Page v. State

Although there may be some slight differences between appellant's photograph and some of the other photographs in the array, a photographic array is not impermissibly suggestive merely because each photograph can be distinguished in some manner from the photograph of the accused.

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Click here for the full text of this decision FACTS:A jury found appellant, Darnell Alonzo Page, guilty of aggravated robbery. The jury also found true the allegation in an enhancement paragraph that appellant had previously been convicted of a felony and it assessed his punishment at confinement for life and a $10,000 fine. In six points of error, appellant contends that the evidence was legally insufficient to support his conviction and that the trial court erred in admitting pretrial and in-court identification evidence, denying his motion for a continuance, admitting a videotape of the robbery into evidence, admitting evidence that he possessed a handgun prior to the robbery, and denying his motion to suppress evidence found on him at the time of his arrest. HOLDING:Affirmed. The appellant argues that the evidence was legally insufficient to support his conviction because the state did not prove “its case beyond a reasonable doubt” as 1. appellant had gold teeth at the time of the robbery and “none of the witnesses to the robbery told Detective Woods that the robber had gold teeth;” and 2. Sparks failed to identify appellant’s photograph in the photographic array at trial. It is true that the witnesses did not tell Detective Woods that the robber had gold teeth. It is also true that a witness failed to identify appellant in the photographic array at trial. However, one of the witnesses testified that appellant’s gold teeth were “one of the first things [he] noticed” about him, and that he did not “know why he failed to put it in [his] affidavit.” Also, a witness testified that she misidentified her assailant in the photographic array at trial because “[she was] nervous.” As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness’s testimony. The court holds that the evidence was legally sufficient to prove the essential elements of the offense of aggravated robbery beyond a reasonable doubt. The appellant argues that the trial court erred in denying his motion to suppress the witness’s in-court identification of him as the perpetrator of the robbery because the content of the photographic array was impermissibly suggestive. After reviewing the photographic array, the court finds that its content was not impermissibly suggestive. All of the men pictured in the array are African-American, are wearing civilian clothes, have short black hair, and appear to be similar in age. Although there may be some slight differences between the appellant’s photograph and some of the other photographs in the array, a photographic array is not impermissibly suggestive merely because each photograph can be distinguished in some manner from the photograph of the accused. Mungia v. State, 911 S.W.2d 164 (Tex.App. � Corpus Christi 1995, no pet.). Slight differences in the background color and brightness of photographs are insignificant. The court holds that the content of the photographic array was not impermissibly suggestive. The court overrules the appellant’s other assertions of error. OPINION:Jennings, J.; Taft, Jennings and Hanks, JJ.

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