ARAIYA HAYES v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (14th Dist.).

ARAIYA HAYES, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-16-00688-CR

Decided: March 29, 2018

Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

MEMORANDUM OPINION

A jury convicted appellant Araiya Hayes of robbery. See Tex. Penal Code Ann. §§ 29.02(a) (Vernon 2011), 31.03 (Vernon Supp. 2017). The jury sentenced appellant to 39 years' confinement.

Appellant asserts that the trial court erred by denying his two motions to suppress, in which appellant sought to preclude the admission of complainant Maria Rodriguez's in-court and out-of-court identifications of appellant as the individual who committed the offense. Appellant asserted in his motions that complainant's identifications were the product of (1) impermissibly suggestive identification procedures that gave rise to a substantial likelihood of misidentification; and (2) appellant's allegedly illegal detention, which appellant claimed lacked reasonable suspicion. Overruling appellant's issues, we affirm.

BACKGROUND

Appellant was arrested on February 20, 2016, for the robbery of complainant.

I. Facts

Complainant testified at (1) the pretrial hearing held on appellant's first motion to suppress; and (2) appellant's trial.

According to complainant, at the time of the offense she resided with her infant daughter at an apartment complex in north Harris County. Complainant left her apartment at approximately 10:30 a.m. on February 20, 2016, with her daughter and walked to her car, which was parked nearby. Complainant proceeded to buckle her daughter into the car seat located in the car's back seat.

As complainant was securing her daughter's car seat, a man approached her from behind. Complainant testified that the man “touched [her] with something on [her] back” and demanded complainant's car keys. After taking the keys, the man got in the driver's seat of complainant's car; reversed the car; and drove out of the apartment complex. Complainant remained in the back seat of the car with her daughter.

The man drove complainant's car to a secluded spot near her apartment complex and instructed complainant to get out of her car. The man began hitting complainant and her daughter, and threw complainant's daughter's stroller out of the car. Complainant unbuckled her daughter and got out of the car; the man drove off in complainant's vehicle. Complainant reported the robbery to the police and Officer Martin Montalvo responded to complainant's location less than ten minutes later.

Complainant described the robbery and the assailant to Officer Montalvo. Officer Montalvo radioed to other officers the following description of the assailant: African-American male, 5'8”, braids, wearing a brown or tan jacket, no facial hair, facial “water” tattoos, and driving a red Nissan Versa. After broadcasting the description, Officer Montalvo remained at the scene with complainant.

Officer Will Rushing, on patrol with another officer in north Harris County, heard Officer Montalvo's description of the assailant and complainant's stolen car. Officer Rushing saw a car that matched the description of complainant's vehicle and made a U-turn to follow it. When Officer Rushing made the U-turn, the driver of the vehicle sped up; turned into a gas station parking lot; and drove towards the back of the gas station. When Officer Rushing “caught up to the vehicle, it was crashed into a light pole and the driver's side door was open and it was unoccupied at that time.”

The officers searched the parking lot where complainant's car was found but “didn't see anyone running or going in the other direction.” Officer Rushing entered the gas station and, after seeing appellant, detained appellant “because of the tattoos on his face.” Appellant was handcuffed on one wrist. Officer Rushing testified that appellant “was very, very nervous and — and his hands were kind of shaking and he was just very — looking around very rapidly.”

People in the gas station told Officer Rushing that appellant “was not, in fact, the suspect [the officers] were supposed to be looking for.” The people in the gas station told Officer Rushing that the assailant was wearing a red jacket and had left the gas station; appellant was wearing a blue and white shirt when he was apprehended. Officer Rushing released appellant and the officers returned to their patrol vehicle to continue searching for the assailant.

While he was searching the area, Officer Rushing saw appellant walking by an intersection near the gas station where complainant's car was found; appellant did not “appear to be acting in any way suspiciously or abnormally.” Appellant gestured to the officers and Officer Rushing rolled down his window to talk to appellant. Appellant pointed east and told Officer Rushing that “the guy [the officers] were looking for was going that way.”

The officers drove east but did not see anyone matching the assailant's description. Looking in his rearview mirror, Officer Rushing saw appellant “running, very rapidly, the opposite direction.” Officer Rushing testified that it “is very suspicious to direct, you know, to an officer in one direction and then immediately run in the other direction.” Because appellant matched part of the description received from Officer Montalvo, the officers again detained appellant “to see, or confirm whether he was [the] suspect — the defendant or not.”

