Gilbert Salinas v. State

NO. 07-00-0093-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 13, 2002

______________________________

GILBERT SALINAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

NO. 2398; HONORABLE JOHN T. FORBIS, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

Appellant Gilbert Salinas appeals from his conviction for aggravated robbery and

sentence of incarceration for life. By eight issues he asserts that the trial court committed

reversible error in (1) failing to discharge the jury venire because it was unconstitutionally

constituted, (2) allowing the State to ask improper questions during jury voir dire, (3)

denying appellant’s request for appointment of an expert on eyewitness identifications, (4)

denying a continuance to allow appellant to secure funds to hire an eyewitness

identification expert, (5) denying appellant’s motion for directed verdict, (6) allowing
appellant’s pen packet into evidence during the punishment phase of trial, (7) cumulating

appellant’s sentence with unproved prior convictions and (8) allowing a witness to identify

appellant after the witness was involved in an impermissibly suggestive photo lineup

identification of appellant. We affirm.

BACKGROUND

On October 28, 1998, at approximately 2:30 a.m., two men entered the Allsup’s

convenience store in Wellington, Texas. The only other occupant of the store at that time

was David Roblez, who was an Allsup’s employee.

Roblez was in a walk-in cooler in the back of the store when the men entered. He

heard a bell indicating that someone had entered the door, and went to the counter in the

front of the store. When he arrived at the counter, he talked to one of the men who had

entered the store. Roblez identified the man he talked to as Hispanic. The Hispanic man

told Roblez to give him the money from the cash register and the keys to Roblez’s car.

Roblez believed the man to be “kidding,” and did not immediately give the money and keys

to him. Roblez’s testimony about what happened next was as follows:

Q. After this particular request what happened?
A. Well, he said give me the keys to your car and money out of the register
before I go off on your — butt there — used another word. And I said,
“Yeah. Right.”
And that’s when he called another — the other gentlemen [sic] that was with
him, over.
* * *

2
 Q. What happened when he called him?
A. He stepped forth and he pulled a gun out on me.

The second male was black and exhibited a pistol. Roblez then gave the men his

car keys and the money from the register. The Hispanic robber then asked about the

contents of a second cash register which was empty. When Roblez replied that the

register contained no money, the Hispanic robber told Roblez to open the register before

the other robber “goes off on your butt.” The black robber then re-approached Roblez with

the gun he earlier produced. Roblez opened the second register, which contained no

money. The two robbers left the store and eventually drove off in Roblez’s car.

Roblez reported the robbery to the sheriff’s office. After interviewing Roblez, deputy

Overstreet compiled and presented a photo lineup comprised of photographs of six

Hispanic men to Roblez to see if he could identify any of the men in the lineup as a

participant in the robbery. Roblez identified appellant’s picture. Roblez also identified

appellant at trial as the Hispanic male who participated in the robbery.

A jury convicted appellant. In connection with the punishment phase of trial,

appellant pled “true” to two enhancement crimes alleged by the State. Despite appellant’s

true pleas, the State offered and the trial judge admitted pen packets reflecting the two

crimes alleged for enhancement purposes. The jury sentenced appellant to life

imprisonment.

Appellant challenges his conviction and his sentence by eight issues. He asserts

that (1) his Sixth Amendment right to a jury of his peers was violated because the jury

3
panel contained 5% non-caucasians while the population of Collingsworth County as a

whole was 23.5% non-caucasian; (2) the prosecution was allowed to pose questions to the

jury panel which were designed to have members of the panel pre-commit to findings

based on specified facts and which misstated the law to the panel; (3) the trial court

erroneously denied his motion for appointment of an expert witness on eyewitness

identification reliability; (4) the trial court denied appellant’s motion for continuance so

appellant could seek funds to employ such a witness; (5) the trial court erroneously denied

appellant’s motion for instructed verdict because the prosecution presented no evidence

of his knowledge that a robbery was going to take place, that the other robber had a gun

and intended to use it during the robbery, and that appellant intended to aid the other

robber in using the gun; (6) the trial court erred during the punishment phase of trial in

admitting “pen packets” as proof of the enhancement allegations of the indictment because

appellant had already pled true to the enhancement paragraphs; (7) his life sentence

should not have been cumulated with his sentences from other convictions because the

other convictions were not proved at trial; and (8) a photographic lineup presented to the

alleged robbery victim by the sheriff’s office was impermissibly suggestive. We will address

appellant’s issues in the sequence he urges them.

