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                                 MEMORANDUM OPINION

                                         No. 04-07-00676-CR

                                          Jacob MONTEZ,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                      From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2005-CR-7171B
                        Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: September 24, 2008

AFFIRMED

           Jacob Montez was convicted by a jury of capital murder and sentenced to capital life

imprisonment. On appeal, Montez contends: (1) the evidence is legally and factually insufficient to

support his conviction; (2) the trial court abused its discretion in admitting certain testimony and a

latent fingerprint report; and (3) the out-of-court identification procedure was impermissibly

suggestive. We affirm the trial court’s judgment.
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                                           BACKGROUND

       Shannon Kalka met Fernando Monjares-Almaguer and Andres Torres-Trujillo at a bar and

observed that Monjares-Almaguer drove a Mustang. Kalka’s boyfriend, Michael Montez, decided

to steal the Mustang because he believed Monjares-Almaguer was an undocumented alien and would

not report the theft. Michael Montez also told his cousin, Jacob Montez, about his plan.

       Kalka called Monjares-Almaguer and lured him to the house where she was staying. Because

Monjares-Almaguer’s Mustang was not running, Torres-Trujillo drove him in his truck to the

location where he was to meet Kalka. Michael and Jacob waited in the bathroom while Kalka

greeted the two men and sat them in the living room. Michael had a shotgun, and Jacob had a large

wrench. Michael held the two men at gunpoint while Jacob took their wallets, cash, and keys. Jacob

then tied the men’s hands behind their back with duct tape and placed duct tape over the men’s

mouths and eyes. The men were then placed on the back floorboard of Torres-Trujillo’s truck with

Michael in the backseat covering them with the shotgun, Jacob driving, and Kalka in the front

passenger seat. Eventually, Jacob pulled to the shoulder of a highway, and the men were taken from

the truck and told to lay face-down in the deep grass beside the highway. Michael shot both men,

and Michael, Jacob and Kalka left the area to purchase drugs with the stolen money. Monjares-

Almaguer was shot in the chest and died. Torres-Trujillo was shot in the groin area and survived.

                                           SUFFICIENCY

       In determining the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting a factual

sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict

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only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the

verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d

1, 11 (Tex. Crim. App. 2000). “[D]ue deference must be accorded the fact finder’s determinations,

particularly those determinations concerning the weight and credibility of the evidence,” and a

reviewing court’s disagreement “with the fact finder’s determination is appropriate only when the

record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Id.

at 9.

        The jury charge permitted the jury to convict Jacob of capital murder either as a party or a

co-conspirator. Under the conspiracy theory, Jacob was criminally responsible for the murder if in

the attempt to carry out the conspiracy to commit the robbery, Michael committed the murder in

furtherance of the robbery and the murder should have been anticipated as a result of carrying out

the conspiracy. TEX . PEN . CODE ANN . § 7.02 (Vernon 2003). Although Michael testified that he

loaded the shotgun in the bedroom before joining Jacob in the bathroom to hide before the arrival

of Monjares-Almaguer and Torres-Trujillo, Emily Angulo, an assistant district attorney, testified that

she was present when Michael was interviewed regarding the crime. During the interview, Michael

stated that he took the shotgun into the bathroom and loaded it in Jacob’s presence. Evidence that

a defendant knew his co-conspirator might use a gun in the course of a robbery can be sufficient to

demonstrate that the defendant should have anticipated the possibility of murder occurring during

the course of the robbery. Love v. State, 199 S.W.3d 447, 453 & n.1 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d). Michael further testified that he “racked” the gun as he entered the room,

and Torres-Trujillo testified that Michael told them not to move because he would not mind killing

them. This evidence is legally and factually sufficient to support the jury’s finding that Jacob should

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have anticipated the possibility of murder occurring during the course of the robbery. Jacob’s first

issue is overruled.

                                         ADMISSIBILITY OF EVIDENCE

         In his second and third issues, Jacob contends that the trial court erred in admitting Detective

Davila’s testimony regarding his first interview with Torres-Trujillo because Detective Davila

shredded his hand-written notes from the interview after typing his report. In his fourth issue, Jacob

contends that the trial court erred in admitting a latent fingerprint report because the report contained

an erroneous statement. We review a trial court’s ruling on the admissibility of evidence using an

abuse-of-discretion standard of review, and we uphold the trial court’s ruling if it was within the

zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

a.       Detective Davila

         The State has a duty to preserve evidence that possesses an exculpatory value that is apparent

before the evidence is destroyed. Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio

2005, no pet.).1 Therefore, a defendant must demonstrate the lost evidence is both favorable and

material to his case. Id. A showing that the lost evidence might have been favorable does not meet

the materiality standard. Id. In addition, the accused must show that the State acted in bad faith

when it failed to preserve the evidence in order to show a violation of due process or due course of

law. Id.




         1
           … W e decline Jacob’s request that we reconsider our decision in Salazar based on the W aco court’s decision
in Pena v. State, 226 S.W .3d 634 (Tex. App.— W aco 2007, pet. granted). See State v. Vasquez, 230 S.W .3d 744, 750-51
(Tex. App.— Houston [14th Dist.] 2007, no pet.) (noting W aco decision contradicts the text of the Due Course of Law
Clause, the intent of the framers of the Texas Constitution, the holdings of seven Texas courts of appeals including our
holding in Salazar, and decisions in twenty-three other states).

