Affirmed and Memorandum Opinion filed November 13, 2014




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00690-CR

                  CORDERO JARREAL STEVENSON, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 179th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1299880

                    MEMORANDUM                          OPINION


      A jury convicted appellant Cordero Jarreal Stevenson of aggravated robbery
with a deadly weapon1 and sentenced him to confinement in the Institutional
Division of the Texas Department of Criminal Justice for thirty-three years.
Appellant filed a timely notice of appeal. We affirm.


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          See Tex. Penal Code Ann. §§ 29.02(a)(1), 29.03(a)(2) (West 2011).
      Appellant raises four issues. In his first issue, appellant claims the trial court
erred in denying his motion to suppress an out-of-court identification because the
procedure was unconstitutionally suggestive. Appellant’s second issue argues the
trial court erred in admitting the complainant’s in-court identification because it
was unreliable considering the totality of the circumstances. Issue three contends
the trial court violated appellant’s right to due process by admitting evidence of the
complainant’s out-of-court identification without instructing the jury on the
unreliability of eyewitness identification. Finally, appellant asserts the evidence is
insufficient to support his conviction.

                                          BACKGROUND

      An aggravated robbery occurred on April 8, 2010, at the Java Gold store.
The business was owned by Hehmood Ghaznavi. Ghaznavi was deceased at the
time of trial. Rosendo Morales was present in the store to fix Ghaznavi’s computer.
Two men came into the business. Approximately five minutes later a third man
entered. All three men pulled guns out and pointed them at Ghaznavi and Morales.
The men started asking for money and searching for it. Morales identified
appellant as the third person that came into the store and as the man in the video
surveillance wearing a red shirt. Morales testified appellant searched Ghaznavi’s
pockets and took what Morales had in his pockets, a wallet containing “probably
couple hundred dollars” in cash and a silver cross. The men took Morales’s two
cell phones and two guns from inside the store. One of the other men took
Morales’s keys and they stole his car. The car was found about four or five blocks
from the store, but everything in it was taken – a computer, computer screens, and
laptops. Fingerprints were taken at the scene but none were identified as
appellant’s.



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      Sergeant Antonio Guzman, an investigator with the robbery division of the
Houston Police Department, testified that he first spoke with Morales and
Ghaznavi six days after the robbery. He obtained a surveillance video and it was
shown on local television around April 16, 2010. On March 22, 2011, Guzman
received a Crime Stoppers tip regarding appellant. He obtained a photograph of
appellant and prepared a photo array. When Guzman showed the array to Morales,
he immediately identified appellant.

      DENIAL OF MOTION TO SUPPRESS OUT-OF-COURT IDENTIFICATION

      Appellant’s first issue contends the trial court erred in denying his motion to
suppress his out-of-court identification by Morales. Appellant claims the out-of-
court identification procedure gave rise to a substantial likelihood of an irreparable
misidentification.

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). “[A]
pretrial identification procedure may be so suggestive and conducive to mistaken
identification that subsequent use of that identification at trial would deny the
accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). We apply a two-step analysis to determine the admissibility of an in-
court identification: (1) whether the pretrial identification procedure was
impermissibly suggestive, and, if so, (2) whether that suggestive procedure gave
rise to a substantial likelihood of an irreparable in-court misidentification. Id. An
appellant must establish both of these elements by clear and convincing evidence.
Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)).

      Suggestiveness may arise from the manner in which a pretrial identification
procedure is conducted. Barley v. State, 906 S.W.2d 27, 33–34 (Tex. Crim. App.
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1995). For example, a police officer may point out the suspect or suggest that a
suspect is included in a lineup or photographic array. Id. Also, the content of a
lineup or photographic array itself may be suggestive if the suspect is the only
individual who closely resembles the description given by the witness. Id. An
individual procedure may be suggestive or the cumulative effect of procedures may
be suggestive. Id.

      In his motion to suppress, appellant claimed the photo spread did not contain
photos of other individuals who are similar in appearance to the defendant.
Sergeant Guzman testified that he prepared the photo array from a database of mug
shot photographs in the Houston Police Department (“HPD”) criminal files.
Appellant was placed in the No. 6 position. He then contacted the victims of the
robbery, Morales and Ghaznavi. Guzman testified that he usually gives witnesses a
standard HPD admonishment. He instructs them the suspect or the person who
committed the crime may or may not be in the array, to look at each photo
carefully, to take their time and, if they see the individual, point him out. Guzman
testified that he did not, in any way, point out the individual that he wanted
identified. Further, he testified that all the individuals in the photo array are of the
same race, around the same age, and have similar facial hair. Guzman testified that
he handed Morales the array and after a few seconds, Morales pointed at the No. 6
position and said, “That’s him.” Guzman identified appellant as the individual
Morales selected from the array.

      Appellant argued at the hearing that only the person in position No. 5 had a
complexion as dark as his, but that person’s features were much broader and
bulkier than appellant’s slender build. On appeal, appellant asserts that he and the
person in position No. 5 were the two darkest-complexioned individuals in the
array and that the face of the person in position No. 5 was noticeably “thicker”.

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      The photo array is comprised of six pictures of black men of similar age,
facial features, skin color, and hair styles. All are dressed in white t-shirts. The
person in position No. 2 is also wearing a collared shirt or jacket and the person in
position No. 5 has on a black jacket. The person in position No. 5 does have the
darkest complexion but appellant’s complexion is also similar to that of the person
in position No. 3. All six men have the same haircut and very similar facial hair.
The face of the person in positon No. 5 is broader than appellant’s but his face is
also closer to the camera. The faces of the other men reflect a similar build to
appellant.