The officers drove appellant to the location where Officer Montalvo was waiting with complainant. Before appellant's arrival, Officer Montalvo reviewed with complainant witness admonishments from a printed form. Reading the admonishments, the officer instructed complainant, in relevant part, as follows:

• The individual who committed the offense may or may not be present.

• You are not required to select any individual and it is equally important to clear persons not involved in the crime from suspicion as it is to identify persons believed to be responsible for the crime.

• The investigation shall continue whether or not an individual is identified.

Officer Montalvo estimated that about 40-45 minutes elapsed between when he radioed the assailant's description and appellant's arrival with the officers.

Complainant elected to view appellant while sitting in Officer Montalvo's patrol car because she was scared and “didn't want [appellant] to see [her].” Appellant, wearing handcuffs, was brought out of the other patrol car and shown to complainant. Complainant “almost immediately” identified appellant as the assailant. Complainant said she was 100 percent sure of her identification.

II. Trial Court Proceedings

The trial court held a pretrial hearing on appellant's first motion to suppress, which addressed complainant's out-of-court and in-court identifications of appellant as the person who committed the offense. Appellant asserted that complainant's identifications were tainted by the officers' allegedly impermissibly suggestive identification procedures, rendering the identifications unreliable and inadmissible.

The trial court denied appellant's motion and stated its factual findings on the record. The trial court concluded that complainant's identifications were reliable based on complainant's opportunity to view the assailant; the likelihood that complainant was paying “a great deal of attention” during the event; complainant's certainty regarding the accuracy of her identification; and the “very short amount of time between the crime and the confrontation.”

Appellant asserted his second motion to suppress during trial and again challenged the admissibility of complainant's identifications. Appellant argued that complainant's identifications of appellant as the assailant should be excluded because they stemmed from the officers' allegedly illegal detention of appellant. The trial court denied appellant's second motion without making any factual findings.

The jury found appellant guilty of robbery and sentenced him to 39 years' confinement. See Tex. Penal Code Ann. §§ 29.02(a), 31.03. Appellant timely appealed.

STANDARD OF REVIEW

We review a trial court's denial of a motion to suppress under a bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

A trial court's determinations of historical facts and mixed questions of law and fact that rely upon the credibility of a witness are given almost total deference when supported by the record. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). Pure questions of law and mixed questions of law and fact that do not rely on credibility determinations are reviewed de novo. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).

When the trial court makes express findings of fact, we review the record in the light most favorable to the trial court's ruling and uphold those findings as long as they are supported by the record. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). Oral findings of fact may be considered as findings of fact on the record and afforded due deference. Hauer v. State, 466 S.W.3d 886, 890 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

When the trial court does not issue findings of fact, we review the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings that support its ruling as long as those findings are supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

ANALYSIS

In his first motion to suppress appellant asserted that complainant's identifications of appellant as the assailant were tainted by impermissibly suggestive identification procedures and therefore unreliable. In his second motion to suppress appellant also challenged the admissibility of complainant's identifications and claimed that, because reasonable suspicion did not support the officers' second detention of appellant, the identifications flowing from the detention were inadmissible.

We address these contentions in turn.

I. Reliability of Identifications

Appellant challenges complainant's in-court and out-of-court identifications of appellant as the person who perpetrated the robbery, asserting that the procedures used to procure the identifications were impermissibly suggestive and rendered complainant's identifications unreliable.

A. Out-of-Court Identification

A pretrial identification procedure may be so suggestive and conducive to mistaken identification that admission of 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). We review de novo the question of whether a pretrial identification procedure amounted to a denial of due process, and review historical issues of fact in the light most favorable to the trial court's ruling. Fisher v. State, 525 S.W.3d 759, 762 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd).

A two-step analysis is employed to review a pretrial identification procedure. Balderas v. State, 517 S.W.3d 756, 792 (Tex. Crim. App. 2016); Fisher, 525 S.W.3d at 762. This analysis considers the “totality of the circumstances” surrounding the case. Conner, 67 S.W.3d at 200. We review the evidence adduced at the admissibility hearing as well as the evidence admitted at trial. Balderas, 517 S.W.3d at 792.

