Opinion issued October 14, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00805-CR
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Victor RodriGuez Perez, Appellant
V.
The State of Texas, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1004555
MEMORANDUM OPINION
A jury convicted appellant, Victor Rodriguez Perez, of aggravated robbery with a deadly weapon and assessed punishment at forty years’ confinement. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). In appellant’s two points of error, he contends that (1) the trial court erred in admitting testimony regarding an out-of-court photographic lineup because it impermissibly suggested appellant’s identity and tainted a subsequent in-court identification and (2) the trial court erred in overruling his trial counsel’s objection to the State’s closing argument.
We affirm.
BACKGROUND
On August 27, 2004, Milton Umanzor and his wife were in their home when the doorbell rang. Umanzor opened the door and found appellant and two other men at the door. They stated they were interested in working as painters for Umanzor. When Umanzor informed appellant and the men that he was not hiring, appellant and the men pushed open the door and forcibly entered the house. One of the men placed a gun at Umanzor’s head and ordered him to cooperate or be shot. Appellant and the men tied up Umanzor and his wife, demanded money, and ransacked the house for valuable items. After the men left, Umanzor untied himself and his wife and called the police.
Umanzor later identified the appellant as one of his attackers in a photographic array prepared by the police. He and his wife later testified at trial. The State also presented testimony from City of Houston Police Officers B. Muttathottil, D. Pena, J. Wood, and T. Scoggins, and former Officer P. Saldivar. Appellant did not present any witnesses. The jury convicted appellant of aggravated robbery with a deadly weapon, and this appeal followed.
PRE-TRIAL 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. Appellant argues the photo array was impermissibly suggestive for the following reasons: (1) investigators told Umanzor that the suspect was depicted in one of the photos in the lineup; (2) the suspect was repeatedly shown in several different arrays; (3) the specific photograph of the suspect was highlighted in a yellow color; and (4) the suspect’s photo is the only one that has two earrings on the individual.
A. Standard of Review
We will uphold the trial court’s decision to admit the identification unless the trial court clearly abused its discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). 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 (1) the pretrial identification procedure was impermissibly suggestive; and (2) 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)).
In determining the impermissible suggestiveness prong of the Barley test, we review the procedure to determine whether suggestiveness was created by the manner in which the pretrial identification procedure was conducted. Id. at 33. For example, a police officer might point out the suspect or suggest that the suspect’s photograph is included in the specific 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 witness’s description. Id. An identification may be suggestive based upon a single procedure or because of the cumulative effect of multiple procedures. Id.
If it is determined that the pre-trial identification procedure was impermissibly suggestive, we then determine whether the procedure created a “substantial likelihood of irreparable misidentification.” Id. at 34. “The test is whether, considering the totality of the circumstances, ‘the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (quoting Simmons, 390 U.S. at 384, 88 S. Ct. at 971). Ultimately, “reliability [is the] linchpin in determining the admissibility of identification testimony.” Id.
The Court of Criminal Appeals has stated that “[t]he following five non-exclusive factors should be weighed against the corrupting effect of a suggestive identification procedure in assessing reliability under the totality of the circumstances: (1) the opportunity of the witnesses to view the criminal at the time of the crime; (2) the witnesses’ degree of attention; (3) the accuracy of the witnesses’ prior description of the criminal; (4) the level of certainty demonstrated by the witnesses at the confrontation, and (5) the length of time between the crime and the confrontation.” Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) (citing Ibarra, 11 S.W.3d at 195). The factors used to determine whether an impermissibly suggestive identification procedure gives rise to a substantial likelihood of irreparable misidentification are treated as historical issues of fact and are viewed in the light most favorable to the trial court. Loserth v. State, 963 S.W.2d 770, 773–74 (Tex. Crim. App. 1998).
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.
B. Analysis
Appellant first argues that the photographic array shown to Umanzor was impermissibly suggestive because the officer conducting the procedure informed Umanzor that a suspect appeared in the photo array. However, “a lineup is not rendered unnecessarily suggestive simply because the complainant is told that it contains a suspect, because a complainant would normally assume that to be the case.” Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992) (citing Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. App. 1988)).
