Affirmed and Opinion filed September 21, 2017.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00514-CR

                    WILLIAM EARL TUTSON, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 351st District Court
                            Harris County, Texas
                        Trial Court Cause No. 1355673

                                 OPINION
      Challenging his conviction for aggravated robbery, appellant William Earl
Tutson asserts that the trial court erred in denying his motion to suppress evidence
and in refusing to charge the jury on the lesser-included offense of robbery. We
affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

      The complainant, who was the assistant manager of an automobile parts
store, was returning from her lunch break when appellant told her to stop. The
complainant turned around and saw that appellant had a gun.             She stopped.
Appellant pointed the gun at the complainant’s chest and neck area and told her
that he planned to take her purse and a bank bag filled with bills. Appellant told
the complainant that he would shoot her if she tried to stop him. The complainant
complied with appellant’s directions and appellant took her purse and the bank
bag. As the events unfolded, customers and coworkers inside the store began to
take notice. One customer, an automobile mechanic, ran outside to try to help the
complainant.

      Appellant hopped into a car and left the scene driving north towards the
freeway. One of the complainant’s coworkers called 911 and described the car
leaving the scene as a dark-colored Pontiac. Officer Marshall was in the vicinity
and heard the dispatch, including the description of the car leaving the scene.
Within minutes he saw a dark-colored Pontiac. As he began following the car, he
noticed the car continually picking up speed in an apparent attempt to evade him.
When he activated his lights to initiate a traffic stop, the car continued accelerating
until it was traveling 80 miles per hour. As the pursuit was underway, Officer
Marshall saw large sums of money fly out the passenger side of the car along with
other items. The car began fishtailing as the driver lost control of it. Eventually
the car spun to a stop, facing Officer Marshall’s car. Both occupants of the car fled
on foot.

      Officer Marshall radioed a description of the passenger – later identified as
appellant – to other police officers in the area, and told them the direction appellant
appeared to be heading. Then Officer Marshall chased and caught the driver.

      Meanwhile, Officer Black, having heard Officer Marshall’s description of
the fleeing suspect and also being in the vicinity, began looking around. A woman

                                          2
made eye contact with the officer and made a discreet pointing motion. When
Officer Black looked in the direction the woman was pointing, he saw appellant,
standing still, staring at him with wide eyes. Officer Black took appellant into
custody.

      Both Officer Marshall and Officer Black returned to the scene with the
suspects they had apprehended. Officer Marshall confirmed that appellant was the
individual he had seen fleeing the car.

      Appellant was indicted for aggravated robbery. The indictment contained
two enhancement paragraphs alleging two prior felonies.

      Appellant filed a motion to suppress Officer Marshall’s identification of
him. Following a hearing on the motion to suppress, appellant filed a supplemental
motion to suppress in which appellant re-urged his objection to Officer Marshall’s
identification and argued that the trial court should suppress any evidence collected
as a result of the traffic stop because Officer Marshall did not have reasonable
suspicion to initiate the traffic stop.   The trial court denied the supplemental
motion to suppress.

      Appellant pleaded “not guilty” to the charges, but pleaded “true” to the
enhancement paragraphs. At trial, the complainant testified about the robbery and
stated that appellant had a black handgun. The mechanic who had witnessed the
events at first testified that he saw what “looked like a gun” and then clarified that
he had seen a silver handgun.         During cross-examination, defense counsel
confronted the witness with the earlier statement that he had seen something that
“looked like a gun.” The mechanic denied making the statement and said that he
had seen a gun.

      At the jury-charge conference, appellant asked for a jury instruction on the


                                          3
lesser-included offense of robbery.       According to appellant, the mechanic’s
testimony, and evidence that police officers never found a gun, could each be
interpreted as evidence that appellant did not have a gun when he robbed the
complainant.     The trial court refused to give the lesser-included-offense
instruction.

      The jury found appellant guilty as charged.          The trial court sentenced
appellant to thirty years’ confinement. On appeal, appellant challenges the trial
court’s denial of the suppression ruling and refusal to give the jury a lesser-
included-offense instruction.

                                      ANALYSIS

      A. Denial of Motion to Suppress

      In his first issue, appellant asserts that the trial court abused its discretion in
denying his motion to suppress evidence, arguing (1) the procedure used to obtain
Officer Marshall’s identification of appellant was impermissibly suggestive and
(2) Officer Marshall illegally detained him because the officer lacked reasonable
suspicion to conduct the traffic stop.

