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Date: 09-05-2020
Case Style:
Patrick Eugene Malley v. The State of Texas
Case Number: 01-19-00127-CR
Judge: Russell Lloyd
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Melissa H. Stryker
Tiffany C Larsen
Daniel C. McCrory
The Honorable Kim K Ogg
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in Texas.
Description:
On the evening of November 22, 2014, Jimmy Ahler went to JT’s bar in
Atascosita and drank several pitchers of beer. While he was at the bar, he contacted
his friends, Melissa Odom and Bobby Mitchell, who asked Ahler for a ride to the
store to buy cigarettes. Ahler agreed and left the bar around midnight to pick them
up.
When Ahler arrived, Odom and Mitchell were in a room and appellant, who
Ahler knew as “Cracker,” was cutting his hair in a corner of the room. Ahler had
met appellant in October when Ahler drove Lisa Thrasher, appellant’s girlfriend, to
Orange, Texas. Ahler helped appellant cut his hair and then drove Odom and
Mitchell to a gas station to buy cigarettes. After they returned, they hung out
together for a few hours while Odom, Mitchell, and appellant smoked
methamphetamine.
Ahler got up to leave around 2:00 a.m. and appellant asked him for a ride to
his girlfriend’s home. Ahler agreed and they left. When they arrived, appellant told
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Ahler to park some distance away so that they would not wake anyone. Appellant
got out of the vehicle and told Ahler that he would give him some money for gas.
Ahler got out of his truck and walked behind a tree to urinate. As Ahler returned to
his vehicle, appellant walked around the front of the truck with his hand in his pocket
and told Ahler, “hey, here is your gas money.” Appellant pulled his hand out of his
pocket and stabbed Ahler with a knife. A struggle ensued as appellant stabbed Ahler
several more times. Ahler shoved appellant causing him to fall backwards. Ahler
ran to his truck and tried to start the engine but appellant took the key from the
ignition, grabbed the steering wheel, and repeatedly stabbed Ahler with the other
hand. Ahler found a spare key and began driving in circles in an attempt to throw
appellant off of the car. When the vehicle stopped, appellant grabbed Ahler out of
the truck causing Ahler to fall down an embankment. Appellant approached Ahler,
stomped on his face, and told him that he was going to die. Appellant got in Ahler’s
truck and drove away.
Ahler used his cell phone to call 911. Later, at the hospital, Ahler told police
that “Cracker” had attacked him and stolen his Suburban. A day or two later, he
called Odom and Mitchell from the hospital and they told him that “Cracker’s” first
name was Patrick. Ahler gave this information to his father who went online and
found appellant’s Facebook page which listed both appellant’s full name and the
nickname “Cracker.” Ahler’s father showed Ahler a photo of appellant from
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appellant’s Facebook page, and Ahler told his father that this was his attacker.
Appellant’s full name was given to Sergeant David Angstadt with the Harris County
Sheriff’s Office.
On December 5, 2014, Sergeant Angstadt and another officer interviewed
Ahler at his father’s house. During the interview, Sergeant Angstadt presented Ahler
with a photographic array consisting of a photo of appellant and five other
individuals with similar physical appearances to appellant. Ahler positively
identified appellant from the array, made a written notation on the instruction sheet
that he was “100% sure” of his identification, and signed the sheet. With the help
of appellant’s girlfriend, the police subsequently arrested appellant in San Angelo
and recovered Ahler’s vehicle.
On February 12, 2019, following a bench trial, the trial court found appellant
guilty of aggravated robbery with a deadly weapon. The court found the
enhancement paragraph “true” and assessed appellant’s punishment at twenty-five
years’ imprisonment.1
This appeal followed.
Admissibility of In-Court and Out-of-Court Identifications
In his first point of error, appellant contends that the trial court erred by
denying his motion to suppress because Ahler’s out-of-court and in-court
1 The enhancement paragraph alleged that appellant was convicted of aggravated
assault in 2002.