Issue 1: Composition of the jury panel

By his first issue appellant urges that his right to a jury of his peers under the Sixth

Amendment to the United States Constitution was violated because the jury panel

contained 5% non-caucasians while the population of Collingsworth County as a whole was

23.5% non-caucasian. He cites Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42

4
L.Ed.2d 690 (1975). The State responds that appellant failed to preserve error because

he failed to challenge the array in writing supported by affidavit, as is required by TEX .

CRIM . PROC . CODE ANN . art. 35.07 (Vernon 1999).1 The State further urges that the jury

venire was properly selected via use of a jury wheel, and that in any event, the mere

showing of a disparate percentage of jurors of appellant’s race from the general population

of the county is not sufficient to prove violation of appellant’s Sixth Amendment rights.

The State is correct. Appellant does not claim to have challenged the array in

writing. Moreover, even if appellant had preserved error, his contention is without merit.

The burden is on appellant to prove, as part of his prima facie showing of a fair cross-

section requirement violation, that the under-representation of a distinctive group in the jury

venire is due to systematic exclusion of members of the group by the venire-selection

process. See Duren v. Missouri, 439 U.S. 357, 364, 366, 99 S.Ct. 664, 668-69, 58 L.Ed.2d

579 (1979); Pondexter v. State, 942 S.W.2d 577, 580-81 (Tex.Crim.App. 1996). He does

not claim that he proved a systematic exclusion of a distinctive group from the venire.

In considering appellate issues based on the federal constitution we follow the

guidance of the United States Supreme Court. See State v. Guzman, 959 S.W.2d 631,

633 (Tex.Crim.App. 1998). And, it is axiomatic that intermediate Texas appellate courts

have the duty to follow pronouncements of the Texas Court of Criminal Appeals. See

Flores v. State, 883 S.W.2d 383, 385 (Tex.App.--Amarillo 1994, pet. ref’d). Both the

United States Supreme Court and the Court of Criminal Appeals have held that in order

1
Further reference to a provision of the Code of Criminal Procedure will be by
reference to “CCP art. _.”

5
to establish a prima facie violation of the requirement that a fair cross section of the

community be represented in the venire, appellant must show that: (1) the group alleged

to be excluded is a "distinctive" group in the community; (2) the representation of this group

in venires from which juries are selected is not fair and reasonable in relation to the number

of such persons in the community; and (3) this under-representation is due to systematic

exclusion of the group in the jury venire selection process. See Duren, 439 U.S. at 364,

99 S.Ct. at 668; Pondexter, 942 S.W.2d at 580. Appellant does not reference any

evidence that under-representation of any group in jury venires in Collingsworth County is

due to systematic exclusion. We overrule appellant’s first issue.

Issue 2: Use of “commitment” questions by the State
during voir dire

Appellant’s second issue urges error by the trial court in allowing the prosecution to

pose questions to the jury panel which were designed to have members of the panel pre-

commit to findings based on specified facts, and to make improper statements of law to

the panel. The issue is based on the prosecutor’s (1) asking the panel members if they

could return a verdict of guilty if the State presented only one witness, but “. . . each

element of the indictment is proved to you beyond a reasonable doubt based solely on the

testimony of only [that] one witness” and (2) telling the panel that the law required a guilty

verdict if the State proved the elements of the crime beyond a reasonable doubt. Appellant

cites Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App. 1997), as authority for his first

assertion; he cites no authority for his second.

6
 The State urges that appellant did not preserve error by timely objection in the trial

court. As to the merits of appellant’s first assertion, the State maintains that its questions

did not try to commit jurors to a particular verdict based on a hypothetical or specific set of

facts, but were appropriate inquiries to determine whether prospective jurors had a bias or

prejudice as to the law.

The trial court has broad discretion in ruling on matters during voir dire, and its

rulings are reviewed under an abuse of discretion standard. See id. at 790; Camacho v.

State, 864 S.W.2d 524, 531 (Tex.Crim.App. 1993). Hypothetical questions may be asked

during voir dire to ascertain the views of prospective jurors and to help explain the law, but

such questions may not be asked in such manner as to attempt to obtain a commitment

from a prospective juror to a particular verdict based on a hypothetical set of facts. See

Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App. 2001); Atkins, 951 S.W.2d at 789.

