COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-387-CR
KENNETH LEON MENDIOLA APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
------------
OPINION
------------
A jury convicted Appellant Kenneth Leon Mendiola of aggravated robbery
with a deadly weapon and assessed his punishment at twenty-five years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice. The trial court sentenced him accordingly. Appellant brings a single
point on appeal, arguing that the trial court reversibly erred by failing to
suppress the complainant’s in-court identification of Appellant because it was
tainted by an improperly suggestive identification procedure. Although the
pretrial photograph array was impermissibly suggestive because Appellant’s
photograph was both larger and darker than the other photographs in the array,
thereby calling attention to his photograph, the array did not give rise to a
substantial likelihood of misidentification. We therefore affirm the trial court’s
judgment.
On December 13, 2005, Dors Ward, Jr., the owner of D. Ward
Construction Company, drove to an apartment complex to meet with Rick
Spires, a man he knew from a Bible study, to talk about remodeling an
apartment. Appellant accompanied Spires to the meeting.
When Ward arrived at the apartments, he got out of his pickup truck and
then turned back toward the truck to get his briefcase. Spires placed a knife
to Ward’s throat. Appellant stabbed Ward under his right ear, causing only a
superficial wound. Appellant and Spires then forced Ward to get in his truck
and drive from one bank ATM to another, withdrawing money out of his
account. During this time, Spires and Appellant each held a serrated kitchen
knife, five or six inches long, on Ward.
After Ward had depleted his account, Spires and Appellant forced him to
drive his truck back to the apartment complex where he had first met them.
Spires got his truck and ordered Ward to follow him into an empty parking lot
in a warehouse district. At the parking lot, Spires stopped, got into Ward’s
2
truck, told Appellant to “finish the job,” and went back to his truck to wait.
Appellant then stabbed Ward in the neck. Ward and Appellant struggled, and
Ward managed to fight off Appellant; during the struggle, Ward’s hands and
arms were cut and his lung was punctured. Appellant then ran over to Spires’s
truck, and he and Spires drove away.
Ward put his fingers on his wounds to stop the bleeding as much as
possible and drove away. He ultimately crashed his truck into the sidewalk of
a car dealership. Justin Wayne Stringer, a salesman working at the dealership,
approached the truck after seeing Ward crash. Stringer, who had had EMT
training, testified that Ward appeared to have a serious injury to a major artery
in his neck and several stab wounds to the chest. Another witness called 911.
Ward was taken to the hospital and remained hospitalized for six days; he was
later hospitalized again because of internal bleeding.
The day after the robbery, Detective Lopez talked with Ward and obtained
descriptions of Spires and Appellant. One week after the robbery, Ward was
asked to view two photo spreads. He identified Appellant from one photo
spread and Spires from the second photo spread.
In his sole point, Appellant argues that the trial court erred by failing to
suppress the complainant’s in-court identification of him because it was tainted
3
by an improperly suggestive identification procedure. The Texas Court of
Criminal Appeals has instructed us that
[i]n considering the scope of due process rights afforded a
defendant with regard to the admission of identification evidence,
the United States Supreme Court has held that a pre-trial
identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at
trial would deny the accused due process of law. Hence, the Court
formulated a two step analysis to determine the admissibility of an
in-court identification: 1) whether the out-of-court identification
procedure was impermissibly suggestive; and 2) whether that
suggestive procedure gave rise to a very substantial likelihood of
irreparable misidentification. An analysis under these steps requires
an examination of the “totality of the circumstances” surrounding
the particular case and a determination of the reliability of the
identification.1
The burden is upon the party challenging the identification to prove each
prong by clear and convincing evidence. 2 If the first prong of this test is not
met, we do not address the second prong to evaluate the likelihood of
irreparable misidentification.3 If, however, we determine that the identification
procedure was impermissibly suggestive, we must still determine whether such
1
… Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995)
(citations and footnotes omitted), cert. denied, 516 U.S. 1176 (1996).
2
… Goldberg v. State, 95 S.W.3d 345, 378 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d), cert. denied, 540 U.S. 1190 (2004).
3
… Barley, 906 S.W.2d at 34.
4
suggestive pretrial procedure gave rise to a substantial likelihood of irreparable
misidentification.4
We have examined the photo spread complained of by Appellant and note
that the photograph of Appellant is both larger and darker than the other
photographs. Additionally, it fills more of the space provided for the
photograph than do the others. The eye of one who knows nothing about the
case is immediately drawn to the photograph of Appellant because it is so
distinctive in relation to the remaining photographs. We therefore hold that the
out-of-court identification procedure was impermissibly suggestive. 5
We therefore must determine whether the suggestive procedure gave rise
to a very substantial likelihood of irreparable misidentification.6 Ward testified
that he met with Appellant on two occasions. The first occasion was
approximately a week before the stabbing. He was with Appellant for an hour
or slightly less. They were evaluating the damage done to the apartment
complex to determine remodeling costs. Ward testified that he did not
4
… Moore v. State, 140 S.W.3d 720, 731 (Tex. App.—Austin 2004, pet.
ref’d) (citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967,
971 (1968), and Brown v. State, 64 S.W.3d 94, 99 (Tex. App.—Austin 2001,
no pet.)).
5
… See United States v. Merkt, 794 F.2d 950, 958 (5th Cir. 1986), cert.
denied, 480 U.S. 946 (1987); Barley, 906 S.W.2d at 33–34.
6
… See Simmons, 390 U.S. at 384, 88 S. Ct. at 971.
5
remember Appellant’s name, just his face. He also testified that he had not
been sure that he wanted Appellant to work on the job because he looked like
he was on drugs.
Ward saw Appellant again on the day of the stabbing. They met around
5:30 p.m. at the apartments. He testified that he spent a little over two hours
with Appellant and Rick Spires. When asked to clarify his testimony that he
had spent a little over two hours with the two men, Ward testified, “It was
right after—after it got dark, and it was all over with. It was approximately two
hours’ worth.” He identified Appellant as “the one that did the
stabbing. . . [, t]he most stabbing.” He also testified that he was 100% sure
that the person sitting next to defense counsel was the person who stabbed
him.
Considering the totality of the circumstances, including the opportunity
Ward had to observe Appellant on the two separate days, we hold that
Appellant has failed to satisfy the second prong of the test; that is, we hold
that the suggestive procedure did not give rise to a very substantial likelihood
of irreparable misidentification—Ward had ample opportunity to observe
Appellant and was unequivocal in his identification at trial.
6
We therefore overrule Appellant’s sole point and affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
PUBLISH
DELIVERED: October 9, 2008
7