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identifications were impermissibly suggestive. He further argues that the error was
harmful.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court
abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler,
153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A trial court’s ruling on a motion to
suppress will be affirmed if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854, 873
(Tex. Crim. App. 2009).
We apply a bifurcated standard when reviewing a trial court’s ruling on a
motion to suppress evidence. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
App. 2000). Under this standard of review, we afford “almost total deference to a
trial court’s determination of historical facts” if supported by the record. Valtierra
v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court’s application
of the law to those facts is reviewed de novo. See id.
The trial judge is the sole trier of fact and exclusive judge of the credibility of
the witnesses and the weight to be given to their testimony. St. George v. State, 237
S.W.3d 720, 725 (Tex. Crim. App. 2007). Absent a showing that the trial court
abused its discretion by making a finding unsupported by the record, we defer to the
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trial court’s findings of fact and will not disturb them on appeal. See State v.
Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011).
B. Applicable Law
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. Simmons v. United States, 390 U.S. 377, 384 (1968);
Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). An in-court
identification is inadmissible when it has been tainted by an impermissibly
suggestive pretrial photographic identification. Luna v. State, 268 S.W.3d 594, 605
(Tex. Crim. App. 2008) (citing Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App.
1999)).
We employ a two-step analysis to determine the admissibility of an in-court
identification when a defendant contends that suggestive pretrial identification
procedures tainted the in-court identification. Loserth v. State, 963 S.W.2d 770, 772
(Tex. Crim. App. 1998); Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston
[14th Dist.] 2003, pet. ref’d). First, we determine if the pretrial identification
procedure was impermissibly suggestive. Loserth, 963 S.W.2d at 772; Santiago v.
State, 425 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Second, if we conclude that the procedure was impermissibly suggestive, we then
determine if the impermissibly suggestive procedure gave rise to a very substantial
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likelihood of irreparable misidentification. See Santiago, 425 S.W.3d at 440. The
defendant must prove both elements by clear and convincing evidence. Barley, 906
S.W.2d at 33–34. Only if we determine that the pretrial identification procedure is
impermissibly suggestive do we examine whether it tainted the in-court
identification. Id. at 34.
C. Analysis
Appellant contends that the pretrial identification procedure was
impermissibly suggestive because Ahler’s father showed Ahler a photo of appellant
from appellant’s Facebook page before Ahler identified appellant as his attacker. He
argues that the photo array, in which only appellant’s photo would have been
previously seen, reinforced Ahler’s identification of appellant. He further argues
that Ahler’s out–of-court identification tainted his subsequent in-court identification.
We are guided by the Court of Criminal Appeals’s opinion in Rogers v. State,
774 S.W.2d 247 (Tex. Crim. App. 1989), overruled on other grounds, Peek v. State,
106 S.W.3d 72 (Tex. Crim. App. 2003). In Rogers, several witnesses identified a
capital murder suspect from a lineup the day after they had seen a newspaper picture
of the defendant’s arrest. See Rogers, 774 S.W.2d at 259. At trial, the witnesses
again identified the defendant. Id. On appeal, the defendant complained that the trial
court should have suppressed the witnesses’ in-court identifications because they
were tainted by the suggestive out-of-court photograph. Id.
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In rejecting the defendant’s argument, the Court reasoned:
Given the absence of any official action contributing to the likelihood
of misidentification in this case, the constitutional sanction of
inadmissibility should not be applied, regardless of the extent to which
any witness’s in-court identification might have been rendered less
reliable by prior exposure to the newspaper photograph. . . . Since the
police procedure was not itself suggestive, the fact that several
eyewitnesses were exposed to a media photo of appellant one day
before attending a police lineup might, at most, be taken to affect the
weight, although not the admissibility, of their trial testimony.
Id. at 260 (citations omitted). See also Perry v. New Hampshire, 565 U.S. 228, 232
n.1 (2012) (noting that “what triggers due process concerns [regarding the admission
of eyewitness identification] is police use of an unnecessarily suggestive
identification procedure.”).