But, a State’s attorney may make inquiries of the venire to determine if any member has

a bias or prejudice against any phase of the law upon which the State is entitled to rely for

a conviction. See CCP art. 35.16(b)(3); Castillo v. State, 913 S.W.2d 529, 533-34

(Tex.Crim.App. 1995).

As noted in Standefer, the “commitment question” rule is easily stated but not

necessarily easily applied. See Standefer, 59 S.W.3d at 179. For example, Standefer

notes that the question “Could you find someone guilty on the testimony of one witness?”

is an improper commitment question because a party is not entitled to have a prospective

juror commit on whether the juror can convict based on the testimony of a single witness.

Id. at 183 n.28. Yet, an inquiry worded as the State worded its question in the matter

7
before us seems to have been approved because the State is entitled to know if a

prospective juror can abide by the burden of proof set by law, or if the prospective juror will

disregard the law and hold the State to some standard of proof subjective to the

veniremember. See Castillo, 913 S.W.2d at 533-34. In other words, the question “Could

you find someone guilty on the testimony of one witness?” is an improper commitment

question, whereas the question “If the State presented only one witness, and you as a juror

believed that witness, and the testimony of that witness convinced you beyond a

reasonable doubt of the defendant’s guilt, could you find the defendant guilty?” is a

permissible inquiry. See CCP art. 35.16(b)(3); Standefer, 59 S.W.3d at 183; Castillo, 913

S.W.2d at 533-34.

In the matter now before us, the State did not seek to commit the prospective jurors

in conjunction with specific facts of the case as was done in Atkins. At most, the State’s

attorney may have phrased his question awkwardly on one occasion. Otherwise, the

contexts of the questions and responses of the veniremembers support the trial court’s

conclusion that the questions were not designed to attempt to obtain commitments from

the jurors based on specific sets of facts; but rather, were inquiries to determine whether

the jurors could follow the law as to the State’s burden of proof, even if the proof was

presented by only one witness. Moreover, the question incorporated a correct statement

of the State’s burden of proof and we conclude that even if it was improper, the question

did not affect substantial rights of appellant. See TEX . R. APP. P. 44.2(b). The trial court

did not abuse its discretion in overruling appellant’s objection. See Castillo, 913 S.W.2d

at 533-34.

8
 Appellant also urges as part of his argument under this issue that the State’s

attorney misstated the law during voir dire by telling the jury that the law required a guilty

verdict if the testimony of one witness proved all elements of the indictment beyond a

reasonable doubt. Appellant made no objection at trial on such basis, however. To

preserve error for appellate review, the complaining party must make a timely objection

specifying the grounds for the objection, if the grounds are not apparent from the context;

the objection must be made at the earliest possible opportunity; the complaining party must

obtain an adverse ruling from the trial court; and the issue on appeal must correspond to

the objection made at trial. See Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998).

Error was not preserved as to appellant’s argument that the law was misstated by the

State’s attorney. Issue two is overruled.

Issue 3: Failure to appoint expert on eyewitness identifications

Appellant’s third issue asserts that the trial court erroneously denied his motion for

appointment of an expert witness on eyewitness identification reliability. The State’s

response is that appellant did not show a necessity for such an expert, did not prove that

eyewitness identifications were complex matters necessitating expert testimony, or that

expert testimony on such subject matter was reliable.

The trial court’s denial of a motion to appoint an expert witness to assist the defense

is reviewed for abuse of discretion. See Griffith v. State, 983 S.W.2d 282, 287

(Tex.Crim.App. 1998). The trial judge’s action in denying a motion to appoint an expert to

9
assist the defense is reviewed as of the time of the denial of the motion. See Rey v. State,

897 S.W.2d 333, n.9 (Tex.Crim.App. 1995).

The State must provide a defendant with access to an expert witness if fundamental

fairness requires such access in order for the defendant to have the basic tools necessary

to present his defense. See Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84

L.Ed.2d 53 (1985); Busby v. State, 990 S.W.2d 263, 271 (Tex.Crim.App. 1999); Griffith,

983 S.W.2d at 286; Rey, 897 S.W.2d at 337. The question to be answered in determining

whether access to the expert is a “basic tool” necessary to presentation of a defense is

whether, and under what conditions, participation of the particular expert is important

enough to preparation of a defense that the State is required to provide access for the

defendant. See Ake, 470 U.S. at 77, 105 S.Ct. at 1093. The key to answering the

question is whether there is a high risk of an inaccurate verdict absent access to the

expert. See id.; Busby, 990 S.W.2d at 271; Griffith, 983 S.W.2d at 286; Rey, 897 S.W.2d

at 337.

