In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-05-01005-CR
____________
CANDIDO SANTOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 764037
A jury convicted appellant, Candido Santos, of murder and assessed punishment at sixty years in prison. See Texas Penal Code Ann. § 19.02 (Vernon 2003). In his sole point of error, appellant contends the trial court erred in admitting an out-of-court photo lineup because it impermissibly suggested appellant's identity and tainted a subsequent in-court identification. We affirm.
Background
On September 20, 1997, Luis Enrique Muraira drove with Antonio Ramos, Juventino Silva, Ronju Jones, and Jose Hernandez to a Chevron gas station to purchase beer. Muraira and Ramos got out of the car and walked toward the station's sales window. As Ramos approached the window, he noticed a maroon van parked at the station and saw appellant walking away from the station window. As Ramos passed appellant, they exchanged glances and appellant began to argue with Ramos. As their argument escalated, a fight broke out between Ramos and his friends and appellant and his friends.
During the fight, one of appellant's friends got a shotgun from the maroon van at appellant's request. Jones then ran to a nearby night club to call for help, and Ramos, Hernandez, and Silva fled the scene. Appellant walked up to Muraira, held the shotgun up to his chest, and shot him at point blank range. Appellant and his friends fled in the van. Muraira died a week later from the gunshot wound.
Having linked appellant to the shooting by a near match of a license plate number provided by Ramos, Houston Police homicide investigator Officer E. Mehl created a photo array two days after the shooting. Mehl used a photograph of appellant taken in 1994, and showed the array individually to Jones, Ramos, and Silva. Jones and Ramos gave only a tentative identification of appellant from the array, and Ramos commented that appellant "looked older and heavier" in the photograph than at the scene of the offense. Silva was not able to identify appellant from the photo array.
Concerned that the 1994 photo was an inaccurate depiction of appellant's current appearance, Officer Mehl created a new photo array that same day, using a Polaroid photograph of appellant that had been taken within the last year. The Polaroid differed slightly from the other photographs in the new array because it had been taken outside, it was lighter, and appellant wore a visible golden medallion around his neck. But all of the males appeared to be of Hispanic origin and were of similar physical type. Each man wore a baseball cap sideways on his head in a manner that was similar to how appellant had placed his cap on his head. The Polaroid of appellant was the only photograph that was common to the first and the second array, and Officer Mehl placed appellant's photograph in a different position in the second array. After viewing the second photo array that same day, Ramos positively identified appellant, and Jones and Silva gave "strong tentative" identifications.
At the pretrial hearing on appellant's motion to suppress, Ramos, Jones, and Silva testified that the differences in the second array did not affect their identification of the appellant, and that they identified him in the second array based solely on recollection of his appearance on the night of the shooting. All three witnesses confirmed that the investigating detectives did not suggest or indicate that the witnesses select a certain photo, or any photo at all, from the first or second photo array. The trial court denied appellant's motion to suppress the second photo array, stating on the record that the array was "not unduly suggestive or otherwise inadmissible."
Ramos, Jones, and Silva identified the appellant at trial as the person who shot Muraira. Each witness testified to having based in-court identification of appellant on independent recollections of the offense. Admissibility of Pretrial and In-Court Identification
Appellant contends that the trial court denied his right of due process under the Fourteenth Amendment of the United States Constitution because the cumulative effect of the pretrial photo array and subsequent in-court identification improperly influenced the jury. To challenge the admissibility of a pretrial identification, an appellant has the burden to show, by clear and convincing evidence and based on the totality of the circumstances, that the pretrial identification procedure was impermissibly suggestive, and that it created a substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995) (citing Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967 (1968)); Rios v. State, 2005 WL 3077220, *6 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd, untimely filed). The court does not consider whether the procedures created a substantial likelihood for irreparable misidentification unless the court has first determined that the procedures were impermissibly suggestive. Barley, 906 S.W.2d at 33; Cantu v. State, 738 S.W.2d 249, 251-52 (Tex. Crim. App. 1987). Therefore, we must first determine whether the pretrial photo arrays containing appellant's picture were impermissibly suggestive.
