11th Court of Appeals
Eastland, Texas
Opinion
Mario John Valdez, Jr.
Appellant
Vs. No. 11-02-00327-CR B Appeal from Dallas County
State of Texas
Appellee
The trial court, in a nonjury trial, found Mario John Valdez, Jr. guilty of arson; and, after appellant pleaded true to a previous arson conviction alleged for enhancement, the trial court assessed appellant=s punishment at confinement for 45 years and a $100 fine. We affirm.
Appellant contends in his first issue that the evidence is factually insufficient to support his conviction. Appellant specifically argues that the testimony established that he was misidentified as the arsonist. Appellant did not testify at the trial.
In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
Regarding the degree of deference that this court must show to the fact finder, the court in Johnson said:
[T]he reviewing court must always remain cognizant of the fact finder=s role and unique position, a position that the reviewing court is unable to occupy. The authority granted in Clewis to disagree with the fact finder=s determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Otherwise, due deference must be accorded the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence. Jones v. State, 944 S.W.2d [642, 648-49 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997)].
Johnson v. State, supra at 9.
The record shows that, at approximately 4:00 p.m. on October 6, 2001, Juan Francisco Villa=s house was damaged by fire that was intentionally set and was not accidental. Appellant was at Villa=s house drinking beer on the afternoon of the fire. Between 3:00 and 4:00 p.m., Villa received a telephone call from appellant=s girlfriend who was looking for appellant. The girlfriend told Villa to keep appellant at the house because another person was looking for appellant and wanted to beat him up. Villa testified that, when appellant questioned him about the call, he did not tell appellant anything. Appellant left Villa=s house. Shortly thereafter, Villa was driving his car when he saw appellant who looked upset, was bare chested, was wearing overalls, and was carrying a white T-shirt in his hand. Appellant threw a large rock that hit Villa=s car. Within a few minutes, Villa saw smoke coming from his house. Villa did not see appellant after the rock-throwing incident.
Appellant=s girlfriend testified that, after the telephone call she made to Villa=s house, she saw appellant on the street. She stated that appellant thought that she was having an affair with Villa. Shortly before the fire, appellant and his girlfriend had a conversation, and appellant swung his T-shirt at her. The conversation ended; and, as appellant walked away, he called her a Abitch@ and told her that their relationship was over.
Appellant=s former girlfriend testified that, approximately one week before the fire, she talked to appellant and that he told her that he had heard that Villa and appellant=s girlfriend were having an affair. Appellant was upset; and the former girlfriend stated that, when appellant became angry, he would sometimes threaten, in general, to burn down someone=s house. The former girlfriend stated that appellant never specifically threatened to burn down Villa=s house.
Appellant=s brother, Arthur Valdez, pleaded guilty to aggravated sexual assault of a child in March of 2002. As part of the plea agreement, Arthur was required to testify against appellant in the arson case. At the trial of this case, Arthur testified that he did not know how the fire started and claimed that he did not recall answering questions during the plea hearing about what appellant had said to him regarding appellant=s arson case. However, after he was confronted with a transcript of his testimony at the plea hearing, Arthur admitted that, at the plea hearing, he had testified that appellant told him that he had started the fire that damaged Villa=s house.
William Davis along with his father Robert Earl Davis and a friend Frank Davis were across the street from Villa=s house when appellant walked up to them and started talking to them about the sale of a car. Appellant came from the direction of Villa=s house. Appellant had a lighter in his hand, but appellant did not have a cigarette. William Davis stated that they talked to appellant for less than a minute. William stated that, within minutes after appellant walked away, he and his companions heard popping and cracking and saw smoke coming from Villa=s house. William testified that approximately one week after the fire he was shown a six-man photographic array and that he picked appellant as the person he saw coming from near Villa=s house minutes before he observed the burning house. William testified that, at the scene, he told the police the person he saw with the cigarette lighter was a medium-build Hispanic man.
Robert Davis testified that he was Anot sure@ whether appellant was the man that walked up to them minutes before the fire. Robert stated that the man they talked to was holding a cigarette lighter. When shown the photographic array after the fire, Robert did not pick appellant as the man with the cigarette lighter.
The assistant fire marshal testified that he interviewed the Davises at the fire and that they described the suspect as a Hispanic male, approximately 5! 3" tall, with dark hair, a scar on his right arm, and wearing a white T-shirt and overalls.
