                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00099-CR

RENARD TILFORD TUCKER                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


                                     ----------

     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                     ----------

                       MEMORANDUM OPINION1

                                     ----------

                                  I. Introduction

     In three points, Appellant Renard Tilford Tucker appeals his conviction for

aggravated assault with a deadly weapon. We affirm.

                  II. Factual and Procedural Background

     On March 31, 2011, Shakena Ward, Brandon McElroy, Canota Wilson,

and Brandon Thompson left McElroy‘s cousin‘s apartment and got into McElroy‘s




     1
      See Tex. R. App. P. 47.4.
Jeep. Ward was driving, and McElroy was in the front passenger seat; Wilson

and Thompson were in the back seat.

      As Ward began to back up the Jeep, she heard someone shout, and

looked back.   Armed with handguns, Tucker; Lawarren Silas (also known as

―Dwan‖ or ―Juan‖), who McElroy recognized2 and who Ward later identified from a

photo spread; and Shawn Fowler, who subsequently confessed to participating in

the offense,3 approached the passenger side of the Jeep. Fowler opened the

front passenger door, Tucker stood at the right side passenger door, and Silas

stood in front of the windshield.    Ward said that the men were looking for

someone.

      When the Jeep‘s occupants said that they did not know whom the men

were looking for, the three armed men opened fire. The Jeep‘s occupants tried

to escape. Ward ran back toward the apartment and was shot in the eye, chin,

and back; the shooting left Ward blind in her right eye. Tony Jones, who was

outside a nearby apartment, was struck by a stray bullet that paralyzed him from

the ribs down and caused his left leg to be amputated.4 Jones did not see who

shot him, and he did not know anyone involved in the shooting.



      2
       McElroy subsequently told the investigating police detective that he owed
Silas some money.
      3
       Two of the handguns were later found in Fowler‘s apartment.
      4
       At the time of the trial, Jones was unsure whether his right leg would also
need to be amputated.

                                        2
      Police collected twelve bullet casings from the scene: seven were .40-

caliber Smith & Wesson casings, and five were 10-millimeter Winchester

casings. The trial court admitted a police diagram marking where each bullet

casing and other pieces of evidence were recovered. The diagram showed a

cluster of markings around where the Jeep had been, with the .40-caliber casings

on one side, and the 10-millimeter casings on the other.

      Based on identifications by Ward and McElroy—admitted at trial over

Tucker‘s objections5—police obtained arrest warrants for Silas and Tucker, who

were subsequently arrested at Fowler‘s apartment.          Fowler accompanied the

officers to the police station, confessed to being the third shooter, and consented

to a search of his apartment, where police found two .40-caliber handguns, which

a forensic scientist was later able to match to the .40-caliber cartridge casings

found at the scene. The trial court also admitted three photographs of Ward‘s

injuries over Tucker‘s objection that the photographs were gruesome,

inflammatory, and irrelevant because it was uncontested that Ward had been

shot in the eye.

      The jury convicted Tucker of committing the aggravated assault with a

deadly weapon of Jones.      After Tucker pleaded true to the repeat offender




      5
      Tucker objected that the other men in the photo spreads from which Ward
and McElroy identified him did not resemble him based on differences in hairstyle
and age.

                                        3
allegation, the trial court assessed his punishment at fifty years‘ confinement, and

this appeal followed.

                                  III. Sufficiency

      In his second point, Tucker argues that the evidence is insufficient to

support his conviction. Specifically, he asserts that the evidence fails to show

that he intentionally or knowingly caused injury to Jones, that he knew Jones was

anywhere around the area, or that the bullets could have travelled to Jones.