In reviewing a ruling on the admissibility of the second photo array, we defer to the trial court's rulings on mixed questions of law and fact if they turn on the credibility of witnesses. See Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). "[A] question 'turns' on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue." Rios, 2005 WL 3077220, at *7 (alteration in original) (quoting Loserth, 963 S.W.2d at 773). Because the trial court considered the testimony of witnesses in deciding whether to admit the photo array in this case, we defer to the court's credibility determinations. See id. Appellant contends the photo array was impermissibly suggestive for the following reasons: (1) the witnesses were shown two different photo arrays on the same day; (2) appellant was the only person who appeared in both arrays; (3) appellant's photograph in the second array was distinguishable from the others in the array because (a) it was taken outside, and (b) appellant was the only person wearing jewelry.
Suggestiveness may arise from the manner in which a pretrial identification procedure is conducted. Barley, 906 S.W.2d 27 at 33. For example, a police officer might point out the suspect or suggest that the suspect's photograph is included in the array. Id. In addition, the content of a lineup or photo array may be suggestive if the suspect is the only individual who closely resembles the witnesses' description. Id. An identification may be suggestive based on a single procedure or because of the cumulative effect of multiple procedures. Id.
A procedure is not necessarily suggestive, however, solely because a witness has been shown multiple photo arrays of a suspect. Cantu, 738 S.W.2d at 252. If a suspect has "different looks" it may be necessary to show the witnesses multiple pictures or arrays depicting the suspect's "different faces" or the suspect's change in appearance over time. Id.; Barley, 906 S.W.2d at 33.
Under circumstances that are factually similar to this case, the Court of Criminal Appeals held in Barley that a second photo array used in the defendant's capital murder trial was not impermissibly suggestive. 906 S.W.2d at 34. In Barley, the investigating police officer had shown three witnesses a photo array containing a photograph of the defendant taken two years earlier, but no witnesses could identify the defendant in the array. Id. at 31. Because the defendant's current appearance was "noticeably different" from the picture in the first array, as here, the officer composed a second photo array that contained a recent picture of the defendant. Id. at 32. In contrast to the other photographs in the second array, the defendant's photograph had been taken outside, which gave it a "definitive sunlight reflection" and a "more pinkish tint." Id. at 33. After the investigating officer presented the second array to the witnesses, each made a "strong tentative" identification of the defendant. Id. at 32. As here, the witnesses positively identified the defendant at trial, stating that they based their in-court identification on what they observed during the course of the offense. Id.
Barley held that the defendant had failed to demonstrate clear and convincing evidence that the second photo array was impermissibly suggestive. Id. at 33-34. At no time did the investigating officers suggest or convey an instruction to any of the three witnesses to select a specific photograph, or any photograph at all, from the first or second array. Id. at 33. The Court of Criminal Appeals recognized that the second array may have been necessary because of changes in the defendant's appearance in the two years since the first picture was taken. Id. Though the defendant's photograph was the only one that had been taken outside and had a pinkish tint, the witnesses testified that they identified the defendant in both the picture and in-court based on their independent recollections of him during the murder. Id. For these reasons, the court concluded that the pretrial procedures did not influence the witnesses' identification and, therefore, were not impermissibly suggestive. Id. at 33-34.
Like Barley, appellant did not meet his burden to show clear and convincing evidence that the totality of the circumstances of the pretrial identification procedure was impermissibly suggestive. Concerning his contention that his rights were circumvented because his photograph was the only one that appeared in both the first and second photo array, Barley recognizes that a second array may be necessary if, as here, the current appearance of a suspect differs from a photograph used in the initial array. See id. at 33. The photograph of appellant used in the first array was three years old. Officer Mehl described his concern that the photograph was not an accurate depiction of appellant at the time of the offense, and Ramos testified that appellant looked older and heavier in the photo than at the scene of the offense.
Appellant also argues that his photograph in the second array was suggestive because it stood out among the others used in the array. Because the witnesses in Barley testified that they had identified the defendant in the array based in their recollections of the offense, rather than any distinctive features of the photograph, the court rejected that same argument. Id. In this case, Ramos, Jones, and Silva testified at both the pretrial hearing and at trial that they identified appellant based on their independent recollections of the offense. Even if the pretrial procedure had been suggestive, appellant presents no clear and convincing evidence that it was impermissibly suggestive.
Therefore, we hold that appellant did not meet his threshold burden to present clear and convincing evidence of a totality of circumstances showing that the second photo array presented to the witnesses to identify appellant was impermissibly suggestive. Accordingly, we need not address whether the procedures used to identify appellant presented a likelihood of misidentification. See Barley, 906 S.W.2d at 33. We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).