We hold that the evidence is factually sufficient to support the verdict. The trial court chose to believe appellant=s admission to his brother and the other circumstantial evidence. We disagree with appellant=s characterization of the evidence as merely showing that appellant was in the vicinity of Villa=s house at the time of the fire. Appellant=s first issue is overruled.
In the second issue, appellant contends that the trial court erred in admitting the in-court identification of appellant by William Davis. Appellant argues that the photographic array shown to William was impermissibly suggestive and gave rise to a substantial likelihood of misidentification.
This was the first attempt by the assistant fire marshal to prepare a photographic array. In appellant=s photograph, he had a mustache. Only two other individuals in the array of six photographs had a mustache. One individual was depicted in the same photograph twice in the array. The record reflects the following comments by the trial court regarding appellant=s motion to suppress the in-court identification by William:
THE COURT: All right. The Court is going to deny your Motion to suppress the in-court identification by the first Mr. Davis.
Although I do believe that it is certainly arguable that the photo line-up was impermissibly suggestive, I don=t think you meet the second prong by clear and convincing evidence and by the totality of the circumstances that his in-court identification was not independent of his recognizing [appellant] from the scene on October 6th, 2001.
And the Court takes into consideration the opportunity that Mr. Davis had to see [appellant]. They had a conversation face to face when it was still daylight.
I think he did not demonstrate any uncertainty when he identified [appellant] in court and, further, the time elapsed since the date of the offense, the time he viewed the photo and the day that he identified [appellant] in court, I think, also gives weight to the Court=s belief that the in-court identification was not tainted by the photo line-up.
We will assume, without deciding, that the array was an impermissibly suggestive pretrial procedure; nevertheless, we must determine whether a very substantial likelihood for irreparable misidentification had been created. The trial court made the following written findings of fact and conclusions of law:
1.
The witness, William Davis, has identified the defendant in this cause as being connected with the commission of the offense alleged in the indictment.
2.
The in-court identification of the defendant by the respective witness was not influenced by said witness having been shown a photographic lineup as reflected in State=s Exhibit Number 31, which lineup and photo array the Court finds to have been conducted on or abut October 13th, 2001, at the place reflected in the witness= testimony.
3.
The Court further finds that:
A. The said witness had ample opportunity to observe the defendant under adequate lighting conditions.
B. No substantial discrepancy has been shown to exist between the pre-lineup description and the actual appearance of the defendant.
C. No evidence has been shown to exist of the said witness having identified someone other than the defendant.
D. No undue influential lapse of time occurred between the commission of the offense and the subsequent occasions on which the witness identified either the defendant or a picture of the defendant.
* * *
5.
In regard to the identification testimony of William Davis, the Court finds:
A. That the William Davis, viewed a photographic lineup containing (among others) the defendant.
B. That the witness, William Davis, was able to identify the defendant from said photographic lineup.
6.
The Court concludes that the identification procedures reflected by the evidence in this case did not lead to mistaken identity. Further, the Court finds that the in-court identification of the defendant by the witness, William Davis, was based on his memory of what the defendant looked like on October 6th, 2001, and was not unduly influenced by the photo line-up.
The court in Barley v. State, 906 S.W.2d 27, 34-35 (Tex.Cr.App.1995), said:
In making a determination as to whether a very substantial likelihood for irreparable misidentification has been created, we consider several non‑exclusive factors enumerated by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Webb, supra; Cantu, supra. These factors are: 1) the witness= opportunity to view the criminal act, 2) the witness= degree of attention, 3) the accuracy of the suspect=s description, 4) the level of certainty at the time of confrontation, and 5) the time between the crime and confrontation. Id These factors are weighed against the corrupting effect of any suggestive identification procedures.
The record reveals that William had a clear opportunity to observe appellant. William testified that he felt Apretty certain@ that appellant was the person he saw coming across the street near Villa=s house. William stated that, as far as Aface-wise,@ he recognized appellant. William stated that appellant Awas right there in my face.@ William stated on cross-examination that he probably viewed appellant at the scene for Aless than ten or eleven seconds, maybe.@ William identified appellant in the only lineup shown to him about a week after the fire. William stated that his in-court identification was based on his memory of appellant. We hold that William=s in-court identification of appellant was independent from the pretrial photographic array, and we conclude that no substantial risk of irreparable misidentification was created so as to deny appellant due process. The trial court properly allowed William=s testimony. Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
AUSTIN McCLOUD
SENIOR JUSTICE
February 19, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, J., and
McCall, J., and McCloud, S.J.[1]
[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.