Gary Alvarez v. State

Affirmed and Memorandum Opinion filed January 31, 2008 Affirmed and Memorandum Opinion filed January 31, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00187-CR ____________ GARY ALVAREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1021502 M E M O R A N D U M   O P I N I O N A jury found appellant, Gary Alvarez, guilty of aggravated robbery and sentenced him to forty years= confinement in the Texas Department of Criminal Justice, Institutional Division. See Tex. Penal Code Ann. ' 29.03 (Vernon 2003). In two issues, appellant argues the trial court erred in (1) denying appellant=s motion to suppress the photographic identification and (2) denying appellant=s motion to suppress the complainant=s in-court identification. We affirm. Factual and Procedural Background On the evening of March 14, 2005, Hever Menjivar arrived at his apartment complex and noticed a Dodge Caravan following closely behind him. Menjivar slowed down to allow the van to pass, but instead, the van stopped in front of Menjivar=s vehicle obstructing his path. Appellant emerged from the van, approached the driver=s side window, and pulled out a gun. Appellant pointed the gun at Menjivar and demanded money. Menjivar complied and gave appellant his wallet, which contained approximately $100. Appellant then fled the scene. Appellant=s van was later found abandoned. On March 23, 2005, Officer Clay Spriggs of the Houston Police Department showed Menjivar a photographic lineup. After receiving the appropriate admonishments from Officer Spriggs, Menjivar immediately identified appellant as the robber. Appellant moved to suppress evidence of the in-court and out-of-court identification by Menjivar. The trial court conducted a pretrial hearing and overruled the motions to suppress. Subsequently, a jury found appellant guilty of aggravated robbery and sentenced him to forty year=s confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed. Discussion A. Did the Trial Court Err in Denying Appellant=s Motion to Suppress the Photographic Identification? Appellant=s first issue challenges the trial court=s denial of his motion to suppress the out-of-court identification of appellant by Menjivar. Appellant argues the photographic identification procedure utilized was impermissibly suggestive because the photograph of him in the array was sufficiently distinctive and different from the other photographs. 1. Standard of Review We defer to a trial court=s determination of historical facts supported by the record when the trial court finds facts based upon an evaluation of the credibility and demeanor of the witnesses. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We also defer to the trial court=s rulings on mixed questions of law and fact when they turn on the credibility of 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 whether a pretrial identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification 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. To determine whether a pretrial identification was too suggestive to afford the accused a fair trial, we apply a two-step inquiry: (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the impermissibly suggestive procedure gave rise to a substantial likelihood of irreparable misidentification at trial. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968); Barley v. State, 906 S.W.2d 27, 32B33 (Tex. Crim. App. 1995). A defendant bears the burden of establishing by clear and convincing evidence the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33B34. Furthermore, the steps require an examination of the totality of circumstances surrounding the particular case. Id. at 33. 2. Analysis Photo arrays may be suggestive in two general ways. First, the content of the array may be suggestive, as when the suspect is the only person closely resembling the description, or the subjects of the photographs are grossly dissimilar in appearance to the suspect. United States v. Wade, 388 U.S. 218, 233, 87 S. Ct. 1926, 1935, 18 L. Ed. 2d 1149 (1967); Barley, 906 S.W.2d at 33. Second, the identification procedure used in a photo array may render it suggestive as when an officer points out or otherwise indicates to the witness that the suspect is included in the array. Barley, 906 S.W.2d at 33. A photographic spread should depict persons of the same race, general skin color, age, and height as the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex. App.CDallas 1999, pet. ref=d). There is no standard as to the similarities required of the subjects used in a pretrial identification procedure, only that there not be a likelihood of irreparable misidentification. Id. Neither due process of law nor common sense dictates the features of the subjects in a pretrial identification be identical. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Appellant asserts the photo array was impermissibly suggestive because he was the only one completely bald, he was the only one who did not have eyebrows or eyelashes, and he was the only one with a teardrop tattoo around his eye.[1] Appellant also points out that several of the other people in the array have distinguishing marks on their faces. After viewing the photo array in the record, we find all the pictures are of Hispanic males with similar features who appear to be around the same age and have comparable hairstyles.[2] In addition, Officer Spriggs drew in a teardrop tattoo on each of the pictures in an attempt to make the array more similar. Officer Spriggs testified he drew the tattoos on each picture so appellant=s tattoo did not draw Menjivar=s attention. We conclude appellant has not demonstrated by clear and convincing evidence the lineup was impermissibly suggestive. See Wilson, 15 S.W.3d at 552B54 (holding a photo array was not impermissibly suggestive despite appellant=s contentions his skin was the darkest, his head was the largest, his background was the lightest, he was the only picture with a placard, and he was the only person with facial hair); Escovedo v. State, 902 S.W.2d 109, 117 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (holding a photo array was not impermissibly suggestive even though only appellant and one other person had a teardrop tattoo, only appellant and one other person had the same amount of facial hair, and appellant was the only person included in both the photo spread and in a book of photos viewed by complainant); Mallard v. State, 661 S.W.2d 268, 277 (Tex. App.CFort Worth 1983, no pet.) (holding a photo array was not impermissibly suggestive even though appellant was the only participant who appeared in a photographic lineup the preceding day and the only participant who had facial hair). Accordingly, we overrule appellant=s first issue. B. Did the Trial Court Err in Denying Appellant=s Motion to Suppress the In-Court Identification? In his second issue, appellant argues because the photographic lineup procedure was impermissibly suggestive, Menjivar=s in-court identification was tainted. Because we conclude the pretrial identification procedure was not impermissibly suggestive, we need not address whether the procedure created a substantial likelihood of misidentification. See Abney v. State, 1 S.W.3d 271, 275 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (AA finding that a challenged pretrial identification procedure was not impermissibly suggestive eliminates the need to determine whether the procedure gave rise to a very substantial likelihood of misidentification.@). Appellant=s second issue is overruled. Conclusion Having overruled appellant=s two issues, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed January 31, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant also argues because Menjivar=s original description of his attacker was somewhat different than the pictures presented in the photo spread, the photographic identification procedure was impermissibly suggestive. However, this is a factor to be considered when addressing a substantial likelihood of irreparable misidentification, which is the second prong of the analysis. [2] It is difficult to tell from the record whether appellant is the only man who is completely bald in the photo spread; nevertheless, all of the men have very short haircuts or shaved heads.