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Opinion filed April 27, 2006
In The
Eleventh Court of Appeals
____________
No. 11-05-00137-CR
__________
ROBERTO MARTINEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 265th District Court
Dallas County, Texas
Trial Court Cause No. F-0472505-SR
M E M O R A N D U M O P I N I O N
Appellant, Roberto Martinez, was indicted for burglary of a habitation. Following an adverse ruling on a motion to suppress, he pled guilty to the charged offense and true to two enhancement allegations. He was sentenced to thirty years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
Background Facts
Appellant was indicted for burglary of a habitation. He challenged the State=s identification procedure by pretrial motion, and the trial court conducted an evidentiary hearing. The victim, Angie Dickson, and a pawn shop manager, Albert Pena, both testified. Dickson identified appellant as the individual who burglarized her home. Pena identified appellant as the individual who came into his pawn shop the day of the alleged burglary and pawned an item presumably taken from Dickson=s home.[1] Both witnesses testified that appellant was clean-shaven the day of the alleged burglary but had a beard the day of trial. That change in appearance caused each of the witnesses some difficulty.
Both witnesses also testified that they had been contacted shortly after the incident by Detective Raoul Garcia with the Dallas Police Department. Detective Garcia showed each witness a group of six photographs. Both witnesses identified appellant=s photograph as the man that they had seen, and Detective Garcia=s photo lineups were admitted into evidence.
At the conclusion of the hearing, the trial court announced:
Having heard the evidence in the case, I will find that the in-court identifications are not tainted. The procedures were not violative of the U. S. Constitution, State Constitution, Code of Criminal Procedure, Penal Code and any applicable laws or statutes, and I will allow the court identification by these two witnesses should they be able to make an in-court identification.
Appellant then signed a plea agreement predicated on a plea bargain and entered a plea of guilty.
Issue
Appellant challenges his conviction with a single issue contending the in-court identification of him was inadmissible because a photographic identification tainted the victim=s identification.
Standard of Review
We review a trial court=s ruling on a motion to suppress using a bifurcated standard. We give almost total deference to a trial court=s determination of historical facts and review de novo the trial court=s application of the law. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).
When a defendant challenges the admissibility of an in-court identification, the defendant must prove by clear and convincing evidence (1) that the out-of-court identification procedure was impermissibly suggestive and (2) that this suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). If the defendant makes this showing, the in-court identification is inadmissible unless the State proves by clear and convincing evidence that the identification was of Aindependent origin.@ United States v. Wade, 388 U.S. 218, 240 (1967).
The Identification Procedure
The United States Supreme Court has noted that eyewitness identification involves consideration of competing factors: the concern that a person may be misidentified versus the need for effective law enforcement. Simmons v. United States, 390 U.S. 377, 383-84 (1968). The concern arises because the witness is forced to testify about stressful circumstances and an encounter with a total stranger coupled with the danger that the testimony might be distorted by police action. Manson v. Brathwaite, 432 U.S. 98, 112 (1977). To address this concern and to recognize the need for effective eyewitness identification procedures, the Supreme Court has avoided bright-line rules but has instead looked at the totality of the circumstances and examined the reliability of the eyewitness testimony. Id. at 114.
Appellant does not challenge Detective Garcia=s investigative process.[2] Detective Garcia gave both witnesses a set of the same six photographs. These photographs were head and shoulder shots of six Hispanic males who appear to be of similar age and appearance. Both witnesses testified that Detective Garcia did not suggest which of the six photos to select. Appellant=s challenge focuses instead on Dickson=s testimony, contending that it was equivocal and, therefore, unreliable, and suggests that her memory may have been tainted by the photographic lineup.
Appellant points to testimony from Dickson where she indicated some uncertainty about her ability to identify appellant without the photo Detective Garcia provided. That testimony, however, does not show any improper or suggestive action by Detective Garcia.
Q. Did that detective do anything to suggest to you who to select?
A. Oh, no, sir. Not at all.
Q. And I know the hair=s throwing you a little bit, isn=t it?
A. Yes, sir.
Q. Okay. Is there any question that that=s the man though?
A. (NO VERBAL RESPONSE.)
Q. Is that a no or a yes? I need you B B
A. Oh, I=m sorry. There=s no question.
Q. Okay. And would you be able to identify him in court today even if the detective had never shown you a photograph. Would you still recognize him?
A. I=m not sure, but I believe so.
Q. Okay. Listen to what I=m saying here. In other words, if the detective had not shown you this group of photographs B B
A. Uh-huh.
Q. B B in other words, are you identifying him today because you remember him from the time of the offense or because someone showed a photograph?
A. No, I remember him.
Q. Okay. That=s my question.
A. Yes.
Q. Are you identifying him because someone showed you a photograph or because you remember him?
A. No. That picture=s in here.
Q. Okay. In your head?
A. It=s in my head.
Because appellant identifies no action taken by Detective Garcia which even arguably constitutes a suggestive lineup and because the record affirmatively indicates that Detective Garcia acted appropriately, the Supreme Court=s reliability analysis is inapplicable. See Colgin, 132 S.W.3d at 532 (when pretrial identification procedures are not impermissibly suggestive, it is unnecessary to address whether they created a substantial likelihood of misidentification); see also Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982)(in the absence of impermissibly suggestive pretrial procedures, in-court identification testimony is always admissible).
Appellant=s challenge to Dickson=s testimony stresses such factors as the length of time she saw the intruder, the time of day, the lighting, and the stress of the moment. Appellant also characterizes Dickson=s testimony as equivocal because of her inability to provide a specific description of the intruder=s clothes and her difficulty with appellant=s beard. These challenges go to the weight of her testimony and not its admissibility. Cooks v. State, 844 S.W.2d 697, 732 (Tex. Crim. App. 1992). Because the trial court is best positioned to evaluate the witness=s credibility and demeanor and assess the impact of appellant=s change in appearance,[3] we must give deference to its determination that the identification testimony was admissible. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant has not demonstrated that the trial court erred when it overruled his pretrial objection to the identification procedure. Appellant=s issue is overruled.
Conclusion
Because we have considered and overruled appellant=s sole issue on appeal, the trial court=s judgment is affirmed.
RICK STRANGE
JUSTICE
April 27, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]The record suggests but does not specifically provide that, had this case gone to trial, the prosecution would have contended that appellant pawned a Bose drum machine taken from Dickson=s house.
[2]Appellant=s position, therefore, is unique from many eyewitness challenges in that he does not suggest the victim=s memory was corrupted by specific police actions which were unnecessarily suggestive, such as the use of a single photograph. Cf. Manson, 432 U.S. at 101, or a photo array with distinct differences between the defendant=s photo and the remaining photographs. See Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d).
[3]When an individual=s appearance has changed from the time of the offense to trial, the trial court is uniquely positioned to assess its impact. Appellate courts by necessity give great deference to the trial court=s fact findings in this situation. See, e.g., Cruz v. State, No. 14-97-00645-CR, 1999 WL 233322 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d)(not designated for publication); Washington v. State, No. 01-97-00110-CR, 1998 WL 751989 (Tex. App.CHouston [1st Dist.] 1998, no pet.)(not designated for publication); Henton v. State, No. 11-94-00075-CR, 1996 WL 33650417 (Tex. App.CEastland 1996, pet. ref=d)(not designated for publication); Wallace v. State, 659 S.W.2d 460, 465 (Tex. App.CBeaumont 1983, no pet.).