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


                  No. 06-15-00232-CR



            BENNIE RAY GREEN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 44,842-A




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
         On his way home from walking his dog at a public park near his Longview home, Brian

Walker showed remarkable courage in an alley when facing the business end of a western-style

revolver wielded by a man who demanded Walker’s wallet. Walker refused the demand, ran home,

and called 9-1-1 to report his encounter.1 Approximately five minutes after the report, Longview

police2 arrived at the park and found Bennie Ray Green, a heavy-set, black man in possession of a

black bag and a black do-rag, all consistent with the description of the man in the alley given by

Walker. The bag contained a revolver, consistent with the described weapon wielded by the man



1
 In the alley, the man, who Walker had seen sitting on a park bench earlier, said, “Hold it, Old School.” The man then
pulled a firearm from a black bag, cocked the trigger, pointed the gun at Walker, and said, “I’m going to have to have
that wallet, Old School.” Walker responded, “You’re just going to have to pop the cap.” Walker then began backing
away from the man, while holding his hands in the air. At that point, the man pointed the gun at Walker’s dog, who
was approximately twenty feet in front of Walker, and then he looked directly back at Walker. Walker responded to
the man by gesturing toward him with an extended middle finger and continued backing away from him. When he
was about ten feet away from the man, Walker began running with his dog toward his home. When he reached his
home, Walker immediately contacted 9-1-1.
2
 Amy Works, an officer employed by the Longview Police Department (LPD), arrived at Walker’s home shortly after
he called 9-1-1. Walker proceeded to give Works a description of the perpetrator, explaining that he was carrying a
black bag and wearing a “skull cap or some kind of do-rag, blue coveralls, and was heavyset.” Walker described the
gun as being a western-style revolver. Works relayed the information she received from Walker to Officers Charles
Rockett and Kevin Nichols, also with the LPD.
          Rockett and Nichols began a search of the area for a person matching Walker’s description. The officers
located a heavy-set, black man carrying a black bag, but he was not wearing coveralls or any type head cover. He was
later identified as Green. Rockett asked Green about the contents of his black bag, to which Green denied ownership,
as did the other two men standing on the bleachers with Green. Based on their answers, Rockett deemed the bag to
be abandoned property, opened it, and located a gun. Because Green was the only heavy-set man in the group, Rockett
detained him in the squad car.
          The officers informed Works that a suspect had been detained in the park. Works then transported Walker
to the park to give him the opportunity to identify the suspect. On the way to the park, Works informed Walker that
the person who had been detained was not wearing blue coveralls, but that the officers had located some blue coveralls
in the area. When they arrived, Walker remained in Work’s patrol car and a handcuffed Green was taken out of
another police vehicle. Green was not wearing the do-rag that Walker had seen him wearing earlier. Walker testified
that he had no doubt that, when Green was taken out of the vehicle, he knew that he was the person who had robbed
him. Walker also had no doubt that the man in the courtroom was the same man. He stated, “He’s got -- he’s got his
hair cut from the way it was, you know, that day. He’s tried to change it up some. But, yeah, that’s him.”


                                                          2
in the alley. Green was sweating profusely and seemed nervous to the officer. Though Green was

not wearing blue coveralls or a black do-rag at the time, a black do-rag was found on his person

and a subsequent search turned up blue coveralls stashed in some nearby playground equipment.

When Walker was called to the park to see if Green was the man who accosted him in the alley,

Walker looked at Green and stated, “There ain’t no doubt that’s him.”

         From resulting convictions and sentences for aggravated robbery and unlawful possession

of a firearm by a felon,3 Green appeals, challenging the trial court’s failure to suppress the out-of-

court identification by Walker, the failure to grant a mistrial, and the refusal to instruct the jury on

a lesser-included offense of attempted aggravated robbery. We affirm the trial court’s judgment,

because (1) denying Green’s motion to suppress was not error, (2) denying Green’s motion for

mistrial was not error, and (3) denying a jury instruction on a lesser-included offense of attempted

aggravated robbery was not error.

(1)      Denying Green’s Motion to Suppress Was Not Error

         Green contends the trial court erred when it denied his motion to suppress Walker’s out-

of-court identification of him on the basis that the procedure used for the identification violated

his constitutional right to due process. Specifically, Green argues that the on-scene identification

procedure in this case was so suggestive that it tainted Walker’s ability to provide an accurate

identification of the suspect at trial.          Green also argues there was no emergency situation

preventing the use of a more reliable method of identification.


3
 After the jury found Green guilty of both charges, the trial court sentenced him to thirty years’ imprisonment on the
charge of aggravated robbery and ten years’ confinement on the charge of unlawful possession of a firearm by a felon.
Before trial, Green filed a motion to suppress Walker’s identification of him, arguing that it was impermissibly
suggestive. The trial court denied the motion and proceeded to trial before a jury that same day.
                                                          3
           A pretrial identification procedure may be so suggestive and conducive to mistaken

identification that the later use of that identification at trial would deny the accused due process.

Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). Because the issue of whether a

pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact,

which does not turn on an evaluation of credibility or demeanor, we review the trial court’s ruling

de novo. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009). To determine the

admissibility of both pretrial identification and a potentially tainted in-court identification, we

consider the totality of the circumstances. Barley, 906 S.W.2d at 33. We must determine whether

(1) the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the

improperly suggestive procedure created a very substantial likelihood of irreparable

misidentification. Id. The accused must prove both elements by clear and convincing evidence.

Id. at 33–34.

           Even if a suggestive pretrial procedure has been used, when the totality of the

circumstances reveal no substantial likelihood of misidentification, the identification will be

deemed reliable and, therefore, admissible.4 Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App.


4
    The Texas Court of Criminal Appeals has reasoned,

           While it must be conceded that an on-the-scene confrontation has some degree of suggestiveness,
           in many situations its use is necessary. First of all by viewing the alleged perpetrator of the offense
           immediately after the commission of the offense, the witness is allowed to test his recollection while
           his memory is still fresh and accurate. Additionally the quick confirmation or denial of
           identification expedites the release of innocent suspects. Thus, the innocent suspect need not be
           transported to jail and detained until a lineup can be constructed. Furthermore the police would be
           able to release the innocent suspect and continue their search for the criminal while he is still within
           the area and before the criminal can substantially alter his looks and dispose of evidence of the
           crime. Finally, any possible prejudice resulting from such a confrontation can be exposed by
           rigorous cross-examination of the witness.

                                                              4
1988).    Reliability is the cornerstone in determining the admissibility of the identification

testimony. Manson v. Brathwaite, 432 U.S. 98 (1977). In determining reliability, we weigh the

following nonexclusive factors: (1) the opportunity of the witness to view the suspect at the time

of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description

of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and

(5) the time between the crime and the confrontation. Ibarra v. State, 11 S.W.3d 189, 195 (Tex.

Crim. App. 1999).

         Assuming, without finding, that the out-of-court identification procedure was

impermissibly suggestive, we find that these facts do not give rise to a substantial likelihood of

irreparable misidentification. Before the incident, Walker had seen Green sitting on the park

bleachers. In addition, Walker had the opportunity to view Green from a very close distance during

the face-to-face encounter, which took place on a bright, sunny day. While it is not explicitly

stated in the record how long Walker observed Green, we can infer that Walker had adequate time

to assess Green’s physical characteristics during the time Green spoke to Walker, pointed a gun at

him, then pointed the gun at his dog.5 Further, Walker was likely to have been an attentive observer

since he was a victim and not simply a casual observer. A witness who is a victim, rather than a

casual observer, is generally believed to have a greater degree of attention. See Brown v. State, 64

S.W.3d 94, 101 (Tex. App.—Austin 2001, no pet.).



Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981) (citations omitted).
5
 Green contends Walker was so focused on the weapon that he was unable to observe the person’s physical
characteristics. We find no evidence to support Green’s contention.

                                                        5
            Further, Walker’s description of Green was consistent in a number of details. He described

him as a heavy-set, African-American male wearing blue coveralls, a do-rag, and carrying a black

bag and a western-style gun. Following Walker’s description, Rockett located a heavy-set, black

male carrying a black bag. Shortly thereafter, the revolver was found in the bag and blue coveralls

were located nearby in the park. When Walker was asked to identify Green, he was absolutely

confident that Green had been the individual who had accosted him just minutes before. At trial,

Walker not only identified Green, he explained, “He’s got -- he’s got his hair cut from the way it

was, you know, that day. He’s tried to change it up some. But, yeah, that’s him.”

            We overrule this point of error.

(2)         Denying Green’s Motion for Mistrial Was Not Error

            Green also contends that, because the State engaged in improper argument, the trial court

erred when it denied his motion for mistrial. Specifically, Green maintains that the State

improperly argued, “[T]here’s a point in that video where Hewitt[6] says, you know, he wants him

to tell the truth. And really, under his breath, you can hardly hear it, but I have listened a couple

of times, he says, ‘I’m not ready.’ I believe that’s true. I believe he wasn’t ready to be truthful

with Defective [sic] Hewitt that day.” Following the State’s comment, Green objected, arguing

that the comment assumed facts not in evidence.7 The trial court responded, “Ladies and

gentlemen, you’ve heard the evidence, and you’ll be governed thereby.”



