ANTHONY GLENN WALKER v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ANTHONY GLENN WALKER, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-01523-CR

Decided: January 28, 2010

Before Justices Morris, O'Neill, and Fillmore

OPINION

Opinion By Justice Fillmore

A jury found Anthony Glenn Walker guilty of possession of less than one gram of cocaine and of two aggravated robbery with a deadly weapon offenses and sentenced him to thirty-five years' incarceration on each aggravated robbery offense and two years' incarceration on the possession of cocaine offense.   In five points of error, Walker asserts (1) the trial court erred by denying Walker's motion to suppress the complainants' identification of him as the robber because the police used an impermissibly suggestive pretrial identification procedure;  (2) the evidence is legally and factually insufficient to support one of the aggravated robbery convictions (F08-52343-U) because there was a fatal variance between the complainant's name as proved at trial and as alleged in the indictment;  and (3) the judgment on the possession of cocaine offense (F08-52342-U) should be modified to reflect his correct name.   As modified, we affirm the trial court's judgment on the possession of cocaine offense.   We affirm the trial court's judgments on the aggravated robbery offenses.

Background1

At approximately 10:30 p.m., Jose Zaragoza and Guadalupe Garcia were in the back parking lot of the Dolphin Club looking at a truck Garcia had recently purchased when they were approached by a man with a shotgun.   The man held the gun to Zaragoza's and Garcia's heads and demanded their wallets.   Both Garcia and Zaragoza agreed the robbery lasted at least two and one-half minutes.   Although the robber made Zaragoza and Garcia lie down on the ground, Zaragoza estimated he was face-to-face with the robber for thirty to forty seconds.   Zaragoza testified he was only one foot from the robber.   Both Zaragoza and Garcia described the parking lot as well lit and testified they got a “good look” at the robber because he was screaming in their faces.

After obtaining Zaragoza's and Garcia's wallets, the robber ran to a waiting black car and got into the passenger side.   The car traveled rapidly in reverse for approximately half a block and then hit two electrical poles.   Zaragoza followed the car in his truck and saw two men run from the wrecked car.

Officer Tom Nguyen responded to a dispatch about the robbery.   He estimated it took him about three minutes to arrive after receiving the call.   Nguyen saw Walker running and stopped him.   Nguyen then handcuffed Walker to ensure Nguyen's safety.   While searching Walker for his identification, Nguyen found Zaragoza's and Garcia's wallets.   Another officer brought Zaragoza and Garcia to the scene of the arrest to do a field identification.   Nguyen testified he would not have brought Zaragoza and Garcia together to the identification because he had been trained to separate witnesses prior to an identification.

Although their estimation of the time that had elapsed since the robbery varied from ten minutes to one hour, Zaragoza and Garcia agreed they were taken together to the scene of the arrest.   Zaragoza estimated the scene was one hundred to two hundred feet from the club while Garcia estimated he was taken about “one-half mile or two blocks.”   Both Zaragoza and Garcia identified Walker as the man who robbed them.   Garcia testified that his identification of Walker was based on his observations during the robbery, he was one hundred percent sure Walker was the robber, and he would have recognized Walker without seeing him at the scene.   Zaragoza testified the police officer never told them that they were being shown the person who robbed them;  rather, the officer asked if Walker was the person who robbed them.   Zaragoza recognized Walker “right away” as the man who robbed him.

Zaragoza and Garcia were taken back to the Dolphin Club. Nguyen subsequently took Walker to the Dolphin Club to finish the investigation.   Walker was handcuffed in the back seat of Nguyen's patrol car while Nguyen provided information about the process to Zaragoza and Garcia.   An unidentified police officer shone a light into Walker's face and asked if Zaragoza and Garcia recognized him.   Zaragoza and Garcia again identified Walker as the robber.   Nguyen denied he was the officer who requesting the second identification of Walker at the Dolphin Club. In Nguyen's opinion, there was no need for a second identification because Walker had already been identified as the robber.

At trial, both Zaragoza and Garcia identified Walker as the robber.   The jury found Walker guilty of the aggravated robbery of Zaragoza and Garcia and of possession of less than one gram of cocaine that was found on Walker at the time of his arrest.