      We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App.
2013). As long as the record supports the trial court’s determinations of historical
facts, and mixed questions of law and fact that rely on credibility, we grant those
determinations almost total deference. Id. We review the court’s application of
law to the facts de novo. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App.
2007). When, as in this case, the trial judge does not make formal findings of fact,
we uphold the trial court’s ruling on any theory of law applicable to the case and
presume the court made implicit findings in support of its ruling if the record


                                           4
supports those findings. Tyler v. State, 491 S.W.3d 1, 3 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).

      Propriety of the Identification

      Appellant moved to suppress evidence of Officer Marshall’s pretrial
identification of appellant on the day of the offense. An out-of-court identification
is inadmissible if a suggestive pretrial identification tainted it. Santos v. State, 116
S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). To decide if
a pretrial identification is tainted we consider whether the pretrial identification
procedures were impermissibly suggestive.         Id.   If they were, we determine
whether the suggestive procedure gave rise to a very substantial likelihood of
irreparable misidentification. Id.

      Appellant shoulders the burden to prove the unreliability of the out-of-court
identification by clear and convincing evidence that (1) the pretrial identification
procedure was impermissibly suggestive and (2) that it gave rise to a very
substantial likelihood of irreparable misidentification. Id. Identification testimony
is admissible if indicia of reliability outweigh the influence of an impermissibly
suggestive pretrial identification. Id. “On-the-scene” or “show-up” identifications
tend to be suggestive to some degree. See Mendoza v. State, 443 S.W.3d 360, 363
(Tex. App.—Houston [14th Dist.] 2014, no pet.). Officer Black brought appellant
to the scene and asked Officer Marshall if appellant was the individual Officer
Marshall saw fleeing the car. Officer Marshall knew that Officer Black caught
appellant while responding to Officer Marshall’s radio call for assistance. This
court has found show-up identifications not impermissibly suggestive when they
occurred an hour after a robbery and the complainants were told that the
individuals being presented in the show-up identification were not necessarily the
individuals who committed the robbery. See id. at 364. Like the permissible

                                           5
identification in Mendoza, the show-up identification in today’s case occurred
shortly after the suspects fled the scene. Officer Marshall saw the suspect fleeing
the car shortly after the event. See id. But, unlike the identifier in Mendoza,
Officer Marshall likely knew Officer Black caught appellant while responding to
the radio call for assistance. See id. This knowledge made the procedure more
suggestive.

      We presume for the sake of argument that the identification procedure was
impermissibly suggestive and address whether the presumably suggestive
procedure gave rise to a substantial likelihood of irreparable misidentification. To
make this determination, we weigh the following factors:

      (1) the opportunity of the witness to view the suspect at the time 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 by the witness at the
         confrontation; and
      (5) the length of time between the crime and the confrontation.
See Balderas, 517 S.W.3d 756, 792 (Tex. Crim. App. 2016). We weigh these
factors deferentially in a light favorable to the trial court’s ruling. Aviles-Barroso
v. State, 477 S.W.3d 363, 385 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
We then weigh the factors, viewed in this light, de novo against the “corrupting
effect” of the suggestive pretrial identification procedure. Id.

      With respect to the first factor, Officer Marshall testified that when appellant
exited the car, appellant was facing him. Appellant ran towards Officer Marshall
before fleeing the scene. Officer Marshall stated that he got a “good look” at
appellant, observing appellant closely to make sure he did not have a gun. Officer
Marshall radioed a description of appellant and appellant’s direction of travel to

                                          6
other police officers. Though Officer Marshall saw appellant for only a few
seconds, the two stood in close proximity. Simply stated, the identifier had an
imperfect, but good, opportunity to view appellant.

      In considering the second factor, we note that Officer Marshall testified that
at the time he focused intensely on appellant, drawing on his years of identification
training. Relevant to the third factor, Officer Marshall radioed an accurate but
somewhat undetailed description of appellant, describing him as a bald man in a
black shirt. Appellant asserts that Officer Black did not use Officer Marshall’s
description in selecting appellant.      Officer Marshall testified that he did not
mention appellant’s race, but Officer Black testified that the description he used to
identify appellant included appellant’s race. This discrepancy does not affect the
reliability of Officer Marshall’s identification.

      The record contains no details about the fourth factor — the identifier’s
confidence level during the show-up identification— though we note no evidence
of hedging or lack of confidence on Officer Marshall’s part at trial. The fifth
factor — the length of time between the crime and the confrontation — weighs
against a misidentification because of the brief interval between Officer Marshall’s
first seeing appellant and his identification of him.

      Weighing these factors against the influence of the lineup, we conclude that
the indicia of reliability outweigh any corrupting influence from the show-up
identification. See Santos, 116 S.W.3d at 455. Accordingly, we conclude the
procedure did not give rise to a substantial likelihood of irreparable
misidentification. See id. Thus, we conclude the trial court did not abuse its
discretion in denying appellant’s motion to suppress. See id.