      A photo array is not improperly suggestive merely because the photographs
of six individuals can be distinguished in some manner. See Mungia v. State, 911
S.W.2d 164, 168 (Tex. App.—Corpus Christi 1995, no pet.). “[L]ineup participants
need not be identical to satisfy due process requirements.” Luna v. State, 268
S.W.3d 594, 607–08 (Tex. Crim. App. 2008). We conclude appellant did not
prove, by clear and convincing evidence, that the out-of-court identification
procedure used here was impermissibly suggestive. Accordingly, the trial court did
not abuse its discretion in denying appellant’s motion to suppress. Because
appellant did not establish the photo array was unduly suggestive, we need not
address whether the procedure gave rise to a very substantial likelihood of
irreparable misidentification. Issue one is overruled.

                    ADMISSION OF IN-COURT IDENTIFICATION

      In his second issue, appellant claims the trial court erred in allowing Morales
to identify him in-court because, considering the totality of the circumstances, it
was unreliable. The record reflects Morales identified appellant in court as one of
the men who came into the store to commit the robbery. There was no objection to
his testimony. Subsequently, Morales was asked if “the man in the red shirt in

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State’s Exhibit 7” was appellant. An objection was made to “a leading question”
after Morales answered, “Yes.”

      The record does not reflect any objection was made to Morales’s in-court
identification of appellant. Generally, to preserve error, a party must make a
timely, specific objection to apprise the trial court of the basis for the request,
objection, or motion and receive an adverse ruling. See Tex. R. App. P. 33.1(a)(1).
Accordingly, appellant’s argument presents nothing for our review and we overrule
issue two.

       INSTRUCTION ON UNRELIABILITY OF EYEWITNESS IDENTIFICATION

      Appellant’s third issue claims the trial court erred in failing to instruct the
jury on the unreliability of eyewitness identification. Appellant neither requested
such an instruction nor objected to its omission at trial.

      We first determine whether there was error in the charge when reviewing a
claim of charge error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.
2009). If the appellant objected at trial, we must reverse if there was error and the
error caused some harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App.1985); Barrios, 283 S.W.3d at 350. If the appellant did not object, however,
we reverse only if there was error and it caused egregious harm. Almanza, 686
S.W.2d at 171. The analytical framework for assessing harm does not apply unless
we first find error in the jury charge. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim.
App. 1998).

       “[A] defendant must object to the charge before he may be heard to
complain on appeal about ‘errors claimed to have been committed in the charge, as
well as errors claimed to have been committed by omissions therefrom or in failing
to charge upon issues arising from the facts.’” Id. (quoting Tex. Code Crim. Proc.


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art. 36.14). Therefore, “when Almanza speaks of ‘erroneous’ omissions of issues in
the court’s charge, it speaks of omissions of issues upon which a trial court has a
duty to instruct without a request from either party or issues that have been timely
brought to the trial court’s attention.” Id. at 63–64. And although the trial judge has
“an absolute sua sponte duty to prepare a jury charge that accurately sets out the
law applicable to the specific offense charged,” he does not have a “similar sua
sponte duty to instruct the jury on all potential defensive issues, lesser-included
offenses, or evidentiary issues. These are issues that frequently depend upon trial
strategy and tactics.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007); see Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (“We
have previously held that [a]rticle 36.14 imposes no duty on trial courts to sua
sponte instruct the jury on unrequested defensive issues.... An unrequested
defensive issue is not the law applicable to the case.”) (citing Posey, 966 S.W.2d at
62).

       In this case, appellant neither requested an instruction on the unreliability of
eyewitness identification nor objected to the omission of such an instruction at
trial. Because the trial court had no duty to sua sponte instruct the jury regarding
all potential defensive issues and evidentiary theories, appellant cannot complain
of this omission for the first time on appeal. See Delgado, 235 S.W.3d at 249–50;
Posey, 966 S.W.2d at 61–64. See also Webber v. State, 29 S.W.3d 226, 233 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref’d) (“a defensive issue is not part of the
law applicable to the case unless the accused requests it to be or objects to its
omission.”). Accordingly, appellant’s third issue is overruled.

                             SUFFICIENCY OF THE EVIDENCE

       Appellant’s fourth issue claims the evidence is insufficient to support his
conviction. Appellant points to evidence that he had an alibi, there was no physical

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evidence linking him to the crime, and he was not found with any of the stolen
items.

         Cilia Green, appellant’s wife, testified that on the day in question he was
home with her for the entire day. On cross-examination Green admitted that she
had never talked to the police or the prosecutors and told them of appellant’s alibi.

         Appellant argues “the only evidence tying [him] to the incident was
Morales’s problematic identification almost one year after the incident occurred.”
“The testimony of a single eyewitness can be enough to support a conviction.”
Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d). The jury resolves any conflicts or inconsistencies in the evidence and
decides whether to believe eyewitness testimony. Id. The jury weighs the evidence
and may find guilt without physical evidence linking the accused to the crime. Id.
In addition to Morales’s identification of appellant, the record reflects the
surveillance video from the store was admitted into evidence, as well as seventeen
still photographs from the video. The jurors were able to view the video and the
photographs before determining whether appellant was one of the robbers.

         Although Green provided appellant with an alibi, we defer to the jury’s
resolution of conflicting witness testimony. See Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010). The jury was free to credit the testimony of the
eyewitness and disbelieve Green’s testimony. See Losada v. State, 721 S.W.2d
305, 309 (Tex. Crim. App. 1986) (holding jury is sole judge of witness credibility
and may believe some witnesses and refuse to believe others).

         Viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. See Isassi, 330 S.W.3d at 638; and Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We hold the evidence is
                                          8
legally sufficient to support appellant’s conviction. Appellant’s fourth issue is
overruled.

                                  CONCLUSION

      Having overruled all of appellant’s issues, the judgment of the trial court is
affirmed.




                                      /s/       Marc W. Brown
                                                Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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