Motion to Suppress Identification

Walker moved to suppress Zaragoza's and Garcia's identification of him as the robber.   In his first two points of error, Walker contends the trial court erred by denying the motion to suppress because the pretrial identification procedure used by the police was impermissibly suggestive and violated his right to due process.

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review.  St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007).   The trial court is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.   Id. Therefore, we give almost total deference to the trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor.  Id.;  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor.  Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007);  Guzman, 955 S.W.2d at 89.   We review de novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor.  State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008);  Guzman, 955 S.W.2d at 87.

In reviewing a trial court's ruling on a suppression motion, we view the record in the light most favorable to the ruling.  Garcia-Cantu, 253 S.W.3d at 241.   We generally consider only evidence adduced at the suppression hearing.  Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007);  Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).   However, when the parties later relitigate the suppression issue at the trial on the merits, we consider all evidence, from both the pretrial hearing and the trial, in our review of the trial court's ruling.  Gutierrez, 221 S.W.3d at 687;  Rachal, 917 S.W.2d at 809.   Here, the trial court held a pretrial hearing on Walker's motion to suppress and denied the motion at the conclusion of the hearing.   However, at trial both the prosecutor and defense counsel asked questions about Zaragoza's and Garcia's identification of Walker.   Accordingly, we will consider relevant evidence from both the hearing on the motion to suppress and the trial in reviewing Walker's complaint on appeal.

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 of due process.  Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App.2001);  Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App.1998).   We make two inquiries in determining whether the trial court was correct in admitting an in-court identification:  (1) whether the police used an impermissibly suggestive pretrial identification procedure in obtaining the out-of-court identification, and (2) if so, whether, under all the circumstances, there was a substantial likelihood of irreparable misidentification.  Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995).   The defendant has the burden to prove by clear and convincing evidence that the in-court identification is unreliable.  Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.1993).

Even if we assume the identification procedure used by the police at the scene was impermissibly suggestive, Walker did not meet his burden of showing it gave rise to a substantial likelihood of irreparable misidentification.   In determining whether the identification was reliable despite the suggestive nature of the identification procedure, we consider the following non-exclusive factors:  (1) the opportunity of the witness to view the criminal 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.  Neil v. Biggers, 409 U.S. 188, 199-200 (1972);  Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999).   As historical facts, we view these factors in a light favorable to the trial court's ruling.  Ibarra, 11 S.W.3d at 195.   Viewed in this light, we then weigh them de novo against the corrupting effect of the suggestive pretrial identification procedure.  Id. at 195-96.   If, despite the suggestive pretrial identification procedure, the totality of the circumstances reveals no substantial likelihood of misidentification, the trial court does not err by admitting the testimony.  Id. at 195.

The parking lot behind the Dolphin Club was well-lit, and Zaragoza and Garcia could see the robber's face.   Both Zaragoza and Garcia testified the robber was “in their face,” screaming at them.   Zaragoza testified he was less than one foot from the robber.   Further, Zaragoza and Garcia had ample time to observe Walker.   The robbery lasted at least two and one-half minutes, and Zaragoza estimated he was face-to-face with the robber for thirty to forty seconds.   See Conner, 67 S.W.3d at 200 (identification reliable when witnesses observed perpetrator for several seconds);  Williams v. State, 243 S.W.3d 787, 790 (Tex.App.-Amarillo 2007, pet. ref'd) (identification reliable when victim observed burglar for less than three minutes);  Brown v. State, 29 S.W.3d 251, 255 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (identification reliable when victim observed burglar's face for less than sixty seconds).   Both Zaragoza and Garcia identified Walker as the robber less than one hour after the robbery and were certain of their identification.   Walker had Zaragoza's and Garcia's wallets in his possession.

Zaragoza and Garcia also identified Walker as the robber at trial.   They testified the identification at trial was based solely on their observations during the robbery.   Garcia testified he was one hundred percent certain Walker was the robber and did not need to see Walker at the scene in order to identify him.

Considering all the factors under the totality of the circumstances, we conclude the pretrial identification procedure did not create a substantial risk of irreparable misidentification so as to deny Walker due process.   Therefore, the trial court did not err by denying Walker's motion to suppress.   We overrule points of error one and two.

