
NO. 07-06-0490-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 22, 2008

______________________________


ANDRES CANTU, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-407805; HON. BRADLEY S. UNDERWOOD, PRESIDING

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellant Andres Cantu appeals from his conviction by jury of the offense of
aggravated robbery and the resulting sentence of imprisonment for a term of eighteen
years in the Institutional Division of the Texas Department of Criminal Justice.  By his sole
issue on appeal, appellant contends that the trial court erred when it permitted an in-court
identification of appellant that was tainted by a prior impermissibly suggestive identification
procedure.  We disagree, and affirm the trial court’s judgment.
Background
          Via a December 2004 indictment, appellant was charged with aggravated robbery.
 
The indictment also contained an enhancement paragraph, setting forth appellant’s prior
felony conviction for possession of marijuana.  On appellant’s plea of not guilty, this matter
proceeded to trial.   
          The State’s evidence showed appellant robbed a convenience store in Idalou,
Texas.
  The State presented its case through witness testimony, photographs, a digital
recording from the convenience store video system, and items located in appellant’s
vehicle.  The evidence established that during the late evening hours of November 19,
2004, a store clerk was working the graveyard shift at the convenience store.  The clerk
was cleaning the deep fryer when she turned around and saw an individual, identified at
trial as appellant, walk around the open counter with what appeared to be a crowbar or
some sort of “black stick.”
  Appellant had something that “looked like two scarves” tied
around his forehead and around his nose and mouth.  The clerk testified that she started
panicking, telling herself that she was “fixing to get robbed.”  Appellant threatened her and
at trial, the clerk agreed that she “immediately got scared” and thought if she didn’t comply
with appellant’s request, he would hurt her.  The clerk opened the register, appellant
grabbed money with one hand, had the stick in the other, and looked outside the window
to see if anyone was coming in.
          As appellant left the store with the money, a regular customer arrived and the clerk
indicated to him that she had just been robbed by the individual leaving the store.  The
customer chased appellant but was unable to catch him.  A few minutes later, the police
arrived.  The customer provided police with a description of the individual, the vehicle he
was driving, and his general direction of travel.
  A short time later, police officers located
a gray Jeep matching the description provided by the customer. When officers attempted
to stop the vehicle, a high speed chase ensued, ending with the vehicle stopping in a
parking lot directly across the street from the convenience store.  Officers detained
appellant, placed him in a police car, and brought him across the street to the convenience
store where the customer was waiting.  The customer identified appellant as the person
he saw leaving the convenience store.  At trial, during a hearing outside the presence of
the jury, the customer confirmed that the person in custody was the same person he had
seen in the convenience store at the time of the robbery.  The customer also made an in-court identification of appellant.
 
          After the presentation of the evidence, the jury returned a verdict of guilty of the
offense of aggravated robbery and assessed punishment against appellant at confinement
for a term of eighteen years.  This appeal followed.

