Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00742-CR
Kyle HINOJOSA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR6519A
Honorable Lorina Rummel, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 31, 2018
AFFIRMED
Kyle Hinojosa appeals his conviction for aggravated robbery. He argues he received
ineffective assistance of counsel and the trial court erred by denying his motion to suppress the
complainant’s in-court identification. We affirm the trial court’s judgment.
BACKGROUND
Samantha Miranda was the victim of an assault that occurred in her family’s home. When
she opened the front door, two men forced the door open and one of them pointed a gun at her.
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The gunman slapped Miranda in the face with the gun multiple times. The two men proceeded to
steal items from the home and later sold them at a pawn shop.
Miranda called the San Antonio Police Department (SAPD), and reported she recognized
one of the men involved as “Johnny,” with whom her brother was acquainted. SAPD officers
conducted two separate photographic lineups, and Miranda identified the two men who she
believed forced themselves into her home. Although Hinojosa’s photograph was included in one
of the photo lineups, Miranda did not identify Hinojosa as the gunman. According to Miranda, she
knew shortly after the photographic lineup she had misidentified the gunman.
The State charged Hinojosa with aggravated assault, alleging he threatened Miranda and
exhibited a firearm. Hinojosa pled not guilty and filed a motion to suppress Miranda’s testimony
that identified Hinojosa as the gunman. At trial, Miranda testified about the incident, and before
she identified Hinojosa as the gunman, the trial court heard and denied Hinojosa’s motion to
suppress. Defense counsel cross-examined Miranda about the photographic lineup. Johnny
Ximenez testified he and Hinojosa were the two men who perpetrated the offense and identified
Hinojosa as the gunman. The jury found Hinojosa guilty, and the trial court assessed punishment.
After the trial court imposed the sentence, Hinojosa filed a timely notice of appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
Sixth Amendment ineffective assistance of counsel claims are governed by Strickland v.
Washington’s two-prong test under which we determine (1) whether trial counsel’s representation
was constitutionally deficient, and (2) whether the deficient performance prejudiced the defense.
466 U.S. 668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002,
pet. ref’d). To satisfy Strickland’s first prong on direct appeal, the record must demonstrate: (1)
trial counsel’s deficient performance of some act or failure to perform some act, and (2) trial
counsel had no reasonable trial strategy for the act or omission. See Lopez v. State, 343 S.W.3d
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137, 143 (Tex. Crim. App. 2011). “Any allegation of ineffectiveness must be firmly founded in
the record.” Russell, 90 S.W.3d at 875.
“There is a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Generally, trial counsel should be afforded an opportunity to explain “his actions before
being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
When trial counsel is not given that opportunity, we will not find trial counsel’s performance
deficient unless the challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Id. Thus, “[u]nder normal circumstances, the record on direct appeal will not be
sufficient to show that counsel’s representation was so deficient and so lacking in tactical or
strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable
and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Hinojosa argues his trial counsel rendered ineffective assistance by not requesting an
appropriate remedy for the State’s failure to disclose material evidence. Specifically, Hinojosa
argues the State failed to disclose Miranda intended to identify him at trial as the gunman, which
Hinojosa contends was a material change from her prior statement during the photographic lineup
that another individual was the gunman. Hinojosa complains the State was aware two weeks before
trial Miranda “was going to testify in a manner severely at odds with her original
statement . . . regarding the identity of the gunman.” He notes that several months before trial, he
filed several discovery motions triggering the State’s obligation to promptly disclose any such
material change from a witness’s prior recorded statement. See TEX. CODE CRIM. PROC. ANN. art.
39.14 (West Supp. 2017). Hinojosa complains his trial counsel should have requested a
continuance, and not acquiesced to the trial court’s suggestion that “more time” was the only
remedy for the State’s failure to disclose.
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Part of Hinojosa’s complaint is based on the State’s response to a motion in limine he had
raised at a pre-trial hearing. When Hinojosa raised his motion in limine regarding Miranda’s in-
court identification, the State represented to the trial court it did not intend to ask Miranda to make
an in-court identification of the gunman. The trial court granted trial counsel’s motion in limine
and ruled, “[I]f we need to hear a motion to suppress in regards to that, we will do so before she
testifies in regards to that particular issue.” The State thereafter sought to elicit Miranda’s in-court
identification of the gunman, and before doing so, requested a ruling on Hinojosa’s motion to
suppress. Trial counsel reminded the trial court of the State’s representation in response to his
motion in limine and stated, “The only thing I can claim is surprise at this point.” The trial court
asked, “And what remedy would you like to have in regards to that?” Trial counsel responded,
“Don’t let her do that.” The trial court then heard Hinojosa’s motion to suppress Miranda’s in-
court identification.
Hinojosa’s written motion to suppress Miranda’s in-court identification, which was filed
nearly three months before trial, shows trial counsel contemplated Miranda would testify Hinojosa
was the gunman. Trial counsel raised an objection to the State changing its position from the pre-
trial hearing and asked the trial court to exclude the in-court identification. Hinojosa’s allegations
that trial counsel performed deficiently by not seeking a proper remedy based on the State’s alleged
withholding of material evidence are not firmly founded in the record. See Russell, 90 S.W.3d at
875. Furthermore, trial counsel was not afforded the opportunity to explain his actions and we
cannot say the challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” See Menefield, 363 S.W.3d at 593.
