Fisher v. State
525 S.W.3d 759
| Tex. App. | 2017Background
- Victim Sabrina Herron was robbed at gunpoint outside her apartment on April 13, 2015; she got a direct look at the assailant and described him (Black male, ~6'0", 160–170 lbs, red hoodie).
- The stolen car was tracked; police pursued and apprehended appellant Artenus Fisher after a crash; officers found a red hoodie in his backpack.
- The next morning (5–6 hours after the robbery) Investigator Braune prepared a six-photo array including Fisher wearing a red hoodie; other photos depicted similar Black males and two others with red clothing.
- Herron identified Fisher’s photo, testified she was “100%” certain and that she selected the photo based on the face, not clothing; officer who showed the array testified he was unaware which photo was the suspect.
- Fisher moved to suppress the pretrial photographic identification as impermissibly suggestive; the trial court denied the motion, Fisher was convicted of aggravated robbery and sentenced to 28 years; on appeal he challenged denial of suppression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether photo array was impermissibly suggestive and required suppression | Herron: ID was reliable; police: array was properly conducted | Fisher: his photo uniquely showed a red hood matching victim’s clothing description, making array suggestive | Court: Not impermissibly suggestive; even if suggestive, ID was reliable under totality of circumstances |
Key Cases Cited
- Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) (two-step test for suggestive ID procedures and due process)
- Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) (standard of review for identification-procedure rulings)
- Balderas v. State, 517 S.W.3d 756 (Tex. Crim. App. 2016) (burden to prove suggestiveness by clear and convincing evidence; reliability factors)
- Aviles-Barroso v. State, 477 S.W.3d 363 (Tex. App.—Houston [14th Dist.] 2015) (application of reliability factors to impermissively suggestive procedures)
- Mendoza v. State, 443 S.W.3d 360 (Tex. App.—Houston [14th Dist.] 2014) (identification procedure may violate due process if conducive to misidentification)
- Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) (sources of suggestiveness and cumulative-effect analysis)
- Buxton v. State, 699 S.W.2d 212 (Tex. Crim. App. 1985) (photo arrays should generally contain similar-looking individuals; exactitude not required)
- Smith v. State, 930 S.W.2d 227 (Tex. App.—Beaumont 1996) (holding that a defendant being the only one in a photo array wearing clothing similar to the robber does not necessarily render the array impermissibly suggestive)