                                           7
Allegedly impermissible detention

       Under his first issue, appellant also asserts that the trial court abused its
discretion in denying his motion to suppress evidence because Officer Marshall did
not have reasonable suspicion to initiate the traffic stop. See Kothe v. State, 152
S.W.3d 54, 61 (Tex. Crim. App. 2004) (holding passengers have standing to
challenge traffic stops).

       Under the Fourth Amendment, an officer must have reasonable suspicion to
justify a warrantless detention that amounts to less than a full custodial arrest.
Kerwick, 393 S.W.3d at 273. An officer has reasonable suspicion if the officer has
specific, articulable facts that, combined with rational inferences from those facts,
would lead the officer reasonably to conclude that the person detained is, has been,
or soon will be engaged in criminal activity. Id. These facts must show unusual
activity, some evidence that connects the detainee to the unusual activity, and some
indication that the unusual activity relates to crime, but the likelihood of criminal
activity need not rise to the level required for probable cause to arrest. Id. at 273–
74.

       The test for reasonable suspicion focuses solely on whether an objective
basis exists for the detention and disregards the officer’s subjective intent. Id. at
274.   The detaining officer need not be aware personally of every fact that
objectively supports a reasonable suspicion to detain; instead, the cumulative
information known to cooperating officers at the time of the stop must be
considered in determining whether reasonable suspicion exists. Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). A reasonable-suspicion
determination must be based on the totality of the circumstances, and reasonable
suspicion may exist even if the circumstances presented are as consistent with
innocent activity as with criminal activity. Kerwick, 393 S.W.3d at 274.

                                          8
      Officer Marshall testified at the suppression hearing that he was out
patrolling when he heard a call come over the air requesting a response to an
aggravated robbery in his vicinity, and advising that the vehicle leaving the scene
of the robbery was a dark-colored Pontiac. Seven minutes after the 911 phone call,
and four minutes after the call dropped, Officer Marshall saw a dark-colored
Pontiac driving towards him. He turned around and began following the car. As
he did, the car accelerated. Believing the driver was attempting to evade him,
Officer Marshall activated lights and sirens.         A high-speed chase ensued.
Eventually, the driver lost control of the car and when it came to a stop, the car’s
two occupants fled on foot.

      Appellant contends that Officer Marshall did not have reasonable suspicion
to turn on his lights and sirens because he had seen no traffic violations at the point
he initiated the traffic stop.     Officer Marshall was in the vicinity where an
aggravated robbery had just occurred when he encountered the vehicle matching
the description of the vehicle seen leaving the crime scene. Citing U.S. v. Jaquez,
421 F.3d 338 (5th Cir. 2001) and State v. Perez, 56 S.W.3d 796 (Tex. App.—
Eastland 2001), rev’d 85 S.W.3d 817 (Tex. Crim. App. 2002), appellant argues that
the vague description of the vehicle was insufficient to give the officer reasonable
suspicion to initiate the traffic stop. Jaquez is a federal case that is not binding
precedent on this court. See Blackmon v. State, 642 S.W.2d 499, 500 (Tex. Crim.
App. 1982). The Court of Criminal Appeals reversed Perez. See Perez, 56 S.W.3d
at 819. But, in any event, the facts in today’s case give rise to greater suspicion
than the facts in either of those cases.

      Unlike in Jaquez, where the police officer initiated a stop solely based on the
driving of a red car, the Officer Marshall conducted the stop on the strength of a
more precise description — a narrow range of colors and a make of the vehicle.

                                           9
See Jaquez, 421 F.3d at 341. Also unlike in Jaquez, after the officer began
following that car, the driver picked up speed and took evasive action. The Perez
court deferred to the trial court’s finding that the Perez defendant did not match the
description of the suspect. See Perez, 56 S.W.3d at 799. In today’s case, we defer
to the trial court’s finding that appellant’s vehicle matched the description of the
suspect vehicle. The record supports the finding.

      Officer Marshall stopped the vehicle in the vicinity of the robbery after
noticing the vehicle matched the description of the vehicle leaving the crime scene,
and as he pursued the vehicle, its driver took evasive action. These facts supported
a reasonable suspicion that the vehicle was involved in the robbery that had just
occurred. See Johnson v. State, 444 S.W.3d 209, 214 (Tex. App.—Houston [14th
Dist.] 2014, pet. ref’d).    The reasonable suspicion justified the warrantless
detention.

      We conclude that the trial court did not abuse its discretion in denying
appellant’s motion to suppress, so we overrule appellant’s first issue.

