Kevin Deshon Foster v. State

• Court: Court of Appeals of Texas
• Decided: August 14, 2019
• Docket: 04-18-00326-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00326-CR

Kevin Deshon FOSTER, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR6383 Honorable Melisa C. Skinner, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

Delivered and Filed: August 14, 2019

AFFIRMED

Kevin Deshon Foster appeals the trial court’s judgment convicting him of two counts of

aggravated robbery as a repeat offender and sentencing him to thirty-five years of imprisonment

on both counts to run concurrently. At trial, the complainant made an in-court identification of

Foster as one of the two men who committed an aggravated robbery at The Cash Store on April

21, 2016. On appeal, Foster argues (1) the trial court abused its discretion in admitting fingerprint

evidence identifying him; (2) the complainant’s in-court identification of him was tainted by an 04-18-00326-CR

impermissibly suggestive pretrial identification procedure; and (3) the trial court erred in denying

his Batson challenge. We affirm.

I. Fingerprint Evidence

In his first and second issues, Foster argues the trial court abused its discretion in admitting

fingerprint evidence because the evidence failed to meet the admissibility requirements of Texas

Rule of Evidence 702 and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). 1 Specifically,

Foster contends the fingerprint evidence was not reliable and the expert who testified about the

evidence was not qualified. See Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005).

“No rigid formula exists for determining whether a particular witness is qualified to testify as an

expert.” Acevedo v. State, 255 S.W.3d 162, 171 (Tex. App.—San Antonio 2008, pet. ref’d)

(quoting Matson v. State, 819 S.W.2d 839, 851-52 n.10 (Tex. Crim. App. 1991)). “A witness may

be qualified by reason of knowledge, skill, experience, or training, regardless of its source.” Id.

(quoting Matson, 819 S.W.2d at 851-52 n.10).

At a hearing outside the presence of the jury, Estella Navejas testified she has worked for

the Texas Department of Public Safety Crime Lab for twenty years and has over twelve years of

experience working with fingerprints (three years as a fingerprint examiner and now over nine

years as a latent print examiner). Although Navejas has only a high school diploma, she testified

that she has had extensive on-the-job training, including completing a one-year training program

in fingerprint identification and attending multiple courses on fingerprint analysis (i.e., a forty-

hour latent print examination course, a thirty-six-hour advanced latent print examination course,

and a twenty-four-hour palm print comparison course provided by the FBI). According to Navejas,

1 In his brief, Foster also states in a conclusory fashion that the fingerprint evidence violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the Constitution, and sections 10, 13, and 19 of article 1 to the Texas Constitution. Foster, however, does not adequately brief how these constitutional rights were violated and thus has waived any error. See TEX. R. APP. P. 38.1(i).

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she has been tested annually by the American Society of Crime Lab Directors Laboratory

Accreditation Board and has passed every time. She has been trained on the Automated Fingerprint

Identification System (AFIS), which she testified “is a computer-based system for matching,

searching, reading and categorizing fingerprints and palm prints,” and now trains other law

enforcement agencies how to use AFIS and the FBI database. Navejas’s testimony exhibited her

training and experience with regard to examining fingerprint evidence. We find no abuse of

discretion by the trial court in finding Navejas qualified to render an expert opinion on the

fingerprint evidence. See Acevedo, 255 S.W.3d at 171.

Foster also argues that the fingerprint evidence was unreliable under Texas Rule of

Evidence 702 and Kelly. The proponent of scientific evidence bears the burden of demonstrating

by clear and convincing evidence that the evidence is reliable by showing that (1) the underlying

scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was

properly applied on the occasion in question. Jenkins v. State, 493 S.W.3d 583, 601-02 (Tex. Crim.

App. 2016). Navejas testified that fingerprints are permanent and unique; each finger has its own

specific and unique pattern arrangement. “[N]o two people have ever been known to have the same

two prints.” According to Navejas, “almost everybody” in the fingerprint community uses the

ACE-V method to analyze fingerprints; ACE-V stands for analysis, comparison, evaluation, and

verification of fingerprints. Navejas testified the ACE-V method has an error rate of less than one

percent. She explained that under the ACE-V method, an examiner first checks to see whether the

print is suitable for comparison or even entry into the AFIS database, which consists of over

fourteen million known sets of fingerprints. The examiner then performs a complete examination,

taking the point the examiner has found in common in one print and comparing the point to known

fingerprints to see if there is a potential match. Once the examiner decides whether there is a match,

a second examiner performs the same examination, separate and apart from the first examiner, and

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verifies the results of the first examiner. Navejas testified that the generally accepted number of

points needed to identify a fingerprint is eleven, but that the number of actual points needed for a

match depends on the size of the print. 2 In this case, Navejas testified she found fourteen “plus”

points, meaning that there could be more points in common but Navejas did not mark them because

she determined she had a sufficient number of points for the examination. After hearing Navejas’s

testimony, the trial court overruled Foster’s objection.