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

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

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

B. Analysis

      Tucker was charged with intentionally or knowingly causing bodily injury to

Jones by shooting him with a firearm, a per se deadly weapon. Tex. Penal Code

Ann. § 1.07(a)(17)(A) (West 2011 & Supp. 2012), §§ 22.01(a)(1), 22.02(a)(2)

                                         4
(West 2011). The trial court instructed the jury on the law of transferred intent 6

and on the law of parties. See id. §§ 6.04(b)(2), 7.02(a)(2) (West 2011); see also

Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (stating that in general,

an instruction on the law of parties may be given to the jury whenever there is

sufficient evidence to support a jury verdict that the defendant is criminally

responsible under the law of parties), cert. denied, 529 U.S. 1070 (2000);

Manrique v. State, 994 S.W.2d 640, 647 (Tex. Crim. App. 1999) (stating that the

statutory principle of transferred intent is raised when there is evidence that a

defendant with the required culpable mental state intends to injure or harm a

specific person but injures or harms a different person or both).

      Here, the evidence shows that Tucker,7 Silas, and Fowler surrounded

McElroy‘s Jeep, opened fire on its occupants, and continued to fire as the

vehicle‘s occupants tried to escape. Their shots struck Ward and Jones and left
      6
       The court of criminal appeals has stated:

      A classic example of proper application of transferred intent is the
      act of firing at an intended victim while that person is in a group of
      other persons. If the intended person is killed, the offense is murder.
      If a different person in the group is killed, the offense is murder
      pursuant to [section] 6.04(b)(2). . . . In either case, there was one
      intent to kill and one resulting death.

Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008).
      7
       Ward and McElroy identified Tucker as one of the three men who
surrounded the Jeep and fired on its occupants, and as to those identifications,
we must consider all the evidence admitted at trial, even if we conclude that
some of it was improperly admitted, when performing a sufficiency review.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131
S.W.3d 485, 489–90 (Tex. Crim. App. 2004).

                                         5
casings at the scene that were later matched to two of the guns used. Although

Jones did not know anyone in the Jeep or any of the shooters, he happened to

be outside when the men opened fire and was struck by one of the gunshots

intended for the Jeep‘s occupants before he could run away. See Tex. Penal

Code Ann. § 6.04(b)(2); Manrique, 994 S.W.2d at 647.            Viewing all of the

evidence in the light most favorable to the verdict, we conclude that the evidence

is sufficient to support the conviction, and we overrule Tucker‘s second point.

                          IV. Identification Procedures

      In his first point, Tucker asserts that the trial court erred by failing to

suppress the in-court identification evidence because it was impermissibly tainted

by an alleged improper pretrial photo spread that contained no one else who

resembled Tucker.

A. Standard of Review

      We review de novo a trial court‘s ruling on whether the suggestiveness of a

pretrial photo array may have influenced an in-court identification, considering

the totality of the circumstances to determine whether ―‗the photographic

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.‘‖   Gamboa v. State, 296

S.W.3d 574, 581–82 (Tex. Crim. App. 2009) (quoting Loserth v. State, 963

S.W.2d 770, 772 (Tex. Crim. App. 1998)).            We use a two-step analysis to

determine whether the trial court correctly admitted an in-court identification:

(1) whether   the   out-of-court   identification   procedure   was   impermissibly

                                          6
suggestive and, if so, (2) whether the impermissibly suggestive procedure gave

rise to the substantial likelihood of irreparable misidentification. Barley v. State,

906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176 (1996).

A photographic array is not impermissibly suggestive merely because each

photograph can be distinguished in some manner from the accused‘s

photograph. Page v. State, 125 S.W.3d 640, 647 (Tex. App.—Houston [1st Dist.]

2003, pet. ref‘d).

      Further, the appellant bears the burden to show by clear and convincing

evidence that the pretrial identification was impermissibly suggestive. Madden v.

State, 799 S.W.2d 683, 695 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954

(1991). If the totality of the circumstances reveals no substantial likelihood of

misidentification despite the suggestive identification procedure, the identification

testimony will be deemed reliable and therefore admissible, as ―reliability is the

linchpin in determining the admissibility of identification testimony.‖ Id. (quoting

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977)). Factors

we consider in determining the likelihood of misidentification include the witness‘s

opportunity to view the criminal at the time of the crime, the witness‘s degree of

attention, the accuracy of the witness‘s prior description of the criminal, the

witness‘s level of certainty at the time of the confrontation, and the length of time

between the offense and the confrontation. Gamboa, 296 S.W.3d at 582.




