In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00403-CR ________________________
MICHAEL ANGELO MEDRANO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 66,850-E; Honorable Douglas R. Woodburn, Presiding
December 30, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following a jury trial, Appellant, Michael Angelo Medrano, was convicted of the
first degree felony offense of aggravated robbery. 1 A jury assessed his sentence at
twelve years confinement.2 The judgment entered contained an affirmative finding of
the use of a deadly weapon. By two issues Appellant contends (1) the trial court erred
1 TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). An offense under this section is a first degree felony. Id. at § 29.03(b). 2 The Judgment incorrectly states that the trial court assessed sentence. by not suppressing all identification evidence following an impermissibly suggestive
photo lineup and (2) the evidence presented was legally insufficient to sustain the
deadly weapon element of the offense. We affirm.
BACKGROUND
On March 9, 2013, Tonya Brown was sitting in her car in the drive-through line at
a Sonic restaurant, waiting for her order with her window rolled down, when a car pulled
up behind her without stopping to order. A man exited that car, approached her with a
handgun (even touching the barrel of the gun to her shoulder) and demanded that she
give him her wallet. When Tonya asked him if he was serious, he pulled back the slide
on the gun, as if to load it, and again demanded her wallet. When Tonya starting
honking the horn of her car, the would-be robber made a quick exit, which was
witnessed by others. The encounter lasted approximately thirty to forty-five seconds.
Tonya called the police and drove to her residence. When the police arrived, she
described the man as a Hispanic male, twenty-five to thirty years old, stocky build, five
foot five inches to five foot nine inches tall, with a birthmark or mole on his face by his
right eye. She also described him as wearing a white baseball cap, white shirt, a blue
jacket, and jeans. She described the handgun as a black semi-automatic that looked
very real.
Based on a description of the vehicle being driven, the police developed a
suspect in the robbery. On March 14th, Tonya went to the Amarillo Police Department
to view a photo lineup of six individuals. She identified Appellant as the man who
attempted to rob her on March 9th.
2 Appellant was subsequently charged by indictment with the offense of
aggravated robbery. The indictment alleged that he “did then and there, while in the
course of committing theft of property and with the intent to obtain and maintain control
of the property, intentionally or knowingly threaten or place Tanya Brown in fear of
imminent bodily injury or death and the defendant did use or exhibit a deadly weapon
namely, a handgun.”3 Prior to trial, Appellant filed a Motion to Suppress Photographic
Identification, wherein he sought to prohibit the in-court identification of Appellant by any
witness who had previously been shown the photo lineup. Appellant contended the
lineup was impermissibly suggestive. Specifically, he contended his photograph was
“the only one in which a person with a mole or birthmark on their face was depicted.”
The motion was not ruled on prior to trial. In lieu thereof, the judge announced that it
would be considered during the trial. During trial, the motion was partially granted when
the trial court ruled that the photo lineup itself was impermissibly suggestive, but not so
suggestive as to taint the reliability of Tonya’s in-court identification of Appellant.
Accordingly, the State was prohibited from offering evidence of the lineup, but Tonya
was permitted to testify concerning her identification of Appellant as the man who
attempted to rob her. In particular, Tonya testified that her in-court identification of
Appellant was based upon her up-close, face-to-face encounter with Appellant. During
the punishment phase of his trial, Appellant testified he attempted to rob a person in the
vehicle in front of him at the Sonic restaurant while using a deadly weapon.4
3 The record reflects two different spellings of the victim’s name. 4 The Texas Court of Criminal Appeals has overruled “any last vestiges of the De Garmo doctrine,” making it clear that an appellant does not forfeit his right to complain on appeal about errors occurring during the guilt-innocence phase of a trial by admitting guilt during the punishment phase of trial. Jacobson v. State, 398 S.W.3d 195, 196 (Tex. Crim. App. 2013). 3 ISSUE NO. ONE—SUPPRESSION OF IN-COURT IDENTIFICATION
The in-court identification of an accused is “inadmissible when it has been tainted
by an impermissibly-suggestive pretrial photographic identification.” Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999). This does not mean, however, that a court
must automatically exclude an in-court identification that follows an unnecessarily
suggestive photo lineup. “It is the ‘substantial likelihood of misidentification’ that may be
engendered by [the prior] suggestive procedure that works the deprivation of due
process.” Tijerina v. State, 334 S.W.3d 825, 836 (Tex. App.—Amarillo 2011, pet. ref’d)
(quoting Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). “The test is
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.” Ibarra, 11 S.W.3d at 195 (quoting Simmons
v. United States, 377 U.S. 377, 384, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968)).
In determining the substantial likelihood of misidentification an appellate court
should consider five non-exclusive factors: (1) the opportunity of the witness to view the
accused at the time of the offense; (2) the degree of attention the witness paid during
the encounter; (3) the accuracy of the prior description of the accused given by the
witness; (4) the level of certainty demonstrated by the witness at the time of
confrontation; and (5) the length of time between the offense and the confrontation. Neil
v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972).
