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Click here for the full text of this decision FACTS:The complainant and about nine other men were socializing in the early morning hours at a one-bedroom apartment in southwest Houston. Several of the men were in the bedroom playing cards around a card table, while the others watched television and conversed in the living room. In the early morning, five armed men broke through the front door of the apartment. Their weapons included a handgun, a large gun that looked like an Uzi, and a machete or an ax. One of the intruders was wearing a mask over his face. The intruders ordered the occupants of the apartment to drop to the ground. They warned their victims not to look up at their faces unless they wanted to be shot. The intruders collected jewelry, money and other possessions from the men and then fled. Luis Paz, one of the robbery victims, identified the appellant as the intruder who carried the Uzi. Another victim also identified appellant. A jury found the appellant guilty of aggravated robbery HOLDING:Affirmed. Paz tentatively identified the appellant as one of the robbers in a videotaped lineup. After Paz made this tentative identification, police showed him a home video found in the appellant’s car. After viewing this video, Paz was able to positively identify the appellant. The appellant argues this procedure was unduly suggestive because appellant is the only person who appears in the videotaped lineup and the home video. The appellant maintains this procedure communicated to Paz that police thought appellant was one of the robbers. The manner or the content of a pretrial identification procedure may render it impermissibly suggestive. Though it may be necessary in some circumstances to show a witness more than one photograph of a defendant who has “different looks,” it is generally considered suggestive to show a witness several photographic arrays or lineups in which only the defendant’s photograph recurs. The recurrence of the defendant’s photograph tends to bring attention to him and might suggest to the witness that police believe or suspect the defendant is the culprit. Similarly, “the use of a lone photograph, without any of the traditional safeguards of a lineup or a photographic array, is inherently suspect” and has been widely condemned by courts. Loserth v. State, 985 S.W.2d 536 (Tex. App. � San Antonio 1998, pet. ref’d). Paz first viewed a videotaped lineup featuring appellant and four other dark-complected young men. The lineup was filmed at the Harris County Jail. The appellant stood in the second position. To keep the appellant from standing out because of his braided hair, all the lineup participants wore shower caps. Paz told police the person in the second position on the tape (the appellant) looked like one of the robbers, but he was not certain. Police then showed Paz the videotape found in the appellant’s car when the appellant was arrested approximately two weeks after the robbery. The appellant is the only person who appears in the videotaped lineup and the home video found in the appellant’s car. The running time of the home video is approximately 35 minutes, and it has low-quality sound, which was turned down when Paz viewed the tape. The home video prominently features the appellant and contains seven distinct scenes ranging in duration from approximately one to seven minutes each. Although Paz viewed the entire tape, he positively identified the appellant as one of the robbers during the opening scene in which the appellant is shown browsing in the shoe department of a store. The opening scene lasts about six minutes and the appellant is wearing dark blue jeans, a navy blue shirt, conspicuous gold earrings, a thick gold chain and other jewelry. The scene includes several close-up shots of the appellant, and he is the only person shown until a store clerk approaches him about three minutes into the tape. In the second scene of the home video, which lasts about four minutes, the appellant and a male companion make a purchase at a liquor store and then walk to the appellant’s car. The appellant and his companion apparently took turns filming each other because they never both appear on the film at the same time. Like appellant, the companion has braided hair and is wearing jeans and a navy blue shirt, but the companion has a lighter complexion than the appellant. Once inside the car, only the appellant is shown. During about 30 seconds of footage in the car, the appellant removes a handgun from the glove compartment, shows it to the camera and then gestures with it. The third segment of the home video lasts about four minutes and shows the appellant and the same companion at a drug store. The appellant is shown interacting with a clerk at the photograph counter. During the last two minutes of this scene, the appellant is behind the counter with the clerk until the clerk motions for the appellant to return to the customer area. The fourth scene is also approximately four minutes long, and it shows only the appellant and traffic footage. In this scene, the appellant is shown driving and then drinking from a liquor bottle. He also is shown dancing and talking to the camera. The fifth scene lasts about one minute. It shows the same male companion entering a large clothing store and looking around. The sixth scene consists of about seven minutes of footage, filmed at night in a parking lot near a gas station. About six men are sitting on cars, standing around, and drinking what appears to be beer. The appellant arrives approximately three minutes into the scene. The appellant talks to the camera and there are several close-up shots of him. At one point, one of the other men, wearing a white shirt, removes a gun from the trunk of one of the cars and briefly shows it to the camera. Due to the poor lighting, it is unclear from the tape whether the man in the white shirt is appellant’s companion from the previous scenes. The seventh scene is about three minutes long and features appellant sitting on a couch next to another young man. There is a young woman reclining on an adjacent couch, and the scene alternates between close-up shots of the appellant and close-up shots of the young woman. After the final scene, there is additional footage, apparently filmed at very close range, showing a music video that was playing on a television screen. After the music video, there is brief footage of small children playing basketball inside a gymnasium. The court finds the home video was unduly suggestive. Weighing this evidence of reliability against the unduly suggestive home video shown to Paz before his positive identification of the appellant, the court concludes no substantial risk of irreparable misidentification was created so as to deny the appellant due process. The court finds the trial court did not abuse its discretion by allowing Paz’s in-court identification. Weighing this evidence of reliability against the unduly suggestive pretrial identification procedure, the court concludes the procedure did not give rise to a very substantial likelihood of misidentification so as to deny the appellant due process. Applying the factual-sufficiency standard of review, the court cannot conclude the jury’s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. OPINION:Frost, J.; Yates, Hudson and Frost, JJ.

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