During her testimony before the jury, Naveja testified that four fingerprint cards were

submitted in this case to the DPS Crime Lab, and she determined one latent print, which was

almost full print, was suitable for examination. She then gave the print to another latent print

examiner, who confirmed it was a suitable print. According to Naveja, she submitted the latent

print to the AFIS system. Once she got the latent print in the computer system, she was able to

mark forty-two points. Out of its database of over 14 million known fingerprints, AFIS then sent

a list of the twenty most common matches for the print. Navejas then compared the latent print to

the list of the twenty candidates. Navejas concluded that the latent print matched the known print

of Kevin Foster. Her results were then verified by another examiner.

In his brief, Foster emphasizes that Navejas admitted there are no scientific peer review

studies with respect to fingerprints and that fingerprint analysis has resulted in misidentifications.

However, while Foster did not know of any peer review studies, she did testify about peer review

of her results and those from her lab. According to Foster, the ASCLD checks the results of her

lab by randomly selecting cases and verifying the results given by the lab. Based on our review of

2 In his brief, Foster argues that because Navejas testified her lab generally requires eleven points but that the national standard is lower, there is no standard accepted by the scientific community. Navejas, however, explained that there is no set standard because the number of points needed on a fingerprint is dependent on the size of the print received by the lab: “It’s impossible to know because each latent is different, each impression is a chance impression, so you can have a whole lot of print–a whole lot of the print or very little of it. So depending on the size that you receive, depends [on] how many points you can get on there.”

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the record, we conclude the trial court did not abuse its discretion in determining that the

fingerprint-comparison evidence was reliable under Kelly. See Russeau, 171 S.W.3d at 883

(holding that based on the evidence in the case and the court of criminal appeals’s “own well-

established history” of accepting fingerprint evidence, the trial court did not abuse its discretion in

admitting the evidence).

II. In-Court Identification

In his third issue, Foster argues the trial court erred in overruling his objection to the

complainant Sarah Ann Pena’s in-court identification of him, because a pretrial photo array was

impermissibly suggestive in violation of his constitutional rights. “[A] pretrial 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.” Conner v. State, 67 S.W.3d

192, 200 (Tex. Crim. App. 2001) (citing Stovall v. Denno, 388 U.S. 293 (1967)). To determine the

admissibility of an in-court identification, courts apply a two-step analysis: 1) whether the out-of-

court identification procedure was impermissibly suggestive; and, if suggestive, 2) whether that

suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id.

(citing Simmons v. United States, 390 U.S. 377 (1968)). “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.” Id.; see also Gamboa v. State, 296 S.W.3d

574, 581-82 (Tex. Crim. App. 2009). In reviewing a trial court’s legal determination of whether

the reliability of an in-court identification has been undermined by an impermissibly suggestive

pretrial identification procedure, an appellate court applies a de novo standard of review. Gamboa,

296 S.W.3d at 581.

In considering the first prong of whether the out-of-court identification procedure was

impermissibly suggestive, we note Foster specifically complains that all the photos in the photo

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array have two black boxes covering (1) the neck of each man and (2) a small portion underneath

an eye of each man. Detective Sheila Vitacco testified she identified Foster as a suspect due to the

latent fingerprint found at the scene of the robbery at The Cash Store in Universal City, Texas. 3 In

compiling the photo array used, five other photos were selected on the basis of age, gender, race,

similar hairstyles, and other similar features. Because Foster had a tattoo on his neck and

underneath his eye, Detective Vitacco placed black boxes on all six photos in the same location.

According to Detective Vitacco, Sarah Ann Pena, an employee of The Cash Store and one of the

complainants in this case, identified Photo No. 5, which was a photo of Foster.

Pena similarly testified that six weeks after the robbery, she was shown a photo array by a

detective. She was shown the photos one at a time and was told to take her time. Pena testified at

trial that she believed she asked the detective “why the blocks were like that,” and the detective

said the boxes “could be hiding other features.” However, according to Pena, the detective never

mentioned tattoos. Pena identified Photo No. 5 (which was a picture of Foster) as one of the men

who committed the robbery and wrote on the back of the photo that she was 75% certain in her

identification. Months later, she received a letter from the detective informing her they had

“caught” Foster. At trial, Pena identified Foster as one of the men who committed the aggravated

robbery. When asked to describe the features that led her to identify Foster, Pena testified she

remembered his teardrop tattoo. When asked if the teardrop tattoo was the basis for her

identification of Foster, Pena replied that it was not the only reason—that she “remembered

distinctively how he looked.”

Because Pena did not include any descriptions of tattoos in her original statement to police,

Foster argues Pena was impermissibly tainted by the photo array and the letter from the detective

3 The robbery was recorded by surveillance video.

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informing her Foster was the suspect. In considering the totality of the circumstances, however,

we do not find the pretrial procedure impermissibly suggestive. Pena testified that after she

received the letter from the detective, she did not search for any information on Foster. Further,

the evidence shows all six photos in the array had the same black boxes in the same locations. The

photos were shown to Pena one at a time. Pena was adamant at trial that neither the detective nor

anyone else suggested to her in any way who to identify. While Foster argues Pena testifying at

trial about the tattoo was the result of an impermissibly suggestive pretrial procedure, Pena was

clear in her testimony that no one told her about Foster’s tattoo and that she remembered the detail

from her own memory. She testified she had not put the detail in her original police report because

she had “never been in this type of situation” before. At trial, she was certain that Foster was one

of the men who committed the aggravated robbery, explaining that she has a “very good memory.”

