                                    NO. 07-06-0059-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                DECEMBER 29, 2006
                          ______________________________

                                  DAVID FLORES, JR.,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

                FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                   NO. 50,428-C; HON. JACK D. YOUNG, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       David Flores, Jr. (Flores) appeals his conviction for aggravated robbery. Via a single

argument, he asks “[w]hether the Court properly allowed an admission in-court [sic]

identification of the Defendant.” Apparently, he believes that the out-of-court identification

of him as the robber impermissibly tainted his subsequent in-court identification. The issue

was raised below via a motion to suppress, which motion the trial court denied. We affirm

the decision.
         Background

         Flores was indicted for robbing at knife point an employee of a Family Dollar Store.

According to the record, he entered the store and began to act “mysterious.” This caught

the eye of the employee, who began watching him for approximately ten minutes. She

described him as wearing “khaki colored pants and a white t-shirt and, like, a light yellow

shirt.” Eventually, Flores walked up behind her, brandished a knife and demanded money.

The employee did not acquiesce. Instead, she continued to operate the cash register and

assist customers who were paying for their purchases. But, as she did so, she turned

momentarily to see that the person who had been acting mysteriously was the one with the

knife.

         Flores remained behind the employee for about ten minutes before a customer

(Carter) approached the employee and Flores and inquired about the situation. Flores

stated that the employee owed him money. Eventually, Carter handed Flores some

money, and he left the store. Carter described Flores as “about five-four, maybe, five-five.

About 145 pounds, maybe 135, somewhere around in there, brown hair,” with a name

tattooed on his neck, which name started with a “D” and possibly spelled “Debbie.” Flores

had a name tattooed on his neck but it spelled “David.”

         A third witness, a 12-year-old boy, also saw the incident. He, however, had difficulty

describing the assailant other than by stating that he had a knife and wore a shirt over

another shirt.

         About 30 minutes after the robbery, the police brought Flores back to the store in

handcuffs. Each of the three witnesses mentioned identified him as the assailant. The two



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adults later confirmed their identification with another but in court this time. The 12 year

old could not do likewise.

       Other testimony received at the suppression hearing came from appellant’s

neighbor who lived behind the Family Dollar store. He observed appellant walking towards

the store between five and six o’clock in the evening. At the time, appellant was wearing

two shirts (one orange and one white) and khaki pants. Approximately 30 to 45 minutes

later, appellant returned to his apartment but later left wearing only one shirt, the white one.

Shortly thereafter, the neighbor saw the police appear at the apartment.

       Law

       Determining the admissibility of an in-court identification involves a two-step

process. First, the court must assess whether the out-of-court identification procedure was

impermissibly suggestive and then whether that suggestive procedure created a very

substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S.

377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Ibarra v. State, 11 S.W.3d 189, 195-96

(Tex. Crim. App. 1999); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App.1995). The

accused has the burden to prove both prongs of the test and must do so by clear and

convincing evidence. Barley v. State, 906 S.W.2d at 33-34; Delk v. State, 855 S.W.2d

700, 706 (Tex. Crim. App.1993). And, all depends on the totality of the circumstances,

Loseth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998), for there is no bright line

rule. Rather, each case turns on its own facts and circumstances. Simmons v. United

States, 390 U.S. at 384, 88 S.Ct. at 967, 19 L.Ed.2d at 1247.




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       Next, should it be determined that the initial identification procedure was

impermissibly suggestive, then various other indicia should be considered to assess the

likelihood that it would taint a subsequent in-court identification. A non-exclusive list of

those indicia include 1) the opportunity of the witness to view the criminal at the scene 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 at the confrontation, and

5) the length of time between the crime and the confrontation. Loseth v. State, 963 S.W.2d

at 772. And, given that the standard of review applicable here is that espoused in Guzman

v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997), we defer to the trial court’s assessment

of those factors, Loseth v. State, 963 S.W.2d at 771, and view the evidence in a light most

favorable to that assessment. Ibarra v. State, 11 S.W.3d at 195-96. Yet, that does not

prevent us from assessing de novo the propensity of those factors (as present in the case)

to corrupt a later in-court identification. Loseth v. State, 963 S.W.2d at 773-74.

       Application of Law

       According to the record, the police apprehended Flores, returned him to the store

in handcuffs, and asked the witnesses whether he was the assailant. This occurred within

30 minutes of the robbery. For purposes of this opinion, we assume arguendo that this

identification procedure may have been impermissibly suggestive. So, next we gauge

whether it had a very substantial likelihood of causing a later misidentification. In doing so,

we note that both the store employee, Carter, and the boy had opportunity to and actually

observed appellant for an extended period of time. This opportunity to observe was not

always from afar; rather, Flores eventually stood in close proximity to them when he



                                              4
stepped behind the counter and received the monies from the man. And, it was during this

period that Carter and appellant spoke for about three minutes.

        Next, both the employee and boy described Flores as wearing two shirts, a

description later confirmed by Flores’ neighbor.1 And, while Carter’s description of the

clothes differed from that of the others, he, nonetheless, recalled Flores’ physical weight,

height and color of hair. So too did he spy a tattoo of a name on Flores’ neck and noticed

that the name started with a “D,” though he initially thought it read “Debbie” instead of

“David.”

        Next, only 30 minutes lapsed between the time of the robbery and Flores’ return to

the store in the back of the squad car. Moreover, when asked if they identified Flores as

the culprit because he was in the custody of the police or because of their recollection of

the robbery, both the employee and Carter said it was based on the latter. They confirmed

their identification in open court and assured the trial judge that they had no doubt that

Flores (the person they identified) committed the crime. On the other hand, the boy was

around “70 percent sure” Flores was the robber when asked at the scene. Furthermore,

he could not identify Flores at trial.

        Given the close proximity between the employee, Carter and Flores, the rather long

time Carter and the employee had to observe Flores, Carter’s opportunity to converse with

Flores, the existence of a tattoo beginning with the letter “D” on Flores’ neck as Carter

described, the accuracy of the clothing description provided by the boy, employee and



        1
        The neighbor described the shirts as one being orange and the other white. The clerk described
them as yellow and white. It is conceivable that one could reasonably confuse certain shades of yellow as
orange and vice-versa.

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neighbor, the passage of 30 minutes between the crime and Flores’ return to the store, and

the certainty expressed by the employee and Carter in their identification of Flores, we

conclude that there does not exist a substantial likelihood that the out-of-court identification

tainted the later in-court identification. Consequently, the trial court did not err in denying

the motion to suppress.

       The judgment is affirmed.



                                                   Brian Quinn
                                                   Chief Justice

Do not publish.




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