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Click here for the full text of this decision FACTS:Around noon on March 5, 2004, Gertraud Olive was at home alone when she heard her doorbell ring. When she looked out the window of her front door, she saw a man walking away from the door. Oliver, thinking the man was a salesman, walked back to her bedroom. About 40 minutes later, she heard a crashing noise, which turned out to be the sound of a potted cactus being thrown through the window of her bedroom. Oliver saw the same man who had been at her front door, this time with his arm through the window. Because there were no window coverings, both Oliver and the man looked at each other. Oliver ran out of her house, screaming. She then saw the man running through the yard, looking back at her as he ran. At about the same time, Mary Helen Salazar was in her minivan running an errand, when she saw a man run across the street in front of her. She also saw Oliver “in the middle of the street yelling and kind of jumping around agitated.” As the man crossed the street, he looked at Salazar, and she said she got a good look at the man. Because he looked suspicious, Salazar followed the man to a Diamond Shamrock store, where she saw him throw a bag into the back of a car. Salazar pulled into the parking lot next to the man’s car. When she parked next to his car, the man again looked at her, then he drove away. Salazar memorized the license plate number and then drove back to where she had seen Oliver standing in the street. By this time, Oliver was on the telephone speaking to the police dispatcher, and Salazar was able to provide the license plate number. About 40 minutes later the police arrived, and Oliver described the man. San Antonio Police Detective Shawn Commerford testified he developed a suspect when the license plate number revealed Lenard De Vaughn as the vehicle’s registered owner. He then compiled a photo array, from which both Oliver and Salazar identified De Vaughn as the man they saw. Oliver and Salazar also identified defendant at trial. A jury found defendant De Vaughn guilty of burglary of a habitation, and the trial court assessed punishment at 40 years of confinement. On appeal, De Vaughn asserted that the trial court erred in: 1. denying his motion to suppress a pretrial identification; 2. denying his motion for continuance; and 3. not instructing the jury on two lesser-included offenses. HOLDING:Affirmed. De Vaughn first asserted that the trial court erred in denying his motion to suppress an impermissibly suggestive pretrial photographic identification. De Vaughn contended that the procedure used in the photographic identification was impermissibly suggestive, because police improperly presented Oliver, who was initially unable to identify De Vaughn the first time, with the same photos a second time in a manner that caused her to mistakenly identify him as the culprit. The test, the court stated, is whether, considering the totality of the circumstances, the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The court disagreed that the photo lineup was impermissibly suggestive. Oliver, the court stated, was shown the same photo array twice, once on March 16, 2004, and again on March 23, 2004. On March 16, 2004, Oliver eliminated five of the six photos, and as to the sixth photo, she thought the man in the photo, who was defendant, “looked the closest to the man she saw involved in the burglary of her home.” Because Oliver did not make an “absolute positive I.D.,” they had her do another photo lineup. A detective testified he did not point out defendant’s photo in the array or suggest that a suspect was in the photo array. Thus, the court concluded that the procedures used by police to present the photo array to Oliver were not impermissibly suggestive. De Vaughn next asserted that the trial court erred in denying his motion for continuance. To establish an abuse of the trial court’s discretion, an appellant must show that the denial of his motion for continuance resulted in actual prejudice, the court stated. De Vaughn failed to meet this burden, the court stated. Finally, defendant asserted that the trial court erred in not instructing the jury on the lesser-included offenses of criminal mischief and trespass. A defendant is entitled to a charge on a lesser-included offense if: 1. the offense is a lesser-included offense of the alleged offense, and; 2. some evidence is adduced at trial to support such an instruction. The facts required to prove criminal mischief, the court stated, included elements that are not the same as, or less than, those required to establish the charged offense of burglary. Therefore, defendant was not entitled to an instruction on criminal mischief. Next, the court found no evidence in the record that would permit a jury to conclude that defendant was guilty only of the lesser-included offense of criminal trespass. Accordingly, the court held that the defendant was not entitled to an instruction on criminal trespass. OPINION:Marion, J.; Lopez, C.J., and Marion and Speedlin, JJ.

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