Henry Chavez v. State

Affirmed and Memorandum Opinion filed February 28, 2008 Affirmed and Memorandum Opinion filed February 28, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-07-00244-CR _______________ HENRY CHAVEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1103047 M E M O R A N D U M   O P I N I O N Appellant, Henry Chavez, appeals his aggravated robbery conviction on the grounds that the trial court erroneously denied his motion to suppress in court identification of the defendant. Appellant contends that the identification was based upon an impermissibly suggestive pre-trial lineup. We affirm. Background On March 7, 2006, Rosa Nieto (Nieto), a Louisiana resident visiting family in Houston, was robbed at gunpoint in the parking lot of a Fiesta grocery. At approximately 9 p.m., she, her father, and a niece had just re-entered the niece=s maroon pickup truck when a man suddenly opened the driver=s side door and forcefully dragged the niece from the vehicle. Simultaneously, another man accosted Nieto=s husbandBapparently pulling him from the truck as well. Nieto, initially watching her niece being dragged from the truck, turned to see her father but was forestalled when a pistol was pressed against her head. She was told to give the assailant her purse. (It is unclear exactly when she exited the vehicle, but she did so at some time during this exchange.) She was unable to comply immediately, so her assailant turned her toward him, where he faced her at close range under a parking lot light pole, and repeated his demand. Nieto told him she was unable to comply as she had put her purse in the backseat with the groceries. He told her to retrieve it, but the door was locked because in the interim one of the assailants had entered the truck and locked the doors. This accomplice drove away in the maroon truck and, subsequently, Nieto=s assailant entered another waiting vehicle and fled the scene. The police were called, and Nieto=s father was taken to a nearby hospital. Nieto gave the police a description of her assailant, noting he was between 5'2_ and 5'4_, Hispanic, between 140 and 160 pounds, from 16 to 18 years old, and had light facial hair. The truck, equipped with a Lojack system, was located at approximately 2 a.m. by a patrol officer. The driver of the stolen truck pulled over, and after a brief tussle with the patrol officer, fled the scene with one of his accomplices. The other two occupants stayed in the truck until the officer removed them and searched them, finding a magazine for a .380 pistol in appellant=s back pocket. A Colt .380 pistol was discovered in the front seat of the truck along with some of the stolen materials belonging to Nieto and her father. Three days after the robbery, Nieto and her niece were brought in to identify their assailants, and seven short-haired Hispanic men, between the ages of 17 and 22, Awith facial . . . light or facial hair,@ were put into the line-up. Appellant and one of the other individuals from the truck, Javier Martinez, were among the seven. According to Rodriguez, the officer in charge of the line up, the men were Asimilar looking.@ Amongst the men in the line up it is uncontested that appellant was the shortest by at least three inches. Likewise, appellant claims the man closest to him in height had no visible facial hair (a point that is in contention with the testimony of Officer Rodriguez that each has Alight or facial hair@). The court nonetheless refused to suppress the identification of appellant. Appellant contends that the identification was unreasonably suggestive, and that he had no role in the robbery. At trial, the defense called appellant=s mother, brother, and one of appellant=s mother=s friends to provide an alibi. All testified that appellant was at home until 10:30 pm, when a maroon pickup truck picked him up to go out. Standard of Review When faced with a challenge to an in-court identification, courts must look to the totality of the circumstances surrounding the identification to determine if the procedure used was unnecessarily suggestive, and hence makes reliance upon that identification unreliable. Woodard v. State, No. 74,080, 2004 WL 77143, *6 (Tex. Crim. App. 2004); Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Crim. App. 1998). For the identification to be held to be unreliable, the defendant must demonstrate by clear and convincing evidence that the impermissible suggestion created a very substantial likelihood of misidentification. Barley v. States, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995); Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992). Even if the procedure is found to be unnecessarily suggestive, if there is no substantial likelihood of misidentification, under a totality of the circumstances test, it will be deemed