      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO.03-02-00592-CR



                              Cleveland Devan Walker, Appellant

                                                 v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
          NO. 52,954, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Cleveland Devan Walker was convicted by a jury of aggravated kidnaping

with an affirmative finding of a deadly weapon and sentenced to life imprisonment. See Tex. Pen.

Code Ann. §§ 20.01(2), .04 (West 2003 & Supp. 2004). He appeals, arguing the evidence is legally

and factually insufficient to support the jury’s verdict. We affirm the judgment.


                                        Factual Summary

               The complainant, who was sixteen at the time of trial, testified that on December 21,

2001, she stopped at a convenience store on her way home from work sometime after 9:00 p.m. As

she left the store, a man walking into the store said hello. As she walked home from the store, she

heard a man yell to her, asking if he could walk with her. She consented, and as they walked the man
asked if she would “make love” to him. When she refused, he offered her drugs if she would make

love to him. She again refused, and he then put his arms around her waist and pulled her up a hill

under a bridge. He threw her down on the ground and put his hands around her throat, squeezing

until she stopped screaming. The complainant said that her attacker held a knife to her throat during

the attack; the knife was a folding knife, about four or five inches long, and he was able to open it

with one hand. He ordered her to take off her pants, saying he would slit her throat if she did not

obey. She told him she had to stand up to do so, and as she stood and started to unzip her pants, he

glanced away and briefly loosened his grip. The complainant tried to run, and her attacker grabbed

her leg, causing them to fall down the hill. He lost his grip on her leg, and she ran, yelling for help.

She ran to some apartments, and the occupants of an apartment let her in to call the police.

                When the police took the complainant’s statement, she told them that her attacker was

the man who spoke to her as she left the convenience store. She described him as an older black

male, perhaps about five feet, eight inches tall, with a large belly and a gray beard and mustache.

She said he was wearing blue sweat pants and a matching jacket, a white t-shirt with a picture on it,

dark tennis shoes, and a “toboggan” hat, not a ball cap. At trial, she identified appellant as her

attacker and as the man she encountered as she left the store. Appellant had a beard on the night of

the attack, but did not have a beard at trial.

                On the night of the attack, the police saw a man matching the complainant’s

description and took him into custody. They brought this suspect to the complainant, who was still

at the apartment from which she called the police; the complainant said he was definitely not her

attacker. Later that night, the police showed her a photograph of appellant; she was not shown a



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photographic line-up. When she saw the photo, she became upset and said she had no doubt that it

was a photograph of her attacker. The complainant’s rejection of the first suspect and initial

identification of appellant’s photograph occurred on the night of the attack. The complainant never

identified anyone but appellant as her attacker. The complainant testified that she saw appellant in

several settings, including at the store, during their walk, and during the attack, and she was sure

appellant was her attacker.

               Several hours later, several police officers went to a boarding house looking for

appellant. They knocked on Hilda Lucio’s door, and Lucio answered and said appellant was not

there. The officers noticed someone hiding in a chair under a blanket, and pulled back the blanket

to find appellant. Appellant was wearing a dirty white t-shirt with a picture of a dog on the front and

pants described as blue jeans or “dark baggy pants.” In the apartment, the police found a blue

windbreaker jacket with a white stripe down the sleeves and a pair of white tennis shoes, and

appellant said the jacket and shoes were his; the police did not find pants that matched the jacket.

There were grass stains and dirt on the shoes. Next to the chair where appellant was sitting, the

officers found a folding knife about four inches long; the locking mechanism was broken and the

knife could be opened with one hand. One officer said Lucio denied that the knife was hers, and

another who arrived later said that Lucio, without looking at the knife, “automatically said, ‘It’s my

knife.’” Appellant denied that the knife was his.

               An officer who was familiar with appellant said that appellant is a “smooth talker”

who would use euphemisms for bad words. A surveillance videotape from the convenience store

shows a heavy-set man wearing a cap with a very short bill, a dark jacket with a white stripe down



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the sleeve, dark pants, and white tennis shoes.1 The tape does not show the suspect’s face. An

officer who videotaped the scene of the attack saw footprints that resembled the tread of appellant’s

tennis shoes, which were Legacy shoes, an unusual brand. The officer could not say that it was

appellant’s actual shoes that made the prints, but said the prints were made by “a Legacy with that

sort of tread mark.” Several defense witnesses testified that they saw appellant sometime between

10:00 p.m. and 2:00 a.m. on the night of December 21. They did not notice that he was out of breath

or that his clothing was dirty.

               Lucio, who has been diagnosed with schizophrenia and depression, testified that she

was living at the boarding house, which is a house for MHMR patients, when the police found

appellant in her room. She said appellant often stayed with her, sleeping in her recliner. She first

testified that the knife the police found was hers, but when shown the alleged weapon, she said it was

not hers and did not look familiar. She said she had one or two knives for cooking and protection,

but that they were better than the knife introduced into evidence.