Here, as in Rogers, there is no evidence that the police had any part in Ahler’s
father’s independent research on Facebook, his discovery of a photograph of
appellant, and presentation of that photo to Ahler before Ahler viewed the
photographic array. Because appellant does not challenge the suggestiveness of the
pretrial photographic array or the manner in which Sergeant Angstadt presented the
array to Ahler, and because no state action was involved in Ahler’s viewing of
appellant’s Facebook photo, appellant has failed to demonstrate that the out-of-court
identification procedures in this case were impermissibly suggestive. See id.;
Gilmore v. State, 397 S.W.3d 226, 239 (Tex. App.—Fort Worth 2012, pet. ref’d)
(concluding witnesses’ viewing of defendant’s picture in television news broadcast
9
about shooting incident did not support determination that witnesses’ identification
of defendant as shooter was result of impermissibly suggestive identification
procedures where no state action was involved in witnesses’ sighting of defendant’s
photograph on news); Craig v. State, 985 S.W.2d 693, 694 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d) (holding sexual assault victim’s in-court identification of
defendant was not subject to suppression on ground that victim’s out-of-court
identification from news report was result of unduly suggestive procedure, where
there was no police involvement in news report); see also Bell v. State, No. 03-11-
00247-CR, 2012 WL 3797597, at *6–9 (Tex. App.—Austin Aug. 28, 2012, no pet.)
(mem. op., not designated for publication) (rejecting defendant’s argument that
witness’s in-court identification was tainted by having previously viewed
photograph on Internet identifying defendant as suspect in offense). Further, the
record shows that Ahler had previously met appellant and that, on the night in
question, he spent hours with appellant at Odom and Mitchell’s home, including
time spent in close proximity to appellant while he helped appellant cut his hair. The
fact that Ahler saw a social media photograph of appellant before viewing the
police’s photographic array “might, at most, be taken to affect the weight, although
not the admissibility,” of Ahler’s testimony and in-court identification of appellant.
See Rogers, 774 S.W.2d at 260. Because appellant has not satisfied the first step of
the analysis, we do not reach the second step, i.e., whether the procedure gave rise
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to a very substantial likelihood of irreparable misidentification. See Santiago, 425
S.W.3d at 440.
The trial court properly denied appellant’s motion to suppress Ahler’s
out-of-court and in-court identifications of appellant. We therefore overrule
appellant’s first point of error.
Reformation of Judgment
In his second point of error, appellant contends that the trial court’s written
judgment of conviction should be reformed to delete the language “25 YEARS
TDC” that appears beneath the heading “Terms of Plea Bargain” because appellant
did not enter a plea bargain.
“An appellate court has the power to correct and reform a trial court judgment
‘to make the record speak the truth when it has the necessary data and information
to do so, or make any appropriate order as the law and nature of the case may
require.’” Morris v. State, 496 S.W.3d 833, 835–36 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d) (quoting Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] Houston [1st Dist.] 2001, no pet.)) (internal quotations omitted); see also
TEX. R. APP. P. 43.2(b) (“The court of appeals may . . . modify the trial court’s
judgment and affirm it as modified.”). Here, the record reflects—and the State
agrees—that the trial court’s written judgment inaccurately lists “25 YEARS TDC”
under the notation “Terms of Plea Bargain” because appellant did not enter a plea
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bargain with the State but rather pleaded not guilty and proceeded to a trial before
the court. We therefore modify the trial court’s written judgment to delete the
notation “25 YEARS TDC” under “Terms of Plea Bargain.” Accordingly, we
sustain appellant’s second point of error.
Outcome: We modify the trial court’s judgment to delete the notation “25 YEARS TDC”
under “Terms of Plea Bargain,” and we affirm the trial court’s judgment as modified.
Russell Lloyd
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Defendant's Experts:
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