We examine first whether the pretrial identification procedure was impermissibly suggestive, a showing the defendant must satisfy with clear and convincing evidence. Id. If we conclude that the identification procedure was impermissibly suggestive, then we examine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. An identification tainted by an impermissibly suggestive procedure is nonetheless admissible “where the totality of the circumstances shows no substantial likelihood of misidentification.” Mendoza v. State, 443 S.W.3d 360, 363 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Here, the trial court found that “the show-up was suggested [sic], and it always is when there's only one person, and that's [appellant] in this particular case, was in handcuffs.” Continuing on, the trial court stated:

But I find that in the totality of the circumstances, it was reliable, the identification itself, based on the witness's opportunity to view the person who robbed her; that [it] was during the daytime that she spent a face-to-face amount of time in a very stressful situation, where she was in great fear, looking at [the assailant's] face and speaking to him, even thought it was for a short period of time.

And that she was paying a great deal of attention because of her fear for her child. I, also, find that she was very certain in the level of certainty that she demonstrated, she said 100 percent.

* * *

[A]nd there was a very short amount of time between the crime and the confrontation, as testified to, anywhere from 30 to 40 to 45 minutes ․ between the actual crime itself and when the defendant was brought back to be identified.

We presume for argument's sake that the show-up identification procedures were impermissibly suggestive and we review the trial court's findings addressing whether there was a substantial likelihood of irreparable misidentification.

This step in the analysis involves weighing the following five non-exclusive factors against the corrupting effect of any suggestive identification procedures: (1) complainant's opportunity to view the assailant at the time of the event; (2) complainant's degree of attention; (3) complainant's level of certainty regarding her identification; (4) the time between the event and the identification; and (5) the accuracy of complainant's prior description of the assailant. Balderas, 517 S.W.3d at 792.

On this record, the first four factors support the reliability of complainant's identification.

Regarding the first factor, complainant testified that she had “a clear view of [the assailant's] face” during the encounter in her car. Complainant testified that she was in “close proximity” to the assailant when he was hitting her, and said he was “right in [her] face.” Complainant estimated that she saw the assailant's face approximately “ten times” during their encounter. Complainant's opportunities to view the assailant during the event weigh in favor of the reliability of her identification. See Tutson v. State, 530 S.W.3d 322, 327 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Fisher, 525 S.W.3d at 763-64.

With respect to the second factor, complainant — who viewed her assailant at close range — likely was very attentive to the assailant's features. Fisher, 525 S.W.3d at 764; Brown v. State, 29 S.W.3d 251, 253 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“Witnesses who are more than just casual observers have more reason to be attentive.”). Moreover, in giving her description to police complainant recalled that the assailant had facial tattoos, suggesting a high degree of attention.

For the third factor, Officer Montalvo testified that, when complainant was presented with appellant at the show-up identification, complainant stated that she was “100 percent” certain appellant was the assailant. Complainant's identification of appellant was “almost immediate[ ]” upon seeing him.

Regarding the fourth factor, approximately one hour elapsed between the event and complainant's identification of appellant. This factor weighs in favor of the reliability of complainant's identification. See Fisher, 525 S.W.3d at 764 (a five-to-six hour period is “a particularly brief delay between crime and identification”); Nunez-Marquez v. State, 501 S.W.3d 226, 238 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (identification “two or three hours after the robbery” weighed in favor of reliability).

Appellant's arguments on appeal focus on the fifth factor — the accuracy of complainant's prior description of the assailant.1 Appellant asserts that “significant discrepancies” between complainant's initial description of the assailant and appellant's appearance weigh against the reliability of complainant's identification. Appellant points to the following inconsistencies.

• Complainant described the assailant's hair as braided; appellant's hair was not braided.

• Complainant stated that the assailant was wearing a tan or brown jacket at the time of the offense; appellant was wearing a blue and white shirt when he was apprehended by the officers.

• Complainant stated the assailant had “water” tattoos on his face, which Officer Montalvo understood to mean “a teardrop tattoo;” appellant's facial tattoos are not teardrops.

• Complainant stated that the assailant did not have facial hair; appellant had facial hair at the time of the offense.

Complainant also described the assailant as an African-American male, approximately 5'8” tall with facial tattoos — descriptions that matched or are similar to appellant's appearance.2

The discrepancies in complainant's description, considered in conjunction with the totality of the circumstances surrounding complainant's identification and the factors that weigh in favor of its reliability, do not give rise to a substantial likelihood of irreparable misidentification.