Next, appellant contends that the procedure was impermissibly suggestive because the suspect was repeatedly shown throughout the photo array. Umanzor was shown twenty pages of photo arrays with six photos on each page. The first time the police presented Umanzor with a photograph of appellant, he correctly identified him. Umanzor did not accuse any person of committing the robbery until he turned to the page containing appellant’s photograph. Appellant points to Cantu v. State, where the court held that “repeated showings of appellant’s picture in several arrays was suggestive.” 738 S.W.2d at 252. However, the situation in Cantu is distinguishable because the Cantu witness was shown photo spreads on five separate occasions, with each separate procedure containing a picture of the suspect and four other individuals. Id. at 251. Here, Umanzor went through the photo identification process only once. In addition, the court in Cantu stated that while the procedure may have been suggestive, it was not impermissibly suggestive so as to warrant exclusion. Id. at 252. Therefore, even if Umanzor was shown a photo of the suspect more than once in a different photo array, that alone does indicate impermissibly suggestive procedures. See id.
Appellant next asserts that his photo was yellow in color, thus making it stand out from the other photos. The background of appellant’s photograph does not appear to be so different and eye-catching as to be suggestive. Moreover, even if the photograph had a darker or lighter tint than other photographs in the array, that would not render the photo array impermissibly suggestive. See Giesberg v. State, 945 S.W.2d 120, 125–26 (Tex. App.—Houston [1st Dist.] 1996, pet. denied) (photo spread permissible even though background of defendant’s photograph was darker than other photographs).
Finally, appellant contends that his photograph is the only photograph that has two earrings on the individual, and his photograph is therefore too dissimilar from the others. However, the State need not produce identical subjects in the photo array to avoid violating appellant’s due process rights. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Furthermore, there is no evidence in the record that Umanzor noted the presence or absence of earrings in his suspect report or that he based his identification on that feature.
During the first and only photo identification process, Umanzor identified appellant quickly and with absolute certainty. We hold that appellant did not meet his threshold burden to present clear and convincing evidence of a totality of circumstances showing that the pre-trial photo array was impermissibly suggestive. See Barley, 906 S.W.2d at 34–35 (holding that cumulative photograph identification procedure may have been suggestive, but not impermissibly so). Accordingly, we need not address whether the procedures used to identify appellant presented a likelihood of misidentification. See id. at 33.
We overrule appellant’s first point of error.
CLOSING ARGUMENT
In his second point of error, appellant contends that the trial court erred by overruling his objection to a portion of the prosecutor’s closing argument.
A. Standard of Review
To preserve a complaint for appellate review, a defendant must raise the complaint to the trial judge by a timely request, objection, or motion that specifically states the grounds for the ruling sought. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a)(1)(A). A defendant’s appellate contention must comport with the objection made at trial. Wilson, 71 S.W.3d at 349. During the State’s closing argument, the prosecutor said, “We also talked about some of the rights the defendant had—the defendant has. Excuse me. One of those rights being the subpoena power.” The defense counsel immediately objected to the statement as an “improper argument” and an “indirect comment on the defendant’s failure to testify and the failure to present evidence.”
B. Analysis
A prosecutor may not comment on the failure of an accused to testify. Such comment violates the privilege under the Fifth Amendment of the United States Constitution and Article I, § 10, of the Texas Constitution against self-incrimination and the freedom from being compelled to testify against oneself. Griffin v. California, 380 U.S. 609, 612–15 (1965); Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001); see also Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). “To violate the right against self-incrimination, the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the defendant’s failure to testify must be clear.” Bustamante, 48 S.W.3d at 765. It is not sufficient if the comment “might be construed as an implied or indirect allusion.” Id. The “test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify.” Id.
We conclude that the trial court did not abuse its discretion by overruling appellant’s objection because the argument referred to the power to compel witnesses; it did not comment on appellant’s failure to present his own testimony. See Fogle v. State, 988 S.W.2d 891, 895 (Tex. App.—Fort Worth 1999, pet. ref’d) (noting defendant need not subpoena himself to testify). We cannot say that the prosecutor’s remarks “naturally and necessarily” referred to appellant’s failure to testify or were “manifestly intended” to carry such an impression to the jury. Livingston v. State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987).
Accordingly, we overrule appellant’s second point of error.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Nuchia.[1]
Do not publish. See Tex. R. App. P. 47.2(b).
[1] The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District
of Texas, participating by assignment.