Rivis Byrd v. The State of Texas--Appeal from 339th District Court of Harris County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2009 » Rivis Byrd v. The State of Texas--Appeal from 339th District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 14-08-00374-CR

Case Date: 12/03/2009

Plaintiff: Rivis Byrd

Defendant: The State of Texas--Appeal from 339th District Court of Harris County

Preview:Affirmed and Memorandum Opinion filed December 3, 2009.

In The

Fourteenth Court of Appeals
____________ NO. 14-08-00374-CR ____________ RIVIS BYRD, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1070798

MEMORANDUM OPINION
A jury convicted appellant Rivis Byrd of aggravated sexual assault, and the trial court assessed punishment at 30 years' confinement. In six issues, appellant challenges (1) the legal and factual sufficiency of the evidence, (2) the pretrial and in-court identifications, and (3) the trial court's denial of his motion for new trial based on allegations of ineffective assistance of counsel at the guilt/innocence and punishment phases. We affirm.

I. F ACTUAL B ACKGROUND In the early morning hours of April 23, 2006, as the complainant was getting in her vehicle at her apartment complex, she saw a gun at her window. Two men were standing beside her car. The man with the gun asked for her purse and threw it to the other man. At trial, the complainant identified appellant as the man with the gun. The complainant testified that appellant ordered her out of the vehicle and pushed her to the wall. She stated that appellant told her to take off her shirt or he would shoot her. According to her testimony, appellant then forced her down and demanded oral sex. After a minute or less, appellant asked her where she lived. With the gun at the back of her head, she walked to her apartment and into her bedroom. The complainant testified that her bedroom light was on. According to the complainant's testimony, appellant told her to take off her pants, pushed her to the bed, took off his pants, and put his penis in her vagina. She stated that the gun was pointed at her head during this time. She testified that when she tried to move, appellant told her he was going to shoot. She stated that the other male was knocking on the door, asking for the gun. The complainant's mother testified to hearing a man's voice inside the apartment. When the complainant's mother opened her bedroom door, she saw a man standing in the house and heard another man's voice inside her daughter's room. She knocked on her daughter's bedroom door, and the man came out and ran. The complainant called the police. Her purse was still at her home, but money was taken from it. Officer Fabian Lee was dispatched to the scene at 6:19 a.m. He testified that the complainant initially "was an emotional wreck." The complainant told Officer Lee that her assailant was "approximately between the ages of 18 and 21, maybe 5 feet, 9 inches to 5 feet, 11 inches in height, and approximately maybe 150 to 160 pounds." She described him as a black male with a dark complexion and no facial hair. On April 26, 2006, Officer Scott Girard detained appellant two blocks from where the assault took place and removed a BB

2

gun from appellant's waist. At trial, the complainant identified the gun as the same or similar to the one used in the assault. Officer David Garcia assembled a lineup on April 27, 2006. He testified that the lineup was not based on the complainant's description. Three weeks after the assault, the complainant viewed a videotape of the lineup. The lineup consisted of five AfricanAmerican males in civilian clothing. Officer Pedro Moreno, who showed the complainant the videotape, testified that the complainant selected appellant from the lineup without hesitation. At trial, the complainant testified she had no doubt that appellant was her assailant when she looked at the video lineup. After viewing the lineup, the complainant wrote a sworn statement describing the person who assaulted her. Appellant's mother testified at trial on appellant's behalf. She stated that she and appellant fell asleep in the living room around 3 a.m. on April 23, 2006. She stated that she woke up at 5 a.m. to begin her morning routine and saw appellant asleep on the living-room floor. She testified that she took her dog for a 15-20 minute walk around 5:45 a.m. When she returned from walking the dog, appellant was still asleep. She testified that she watched television in the same room where appellant was sleeping until 7 a.m. She went to the kitchen, got some things out for dinner that night, and then went back to bed. Appellant's mother stated that she and appellant left the house around 4 or 5 p.m. to go to a park. Appellant was convicted by a jury of aggravated sexual assault. At the beginning of the punishment phase, appellant pleaded guilty to an unrelated robbery that occurred on April 26, 2006, and the trial court sentenced him to two years' imprisonment pursuant to a plea agreement. After testimony from the victim of the robbery, the complainant in the sexualassault case, and appellant's relatives, the trial court sentenced appellant to thirty years' imprisonment for the aggravated sexual assault. Appellant filed a motion for new trial alleging he received ineffective assistance of counsel. After a hearing, the trial court denied the motion. 3

II. A NALYSIS A. Pretrial and In-Court Identification In his third issue, appellant argues that the trial court erred by admitting the complainant's in-court identification because the in-court identification was tainted by an impermissibly suggestive pretrial lineup. In reviewing the trial court's decision on the admissibility of identification evidence, we give almost total deference to the trial court's determination of the facts, especially when the trial court's findings are based on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The same amount of deference is given to mixed questions of law and fact if the resolution of those ultimate questions turns on an examination of credibility and demeanor of the witnesses. Id. However, we review de novo mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor. Id. In this case, the question of whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. See id. at 773. Accordingly, we apply a de novo standard of review. Id. In reviewing the trial court's ruling, we generally consider only the evidence adduced at the suppression hearing. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). However, when the parties later relitigate the suppression issue at the trial on the merits, we consider all evidence, from both the pretrial hearing and the trial, in our review of the trial court's determination. Id. Here, the trial court held a hearing on appellant's motion to suppress and denied the motion at the conclusion of the hearing. At trial, the parties relitigated the pretrial identification issue. Therefore, we will consider the evidence presented at both the suppression hearing and the trial.

4

An in-court identification is inadmissible if tainted by an impermissibly suggestive pretrial identification. See id. at 771

Download 86355.pdf