Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                           No. 04-15-00706-CR

                                       Barry Arthur BROWN,
                                             Appellant

                                                   v.

                                           The STATE of Texas,
                                                 Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014CR7118A
                              Honorable Philip Kazen, Judge Presiding

Opinion by:       Jason Pulliam, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: September 7, 2016

AFFIRMED

           A jury convicted Barry Brown of the offense of aggravated robbery, and based upon the

jury’s recommendation, the trial court sentenced Brown to sixty years’ imprisonment. In his sole

issue on appeal, Brown contends the trial court erred by denying his motion to suppress the

eyewitness identification evidence presented at trial. The trial court’s judgment is affirmed.

                                              BACKGROUND

           On May 18, 2014, a man approached the cashier’s counter at a drug store in San Antonio.

The man handed the cashier, Anntoyna Yanes, a note demanding she put the money from the
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register into a bag. When Yanes hesitated, the man lifted his shirt to display a firearm tucked into

his waistband. Yanes followed the directions on the note, and the man left the store.

       San Antonio Police Department investigators identified Brown as a suspect, and Detective

Frank Gallegos prepared a photograph lineup that included Brown. On June 3, 2014, Yanes

identified Brown from the lineup as the man who committed the robbery. Thereafter, Brown was

indicted for the offense of aggravated robbery.         A jury found Brown guilty and assessed

punishment at sixty years’ imprisonment. Brown subsequently perfected this appeal.

                                              ANALYSIS

       In his sole issue on appeal, Brown contends the trial court erred by denying his motion to

suppress Yanes’s in-court identification because the identification was tainted by an impermissibly

suggestive pre-trial procedure.

                                        Standard of Review

       An appellate court reviews a trial court’s ruling on a motion to suppress under a bifurcated

standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). The reviewing court

gives almost total deference to the trial court’s findings of historical fact that are supported by the

record and its application of the law to facts if the resolution of those questions turns on an

evaluation of credibility and demeanor. Story v. State, 445 S.W.3d 729, 732 (Tex. Crim. App.

2014); Amador, 221 S.W.3d at 673. The reviewing court reviews de novo the trial court’s

application of the law to the facts when the issue does not turn on credibility and demeanor. Story

v. State, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Amador, 221 S.W.3d at 673. The trial

court is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be

given to their testimony at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000). In reviewing a trial court’s ruling on a motion to suppress, the appellate court must

view the evidence in the light most favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666
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(Tex. Crim. App. 2013). The appellate court will uphold the trial court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case. Story, 445
S.W.3d at 732.

                                            Application

       An in-court identification is inadmissible when it has been tainted by an impermissibly

suggestive pre-trial identification procedure. Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App.

2008). The admissibility of an in-court identification is determined by a two-step analysis: “1)

whether the out-of-court identification procedure was impermissibly suggestive; and 2) whether

that suggestive procedure gave rise to a very substantial likelihood of irreparable

misidentification.” Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995).

A. Whether the pre-trial identification procedure was impermissibly suggestive

       Brown contends the identification procedure was impermissibly suggestive because in the

photo array of six different black men with similar features, two of the men wore orange shirts

indicative of jail clothing and were photographed in front of a different colored background.

Brown was one of the men wearing an orange shirt and in front of a different background.

       Both Yanes and Detective Gallegos testified at the suppression hearing.              Detective

Gallegos testified he prepared the photo array using a digital database comprised of photos of both

suspects and non-suspects from previous lineups to find “fillers” for the current photo array.

Detective Gallegos explained “fillers” are individuals of similar age, height, weight, and features

as the suspect. Detective Gallegos further explained the array is composed of six photos — the

suspect and five fillers. Detective Gallegos testified that when the array is presented to the witness,

it is done by placing the six photos in separate folders. The witness is given the six folders, plus

two additional folders containing blank paper, one at a time. Detective Gallegos testified he

handed each folder to Yanes separately and asked whether the person in the photo was the person
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who committed the crime. Detective Gallegos additionally testified he did not know which of the

folders contained Brown’s photo.

       In her testimony, Yanes confirmed Detective Gallegos did not guide or coach her

identification in any way. Yanes identified Brown during the suppression hearing and testified her

identification was based on her memory, not on the photographs she viewed. Yanes testified that

when she identified Brown during the photo lineup, she recalled his nose, skin tone, and jaw line.

