Nancy Ochoa A/K/A Lilian Hernandez v. State

NUMBER 13-00-033-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ NANCY OCHOA A/K/A LILIAN HERNANDEZ, Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 94th District Court of Nueces County, Texas. ___________________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Dorsey and Rodriguez Opinion by Justice Rodriguez A jury convicted appellant, Nancy Ochoa, of aggravated assault,(1) and assessed her punishment at fifty years imprisonment. As this is a memorandum opinion not selected for publication and the parties are familiar with the facts, we will not recite them here. Tex. R. App. R. 47.1. By one issue, Ochoa complains that the trial court erred in failing to suppress identification testimony because the identification resulted from an impermissibly-suggestive pretrial procedure. Ochoa claims that the photo array of six women was suggestive because her photo in the array looked most like a male. She asserts that the combination of Esquivel, an eyewitness, being told the suspect was a woman, not a male, and his viewing of this suggestive photo array, tainted his out-of-court identification of appellant and his in-court identification. We disagree and affirm the judgment of the trial court. An in-court identification is inadmissible when it has been tainted by an impermissibly-suggestive pretrial photographic identification. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). In determining admissibility, the trial court looks to the totality of the circumstances surrounding the lineup to determine if they show a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. See Polk v. State, 710 S.W.2d 610, 612 (Tex. App.--Dallas 1986 pet. ref'd). Reliability is the linchpin in determining the admissibility of an identification. See Ibarra, 11 S.W.3d at 195; Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citation omitted). "If the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed 'reliable'. . . ." Ibarra, 11 S.W.3d at 195 (citations omitted). In assessing reliability under the totality of the circumstances, the following five non-exclusive Biggers factors should be considered de novo by the reviewing court and weighed against the corrupting effect of any suggestive identification procedure: 1. the witness's opportunity to view the defendant; 2. the witness's degree of attention; 3. the accuracy of the witness's description; 4. the witness's level of certainty at the confrontation; and 5. the length of time between the offense and the confrontation. See Loserth, 963 S.W.2d at 773 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)); Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). When a reviewing court finds a lineup suggestive, it should consider the five Biggers factors as issues of historical fact and give almost total deference to the trial court's ruling considering the evidence relative to those factors in the light most favorable to the trial court's ruling. See Ibarra, 11 S.W.3d at 195; Loserth, 963 S.W.2d at 773-74. Ultimately, an in-court identification is admissible if the ability to identify has an origin independent from the pretrial procedure. See McFarland v. State, 928 S.W.2d 482, 507 (Tex. Crim. App. 1996); Zepeda v. State, 797 S.W.2d 258, 260 (Tex. App.--Corpus Christi 1990, pet. ref'd). The better practice is to use photographs which portray persons whose every features match, but neither due process nor common sense require such procedure. See Ward v. State, 474 S.W.2d 471, 476 (Tex. Crim. App. 1971). We have reviewed State's pretrial exhibit number 1, the photographic array shown to Esquivel. It contains photographs of head shots of six females. The young women are of comparable age. All have very short, dark hair and dark eyes. None of the females is wearing feminine clothing or makeup. Only Ochoa appears to be wearing an earring. The assertion that Ochoa looks more like a male than any other photo in the array is, in our view, exaggerated. When presented with these pictures, Esquivel picked Ochoa's photo as the person who did the shooting. We conclude there is nothing remarkable about the photographs that suggests a procedure that was impermissively suggestive. Even assuming the photographic lineup was impermissively suggestive, we cannot say there was a substantial likelihood it caused a misidentification. The factors from Biggers weigh in favor of Esquivel's independent in-court identification untainted by the photographic lineup and the comments regarding the gender of the shooter. Esquivel testified he had some five to ten minutes to view the shooter "when the shooting went on," and that the street was then lighted by post lights. He stated that the person who shot the victim was less than five feet away when the shooting occurred. Esquivel was able to give a description of the suspect which was detailed and generally accurate as to appearance, but inaccurate only as to gender. Esquivel stated that he picked out Ochoa's photo on his own. Officer Ralph Lee testified to the certainty Esquivel displayed at the time he chose Ochoa from the photo lineup. It took Esquivel less than fifteen seconds to pick out Ochoa's photograph. Finally, only a day had passed between the crime and the photo identification. Under the totality of the circumstances, we conclude there was no substantial likelihood of misidentification. Viewing the evidence in the light most favorable to the trial court's ruling, our de novo review reveals that the photographic lineup and comments regarding the gender of the shooter were not impermissibly suggestive such that they would influence the pretrial identifications made by Esquivel. Even if they were, we conclude that no substantial risk of irreparable misidentification was created so as to deny appellant due process. See Ibarra, 11 S.W.3d at 195. We conclude the trial court properly allowed the admission of the identification testimony. Ochoa's sole issue is overruled. Accordingly, the judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Do not publish . Tex. R. App. P. 47.3. Opinion delivered and filed this 12th day of April, 2001. 1. See Tex. Pen. Code Ann. § 22.02 (Vernon 1994).