Watson v. State

1

MACK WATSON JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 01-21-00281-CR

Court of Appeals of Texas, First District

June 29, 2023

On Appeal from the 263rd District Court Harris County, Texas Trial Court Case No. 1520070

Panel Consists of Chief Justice Adams and Justices Guerra and Farris.

MEMORANDUM OPINION ^[1]

AMPARO GUERRA JUSTICE

Appellant Mack Watson, Jr. appeals his conviction for murder. TEX PENAL CODE § 19.02(b). In three issues, Watson contends the trial court erred by: (1) denying his motion to suppress an in-court identification of him as the shooter; (2) denying a motion to suppress Watson's recorded statement to police; and (3) not excusing a yawning juror. We affirm.

Background

One evening in August 2016, Tyrone Scyrus was working on his car in his driveway on Kenny Street. His neighbor was playing kickball with his family when he heard gunshots. The neighbor observed Tyrone running away from another black male. Tyrone jumped a ditch, fell to the ground, and was shot in the back of the head by the second man. The shooter then ran back across the street, got into a silver Impala, and left the neighborhood.

Tyrone's girlfriend, Lourdes Pena, was inside their home when the shooting occurred. After she heard "three pops" that sounded like fireworks, she looked out the front door and observed a black female standing next to a silver Impala. She then saw a black male, wearing a white muscle shirt and dark shorts, running toward the Impala. Pena observed the black male get into the driver's seat and drive off with the female inside the vehicle.

Tyrone's son, Trey, and Tyrone's friend, Jason, were also at Tyrone's house at the time of the murder. Trey was inside when the shooting occurred. After he heard gunshots, Trey looked out the window and saw a man with dreadlocks, a white T-shirt, and a dark blue bandana around his mouth running toward his dad.

He looked out another window and saw a man and woman get into a grey car and drive away.

At the time of the murder, Jason was outside with Tyrone. The shooter also shot Jason, but he survived. Jason described the shooter as a tall, muscular, black male, wearing a white shirt, dark pants, and a mask.

Shortly thereafter, Deputy Terry Tolleson stopped Watson nearby as he was driving his silver Impala. Unrelated to the shooting, a 911 caller had reported a black man and woman breaking into a silver Impala at a nearby motel.^[2] Before stopping Watson Tolleson confirmed that Watson's license plate closely matched the plate number provided by the 911 caller. While Deputy Tolleson was attempting to handcuff Watson, the passenger, Laday, fled the scene. As she ran, Laday shot a tow truck driver who attempted to pursue her. Officers apprehended Laday shortly thereafter.

After Watson consented to a search of his vehicle, officers located a black ski mask and a bandana inside the Impala, items that witnesses said the shooter was wearing at the time of Tyrone's murder. Officers also determined that Watson's clothing and physical appearance fit the descriptions given by witnesses at the Kenny Street scene. Watson agreed to accompany officers to the police station for an interview. Following the interview, police drove Watson back to the motel where he had been staying. Pena was shown a photo array on two separate occasions within days of the shooting. After Pena identified Watson in the array, officers obtained a warrant for Watson's arrest.

Following trial, the jury convicted Watson of murder. After finding one enhancement paragraph true, the trial court assessed punishment at forty years' confinement. Watson appeals.

In-Court Identification

In his first issue, Watson argues the trial court erred in denying his motion to suppress Pena's in-court identification of him as the shooter because it was based on an impermissibly suggestive pretrial photo array procedure, which thus gave rise to a substantial likelihood of misidentification at trial.

A. Standard of Review

We review a trial court's decision on a motion to suppress identification under an abuse of discretion standard. See Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Under this standard, we give almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor of witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We give the same amount of deference to the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (internal quotations omitted). We review de novo "mixed questions of law and fact" that do not fall within this category. Id. When, as in this case, there are no written findings of fact in the record, we uphold the trial court's ruling on any theory of law applicable to the case and presume the trial court made implicit findings of fact in support of its ruling so long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

When faced with a challenge to an out-of-court identification, a trial court must look to the totality of the circumstances surrounding the identification to determine if a procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. See Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1998). In the first step of this analysis, the trial court determines whether the identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). If the trial court determines that the identification is impermissibly suggestive, the court must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. See id; 409 U.S. 188 (1972). Throughout this process, the burden is on the movant to show impermissible suggestion and substantial likelihood of misidentification by clear and convincing evidence. See Barley, 906 S.W.2d at 33-34.

B. Analysis

Watson must first show that the procedure used to obtain Pena's identification was impermissibly suggestive. Suggestiveness may be created by the manner the pretrial identification procedure is conducted. Id. at 33. For example, police may point out the suspect or suggest that a suspect is included in the lineup or photo array. Id. The content of the lineup or array itself may also show suggestiveness if the suspect is the only individual who closely resembles the preprocedure description. Id. Furthermore, we must assess whether an individual procedure wase suggestive or whether the cumulative effect of the procedures was suggestive. Id.

On appeal, Watson contends the photo array was impermissibly suggestive because (1) no one described the shooter as bald, but the array included all bald men; and (2) Pena described the shooter as having a "bushy" beard and Watson's photo was the only one depicting an individual with a "bushy" beard.

As to Watson's first argument, we disagree with his contention that "none of the witnesses described the shooter as bald." In fact, Tyrone's neighbor testified that he did not see any hair on the shooter's head and told officers at the scene that the man could have been bald. Thus, the inclusion of all bald men in the array does not demonstrate that the identification procedure was somehow tainted or impermissibly suggestive. While "[a] lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect," here, all photographs depicted similarly bald, black males with facial hair. See Withers v. State, 902 S.W.2d 122, 125 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (emphasis in original). We are likewise unpersuaded by Watson's second argument concerning the amount of facial hair on the men in the photo array. Each photo showed a man with some type of facial hair, and because of shadows in the photographs, more than one man appears to have a beard. See id. (holding that "[m]inor discrepancies between lineup participants will not render a lineup unduly suggestive").

Neither of Watson's arguments demonstrate that the photo array was impermissibly suggestive. See Hasker v. State, 725 S.W.2d 443, 445 (Tex. App.- Houston [1st Dist.] 1987, no pet.) (holding that photo array was not impermissibly suggestive where witness described suspect as having a mustache, and several men in the array had facial hair resembling a mustache); Davis v. State, 649 S.W.2d 380, 382 (Tex. App.-Fort Worth 1983, pet. ref'd) (lineup not impermissibly suggestive where suspect described as having a little mustache and peach fuzz, but lineup photo showed a man with a full beard and afro haircut). As the Court of Criminal Appeals has explained in this context, "it is not essential that all the individuals be identical and neither due process nor common sense requires such exactitude." Hasker, 725 S.W.2d at 445 (discussing Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985)); see also Turner v. State, 600 S.W.2d 927, 932 (Tex. Crim. App. [Panel Op.] 1980) (lineup consisting of five persons, two of whom had beards and were not physically close to appellant in size and hair color, was not impermissibly suggestive).

Having determined that the pretrial photo array was not impermissibly suggestive, we need not address the second prong of the analysis, i.e., whether under the circumstances it created a...