In determining whether a defendant is entitled to access to an expert, three factors

are relevant: (1) the private interest that will be affected by the action of the State; (2) the

governmental interest that would be affected if the access is to be provided; and (3) the

probable value of the additional or substitute procedural safeguards that are sought, and

the risk of an erroneous deprivation of the affected interest if those safeguards are not

provided. See Ake 470 U.S. at 77, 105 S.Ct. at 1093; Rey, 897 S.W.2d at 337. The

necessity for appointment of an expert depends on whether the defendant has made a

sufficient threshold showing of need for the expertise in his particular case. See id. In

10
order for an indigent defendant to make a threshold showing for appointment of an expert

to assist the defense, the defendant’s claims must be based upon more than undeveloped

assertions that the requested assistance would be beneficial. Moore v. State, 935 S.W.2d

124, 130 (Tex.Crim.App. 1996).

The first and second factors favor appellant’s position. A defendant’s interest in the

accurate disposition of a criminal proceeding where his life or liberty is at stake is

compelling and weighs heavily in the analysis. Ake, 470 U.S. at 78, 105 S.Ct. at 1093;

Rey, 897 S.W.2d at 337. Likewise, the State maintains an interest in the accuracy of the

proceedings. Id. The State’s interest in accurate disposition of criminal trials is so strong

that it outweighs other, less compelling interests. See, e.g., Ake, 470 U.S. at 1094, 105

S.Ct. at 1094; and Rey, 897 S.W.2d at 339 (State’s interest in judicial economy outweighed

by both State’s and defendant’s interest in accurate disposition of criminal trial); see also

Elmore v. State, 968 S.W.2d 462, 465-66 (Tex.App.--Eastland 1998, pet. ref’d) (potential

economic burden of appointing defense experts in DWI trials outweighed by individual’s

right to fair and accurate adjudication of criminal case.)

Although both the first and second factors weigh in favor of defendant, it is the third

factor which is given the greatest consideration in the analysis. Rey, 897 S.W.2d at 339.

This third factor requires a preliminary showing by the defendant that the issue for which

he seeks access to an expert is likely to be a significant issue at trial. If such an initial

showing is made, then the probable value of the assistance sought is weighed against the

risk of error in the proceeding if such assistance is not offered. Ake 470 U.S. at 83, 105

S.Ct. at 1094,1096; Rey, 897 S.W.2d at 337, 399.

11
 In the present case the evidence and argument offered by appellant in support of

his motion amounted to assertions that the requested assistance would be helpful to

appellant’s case. He did not assert that the State would have such experts available to

consult or to testify. Nor did he assert that the subject matter on which an expert was

sought, reconciling conflicting testimony of the victim and Melvin Maurice Mason2 about

where appellant was at the time of the robbery, was beyond the capability of jurors to

understand without explanation by an “expert.” See Ake 470 U.S. at 83, 105 S.Ct. at

1094,1096.

This record does not demonstrate that because appellant was not provided access

to the expert3 he sought, the trial was fundamentally unfair. Nor does the record before the

trial court at the time of the ruling on appellant’s motion demonstrate that the risk of error

in the jury’s verdict because of the absence of the expert appellant sought was so great

that the trial court’s denial of the motion was arbitrary or unreasonable, Brown v. State, 960

S.W.2d 772, 778 (Tex.App.--Dallas 1997, pet. ref’d), or, outside the zone of reasonable

disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.--Amarillo 1999, pet.

ref’d). Thus, the trial court did not abuse its discretion in denying the motion to appoint an

expert. Appellant’s third issue is overruled.

2
In his brief, appellant directs this Court’s attention to evidence in the record that
was admitted during appellant’s trial. The reasonableness of the trial court’s decision is
reviewed as of the time it was made. See Rey, 897 S.W.2d 333 at n.9. At the time the trial
court denied appellant’s motion for expert assistance, the judge did not have before him
the evidence that appellant refers to in his brief.
3
This assumes, arguendo, that the “expert” testimony would be admissible. See
Jordan v. State, 928 S.W.2d 550 (Tex.Crim.App. 1996).