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       Detective Davila testified that he transferred all of the information that was contained in his

notes to his typewritten report. Instead of using his notes from his interview to obtain Torres-

Trujillo’s written statement, he requested the assistance of another detective who was fluent in

Spanish and was able to prepare the statement for Torres-Trujillo to review in Spanish because

Torres-Trujillo did not speak or understand English. Although Detective Davila could speak and

understand Spanish, he believed that he was not sufficiently fluent to prepare a written statement in

Spanish. Detective Davila testified, “Everything that I take on the notes I transfer it to the report.”

Detective Davila stated his standard procedure is to shred his notes because “if not I would have a

lot of paperwork.” Detective Davila testified that Torres-Trujillo’s statement in Spanish contained

the same information provided in the first interview.

       Jacob contends that Detective Davila should have preserved his notes because they could

have revealed discrepancies in the information contained in the typewritten report. An assertion that

evidence might have been favorable, however, is not sufficient to meet the applicable materiality

standard. Id. Furthermore, Jacob has failed to establish that Detective Davila acted in bad faith in

shredding his notes. Id. Although the better practice might be for detectives to retain their hand-

written notes, the trial court did not abuse its discretion in admitting Detective Davila’s testimony.

Jacob’s second and third issues are overruled.

b.     Latent Fingerprint Report

       “[F]ingerprint-comparison testimony is admissible under Texas Rule of Evidence 702

because it is reliable and it assists the trier of fact in its task of determining whether a latent

fingerprint is that of a particular person.” Russeau v. State, 171 S.W.3d 871, 883 (Tex. Crim. App.

2005). Jacob contends that the trial court abused its discretion in admitting the latent fingerprint

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report in this case because the officer’s qualifications were questionable and his report contained an

error in regard to when he matched Jacob’s palm print to a print from the duct tape removed from

the eyes of Monjares-Almaguer.

        Officer Melvin Lleras, a latent print examiner with fifteen years experience, testified

regarding the numerous courses he had taken in fingerprint examination. Officer Lleras testified that

the standard used in practice required a print to have seven characteristics to be considered a match.

Officer Lleras testified that when he initially compared the palm print from the duct tape to Jacob’s

print that was on file, he noted only four matching characteristics but also noted that the print on file

had an area missing. After reprinting Jacob four days later, on August 5, 2005, Officer Lleras

located fourteen characteristics between the print from the duct tape and Jacob’s print. Officer

Lleras testified that the August 1, 2005 date on his report was incorrect. Although he made the initial

comparison on August 1, 2005, he did not conclude that Jacob’s print matched the print on the duct

tape until after Jacob was reprinted on August 5, 2005. From this testimony, the trial court did not

abuse its discretion in determining that Officer Lleras was qualified and the typographical error in

regard to the dates did not require the exclusion of the evidence. Jacob’s fourth issue is overruled.

                          OUT-OF-COURT IDENTIFICATION PROCEDURE

        In his final issue, Jacob argues that the procedure used by Detective Davila in obtaining

Torres-Trujillo’s out-of-court identification of Jacob was impermissibly suggestive. Deciding

whether a pre-trial identification procedure was impermissibly suggestive is a mixed question of fact

and law. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex. Crim. App. 1998). We apply a de novo

standard of review for mixed questions of law and fact that do not turn on an evaluation of credibility

or demeanor. Id. at 773. To challenge the admissibility of a pretrial identification, Jacob had the

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burden to show, by clear and convincing evidence, based on the totality of the circumstances, that

the pretrial identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27,

33 (Tex. Crim. App. 1995). Suggestiveness may be created by the manner in which the pre-trial

identification procedure is conducted, for example by police pointing out the suspect or suggesting

that a suspect is included in the line-up or photo array. Barley, 906 S.W.2d at 33. Or it may also be

created by the content of the line-up or photo array itself if the suspect is the only individual closely

resembling the pre-procedure description. Id.

        Jacob contends that the pretrial identification procedure in this case was suggestive because

Detective Davila showed Torres-Trujillo a “six-pack” photo array while he was in the hospital and

without a certified Spanish interpreter. The photo array depicted six men with similar physical

characteristics. Torres-Trujillo testified that he was able to identify Jacob in a short time as the man

who had the wrench. He further testified that he recognized Jacob because he remembered his face.

Torres-Trujillo testified that he did not feel any pressure to pick somebody from the lineup.

Detective Davila testified that he tells the victim that he is going to show him a lineup and that he

needs to know if the victim recognizes anyone in the photos and, if so, how they know the person.

Detective Davila stated that he did not suggest to Torres-Trujillo which photo to select. Detective

Davila testified that Torres-Trujillo quickly recognized Jacob in the array. Detective Davila testified

that he speaks and understands Spanish and only required another officer’s assistance in taking

Torres-Trujillo’s statement so that it would be written in Spanish. Given the testimony, Jacob failed

to meet his burden of proving by clear and convincing evidence that the out-of-court identification

procedure was impermissibly suggestive. Jacob’s fifth issue is overruled.




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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                     Alma L. López, Chief Justice

DO NOT PUBLISH




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