Whether the trial court erred in admitting the in-court identification of the accused
involves mixed questions of law and fact. Loserth v. State, 963 S.W.2d 770, 772 (Tex.
Crim. App. 1998). Accordingly, while an appellate court should give great deference to 4 the trial court’s determination of the historical facts, the question of whether those facts
render the identification unreliable is a matter which should be reviewed de novo.
Tijerina, 334 S.W.3d at 837.
Assuming, arguendo, that the trial court was correct in its determination that the
photo-lineup was impermissibly suggestive, we must still determine whether, under the
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00403-CR ________________________
MICHAEL ANGELO MEDRANO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas Trial Court No. 66,850-E; Honorable Douglas R. Woodburn, Presiding
December 30, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Following a jury trial, Appellant, Michael Angelo Medrano, was convicted of the
first degree felony offense of aggravated robbery. 1 A jury assessed his sentence at
twelve years confinement.2 The judgment entered contained an affirmative finding of
the use of a deadly weapon. By two issues Appellant contends (1) the trial court erred
1 TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). An offense under this section is a first degree felony. Id. at § 29.03(b). 2 The Judgment incorrectly states that the trial court assessed sentence. by not suppressing all identification evidence following an impermissibly suggestive
photo lineup and (2) the evidence presented was legally insufficient to sustain the
deadly weapon element of the offense. We affirm.
BACKGROUND
On March 9, 2013, Tonya Brown was sitting in her car in the drive-through line at
a Sonic restaurant, waiting for her order with her window rolled down, when a car pulled
up behind her without stopping to order. A man exited that car, approached her with a
handgun (even touching the barrel of the gun to her shoulder) and demanded that she
give him her wallet. When Tonya asked him if he was serious, he pulled back the slide
on the gun, as if to load it, and again demanded her wallet. When Tonya starting
honking the horn of her car, the would-be robber made a quick exit, which was
witnessed by others. The encounter lasted approximately thirty to forty-five seconds.
Tonya called the police and drove to her residence. When the police arrived, she
described the man as a Hispanic male, twenty-five to thirty years old, stocky build, five
foot five inches to five foot nine inches tall, with a birthmark or mole on his face by his
right eye. She also described him as wearing a white baseball cap, white shirt, a blue
jacket, and jeans. She described the handgun as a black semi-automatic that looked
very real.
Based on a description of the vehicle being driven, the police developed a
suspect in the robbery. On March 14th, Tonya went to the Amarillo Police Department
to view a photo lineup of six individuals. She identified Appellant as the man who
attempted to rob her on March 9th.
2 Appellant was subsequently charged by indictment with the offense of
aggravated robbery. The indictment alleged that he “did then and there, while in the
course of committing theft of property and with the intent to obtain and maintain control
of the property, intentionally or knowingly threaten or place Tanya Brown in fear of
imminent bodily injury or death and the defendant did use or exhibit a deadly weapon
namely, a handgun.”3 Prior to trial, Appellant filed a Motion to Suppress Photographic
Identification, wherein he sought to prohibit the in-court identification of Appellant by any
witness who had previously been shown the photo lineup. Appellant contended the
lineup was impermissibly suggestive. Specifically, he contended his photograph was
“the only one in which a person with a mole or birthmark on their face was depicted.”
The motion was not ruled on prior to trial. In lieu thereof, the judge announced that it
would be considered during the trial. During trial, the motion was partially granted when
the trial court ruled that the photo lineup itself was impermissibly suggestive, but not so
suggestive as to taint the reliability of Tonya’s in-court identification of Appellant.
Accordingly, the State was prohibited from offering evidence of the lineup, but Tonya
was permitted to testify concerning her identification of Appellant as the man who
attempted to rob her. In particular, Tonya testified that her in-court identification of
Appellant was based upon her up-close, face-to-face encounter with Appellant. During
the punishment phase of his trial, Appellant testified he attempted to rob a person in the
vehicle in front of him at the Sonic restaurant while using a deadly weapon.4
3 The record reflects two different spellings of the victim’s name. 4 The Texas Court of Criminal Appeals has overruled “any last vestiges of the De Garmo doctrine,” making it clear that an appellant does not forfeit his right to complain on appeal about errors occurring during the guilt-innocence phase of a trial by admitting guilt during the punishment phase of trial. Jacobson v. State, 398 S.W.3d 195, 196 (Tex. Crim. App. 2013). 3 ISSUE NO. ONE—SUPPRESSION OF IN-COURT IDENTIFICATION
The in-court identification of an accused is “inadmissible when it has been tainted
by an impermissibly-suggestive pretrial photographic identification.” Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999). This does not mean, however, that a court
must automatically exclude an in-court identification that follows an unnecessarily
suggestive photo lineup. “It is the ‘substantial likelihood of misidentification’ that may be
engendered by [the prior] suggestive procedure that works the deprivation of due
process.” Tijerina v. State, 334 S.W.3d 825, 836 (Tex. App.—Amarillo 2011, pet. ref’d)
(quoting Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). “The test is
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.” Ibarra, 11 S.W.3d at 195 (quoting Simmons
v. United States, 377 U.S. 377, 384, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968)).