6
Hewitt was the detective who interviewed Green after he was transported to the LPD. The recording of the interview
was published to the jury during the State’s case-in-chief.
7
    Green maintains that he stated, “That ain’t right, bro[,]” or “It ain’t right, bro[,]” rather than “I’m not ready.”

                                                                6
         During deliberations, the trial court received a note from the jury foreman asking the trial

court to allow the jurors to view the portion of the recorded interview that contained Green’s

comment. Before the jury entered the courtroom, the trial court and the parties listened to the

portion of the interview at issue. Green renewed his objection and also moved for a mistrial. In

the alternative, Green asked the trial court to instruct the jury to disregard the comment. The trial

court denied Green’s requests, finding that the appropriate remedy would be to allow the jurors to

view that portion of the recorded interview for themselves.

         Permissible jury argument falls into one of four areas: (1) summation of the evidence;

(2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel;

or (4) a plea for law enforcement. Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).

Even when an argument exceeds the permissible bounds of these approved areas, it will not be

reversible unless the argument is extreme or manifestly improper, violates a mandatory statute, or

injects into the trial new facts harmful to the accused.8 Wesbrook v. State, 29 S.W.3d 103, 115

(Tex. Crim. App. 2000) (citing Todd v. State, 598 S.W.2d 286, 296–97 (Tex. Crim. App. 1980)).

The prosecutor’s remarks must have been a willful and calculated effort to deprive a defendant of

a fair and impartial trial. Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)).

The State is “afforded wide latitude, in its jury argument as long as counsel’s argument is supported


8
 In general, improper jury argument is considered to be a nonconstitutional error. Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998). Nonconstitutional error that does not affect the substantial rights of an accused must be
disregarded. TEX. R. APP. P. 44.2(b). When determining whether improper jury argument affects an accused’s
substantial rights, courts examine the following three factors: (1) the severity of the conduct; (2) the measures taken
to cure the misconduct; and (3) the certainty of the conviction absent the misconduct. Id. If the record as a whole
reflects a fair assurance that the error did not influence the jury, or had but a slight effect, the conviction must not be
reversed. TEX. R. APP. P. 44.2(b); King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997).

                                                            7
by the evidence and in good faith.” Stewart v. State, 995 S.W.2d 187, 190 (Tex. App.—Fort Worth

1999, pet. ref’d). In most instances, the court’s instruction to disregard the remarks will cure the

error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994); Cooks v. State, 844

S.W.2d 697, 727 (Tex. Crim. App. 1992).

         Although Green concedes that “the interjected fact in question was either only faintly

audible or wholly inaudible,” he contends the State’s remark amounted to “severe misconduct that

would generate great prejudicial effect.” Green goes on to state, “The State’s willful and calculated

effort to implant that fact into the minds of some or all of the jurors is extreme, or manifestly

improper, and a mistrial should have been granted when [Green] requested it.”9 We disagree.

         In Green’s recorded interview, the statement at issue was somewhat inaudible; presumably,

that was the reason the jury asked to review that portion of the recording a second time. In addition,

the State did not emphasize that segment of Green’s interview and did not attempt to convince the

jury that Green’s words amounted to a confession. Further, the trial court instructed the jury that

it must consider only the evidence and “that statements made by the lawyers are not evidence.” In

response to the differing interpretations as to what Green said, the trial court allowed the jury to

review that part of the recording to determine what it believed Green said, thus, curing any error.

If we disregard the State’s comment, the remaining evidence was sufficient to support the jury’s


9
 We review a trial court’s denial of a mistrial under an abuse-of-discretion standard. Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009); Sanders v. State, 387 S.W.3d 680, 687 (Tex. App.—Texarkana 2012, pet. struck). We
consider “the evidence in the light most favorable to the trial court’s ruling, considering only those arguments before
the court at the time of the ruling.” Ocon, 284 S.W.3d at 884 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.
App. 2004)). If the ruling was within the zone of reasonable disagreement, it must be upheld. Id.; Sanders, 387
S.W.3d at 687. Mistrial is only an appropriate remedy when the error is highly prejudicial and incurable. Id. (citing
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).

                                                          8
finding of guilt. Therefore, even if the State’s comment was error, it was harmless and, thus, the

trial court did not err when it denied Green’s motion for mistrial.

       We overrule this point of error.

(3)    Denying a Jury Instruction on a Lesser-Included Offense of Attempted Aggravated Robbery
       Was Not Error

       Green contends the trial court erred when it refused to charge the jury on the lesser-included

offense of attempted aggravated robbery. The State responds that Green did not preserve this issue

for appellate review.