Finally, we have reviewed the photo array in the record and find nothing, in and of itself, to indicate

it was impermissibly suggestive.

Moreover, even if we had determined that the out-of-court identification procedure was

impermissibly suggestive, under the second prong of the analysis, we conclude that any such

suggestive procedure did not give rise to a substantial likelihood of irreparable misidentification.

Conner, 67 S.W.3d at 200. “Reliability is the linchpin in determining the admissibility of

identification testimony.” Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). In

“assessing reliability under the totality of the circumstances,” the following “five non-exclusive

factors should be weighed against the corrupting effect of any suggestive identification

procedure”: (1) the witness’s opportunity “to view the criminal at the time of the crime”; (2) the

witness’s “degree of attention”; (3) “the accuracy of the witness’s prior description of the

criminal”; (4) “the level of certainty demonstrated by the witness at the time of confrontation”;

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and (5) “the length of time between the crime and the confrontation.” Id.; see also Gamboa, 296

S.W.3d at 582.

In applying these factors, we note that both the surveillance video and Pena’s testimony

show that she was in close contact with the two men who committed the aggravated robbery. Pena

testified that at the time of the robbery, she got a very good look at Foster and paid close attention.

Although Foster emphasizes that Pena did not describe any tattoos in her statement to police at the

time of the robbery, Pena was clear in her trial testimony that she remembered the tattoo from her

own memory and did not put the detail in her first statement to police because she had never made

a statement before. Pena first identified Foster in the photo array only six weeks after the robbery,

indicating she was 75% certain. Although it had been two years since the robbery at the time of

her trial testimony, Pena was unwavering of her identification of Foster. We therefore hold the

trial court did not err in overruling Foster’s objection to Pena’s in-court identification.

III. Batson Challenge

In his final issue, Foster argues the trial court erred in denying his Batson challenge to the

State’s striking of a black venireperson. In Batson v. Kentucky, 476 U.S. 79, 97-98 (1986), the

Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the

State from exercising a peremptory challenge against a juror on the basis of race. A three-step

process is used to analyze claims under Batson:

(1) the opponent of the peremptory challenge must present a prima facie case of racial discrimination;

(2) if there is prima facie case shown, the burden shifts to the proponent of the peremptory challenge to present a race-neutral reason for the challenge; and

(3) if there is a race-neutral reason for the challenge, the trial court must then determine whether the opponent has proven purposeful racial discrimination.

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Colone v. State, 573 S.W.3d 249, 262-63 (Tex. Crim. App. 2019). “The trial court’s ruling in the

third step must be sustained on appeal unless it is clearly erroneous.” Grant v. State, 325 S.W.3d

655, 657 (Tex. Crim. App. 2010). “Because the trial court’s ruling requires an evaluation of the

credibility and demeanor of prosecutors and venire members, and because this evaluation lies

peculiarly within the trial court’s province, we defer to the trial court in the absence of exceptional

circumstances.” Id.

With regard to the first step of the analysis, Foster presented a prima facie case by showing

the State had struck Juror No. 7, a black venireperson. Under the second step, the burden then

shifted to the State, which responded with the race-neutral reason of “education level.” According

to the State, it was seeking jurors with a higher education level than Juror No. 7’s high-school

education. Under the third step, Foster argued that the State’s reason was pretextual because it had

accepted other jurors who also only had a high-school education but were not black. See Colone,

573 S.W.3d at 263 (explaining that “[i]f the explanation at the second step is determined to be race

neutral, then at step three, the opponent of the peremptory challenge bears the burden of persuasion

to show that the race-neutral explanation is not genuine” and “the peremptory challenge was indeed

a product of purposeful discrimination”). The State responded that it had liked those jurors for

other reasons. For example, it had kept Juror No. 20, who was a cashier at a grocery store, because

it believed her experience as a cashier would make her a better juror under the facts of this case,

which involved an armed robbery of a clerk. The State stated it had also kept Juror No. 22 for the

same reason—Juror No. 25 was a cashier. It had kept Juror No. 25, even though he only had a high

school diploma, because he had a family member who had been a victim of a robbery. The State

pointed out it had picked jurors with higher education levels (the highest level of education being

a doctorate), emphasizing the first five jurors selected included a department manager, a registered

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nurse, a pharmacist, and an analyst. Based on this record, we do not find that the trial court’s ruling

was “clearly erroneous.” See Grant, 325 S.W.3d at 657.

Having concluded that the trial court did not err in (1) admitting fingerprint evidence; (2)

allowing Pena to make an in-court identification; and (3) denying Foster’s Batson challenge, we

affirm the judgment of the trial court.

Liza A. Rodriguez, Justice

Do not publish

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