12
 Issue 4: Motion for Continuance

Appellant’s fourth issue contends that the trial court abused its discretion in denying

appellant’s pro se motion for continuance to retain an expert witness at his own expense.

The motion stated simply that “Defendant desires more time to hire an Eye-Witness Expert

on identification.”4

A motion for continuance is addressed to the discretion of the trial court, and the

denial of such a motion is reversible only for an abuse of that discretion. Matamoros v.

State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Smith v. State, 721 S.W.2d 844, 850

(Tex.Crim.App. 1986). The basis for a motion for continuance must be fully set forth in the

motion. CCP art. 29.03. General or conclusory averments are not sufficient to support a

motion for continuance. See Moore v. State, 504 S.W.2d 904, 905 (Tex.Crim.App. 1974).

Appellant did not allege any set of facts which would have supported his motion for

continuance. The motion did not set out, for example, how much money was available to

appellant to retain an expert witness, how much an expert witness was expected to cost,

or how much time appellant anticipated he would require in order to obtain sufficient funds

to retain the desired expert. The trial court’s decision was not outside the zone of

reasonable disagreement and thus was not an abuse of discretion. See Benitez, 5 S.W.3d

at 918. Appellant’s fourth issue is overruled.

4
Although the motion stated that it was being submitted “by and through his attorney
of record,” the motion is signed and verified by appellant, not by appellant’s attorney.

13
 Issue 5: Motion for Directed Verdict

By his fifth issue, appellant argues that the trial court erred in overruling his motion

for a directed verdict. Appellant argues that there was no evidence that he used or

exhibited a deadly weapon as alleged, and that there was no evidence that he either

solicited, encouraged, directed, aided or attempted to aid in the use or exhibition of a

firearm. The State responds that the evidence is sufficient to support the conviction under

the law of parties.

An issue complaining of the trial court’s denial of a motion for a directed verdict is

a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d

479, 482 (Tex.Crim.App. 1996). In evaluating the legal sufficiency of the evidence, the

appellate court views the evidence in the light most favorable to the verdict and determines

whether a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct.

2781, 2788-89, 61 L.Ed.2d 560 (1979).

The law of parties provides that an accused may be held criminally liable for the acts

of another when, with the requisite intent, he solicits, encourages, directs, aids, or attempts

to aid another person in committing an offense. TEX . PENAL CODE ANN . § 7.02 (Vernon

1994). Mere presence during the commission of a crime is not sufficient to make one a

party. Medina v. State, 7 S.W.3d 633, 641 (Tex.Crim.App. 1999). However, in determining

whether an individual was party to an offense, the factfinder may look to events before,

during, and after the commission of the offense. See Beardsley v. State, 738 S.W.2d 681,

14
684 (Tex.Crim.App. 1987); Hill v. State, 883 S.W.2d 765, 770 (Tex.App.--Amarillo 1994,

pet. ref’d). Participation in a criminal offense may be inferred from the circumstances and

need not be shown by direct evidence. See Beardsley, 738 S.W.2d at 684; Hill, 883

S.W.2d at 770. Furthermore, the evidence is sufficient to convict under the law of parties

if it shows that the defendant was physically present during the commission of the offense

and encouraged its commission by words, acts, or other agreement. See Ransom v. State,

920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (op. on reh’g).

Appellant presented testimony that he was not in the store during the events in

question. But, viewing Roblez’s testimony in the light most favorable to the verdict, a

rational trier of fact could have found beyond a reasonable doubt that appellant was in the

store, as well as the remaining essential elements of the offense. For example, the jury

could have inferred that appellant was present, that language used by appellant proved

that he knew a robbery was to occur and that a pistol was to be used in the robbery. Thus,

under the law of parties, the evidence was legally sufficient to convict appellant. Id.

Appellant’s fifth issue is overruled.

Issue 6: Admission of Pen Packet evidence

By his sixth issue, appellant argues that the trial court committed reversible error by

admitting his “pen packet” into evidence during the punishment phase after appellant had

pled “true” to the two enhancement paragraphs in the indictment. Appellant argues that

because a plea of true to an enhancement allegation is sufficient evidence to support such

an allegation, see Thomas v. State, 849 S.W.2d 405, 406 (Tex.App.--Fort Worth 1993, no

15
pet.), the prejudicial value of admitting the pen packet outweighs any probative value, and

constitutes impermissible bolstering of the State’s evidence.