Although appellant did not have braided hair when officers apprehended him, Officer Montalvo testified that “[i]t looked like there had been braids at one time” because of “the waves in [appellant's] hair.” With respect to complainant's description of the assailant's clothing, Officer Rushing testified that “one of the first things” suspects do when running away is “remove[ ] their clothing.” See also Lucious v. State, 828 S.W.2d 118, 123 (Tex. App.—Houston [14th Dist.] 1992, no pet.) (where suspect apprehended over an hour after offense and wearing clothes different than those described, the factfinder “could reasonably have concluded that appellant had time to change clothes”).

Complainant stated that the assailant had “water” tattoos on his face, which Officer Montalvo understood to mean teardrop tattoos. Although appellant's facial tattoos were not teardrop-shaped, Officer Rushing testified that the tattoos' locations — one in between appellant's eyebrows and one under the corner of each eye — would suggest teardrops.

Complainant described the assailant as having no facial hair, and appellant had facial hair at the time he was apprehended. Even though this discrepancy weighs against the accuracy of complainant's identification, it does not eliminate the other indicia of reliability or demonstrate a substantial likelihood of irreparable misidentification. See Knott v. State, 513 S.W.3d 779, 790 (Tex. App.—El Paso 2017, pet. ref'd) (“We conclude that despite the existence of minor discrepancies in the descriptions [complainant] provided of the suspect, when viewed in their totality, his descriptions were sufficiently accurate to ensure the reliability of the identification.”).

Appellant relies on Loserth v. State, 985 S.W.2d 536 (Tex. App.—San Antonio 1998, pet. ref'd), to support his contention that the accuracy of the witness's prior description is emphasized above all other factors”. Loserth is distinguishable because, unlike in the present case, the witness in Loserth was not the complainant; viewed the suspect from 88 feet away; and changed his description of the suspect from “virtually no memory to complete certitude on being shown a single photograph.” Id. at 547-48; see also Brown, 29 S.W.3d at 255 (distinguishing Loserth's prior description analysis).

Considering the totality of the circumstances, the identification procedure that preceded complainant's out-of-court identification did not give rise to a substantial likelihood of misidentification.

B. In-Court Identification

Appellant asserts that complainant's in-court identification of appellant as the assailant was irreparably tainted by the officers' allegedly impermissibly suggestive identification procedures. Appellant's argument relies on the procedures and facts discussed above, and on the fact that appellant stood in front of complainant for several minutes following her out-of-court identification.

An in-court identification is inadmissible if it was tainted by an unduly suggestive pretrial identification. Williams v. State, 402 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); Brown, 29 S.W.3d at 253. This analysis assesses the reliability of complainant's in-court identification using the five-factor test applied above. Id. at 253-54. “The defendant has the burden to show by clear and convincing evidence that the in-court identification is unreliable.” Id. at 254.

Our analyses of factors one through three remain the same: complainant had a clear, direct view of the assailant's face during the event; complainant was likely very attentive to the assailant's features; and complainant unequivocally identified appellant at trial as the individual who committed the offense. See Balderas, 517 S.W.3d at 792. The same considerations also apply regarding the discrepancies between complainant's initial description of the assailant and appellant's appearance at the time he was apprehended.

Approximately six months elapsed between the offense and complainant's in-court identification of appellant. This length of time does not counsel against the admission of complainant's in-court identification. See Thomas v. State, 470 S.W.3d 577, 591 (Tex. App.—Houston [1st Dist.] 2015), aff'd, 505 S.W.3d 916 (Tex. Crim. App. 2016) (complainant's in-court identification admissible although it occurred approximately four-and-a-half years after offense and initial out-of-court identification); Hamilton v. State, 300 S.W.3d 14, 19 (Tex. App.—San Antonio 2009, pet. ref'd) (complainant's in-court identification admissible although it occurred approximately two years after offense and initial identification procedures). Considering the totality of the circumstances, the identification procedure that preceded complainant's in-court identification did not give rise to a substantial likelihood of misidentification.

Appellant points to the fact that he stood in front of complainant for several minutes following her out-of-court identification and asserts that this additional viewing of appellant “helped [complainant] identify him in court.” Texas case law shows that in-court identifications routinely are admitted even if they follow out-of-court identifications that necessarily permitted the complainant additional time to view the individual identified. See, e.g., Thomas, 470 S.W.3d at 591; Hamilton, 300 S.W.3d at 19.

Appellant points out that complainant acknowledged the additional minutes she viewed appellant after her identification “help[ed] [her] identify him in court.” However, complainant also testified that her in-court identification of appellant was “from [her] memory of the time that [she] had that experience in the car.” This testimony does not clearly and convincingly make complainant's in-court identification unreliable. See Brown, 29 S.W.3d at 256 (complainant's in-court identification not unreliable where complainant testified that “her identification of [the defendant] was based upon her observations on the date of the burglary” and that she “would have recognized [the defendant] in court without having seen him in the video lineup”). We overrule appellant's first issue.