reliable. Lewis v. State, No. 14-05-00438-CR, 2006 WL 2009088 at *4, (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). In any evaluation of a challenged pre-trial identification, we employ a two step test gauging if: (1) the pre-trial identification was impermissibly suggestive; and (2) the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). Our first consideration is whether the pretrial identification was impermissibly suggestive. Barley, 906 S.W.2d at 33-34; Santos v. State, 116 S.W.3d 447, 455 (Tex. App.CHouston [14th Dist.] 2003). With regard to this first step, suggestiveness may be created in the manner in which the pretrial identification was conducted, such as having a police officer point to the person he believes is the guilty party, or it can be the result of the accused=s being the only person in the line up who fits the pre-identification description. Barley, 906 S.W. at 33. Second, if the procedure was impermissibly suggestive, we consider the reliability factors set forth in Neil v. Biggers and discussed below. 409 U.S. 188, 198 (1972); see Loserth, 963 S.W.2d at 771-72; Santos, 116 S.W.3d at 455. We defer to the trial court=s determinations of these historical facts, if supported by the record, when they are contingent upon the credibility or demeanor of witnesses. Loserth, 963 S.W.2d at 772-73. However, in interpreting mixed questions of fact and law, not contingent upon the credibility or demeanor of witnesses, we apply a de novo standard. Id. Analysis Appellant alleges that he was picked out of a line-up in which he was the only individual to fit the pre-identification description, leading to an impermissibly suggestive identification. While in an ideal line up every person would have nearly identical features, neither due process nor common sense so require. Dickson v. State, 492 S.W.2d 267, 271 (Tex. Crim. App. 1974); see also Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Minor discrepancies do not render a line-up unduly suggestive, nor do we require the members of the line up be identical to each other. Buxton, 699 S.W.2d at 216; Brown v. State, 29 S.W.3d 251, 254 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing United States v. Wade, 388 U.S. 218, 233 (1967)). Only when the individuals in a line up are grossly dissimilar in appearance is the line up considered unduly suggestive. Id. Among the unduly suggestive procedures would be Aputting a tall suspect in a line up with much shorter individuals or a teenager with others over forty years in age.@ Wade, 388 U.S. at 232 (emphasis added). However, differences of forty pounds, height differences of 5 inches, and an age range of twenty years have all been found to be within a reasonable range of differences. State v. Withers, 902 S.W.2d 122, 125 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d). Appellant=s primary contention is that the seven men in the line up were of such unequal age and height as to create a situation in which only he could have been picked out and identified as the assailant based upon the pre-identification description. Appellant first complains of the age-spread, but this complaint is easily dispensed of given the close ages (17-22) of the men in the line up. See Wade, 388 U.S. at 232 (noting an impermissible line-up would be one where a teenager was in a line-up with others over 40 years old). With regards to his second allegation, though the record does not state the actual heights, there is uncontested testimony that a gap of only two or three inches differentiated Chavez from the next tallest individual (though there is also testimony that this particular individual had no facial hair). Likewise, Chavez contends that the next shortest was at least six inches taller. While there is some distinction, and though height is a valid consideration, we find the height range to be well within the acceptable range of differences. Therefore, the line up procedure was not impermissibly suggestive. See Brown, 29 S.W.3d at 254 (noting that participants need not be identical, and that minor differences are acceptable and do not render a line up impermissibly suggestive); Wade, 388 U.S. at 232 (noting that impermissibly suggestive procedures are those in which the appearance of the suspect is grossly different from that of the others in the line-up). Conclusion We find that the procedure used was not impermissibly suggestive. Accordingly, we hold that the trial court did not err in denying Chavez=s motion to suppress the pre-trial identification and the judgment of the trial court is affirmed. /s/ Frank C. Price Senior Justice Judgment rendered and Memorandum Opinion filed February 28, 2008. Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Price.* Do not publish C Tex. R. App. P. 47.2(b). * Senior Justice Frank C. Price sitting by assignment.