A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996);

Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990) (op. on reh’g). A trial

court abuses its discretion if its decision was arbitrary or unreasonable, Brown, 960 S.W.2d

at 778, or, if, given the record and the applicable law, the decision fell outside the zone of

reasonable disagreement. See Benitez, 5 S.W.3d at 918.

The trial judge has the authority to admit, during the punishment stage of trial,

evidence of any matter the court deems relevant to sentencing, including but not limited

to the defendant’s prior criminal record, his reputation or character or an opinion regarding

his character, the circumstances of the offense for which he is being tried, and,

notwithstanding Rules 404 and 405 of the Rules of Evidence, any other evidence of an

extraneous crime or bad act that is shown beyond a reasonable doubt to have been

committed by the defendant or for which the defendant could be held criminally

responsible, regardless of whether the defendant has previously been charged with or

convicted of the crime or act. CCP art. 37.07. In particular, a defendant’s pen packet is

admissible to support proof of prior convictions, even where the defendant’s judicial

admission, standing alone, is sufficient proof of the prior conviction in question. Beck v.

State, 719 S.W.2d 205, 210 (Tex.Crim.App. 1986); Tyson v. State, 873 S.W.2d 53, 59

(Tex.App.--Tyler 1993, pet. ref’d).

16
 Appellant’s plea of true to the enhancement paragraphs of the indictment

constituted a judicial admission of the facts alleged in the indictment. Nevertheless,

appellant’s pen packet was also admissible as proof of appellant’s prior convictions, even

where appellant had already judicially admitted the enhancement allegations. Beck, 719

S.W.2d at 210; Tyson, 873 S.W.2d at 59. It is within the trial court’s discretion to

determine if the probative value of the contents of appellant’s pen packet substantially

outweighed the risk of prejudice. See Rogers v. State, 991 S.W.2d 263, 267

(Tex.Crim.App. 1999); Thorn v. State, 961 S.W.2d 12, 19 (Tex.App.--Dallas 1996, pet.

ref’d); Mayfield v. State, 803 S.W.2d 859, 862 (Tex.App.--Corpus Christi 1991, no pet.).

We cannot say that this record required the trial court to exclude evidence which the

legislature addressed as admissible. Therefore, the trial court did not abuse its discretion

in admitting appellant’s pen packet. Appellant’s sixth issue is overruled.

Issue 7: Cumulation of sentences

By his seventh issue, appellant argues that the trial court erred in cumulating

appellant’s sentence with unproved prior convictions. Prior to sentencing, the State filed

a motion to cumulate sentences, alleging that appellant had previously been convicted of

aggravated robbery on December 17, 1999, in cause number 4144 of the 100th District

Court, Childress County, Texas, and sentenced to 40 years confinement in the Texas

Department of Criminal Justice - Institutional Division. The motion also alleged that the 40

year sentence imposed in cause number 4144 had been previously cumulated with ten

year sentences imposed in the following cases: (1) burglary of a habitation, December 18,

1991, cause number 30,074-B, 181st District Court, Potter County, Texas; (2) aggravated

17
theft, December 18, 1991, cause number 30,075-B, 181st District Court, Potter, County,

Texas; and (3) cause number 3548, May 28, 1991, 100th District Court, Childress County,

Texas. The motion further alleged that appellant was the same individual who was

previously convicted of all of the above offenses. Attached to the motion to cumulate was

a certified copy of the 100th District Court’s judgment in cause number 4144, and the

affidavit of Darin W. Smith, the sheriff of Childress County, in which Smith averred that

appellant is the same Gilbert Salinas that was convicted of aggravated robbery in cause

number 2398 in the 100th District Court of Collingsworth County.5

Generally, when a defendant has been convicted in two or more cases not arising

out of the same transaction, the trial judge has discretion in the second and subsequent

convictions to order that the sentences run either consecutively or concurrently with the first

or prior sentence. CCP art. 42.08(a). However, if a sentence is to be cumulated with a

prior sentence from a different court, there must be evidence of the other conviction and

proof that the defendant is the same person who was convicted in the other case. See

Turner v. State, 733 S.W.2d 218, 223 (Tex.Crim.App. 1987).