                                       Standard of Review

               Appellant argues on appeal that the evidence is legally and factually insufficient to

support the jury’s verdict. In reviewing the evidence for legal sufficiency, we view the evidence in

the light most favorable to the verdict and determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d

1, 7 (Tex. Crim. App. 2000). In determining the factual sufficiency of the evidence, we view all of


       1
         The videotape was not sent to this Court with the record. However, a witness described
the contents of the videotape, and the parties do not dispute the accuracy of that testimony.

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the evidence in a neutral light and will set aside a verdict only if the proof of guilt is so obviously

weak or so greatly outweighed by contrary proof as to undermine confidence in the verdict. Id. at

11. We must be appropriately deferential to the jury’s judgment and should not substantially intrude

upon the jury’s role as the sole judge of the weight and credibility given to witness testimony. Id.

at 7.


                                              Analysis

               Appellant argues that the State did not show that appellant “was ever in contact” with

the complainant. Appellant supports this statement by pointing out that the complainant was the

only identifying witness, that her identification was not corroborated by other witnesses, and that her

photo identification was tainted by suggestiveness because she appeared to be in a state of shock and

was only shown one photograph. Appellant further argues that there was no evidence that the

attacker took the complainant to a location where she was unlikely to be found or that appellant

owned or possessed the alleged weapon. Appellant finally argues that the fact that the complainant

told the police her attacker was wearing dark shoes shows that the jury’s verdict is contrary to the

overwhelming weight of the evidence, which shows that appellant owned white shoes. We disagree.

               From her first statement to the police, the complainant identified her attacker as the

man who spoke to her as she left the convenience store. She gave a clear description of her attacker

and his clothing, told the police that the first man shown to her was not her attacker, and immediately

identified appellant as her attacker when shown his photograph. Testimony about the videotape from

the convenience store described a man wearing a hat and jacket very similar to those reported by the

complainant and found in appellant’s possession. Appellant was found hiding in a friend’s

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apartment, a knife matching the complainant’s description nearby. Lucio said both that the knife did

and did not belong to her. Appellant’s shoes, an unusual brand, matched the tread marks found at

the scene of the attack and had dirt and grass stains on them. The complainant said that her attacker

pulled her under a bridge over railroad tracks, and there was testimony that the location was a very

deserted area.

                 A police officer testified that it could have been suggestive to show only one

photograph of a suspect to a complainant, who appeared to be in a mild state of shock, instead of

showing a photographic line-up. However, the complainant had described her attacker and had

already rejected one suspect as being her attacker. The complainant never wavered in her assertion

that appellant was her attacker, and her description of her attacker was clear and consistent

throughout her dealings with the police. This weighs against an argument that the complainant was

swayed into wrongly identifying appellant as her attacker by any suggestiveness associated with her

being shown only one photograph. Even if we were to assume that the complainant’s initial

identification was based on impermissibly suggestive procedures, the totality of the circumstances

and evidence indicate that her identification of appellant as her attacker was reliable, and appellant

has not carried his heavy burden of showing otherwise. See Manson v. Brathwaite, 432 U.S. 98, 114

(1977) (in assessing reliability of identification, consider totality of circumstances and weigh

possible taint of suggestiveness against factors such as witness’s opportunity to view suspect at time

of crime, witness’s degree of attention, accuracy of witness’s earlier descriptions, level of certainty

demonstrated by witness at time of identification, and time between crime and identification); Harris

v. State, 827 S.W.2d 949, 959-60 (Tex. Crim. App. 1992) (defendant had burden of showing



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unreliability of identification, and assuming pretrial identification was unreliable, totality of

circumstances indicated in-court identification was reliable); Stokes v. State, No. 03-02-00508-CR,

2003 Tex. App. LEXIS 5096, at *5-10 (Tex. App.—Austin June 19, 2003, no pet.) (not designated

for publication) (despite suggestive procedure of police showing witness one suspect, circumstances

indicated that identification was reliable). That the complainant told the police her attacker’s shoes

were black instead of white does not alone cast doubt on the reliability of her identification. Further,

the evaluation of the complainant’s credibility and the reliability of her identification of appellant

were matters to be decided by the jury. Johnson, 23 S.W.3d at 7. Whether viewed as a whole or in

the light most favorable to the jury’s verdict, the evidence was clearly sufficient to support the jury’s

finding that the complainant’s identification was reliable and trustworthy and to support the jury’s

determination that appellant was guilty of aggravated kidnaping as charged. Id. at 7, 11. We

overrule appellant’s issues on appeal and affirm the judgment of conviction.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: December 11, 2003

Do Not Publish




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