                                         7
B. Development of the Photo Spreads

      Prior to the admission of the identification evidence, the trial court held a

hearing outside of the jury‘s presence. During the hearing, Fort Worth Police

Detective Dan Fenter testified that before separately showing the photo spreads

to Ward and to McElroy, he had admonished them that the person who was

involved might or might not be in the photo spread and that hair length and skin

shade could be skewed because of lighting or changes in hair length or facial

hair between the time of the photo and the way the suspect looked now.

Because McElroy had told Detective Fenter that he had seen Tucker before the

shooting and knew him by a nickname, Detective Fenter showed McElroy the

photo spread of Tucker to confirm who he was talking about.

      Before the jury, Detective Fenter testified that Wilson had identified Silas

by the nickname ―Juan‖ and gave him ―Juan‘s‖ phone number, which he then

used to identify Silas. Detective Fenter put together a photo spread containing

Silas and four or five additional photo spreads of Silas‘s known associates that

matched the descriptions of the other two suspects. McElroy, who was hiding

from the shooting suspects at a hotel, identified Silas from one of the photo

spreads and identified Tucker from one of the others. McElroy identified Silas

―right off the bat‖ as ―Juan,‖ and then picked Tucker out as ―the big guy.‖

      Detective Fenter explained to the jury that when selecting photographs to

include, he went by ―a general range of age and body style and hairstyles, if it‘s

possible,‖ and that in this case, he made sure to include people with long hair

                                         8
and short hair because he had received a description of Tucker as having short

hair. He testified that he tried to match the physical descriptions that he had

received. Detective Fenter said that when he saw Tucker just days after the

shooting, Tucker‘s hair was short.

      Detective Fenter stated that his partner showed Ward the photo spreads

containing Silas‘s photo and that she identified Silas.          Detective Fenter

subsequently showed Ward the photo spread containing Tucker‘s photo after

McElroy had already given him a positive identification of Tucker. Ward, who

was still in the hospital when she viewed the photo spreads, identified Tucker

immediately.

      The identifications by Ward and McElroy were made at separate times less

than a week after the shooting. Prior to viewing the array, both were instructed

that the photographs might or might not include a picture of the individual under

investigation and that they should not focus on easily-altered hair length or facial

hair. When Detective Fenter assembled the photographs, the description he had

of Tucker was that of a heavy-set black male with short hair.           While both

witnesses were under fire at the time of the crime, both were certain in their

identifications, and McElroy, who owed Silas money, recognized Tucker from

before the offense.

      An examination of the photographic array shows that all six individuals

depicted are African-American.       Three individuals have short hair, one has

medium length hair, and two—including Tucker—have long hair.             All of the

                                         9
individuals are pictured from the shoulder up, preventing an accurate

ascertainment of their build, but their facial features all seem to depict medium-

to-heavy-set men in the same general age bracket—three appear younger and

three appear older, but all appear to be in their twenties or early thirties. Adding

credibility to the accuracy of the identification is that Tucker is one of the two

individuals depicted with long hair despite the fact that he had short hair at the

time of the shooting. Under these circumstances we cannot say that the pretrial

identification was ―impermissibly suggestive,‖8 and we overrule Tucker‘s first

point.


         8
        While Tucker argues that McElroy testified that none of the other photos in
the photo spread looked like him, during cross-examination, McElroy said that as
soon as the photos were put in front of him, ―there was no question in [his] mind
that this was the man that did that,‖ even though he did not see Tucker ―on a
day-to-day basis to have a full description of him.‖ McElroy then testified as
follows:

                Q. Let me ask you about this State‘s 63, which is your photo
         array, which has already been admitted. This is the person that you
         know as Mr. Tucker, right?