Analysis
          Via his sole point of error, appellant contends the trial court erred by permitting the
customer’s in-court identification because it was tainted by the prior “showup” identification
at the scene.
          At trial, the court held a hearing outside the presence of the jury to determine
whether the customer could offer an in-court identification of appellant.  The customer
identified appellant in court and testified that he is the same person he saw come out of
the convenience store on the night of the robbery.  He agreed  that the fact that the police
showed him the person in custody within ten to fifteen minutes of the robbery would not
affect his ability to point out the person he saw come out of the store that night.  He
testified that “[w]hen the person came out of [the store], he was personally looking at me
in the face.  When I got out of my pickup, I was looking at him because he looked like he
was nervous and he had a limp to his side.”   The customer also stated that he “looked
straight at the individual and the individual looked right back at him.”  The prosecutor
inquired whether the customer’s identification of appellant as the robber was impacted by
his look at appellant in the police car after appellant was detained and brought to the
convenience store.  In response, the customer said, “I can look at him now and tell . . . .
He looks the same right here.”  The customer also stated that he got the same look at
appellant during the showup as he did when he saw appellant come out of the store and
that appellant looked “the same when he was in the officer’s car and the same as he looks
now.”
         At the close of that hearing, the trial court stated “[t]he Court’s position is that the
witness had an opportunity to view the defendant at the time the he came out of the store. 
The witness testified that the defendant was looking right at him when he was removing
some covering from his face, that he had opportunity to look at him from that point until the
time that he got in his car.”  The court also noted that the customer was very clear in his
testimony that the defendant looked the same in the courtroom as he did when he came
out of that store and the same as he did when he looked at him in the police car.  The court
found that the customer’s in-court identification was not tainted by the possibly
impermissive showup identification at the scene and permitted the customer to identify the
defendant in the courtroom.  
Standard of Review
          Whether the trial court erred in admitting into evidence a witness’s identification of
the accused involves a mixed question of law and fact.  Williams v. State, 243 S.W.3d 787,
789 (Tex.App.–Amarillo 2007, pet. ref’d), citing Loserth v. State, 963 S.W.2d 770, 772
(Tex.Crim.App. 1998).  Great deference is given to the trial court’s resolution of the
historical facts pertinent to the case; however, whether the historical facts render the
identification unreliable is reviewed de novo. Williams, 243 S.W.3d at 789.  Thus, the
appellate court need not grant deference to the trial court’s determination that the
“historical facts compelled or supported the decision to admit or exclude the evidence.” 
Id., citing Benitez v. State, 5 S.W.3d 915, 921 (Tex.App.–Amarillo 1999, pet. ref’d). 
Application
          Appellant’s contention here requires a two-step analysis: (1) whether the police used
an impermissibly suggestive pre-trial identification procedure, and (2) if so, whether, under
the totality of the circumstances, there was a very substantial likelihood of irreparable
misidentification.  Wilson v. State, 267 S.W.3d 215, 217 (Tex.App.–Waco 2008, no pet.);
Williams, 243 S.W.3d at 789.
          The first inquiry in determining whether appellant’s due process rights were violated
is whether the police used an impermissibly suggestive procedure in obtaining the out-of-court identification.  Williams, 243 S.W.3d at 789. A “one person showup” may be
unnecessarily suggestive and conducive to irreparable misidentification.  Wilson v. State,
267 S.W.3d at 217-18, citing Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App. 1993). 
However, whether this identification procedure violates due process depends on the totality
of the circumstances surrounding it.  Williams, 243 S.W.3d at 790, citing Neil v.
Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Among the factors we
may consider when determining this issue are: (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 witness's level of certainty when
making the identification; and (5) the length of time between the crime and identification.
Williams, 243 S.W.3d at 790, citing Neil, 409 U.S. at 199.
          For purposes of this opinion, we will assume without deciding that the showup here
was impermissibly suggestive and focus on the issue of whether, under the totality of the
circumstances, there was a very substantial likelihood of irreparable misidentification. 
Wilson, 267 S.W.3d at 217, citing Delk, 855 S.W.3d at 706; Williams, 243 S.W.3d at 789.
           The record reflects the customer observed appellant leaving the store and appellant
looked “right at him” and he looked “right back.”  Even though it was at night, there is no
evidence to indicate that the customer could not have seen appellant.  Second, the
customer observed appellant for one to two minutes from the time appellant stepped out
of the doors until he got into his vehicle.  Appellant was looking straight at the customer the
entire time he traveled from the door of the store to his Jeep.  Third, the customer provided
a reasonably accurate description of appellant that comported with the clerk’s description. 
The customer stated that he was a “Spanish male,” weighed about 190 pounds, was
wearing a jacket and black britches, had his right hand in his pocket and had a black mask
or bandanas around his face that he was pulling down when the customer saw him.  He
also noted that appellant was limping with his right hand in his pocket on his side and his
vehicle was a gray four-door Jeep.  At trial, the prosecutor asked the customer if he gave
a description of the person he saw coming out of the store and the customer testified, “Yes.
He’s right here in the courtroom.  He’s in a green T-shirt, stripes, white.”  During further
questioning, the customer again identified appellant as the person he saw come out of the
store.  At the showup, the customer was able to identify appellant as the individual leaving
the store within a minute of seeing him in the police car.  Not more than fifteen minutes
elapsed between the time the customer saw appellant leaving the scene of the robbery and
the time of the showup identification.
          Viewed deferentially in a light favorable to the trial court’s decision, the listed factors
support the court’s determination that, under the totality of the circumstances, there was
no substantial likelihood of irreparable misidentification.  Wilson, 267 S.W.3d at 219.  
          We overrule appellant’s sole issue on appeal and affirm appellant’s conviction and
sentence.
 
James T. Campbell
Justice
 
Do not publish.