In determining the substantial likelihood of misidentification an appellate court
should consider five non-exclusive factors: (1) the opportunity of the witness to view the
accused at the time of the offense; (2) the degree of attention the witness paid during
the encounter; (3) the accuracy of the prior description of the accused given by the
witness; (4) the level of certainty demonstrated by the witness at the time of
confrontation; and (5) the length of time between the offense and the confrontation. Neil
v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972).
Whether the trial court erred in admitting the in-court identification of the accused
involves mixed questions of law and fact. Loserth v. State, 963 S.W.2d 770, 772 (Tex.
Crim. App. 1998). Accordingly, while an appellate court should give great deference to 4 the trial court’s determination of the historical facts, the question of whether those facts
render the identification unreliable is a matter which should be reviewed de novo.
Tijerina, 334 S.W.3d at 837.
Assuming, arguendo, that the trial court was correct in its determination that the
photo-lineup was impermissibly suggestive, we must still determine whether, under the
totality of the circumstances, Tonya’s in-court identification testimony was reliable, i.e.,
whether there was no substantial likelihood of irreparable misidentification.
Considering the first two Biggers factors, the opportunity of the witness to view
the accused at the time of the offense and the degree of attention the witness paid
during the encounter, while viewing the historical facts in the light most favorable to the
trial court’s ruling, Tonya Brown had the opportunity to view the person accosting her for
thirty to forty-five seconds, at extremely close range, while engaging in a back and forth
conversation. She had an unobstructed view of his facial features, under adequate
lighting from the Sonic restaurant, and under circumstances of heightened attention.
Accordingly, these factors weigh in favor of a reliable in-court identification.
As to the third Biggers factor, the accuracy of the prior description of the accused
given by the witness, we note that while Tonya’s description was not 100 percent
accurate, it was substantially accurate. She recalled specific facial features, including
his eyes, a small face, little nose, and a birthmark or mole on the right-hand side of his
eye. She described the assailant as a light-skinned Hispanic male, approximately five
foot five inches to five foot nine inches in height, twenty-five to thirty years old, clean
shaven with a stocky build, wearing a white baseball cap, white shirt, dark blue jacket
and jeans. While the evidence shows that Appellant does not have a mark on the right 5 side of his face, but instead has one on the left side, this discrepancy is not fatal to the
accuracy of Tonya’s identification. Overall, the third Biggers factor weighs in favor of
reliability.
The level of certainty demonstrated by Tonya at the time of her in-court
identification, the fourth Biggers factor, also weighs in favor of a finding that her
identification was accurate and reliable. Tonya never equivocated concerning her in-
court identification, testifying specifically that her identification was based upon what
she observed the night of the robbery. Her identification of Appellant as the man who
accosted her was consistent and positive, even in the face of zealous cross-
examination. Finally, as to the fifth Biggers factor, the length of time between the
offense and the confrontation, Tonya’s in-court identification was less than six months
after the robbery—hardly an amount of time that would call into question the reliability of
her testimony.
Weighing the five Biggers factors and considering the in-court identification under
the totality of the circumstances, the record does not show that the identification of
Appellant was irreparably tainted by an impermissibly suggestive photo array. The
historical facts do not give rise to a substantial likelihood of misidentification and the
indicia of reliability clearly outweigh the corrupting effect, if any, allegedly arising from
the out-of-court identification procedure. Appellant’s first issue is overruled.
ISSUE TWO—SUFFICIENCY OF THE EVIDENCE
We review challenges to the sufficiency of the evidence under the standards
discussed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
6 and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We refer the parties
to those cases.
According to the indictment in this case, in order to obtain a conviction, the State
was required to show that, while in the course of committing theft of property and with
the intent to maintain control of the property, Appellant intentionally or knowingly
threatened or placed Tonya Brown in fear of imminent bodily injury or death and did use
or exhibit a deadly weapon, namely, a handgun. TEX. PENAL CODE ANN. § 29.03(a)(2)
(West 2011). Tonya testified that during the robbery Appellant brandished a heavy
metal semi-automatic black handgun and that he pressed it against her shoulder.
Further testimony was given that the handgun used was similar to a Glock 9mm pistol
and that Appellant “racked the slide” on the weapon as if to load a round into the firing
chamber. A police witness testified that a handgun is a firearm and a deadly weapon.
Viewing this evidence in the light most favorable to the verdict, we find that a
reasonable juror could have found the essential elements of the offense charged
beyond a reasonable doubt. Specifically, we find a reasonable juror could have found
that Appellant used or exhibited a deadly weapon in the course of committing robbery.
Appellant’s second issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle Justice
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