               A. Yeah.

                Q. This is the person that you know that is friends with Mr.
         Silas, right?

               A. Right.

               Q. And he looks nothing like the other five people, does he?

               A. No, he does not.

                Q. Doesn‘t look anything like that. And you knew him as Mr.
         Silas’s friend, correct?

                                         10
                              V. Photographic Evidence

      In his third point, Tucker asserts that the trial court erred by admitting

photographs of Ward.

A. Standard of Review

      When determining whether photographic exhibits were properly admitted,

the question is not whether the exhibits are more prejudicial than probative, but

rather whether the probative value of the photographs is substantially outweighed

by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex.

Crim. App.), cert. denied, 534 U.S. 855 (2001); see also Tex. R. Evid. 403. We

review a rule 403 decision for an abuse of discretion. Salazar, 38 S.W.3d at 151;

Narvaiz v. State, 840 S.W.2d 415, 428–29 (Tex. Crim. App. 1992), cert. denied,

507 U.S. 975 (1993); see also Montgomery v. State, 810 S.W.2d 372, 390 (Tex.

Crim. App. 1991) (op. on reh‘g).

      In reviewing a trial court‘s ruling on the admissibility of photographic

evidence, we consider not only the general rule 403 factors—the probative value

of the evidence; the potential to impress the jury in some irrational, yet indelible,

way; the time needed to develop the evidence; and the proponent's need for the


             A. Yes, I did.

[Emphasis added.] Instead of demonstrating suggestiveness, within context,
McElroy‘s testimony shows that he recognized Tucker, but not the other men in
the array, because he knew Tucker before the shooting, which is corroborated by
Detective Fenter‘s testimony during the hearing outside the jury‘s presence that
he showed the photo array to McElroy to confirm that Tucker was the person
McElroy was talking about.

                                         11
evidence—but also the following nonexclusive list:        the number of exhibits

offered, their gruesomeness, their detail, their size, whether they are black and

white or color, whether they are close-up shots, whether the body is naked or

clothed, the availability of other means of proof, and other circumstances unique

to the individual case. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App.

2004); King v. State, 189 S.W.3d 347, 355 (Tex. App.—Fort Worth 2006, no

pet.).

B. The Photographs

         The three photographs at issue are State‘s Exhibits 35, 36, and 37.

State‘s Exhibit 35 is a photograph of the right side of Ward‘s face where she had

been shot in the eye. The photograph depicts Ward with her eyelid closed and

shows no injury discernible other than some blood that had trickled toward the

back of her head from her eye.         State‘s Exhibit 36 is a photograph of the

underside of Ward‘s chin and depicts the bloodier wound presumably caused by

a gunshot to her chin. State‘s Exhibit 37 depicts the same chin wound from a

different angle, which makes it appear larger but less bloody.

C. Analysis

         Because the State proceeded under the theory of transferred intent, it had

to prove that Tucker had intended to commit aggravated assault with a deadly

weapon.      Ward‘s injuries are such probative evidence.        Further, the three

photographs themselves, which are close-up shots of Ward‘s head, are not

overly gruesome, horrific, or likely to make some indelible impression on the

                                         12
jurors, unlike the photograph in Rolle v. State, 367 S.W.3d 746 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref‘d), upon which Tucker relies in his argument.9

Therefore, because their prejudicial weight, if any, does not overcome their

probative value with regard to the transferred-intent issue, we hold that the trial

court did not abuse its discretion by admitting the three photographs, and we

overrule Tucker‘s third point.

                                 VI. Conclusion

      Having overruled Tucker‘s three points, we affirm the trial court‘s judgment.



                                             PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




      9
        In Rolle, the court held that the admission of a single color photo of the
victim‘s unborn child was error when, among other things, the victim was killed
during the course of the burglary of a habitation, the photograph had little
probative value in relation to the charged offense of capital murder, and the
photograph of the tiny, innocent, and vulnerable unborn child had the ability to
impress the jury in some irrational yet indelible way. Id. at 749–51.

                                        13
