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Fisher v. State

Court of Appeals of Texas, Fourteenth District

May 11, 2017

ARTENUS FISHER, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1464722

          Panel consists of Justices Christopher, Jamison, and Donovan.

          OPINION

          MARTHA HILL JAMISON, JUSTICE

         Appellant Artenus Fisher appeals his conviction for aggravated robbery. In a single issue, appellant contends that the trial court erred in denying his motion to suppress complainant's pretrial identification of him due to an impermissibly suggestive photographic lineup. We affirm.

         Background

         Complainant Sabrina Herron testified that appellant robbed her at gunpoint just outside her apartment on April 13, 2015. Herron stated that as she was starting up the stairs to her apartment, she felt someone pull her backwards by her ponytail. She turned and was able to "get a good look" at appellant. He told her to "shut up" and struck her across her left cheek with a gun. Appellant then pointed the gun at Herron, demanded she give him her car keys, and hit her again. Herron gave him the keys, which were to her boyfriend Kenneth Ladson's car, and appellant also took Herron's cell phone from her hand. Appellant then ran towards the parking lot and drove away in Ladson's car. Although there was testimony that the apartment complex was poorly lit, Herron was able to identify her assailant as a "[b]lack male, around 6-foot tall, 160 to 170 pounds, wearing a red hoodie and dark pants."

         Herron further testified that after appellant fled, she ran to her apartment and told Ladson what had happened. Ladson first called the police and then called the car dealership where he had bought the vehicle. Using a tracking device in the stolen car, the dealership located the vehicle, and the police thereafter initiated a high-speed chase. The chase ended when appellant, who was driving the car, crashed into another car and attempted to escape on foot, only to be quickly apprehended by the police. When they searched a backpack appellant was wearing at the time, police officers discovered a red hoodie.

         On April 14, 2015, Houston Police Investigator Fred Braune composed an array of six photographs, including one of appellant wearing a red hoodie. The other five photographs were also of black males of similar age, skin tone, facial features, and hairstyles as appellant. In two of the other photographs, the subject is wearing a red shirt or jacket. In one of those photographs, it looks like the red shirt or jacket could be hooded. In the other red-shirt photograph, the subject is wearing a gray hooded jacket over the red shirt.

         Prior to trial, appellant objected to the admission of Herron's pretrial identification because it was tainted by an impermissibly suggestive photographic lineup. At a hearing on the motion, Herron testified that she was shown the photo array the next morning, about five to six hours after the robbery. She stated that she was "[a] hundred percent" sure that the person she identified in the photographs was the robber and she was sure of it at the time she was shown the array. At one point, during cross-examination by defense counsel, Herron seemed to agree that her "best memory" of appellant was his red hoodie, but she later clarified on redirect that "his face was the main thing. I remember also the hoodie." She further stated, "I remember his face. . . . [I]t was kind of dark; but I got a direct look at him when I turned around. . ., " and "I picked the person because I remembered him, well, his face." And she expressly denied that she picked him because of what he was wearing. When asked what drew her attention to his photograph, she replied "[h]is face." Officer Matthew Green also testified at the hearing. He explained that after Investigator Braune prepared the array, he (Green) presented it to Herron without knowing which photograph was of the actual suspect in the case.

         The trial court denied appellant's motion to suppress. At trial, Herron gave substantially similar testimony regarding the photo array as she did in the pretrial hearing. She also affirmatively identified appellant in court as the robber. Green also provided testimony at trial similar to his pretrial testimony.

         The jury found appellant guilty of aggravated robbery and also found an allegation in an enhancement paragraph to be true. The jury then assessed appellant's punishment at 28 years in prison.

         Analysis

         A pretrial identification procedure may be so suggestive and conducive to mistaken identification that using the identification at trial would deny the accused due process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Mendoza v. State, 443 S.W.3d 360, 363 (Tex. App.-Houston [14th Dist.] 2014, no pet.). When determining the admissibility of a pretrial identification, we apply a two-step analysis; first asking whether the pretrial procedure was impermissibly suggestive, and then, if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification. E.g., Aviles-Barroso v. State, 477 S.W.3d 363, 381 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd). The analysis under these steps requires an examination of the totality of the circumstances surrounding the particular case. Conner, 67 S.W.3d at 200. We review de novo whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, but we review historical issues of fact in the light most favorable to the trial court's ruling. Loserth v. State, 963 S.W.2d 770, 773-74 (Tex. Crim. App. 1998).

         In the first step in the analysis, it is the defendant's burden to establish by clear and convincing evidence that the pretrial procedure was impermissibly suggestive. Balderas v. State, No. AP-77, 036, 2016 WL 6496715, at *25 (Tex. Crim. App. Nov. 2, 2016), cert. denied, 137 S.Ct. 1207 (2017). Suggestiveness may result from the manner in which a pre-trial identification procedure is conducted; the content of the line-up or photo array itself, as when the suspect is the only individual closely resembling the pre-procedure description; or the cumulative effect of the procedures and photographs used. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Every photo array must generally contain photographs of ...


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