       Outside the presence of the jury, Green requested the inclusion of an instruction on

attempted aggravated robbery; however, he explained, the “big issue on [sic] the case, that I

believe, is the identification of Mr. Green. I have a proposed instruction that I would submit to

the Court regarding that issue that I have requested the inclusion.” The trial court overruled

Green’s request as to the issue of identification, stating, “[T]hat will not be placed in the jury

charge. But, you’ve got it properly on file and requested.” The trial court proceeded, “[N]ow, as

to the -- you didn’t give me a copy of the attempt . . . .” Counsel responded, “I didn’t have a copy

of the attempt printed, Your Honor.” With a brief explanation, the trial court overruled Green’s

request as to the inclusion of an instruction on attempted aggravated robbery.

       Green argues that the State agreed with the inclusion of the requested instruction on

attempted aggravated assault. The State denies such an agreement, and the record does not reveal

such an agreement. Regardless, we find no error in the trial court’s refusal to incorporate in its

jury charge an instruction on attempted aggravated robbery.


                                                 9
        The appropriate test to be applied in determining whether an accused is entitled to an

instruction on a lesser-included offense is whether (1) the proof needed to establish the lesser-

included offense is subsumed in the proof necessary to establish the offense charged and (2) some

evidence exists that would allow a jury rationally to find that, if the accused is guilty, he is guilty

only of the lesser offense. Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). The

evidence must be evaluated in the context of the entire record, and the reviewing court may not

consider whether the evidence is credible, controverted, or in conflict with other evidence. Moore

v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).

        Section 29.02 of the Texas Penal Code defines robbery as follows:

         (a)   A person commits an offense if, in the course of committing theft as defined
        in Chapter 31[10] and with intent to obtain or maintain control of the property, he:

                 (1)    intentionally, knowingly, or recklessly causes bodily injury to
                 another; or

                 (2)   intentionally or knowingly threatens or places another in fear of
                 imminent bodily injury or death.

TEX. PENAL CODE ANN. § 29.02 (West 2011). Section 29.03 of the Texas Penal Code states that

when a person commits the offense of robbery and he or she either causes serious bodily injury to

another or uses or exhibits a deadly weapon, he or she has committed the offense of aggravated

robbery. TEX. PENAL CODE ANN. § 29.03(a)(1), (2) (West 2011).




 Section 31.03 states, in part, “(a) A person commits [theft] if he unlawfully appropriates property with intent to
10

deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner’s effective
consent . . . .” TEX. PENAL CODE ANN. § 31.03 (West Supp. 2016).

                                                        10
            Because Walker testified that he was not placed in fear when Green brandished his

weapon,11 Green contends there is at least some evidence in the record that would permit a rational

jury to find that, if Green is guilty of anything, he is guilty only of the lesser-included offense of

attempted aggravated robbery.12 We disagree.

            In this case, the State was required to show beyond a reasonable doubt that Green, while in

the course of committing theft of property and with the intent to obtain or maintain control over the

property, intentionally or knowingly threatened or placed Walker in fear of imminent bodily injury

or death by exhibiting a deadly weapon. Walker testified that Green cocked his weapon, pointed the

gun at him, and demanded that Walker hand over his wallet. Although Walker denied he was in fear

when Green pointed the gun at him, he did testify that he felt threatened by Green’s actions. The

statute requires only that Green threatened or placed Walker in fear of imminent bodily injury or

death, not both. There is no evidence that he failed to effect the commission of threatening Walker

nor is there any evidence that Green failed to effect the commission of exhibiting a deadly weapon.




 Walker testified that he was not afraid of being injured by Green. “I mean, the Bible says ‘fear not’ 85 times, so I’ll
11

go along with that. I just ain’t going to worry about nothing.” But when asked if he felt threatened by Green’s action,
Walker stated that he did.
12
     “Criminal attempt” is defined as follows:

            (a)      A person commits an offense if, with specific intent to commit an offense, he does an act
            amounting to more than mere preparation that tends but fails to effect the commission of the offense
            intended.

            (b)    If a person attempts an offense that may be aggravated, his conduct constitutes an attempt
            to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.

TEX. PENAL CODE ANN. § 15.01. (West 2011).

                                                            11
In other words, the evidence shows that Green successfully completed both of these requisite acts.13

Thus, the trial court was under no duty to include an instruction on the lesser-included offense of

attempted aggravated robbery.

        We overrule this point of error.

        We affirm the trial court’s judgment.



                                                    Josh R. Morriss, III
                                                    Chief Justice


Date Submitted:           October 13, 2016
Date Decided:             December 14, 2016

Do Not Publish




13
  Green’s only failure was his inability to obtain Walker’s wallet. Section 29.01(1) defines “in the course of
committing theft” and the phrase “means conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft.” TEX. PENAL CODE ANN. § 29.01(1) (West 2011). That
Green was unsuccessful in his attempt to steal Walker’s wallet has no effect on the propriety of the trial court’s
instructions to the jury.
                                                       12