Appellant does not challenge the sufficiency of the evidence demonstrating that

appellant is the same person who was convicted of the prior offenses, nor does he

challenge the sufficiency of the evidence regarding his prior conviction for cause number

5
The trial court sustained appellant’s hearsay objection to Smith’s affidavit, and
although the trial court denied appellant’s request to strike the affidavit from the record, the
trial judge stated that the affidavit would not be considered by the trial court for any
purpose. Likewise, this Court does not consider Sheriff Smith’s affidavit in the analysis of
this appeal.

18
4144. Therefore, the issue is sufficiency of the evidence to prove the existence of the prior

convictions in cause numbers 30,074-B and 30,075-B in the 181st District Court of Potter

County, and cause number 3548 in the 100th District Court of Childress County.

The prosecutor testified during the sentencing hearing that he was present when

appellant pled “true” to being the same individual who was convicted in cause number

30,074-B in the 181st District Court of Potter County. The prosecutor also requested the

trial court to take judicial notice of all of the proceedings in cause number 2398 (the case

at bar), and the judge agreed and noticed all of the proceedings. Because the trial court

judicially noticed all of the proceedings in the case, the court had judicial notice of all of the

exhibits introduced into evidence during appellant’s trial, including the contents of

appellant’s pen packet. Contained in appellant’s pen packet were certified copies of the

judgments in cause numbers 30,074-B and 30,075-B in the 181st District Court of Potter

County and an uncertified copy of the judgment in cause number 3548 in the 100th District

Court of Childress County.

Appellant argues in his brief that a court generally cannot go to the record of another

case for the purpose of considering testimony found there but not shown by the record in

the case before it. Turner, 733 S.W.2d at 223. Appellant, however, is only partially

correct. In Turner, the court held that an appellate court generally cannot go to the record

of another case for the purpose of considering testimony found there but not shown in the

record of the case before it. Id. A trial court, on the other hand, may judicially notice all

of its own records. See Wilson v. State, 677 S.W.2d 518, 523 (Tex.Crim.App. 1984). A

trial court is generally prohibited from taking judicial notice of records or documents that

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might be on file in a different trial court. Id. Nevertheless, in the present case it was not

necessary for the court to look beyond the record of the case currently being tried before

it in order to find sufficient evidence of appellant’s prior convictions. Once appellant’s pen

packet had been introduced into evidence, its contents, including the copies of the

judgments for the convictions in question, were before the court in the record of the current

case. Therefore, the trial court did not err in taking judicial notice of the pen packet. See

id. The evidence was both legally and factually sufficient for the trial court to order that the

sentence in the current case be cumulated with the sentences from the prior convictions.

Appellant’s seventh issue is overruled.

Issue 8: Suggestive pre-trial photo identification

Appellant’s eighth issue contends that the in-court eyewitness identification of

appellant must be set aside because the pre-trial photo lineup which preceded the in-court

identification was impermissibly suggestive. Appellant asserts that the photo lineup was

impermissibly suggestive because the lineup contained photos only of Hispanic males.

As we have previously noted, a trial court’s decision to admit or exclude evidence

is reviewed under an abuse of discretion standard. Green, 934 S.W.2d at 101-02. A trial

court abuses its discretion if its decision was arbitrary or unreasonable, or if the decision

fell outside the zone of reasonable disagreement. Benitez, 5 S.W.3d at 918.

Identification evidence based upon a pre-trial photographic lineup is inadmissible

if the display procedure is so impermissibly suggestive as to give rise to a substantial

likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377,

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384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). While the procedures used during a photo

lineup must not be impermissibly suggestive, the lineup should depict persons with sufficient

similarity in appearance to give the witness a reasonable opportunity to identify the

defendant and to establish that the identification is reliable. See Ford v. State, 794 S.W.2d

863, 866 (Tex.App.--El Paso 1990, pet. ref’d). The photographs used in the lineup should

depict persons of the same race, general skin color, age, and height as the suspect. See,

e.g., Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App. 1995); Rivera v. State, 808

S.W.2d 80, 95 (Tex.Crim.App. 1991). Thus, the fact that all the photos in the lineup were

of Hispanic males is not an indicator that the lineup procedures were impermissibly

suggestive; rather, it is an indicator of the opposite proposition - that the lineup procedures

were not impermissibly suggestive. The trial court did not abuse its discretion in allowing

the in-court eyewitness identification of appellant. Appellant’s eighth issue is overruled.

CONCLUSION

Having overruled appellant’s eight issues, we affirm the trial court’s judgment.

Phil Johnson
Justice

Do not publish.

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