Sufficiency of the Evidence

In points of error four and five, Walker argues the evidence is legally and factually insufficient to support his conviction for the aggravated robbery of Zaragoza because there is a fatal variance between Zaragoza's name as alleged in the indictment and Zaragoza's name as proved at trial.   In the indictment, the State charged Walker with the aggravated robbery of Jose “Zargoza.”   At trial, Zaragoza testified his name is spelled “Zaragoza.”

A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial.  Fuller v. State, 73 S.W.3d 250, 253 (Tex.Crim.App.2002);  Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001).   In determining whether the evidence is insufficient, only a material variance requires reversal because only a material variance prejudices a defendant's substantial rights.  Gollihar, 46 S.W.3d at 257 (legal insufficiency);  Sartain v. State, 228 S.W.3d 416, 422 (Tex.App.-Fort Worth 2007, pet. ref'd) (legal and factual sufficiency).   A variance is material if the indictment did not inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense or if prosecution under the deficiently drafted indictment would subject the defendant to the risk of a second prosecution for the same crime.  Gollihar, 46 S.W.3d at 257.

We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case.  Gollihar, 46 S.W.3d at 256-57;  see Wooley v. State 273 S.W.3d 260, 268 (Tex.Crim.App.2008) (factual sufficiency);  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) (legal sufficiency).   Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.  Gollihar, 46 S.W.3d at 253;  Malik, 953 S.W.2d at 240.   While immaterial variances may be disregarded, material variances must be included in the hypothetically correct jury charge.   Gollihar, 45 S.W.3d at 257.   Walker was convicted of aggravated robbery, which is defined as intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death while using or exhibiting a deadly weapon during the course of committing a theft with the intent to obtain or maintain control over the property.  Tex. Penal Code Ann. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003).   The victim's name is not a substantive element of the offense that is required to be included in a hypothetically correct jury charge.  Fuller, 73 S.W.3d at 254 (state law does not define victim's name as substantive element of offense).

Further, the variance would be material only if Walker was not sufficiently informed of the charges against him to allow him to prepare a defense.   Id.;  Gollihar, 46 S.W.3d at 257.   Walker's defense was that he was improperly identified as the robber.   He had the opportunity to throughly question Zaragoza, Garcia, and Nguyen about the robbery, the arrest, and the identification procedure.   The record does not reflect Walker was either confused or surprised by the variance or that his defense was prejudiced by the State's failure to prove the victim's name exactly as alleged in the indictment.  Fuller, 73 S.W.3d at 254.

Nor does the variance prevent the application of double jeopardy to this case.   Here, the record makes clear the conduct for which Walker was charged.   Walker is in no danger of being prosecuted again for the same aggravated robbery.  Gollihar, 46 S.W.3d at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n.3 (10th Cir.1988) for proposition entire record, not just indictment, may be considered in determining whether double jeopardy precludes subsequent prosecution).

We conclude any variance between the indictment and the proof at trial was immaterial and does not render the evidence insufficient to support the verdict.   We overrule points of error four and five.   We affirm the trial court's judgments on the two aggravated robbery offenses.

Modification of Judgment

In his third point of error, Walker asserts the judgment on the possession of cocaine offense should be reformed or modified to reflect his correct name.   Specifically, Walker notes the judgment reflects Walker's name as “Anthony Gleen Walker” while the record reflects Walker's name is “Anthony Glenn Walker.”   The State agrees the judgment should be modified to reflect the correct spelling of Walker's middle name.   This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information before us to do so.   See Tex.R. App. P. 43.2(b);  Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993);  Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd).   We therefore modify the judgment in cause number F08-52342-U to change Walker's name from “ANTHONY GLEEN WALKER” to “ANTHONY GLENN WALKER.”   As modified, we affirm the trial court's judgment in cause number F08-52342-U.

FOOTNOTES

FN1. We recite only those facts from the hearing on Walker's motion to suppress and the trial on the merits necessary to address Walker's complaints on appeal..  FN1. We recite only those facts from the hearing on Walker's motion to suppress and the trial on the merits necessary to address Walker's complaints on appeal.

ROBERT M. FILLMORE JUSTICE

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