Appeal from the 262nd District Court Harris County, Texas
Trial Court Cause No. 1464722
consists of Justices Christopher, Jamison, and Donovan.
HILL JAMISON, JUSTICE
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.
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."
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.
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
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.
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
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
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.
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 ...