Hinojosa also argues trial counsel was deficient by failing to object to the State calling
Samantha Cisneros, Hinojosa’s girlfriend, to testify as a rebuttal witness. Miranda and Ximenez
testified Ximenez and Hinojosa drove away from Miranda’s home in a red car. The State called
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Cisneros to testify, and after trial counsel complained she was not on the witness list, the State
responded “she’s being called to rebut [Hinojosa]’s theory that there was no red car.” The trial
court allowed Cisneros to testify “for the limited purpose of rebuttal in regards to the color of a
car.” Hinojosa argues his trial counsel should have objected to Cisneros’s testimony on the ground
that she was not a proper rebuttal witness because trial counsel had never actually disputed whether
Ximenez and Hinojosa drove away from Miranda’s home in a red car.
When the trial court permitted Cisneros to testify, trial counsel requested time to prepare
and stated, “Hopefully, all the time I’ll need is this break that you’re giving us right now.” The
record does not show trial counsel was afforded an opportunity to explain his actions, and we
cannot say trial counsel’s conduct was “so outrageous that no competent attorney would have
engaged in it.” See id. The record does not demonstrate trial counsel’s representation was “so
lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s
conduct was reasonable and professional.” See Bone, 77 S.W.3d at 833. Even considering the
totality of the challenged conduct, we cannot say Hinojosa received ineffective assistance of
counsel. See Russell, 90 S.W.3d at 875.
MOTION TO SUPPRESS IN-COURT IDENTIFICATION
Hinojosa argues the trial court erred by denying his motion to suppress Miranda’s in-court
identification of him as the gunman. “Generally, the Constitution protects a defendant against a
conviction based on evidence of questionable reliability, not by prohibiting its introduction, but by
affording the defendant the means to persuade the jury that the evidence should be discounted as
unworthy of credit.” Balderas v. State, 517 S.W.3d 756, 791 (Tex. Crim. App. 2016). However,
“[a]n in-court identification is inadmissible when it has been tainted by an impermissibly
suggestive pretrial photographic identification.” Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.
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Crim. App. 1998). “The defendant has the burden to establish by clear and convincing evidence
that the pretrial procedure was impermissibly suggestive.” Balderas, 517 S.W.3d at 792.
If a pretrial photographic identification procedure is impermissibly suggestive, we must
weigh the procedure’s corrupting effect against indicia of reliability to determine “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.” Loserth, 963 S.W.2d at 772. But “a finding that a challenged pretrial
identification procedure was not in fact impermissibly suggestive will obviate the need to assay
whether under the circumstances it created a substantial likelihood of misidentification.” Webb v.
State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988); see, e.g., De Vaughn v. State, 239 S.W.3d
351, 354 (Tex. App.—San Antonio 2007, pet. ref’d).
Hinojosa notes that in the trial court, he “[u]ltimately . . . withdrew his objection that the
[pretrial] identification was, itself, overly suggestive . . . [and] [i]nstead . . . argued the
complainant’s capacity to render a valid in-court identification was tainted by overly suggestive
information acquired from inside the courtroom.” The “information acquired from inside the
courtroom” to which Hinojosa seems to refer is (1) “information” that Hinojosa was not the
individual Miranda had identified during the photographic lineup as the gunman, and (2)
Hinojosa’s presence in the courtroom. Hinojosa asserts, without citing any authority, that these in-
court procedures were impermissibly suggestive and primarily argues Miranda’s in-court
identification was not reliable or credible.
At trial, before the suppression hearing, Miranda testified that when she went home after
identifying the gunman from the pretrial photographic lineup, she knew she selected the wrong
photograph for the gunman and “there was [another] face that stuck with [her] out of that lineup.”
She had also testified her in-court identification was based on her recollection of the day she was
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assaulted. The record does not support Hinojosa’s assertion that this “information” was acquired
from inside the courtroom or from any suggestive procedure. Furthermore, numerous courts have
rejected the argument that a defendant’s mere presence in the courtroom is an impermissibly
suggestive procedure for purposes of an in-court identification. See Harrison v. State, No. 14-10-
00254-CR, 2011 WL 5589532, at *8 (Tex. App.—Houston [14th Dist.] Nov. 17, 2011, no pet.)
(mem. op., not designated for publication) (citing authorities that a defendant’s presence at
counsel’s table is not impermissibly suggestive for purposes of an in-court identification).
We hold Hinojosa did not satisfy his burden to establish by clear and convincing evidence
that Miranda’s in-court identification was tainted by an impermissibly suggestive pretrial
photographic lineup or from information acquired inside the courtroom. Because there was no
impermissibly suggestive procedure, we need not address Hinojosa’s arguments regarding the
reliability or credibility of Miranda’s testimony. See Williams, 675 S.W.2d at 757; De Vaughn,
239 S.W.3d at 354. The trial court afforded Hinojosa the opportunity to challenge the reliability
and credibility of Miranda’s testimony and to persuade the jury that her in-court identification
“should be discounted as unworthy of credit.” See Balderas, 517 S.W.3d at 791. The trial court
did not err by denying Hinojosa’s motion to suppress.
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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Kyle Hinojosa v. State
Combined Opinion