      B. Denial of Lesser-Included-Offense Instruction

      In his third issue, appellant asserts that the trial court erred in denying his
request that the trial court charge the jury on the lesser-included offense of
robbery.

      The Texas Code of Criminal Procedure provides, “[i]n a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of
the greater offense, but guilty of any lesser included offense.” Tex. Code Crim.
Proc. art. 37.08 (West, Westlaw through 2017 R.S.). To test entitlement to a lesser-
included-offense instruction, we conduct a two-step analysis. Sweed v. State, 351
S.W.3d 63, 67 (Tex. Crim. App. 2011). In the first step, we decide whether the


                                         10
purported lesser-included offense falls within the proof necessary to establish the
offense charged. Id. at 68. To make this determination, we compare the statutory
elements and any descriptive averments in the indictment for the greater offense
with the statutory elements of the lesser offense. Id. Because robbery is a lesser-
included offense of aggravated robbery, we move to the second step. See Penaloza
v. State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

      In the second step of the lesser-included-offense analysis, we see if there is
some evidence from which a rational jury could acquit the defendant of the greater
offense while convicting the defendant of the lesser-included offense. Sweed, 351
S.W.3d at 68. The evidence must establish the lesser-included offense as a “valid
rational alternative to the charged offense.” Id. We review all of the evidence
presented at trial. Id. Anything more than a scintilla of evidence entitles a
defendant to a lesser-included-offense charge. Id. Although a scintilla of evidence
is a low threshold, “it is not enough that the jury may disbelieve some crucial
evidence pertaining to the greater offense, but rather, there must be some evidence
directly germane to the lesser-included offense for the finder of fact to consider
before an instruction on a lesser-included offense is warranted.” Id. If some
evidence refutes or negates other evidence establishing the greater offense or if the
evidence presented is subject to different interpretations, then the standard is met
and the instruction is warranted. Id.

      Appellant contends that the evidence regarding whether he used a gun is
open to different interpretations. The complainant testified that appellant had a
black handgun in his right hand when he robbed her. The automobile mechanic
testified, “I could see something in [appellant’s] hand at the end of it looked like it
was a gun.” A few sentences later, the same witness testified that he could not tell
what kind of a gun it was, but “you could tell it was like a gun.” Immediately after

                                          11
that, the prosecutor asked if appellant had a handgun and the automobile mechanic
said, “yes.” Before passing the witness, the prosecutor asked one more time if the
automobile mechanic saw appellant using a gun and the automobile mechanic said
“yes.” On cross-examination, when defense counsel asked the witness about his
testimony that he saw “something that looks like a gun,” the witness said, “No, I
said it was a gun.”       During cross-examination, the automobile mechanic
maintained his position that he saw a gun. He said the gun was silver. Police
testified that they did not find a gun, but the evidence showed appellant was
throwing objects out of the car during a high-speed chase and then took off running
on foot.

      Appellant focuses on the automobile mechanic’s testimony that he saw
something that looks like a gun, but this testimony is not inconsistent with the
witness’s firm statements that he saw a gun. See Penaloza, 349 S.W.3d at 712–13.
The only reasonable interpretation of the automobile mechanic’s testimony is that
he saw something that looked like a gun and, in fact, the thing he saw was a gun.
The witness’s testimony that he saw something that looked like a gun is not
affirmative evidence that appellant did not use a gun. See id.

      Appellant likens this case to Nash v. State, a case in which the Sixth Court of
Appeals held that a defendant was entitled to an instruction on the lesser-included
offense of robbery because the surveillance video conflicted with the
complainant’s statements that the defendant used an ice pick while committing the
robbery. See 115 S.W.3d 136, 139 (Tex. App.—Texarkana 2003, no pet.) (noting
that the object in the defendant’s hand in the video was unclear, but “what is
visible does not appear to be metallic or a weapon). Nash is not binding on this
court, and, in any event, differs in key respects. The evidence in Nash contradicted
the complainant’s testimony. See id. By contrast, the automobile mechanic’s

                                         12
testimony that he saw something that looked like a gun does not contradict his
testimony that he saw a gun. The record does not contain any affirmative evidence
that appellant did not use a gun while robbing the complainant. See Penaloza, 349
S.W.3d at 712–13. Because the record does not contain affirmative evidence that
appellant did not use a gun, the trial court did not err in refusing to charge the jury
on the lesser-included offense of robbery. See id. We overrule appellant’s second
issue.

                                     CONCLUSION

         The trial court did not abuse its discretion in denying appellant’s motion to
suppress evidence nor did the trial court err in refusing to the charge the jury on the
lesser-included offense of robbery. We affirm the trial court’s judgment.




                                         /s/    Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Publish — TEX. R. APP. P. 47.2(b).




                                           13