II. Reasonable Suspicion for Investigatory Detention

Appellant asserts that the trial court erred in denying his second motion to suppress, in which appellant sought to suppress complainant's identifications of appellant as the individual who committed the offense. Appellant contends that the officers' second detention of appellant was illegal and, as a result, complainant's subsequent identifications flowing from this detention were inadmissible. The State asserts in response that reasonable suspicion justified the officers' investigatory detention of appellant.

An investigatory detention must be justified by reasonable suspicion. U.S. v. Sokolow, 490 U.S. 1, 7 (1989); Matthews v. State, 431 S.W.3d 596, 602-03 (Tex. Crim. App. 2014). “A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).

In conducting our reasonable suspicion analysis we look at the totality of the circumstances through an objective lens, disregarding the officer's subjective intent. Matthews, 431 S.W.3d at 603. Reasonable suspicion may exist even if certain circumstances, standing alone, may be as consistent with innocent activity as with criminal activity. Kerwick, 393 S.W.3d at 274.

Here, reasonable suspicion justified the officers' second detention of appellant.

Officer Rushing encountered appellant in the gas station close to where complainant's car was found. Appellant — a 5'6” African-American male with facial tattoos — matched in part the description of the assailant radioed by Officer Montalvo. When Officer Rushing confronted him, appellant's hands were shaking and he was looking around rapidly while appearing nervous. See Wade v. State, 422 S.W.3d 661, 671 (Tex. Crim. App. 2013) (nervous behavior is a relevant factor in determining reasonable suspicion). Although appellant was not wearing the brown or tan jacket included in Officer Montalvo's description of the assailant, Officer Rushing testified that “one of the first things” suspects do when running away is “remove[ ] their clothing.”

After their initial interaction with appellant, the officers saw appellant walking by an intersection near the gas station where complainant's car was found. Appellant gestured to the officers and told Officer Rushing that “the guy [he] was looking for was going that way.” After the officers drove off in the direction appellant directed them, Officer Rushing saw appellant “running, very rapidly, [in] the opposite direction.” Officer Rushing testified that it “is very suspicious to direct, you know, to an officer in one direction and then immediately run in the other direction.” See also Kerwick, 393 S.W.3d at 276 (“Flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of such and may be considered among the totality of the circumstances in a reasonable-suspicion analysis.” (internal quotation omitted)).

Considering the totality of the circumstances, specific facts and rational inferences drawn from those facts supported the reasonable conclusion that appellant was involved in the offense reported by complainant. See Derichsweiler, 348 S.W.3d at 914. Reasonable suspicion therefore justified the officers' investigatory detention of appellant. See id.

Appellant asserts that his second detention should be “evaluated on its own merits” and “isolated from whatever suspicion” prompted Officer Rushing's first detention of appellant in the gas station. Appellant claims that the only suspicious activity that preceded appellant's second detention was the fact that appellant ran in the opposite direction from that in which he sent the officers. This activity, appellant contends, does not give rise to reasonable suspicion and does not justify appellant's second detention.

Appellant has not cited any cases or other authority to support his claim that his second detention should be evaluated in isolation. Instead, case law instructs us to consider the “totality of the circumstances” to determine whether reasonable suspicion justified an investigatory detention. Matthews, 431 S.W.3d at 603. The circumstances surrounding Officer Rushing's interactions with appellant gave rise to reasonable suspicion and justified appellant's second detention. The trial court did not err in denying appellant's second motion to suppress. We overrule appellant's second issue.

CONCLUSION

We overrule appellant's two issues on appeal and affirm the trial court's judgment.

FOOTNOTES

1.   The trial court did not consider this factor when ruling on appellant's first motion to suppress because appellant did not present evidence showing “what [appellant] looked like that night through a booking photo or anything like that.” During trial, appellant's booking photo was admitted into evidence and testimony discussing the photo was permitted. Because our reliability determination examines “the evidence adduced at the admissibility hearing as well as the evidence admitted at trial,” we consider appellant's booking photo and the testimony addressing it as part of our analysis. Balderas, 517 S.W.3d at 792.

2.   Appellant's booking photo lists his height as 5'6”.

William J. Boyce Justice

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