Yanes additionally testified she did not recall that the backgrounds were different in any of the

photographs, but she remembered the subjects of two photographs were wearing orange jail

clothing. Yanes did not indicate the orange jail clothing influenced her identification.

       At the end of the hearing, the trial court noted the orange colored shirts depicted in two of

the photographs were different shades of orange and one looked like a t-shirt. The trial court then

found Yanes based her in-court identification on her memories and the events that happened the

day of the offense and denied Brown’s motion to suppress.

       Although the better practice may be to include as many individuals as possible who fit the

suspect’s description, it is not essential that all individuals in a photo array be identical in

appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). “[N]either due process

nor common sense require such exactitude.” Id. (internal quotations and citation omitted). It is

only required that the array show individuals who fit a rough description of the suspect. Wilson v.

State, 15 S.W.3d 544, 553 (Tex. App.—Dallas 1999, pet. ref’d). A difference in shirt colors does

not, by itself, render a photographic lineup impermissibly suggestive. See Cienfuegos v. State, 113
S.W.3d 481, 492 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (stating that the mere fact that

only appellant wore a red shirt did not render the lineup impermissibly suggestive).

       The photo array Yanes viewed was admitted at the suppression hearing and is a part of the

record on appeal. All the photographs depict black males, who appear similar in age, facial
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features, and hair color. Although two photographs have different backgrounds and the subjects

are wearing orange shirts, Yanes testified her identification of Brown from the lineup was based

on her recollection of his facial features and skin tone.

       This court concludes the different background and orange-colored shirt do not render

Brown’s appearance so different from the other participants’ that the procedures were

impermissibly suggestive.

B. Whether any impermissibly suggestive procedures gave rise to a very substantial
likelihood of irreparable misidentification.

       Even if the procedures were impermissibly suggestive, Brown failed to satisfy the second

element for exclusion of the in-court identification. When the totality of the circumstances shows

there is no substantial likelihood of misidentification, despite a suggestive pre-trial identification

procedure, the in-court identification is considered reliable. Ibarra v. State, 11 S.W.3d 189, 195

(Tex. Crim. App. 1999).       Reliability is the “linchpin” for determining the admissibility of

identification testimony. Luna, 268 S.W.3d at 605; Ibarra, 11 S.W.3d at 195.

       To determine whether a substantial likelihood for irreparable misidentification has been

created, the reviewing court considers the nonexclusive factors listed by the United States Supreme

Court. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These factors include: (1) the witness’s

opportunity to view the criminal when the crime occurred; (2) the witness’s degree of attention;

(3) the accuracy of the witness’s prior description of the criminal; (4) the witness’s level of

certainty demonstrated at the confrontation; and (5) the length of time between the crime and the

confrontation. Id.; see Barley, 906 S.W.2d at 35 n.8. An appellate court weighs these nonexclusive

factors “against the corrupting effect of any suggestive identification procedure in assessing

reliability under the totality of the circumstances.” Loserth v. State, 963 S.W.2d 770, 772 (Tex.




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Crim. App. 1998). The reviewing court may only reverse upon an appellant’s clear and convincing

showing that the identification was irreparably tainted. Barley, 906 S.W.2d at 34.

       Yanes testified she had an opportunity to view Brown before and during the robbery.

Yanes’s testimony suggested she had an unobstructed view of Brown while in a lighted retail store

as he stood in line behind other customers. Yanes looked at Brown’s face several times when he

handed her the note and during the robbery. Further, Yanes was able to describe Brown as wearing

glasses and a baseball cap. At the time of the identification, nearly two weeks after the robbery,

Yanes was able to articulate her reasoning for identifying Brown. Further, at trial Yanes testified

with certainty that she based her identification on Brown’s skin tone, nose, and jaw line. Thus,

even assuming the pre-trial procedure was impermissibly suggestive, the reliability of Yanes’s

statement leads this court to conclude that no substantial risk of irreparable misidentification was

created. See id. at 35.

       Viewing the evidence in the light most favorable to the trial court’s ruling, this court

concludes the trial court did not abuse its discretion by finding Yanes’s in-court identification was

untainted by an impermissibly suggestive pretrial procedure and denying Brown’s motion to

suppress.

                                           CONCLUSION

       Based on the forgoing, the trial court’s judgment is affirmed.

                                                      Jason Pulliam, Justice

DO NOT PUBLISH




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