twenty feet

away. Tappa testified that he walked quickly by the man in the Dairy Queen foyer he

later identified as appellant. However, Tappa passed very closely to the man when he

did so.

          As to the second factor, the testimony of both Pinkston and Tappa showed that

their degree of attention during their initial interactions with appellant was heightened.

Both recalled specific details concerning the man they later identified as appellant. While

Tappa did home in on what he believed was a scar on the man's forehead, both witnesses

were particularly struck by the man's overall demeanor. Tappa felt intimidated by the

man in the foyer, noting, in particular, the man's "look, his face, the eyes" and "just the

way he [was] staring." Pinkston testified that the man in her front yard had a "smug smirk

facial expression," "kind of a smart-aleck sort of expression." Pinkston testified that the

man in the photo array that she chose had that same expression.

          As to the third factor, the record shows that Pinkston's initial description of the man
                                                12
later identified as appellant was accurate but not specific. When the initial investigating

officer asked Pinkston to describe the man in her front yard, she stated he was an African-

American male in his thirties with short hair and wearing a white t-shirt and black shorts.

Although it is true that appellant is an African-American male and at the time of the offense

was in his thirties and had short hair, we cannot conclude that these unspecific

characteristics are relevant. Tappa gave no initial description of the man in the Dairy

Queen foyer; his first identification of the man occurred during the photo array procedure

at the police station. In short, we cannot conclude that this third factor weighs in favor of

reliability.

        As to the fourth factor, Pinkston testified that she was ninety-percent certain that

her identification was correct, explaining that this was "as sure as [she was] going to get"

because she believed "nothing is ever 100 percent." Tappa testified that he was eighty-

percent certain.

        Finally, as to the fifth factor, Pinkston's identification of appellant in the photo array

happened on the same day, during the evening after the early-afternoon offense. Tappa

identified appellant in the photo array the day after he bought the computer at the Dairy

Queen.

        Considering the witnesses' identifications under the totality of the circumstances,

we cannot conclude that appellant proved by clear and convincing evidence a substantial

likelihood of misidentification from the use of the suggestive photo array. Most notably,

the testimony of both witnesses shows a high degree of attention to detail. Pinkston

gave a detailed description of the man in her front yard that focused specifically on his

demeanor and facial expression; she then used a meticulous procedure to ensure that
                                               13
her view of the photos in the array did not give undue weight to unusual physical features,

i.e., the birthmark, and instead focused on the expression she saw on the day of the

offense. Although Tappa gave more weight to the birthmark in his identification, we

believe his identical description of appellant's demeanor served mainly to increase the

reliability of Pinkston's identification. Both witnesses had a good opportunity to view the

perpetrator: Pinkston in a prolonged interaction in her front yard, and Tappa by passing

very close to the man in the Dairy Queen foyer. Both witnesses testified as to a high

degree of certainty and both made their photo-array identifications soon after their initial

observations. Finally, having reviewed the closing arguments in their entirety, we cannot

say that the State particularly emphasized appellant's birthmark; the State specifically

exhorted the jury to consider the totality of the circumstances and gave equal, if not

greater weight, to the witnesses' descriptions of appellant's demeanor and facial

expressions.

       In short, the record does not show that the identification of appellant was

irreparably tainted by the impermissibly suggestive photo array shown to Pinkston and

Tappa. The trial court did not err in concluding as much. Appellant's first issue is

overruled.

                    III. Modification of Judgment Nunc Pro Tunc

       By his second issue, appellant complains that, although the State abandoned the

first enhancement paragraph and proceeded only on the second, his judgment of

conviction incorrectly notes that he pleaded true to both enhancement paragraphs. The

State concedes that this is true, and our review of the record confirms this. Appellant's

second issue is sustained. Because we have the necessary data and evidence for
                                            14
reformation, we modify the trial court's nunc pro tunc judgment to reflect that the State

abandoned the first enhancement paragraph. See TEX. R. APP. P. 43.2; Bigley v. State,

865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc).

                                   IV. Conclusion

       We affirm the judgment as modified.


                                                             NELDA V. RODRIGUEZ
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
12th day of June, 2014.




                                           15
