Santos v. State

116 S.W.3d 447, 2003 Tex. App. LEXIS 8157, 2003 WL 22176225
CourtCourt of Appeals of Texas
DecidedSeptember 23, 2003
Docket14-02-00354-CR
StatusPublished
Cited by79 cases

This text of 116 S.W.3d 447 (Santos v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santos v. State, 116 S.W.3d 447, 2003 Tex. App. LEXIS 8157, 2003 WL 22176225 (Tex. Ct. App. 2003).

Opinion

OPINION

KEM THOMPSON FROST, Justice.

Appellant Hector Manuel Santos appeals his aggravated-robbery conviction, arguing in four issues that: (1) — (2) the trial court erroneously denied his motion to suppress in-court and out-of-court identification testimony after police used an impermissibly suggestive pretrial identification procedure; and (3) — (4) the evidence is legally and factually insufficient to prove appellant participated in the robbery. We affirm.

I. Factual And Procedural Background

The complainant, Jose Gonzalez, and about nine other men were socializing in the early morning hours at a one-bedroom apartment in southwest Houston. Several of the men were in the bedroom playing cards around a card table, while the others watched television and conversed in the living room. At approximately 2:00 or 2:30 in the morning, five armed men broke through the front door of the apartment. Their weapons included a handgun, a large gun that looked like an Uzi, and a machete or an ax. One of the intruders was wearing a mask over his face. The intruders ordered the occupants of the apartment to drop to the ground. They warned their victims not to look up at their faces unless they wanted to be shot. The intruders collected jewelry, money, and other possessions from the men, and then fled.

Luis Paz, one of the robbery victims, identified appellant as the intruder who carried the Uzi. Another victim also identified appellant. A jury found appellant *451 guilty of aggravated robbery and sentenced him to 99 years’ confinement in the Texas Department of Criminal Justice, Institutional Division and imposed a $10,000 fine.

II. Issues Presented

Appellant presents four issues for review:

(1) Should the trial court have suppressed Luis Paz’s out-of-court identification of appellant because it resulted from an allegedly unduly suggestive procedure?
(2) Should the trial court have suppressed Luis Paz’s in-court identification of appellant because it was tainted by an allegedly unduly suggestive pretrial identification procedure?
(3) — (4) Is the evidence legally and factually insufficient to support appellant’s aggravated-robbery conviction when the complainant’s testimony incriminating appellant was not credible?

III. Analysis And Discussion

A. Did an unduly suggestive pretrial identification procedure render a witness’s in-court identification inadmissible?

In his second issue, appellant argues the trial court should have suppressed Paz’s in-court identification because it was tainted by the identification procedure appellant claims was unduly suggestive. An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999). We perform a two-step analysis to determine whether the trial court erroneously admitted in-court identification testimony, inquiring: (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial. Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.1993). It is appellant’s burden to prove the in-court identification is unreliable by proving both of these elements by clear and convincing evidence. See id. If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, the identification testimony is admissible. Id.

1. Suggestiveness of the Home Video

We must first determine whether the pretrial lineup procedure used with Paz was impermissibly suggestive. Paz tentatively identified appellant as one of the robbers in a videotaped lineup. After Paz made this tentative identification, police showed him a home video found in appellant’s car. After viewing this video, Paz was able to positively identify appellant. Appellant argues this procedure was unduly suggestive because appellant is the only person who appears in both the videotaped lineup and the home video. Appellant maintains this procedure communicated to Paz that police thought appellant was one of the robbers. Having carefully reviewed both tapes, we conclude this pretrial identification procedure was imper-missibly suggestive.

The manner or the content of a pretrial identification procedure may render it impermissibly suggestive. See Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995). Though it may be necessary in some circumstances to show a witness more than one photograph of a defendant who has “different looks,” it is generally considered suggestive to show a witness several photographic arrays or lineups in which only the defendant’s photograph re *452 curs. See Cantu v. State, 738 S.W.2d 249, 252 (Tex.Crim.App.1987). The recurrence of the defendant’s photograph tends to bring attention to him and might suggest to the witness that police believe or suspect the defendant is the culprit. See id. Similarly, “the use of a lone photograph, without any of the traditional safeguards of a lineup or a photographic array, is inherently suspect” and has been widely condemned by courts. Loserth v. State, 985 S.W.2d 536, 543 (Tex.App.-San Antonio 1998, pet. ref'd).

In the instant case, Paz first viewed a videotaped lineup featuring appellant and four other dark-complected young men. The lineup was filmed at the Harris County Jail. Appellant stood in the second position. To keep appellant from standing out because of his braided hair, all of the lineup participants wore shower caps. Paz told police the person in the second position on the tape (appellant) looked like one of the robbers, but he was not certain. Police then showed Paz the videotape found in appellant’s car when appellant was arrested approximately two weeks after the robbery.

Appellant is the only person who appears in both the videotaped lineup and the home video found in appellant’s car. The running time of the home video is approximately thirty-five minutes and it has low-quality sound, which was turned down when Paz viewed the tape. The home video prominently features appellant and contains seven distinct scenes ranging in duration from approximately one to seven minutes each. Although Paz viewed the entire tape, he positively identified appellant as one of the robbers during the opening scene in which appellant is shown browsing in the shoe department of a store. The opening scene lasts about six minutes and appellant is wearing dark blue jeans, a navy blue shirt, conspicuous gold earrings, a thick gold chain, and other jewelry. The scene includes several closeup shots of appellant and he is the only person shown until a store clerk approaches him about three minutes into the tape.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chad Wade Spence v. the State of Texas
Court of Appeals of Texas, 2024
Tyrik Turner v. the State of Texas
Court of Appeals of Texas, 2023
Jesus Angel Rebollar v. the State of Texas
Court of Appeals of Texas, 2022
William Hosea English v. the State of Texas
Court of Appeals of Texas, 2021
Vashaun Xavier Scott v. State
Court of Appeals of Texas, 2020
Robert Antonio Houston v. State
Court of Appeals of Texas, 2020
Kevin Johnson v. State
Court of Appeals of Texas, 2020
Franklin Eduardo Rodriguez-Rubio v. State
Court of Appeals of Texas, 2018
Curtis Villareal v. State
Court of Appeals of Texas, 2018
William Earl Tutson v. State
530 S.W.3d 322 (Court of Appeals of Texas, 2017)
Bruce Edward Gorden v. State
Court of Appeals of Texas, 2016
Eric Dewayne Small v. State
Court of Appeals of Texas, 2016
Aviles-Barroso v. State
477 S.W.3d 363 (Court of Appeals of Texas, 2015)
Richard Gene Solomon v. State
469 S.W.3d 641 (Court of Appeals of Texas, 2015)
Cordero Jarreal Stevenson v. State
Court of Appeals of Texas, 2014
Martell Damon Rector v. State
Court of Appeals of Texas, 2014
Jesus Martinez Mendoza v. State
443 S.W.3d 360 (Court of Appeals of Texas, 2014)
Joshua Ray Kelly v. State
Court of Appeals of Texas, 2014
Byron Keith Harmon v. State
Court of Appeals of Texas, 2014
Anthony Dewayne Green v. State
Court of Appeals of Texas, 2013

Cite This Page — Counsel Stack

Bluebook (online)
116 S.W.3d 447, 2003 Tex. App. LEXIS 8157, 2003 WL 22176225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santos-v-state-texapp-2003.