      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-03-00531-CR



                                Louis James Stenson, Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
            NO. 1011810, HONORABLE BILL BENDER, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury convicted Louis James Stenson, Jr. of aggravated robbery and unlawful

restraint with substantial risk of serious bodily injury. Tex. Pen. Code Ann. §§ 29.03, 20.02 (West

2003). The jury determined that Stenson used a deadly weapon in the commission of both offenses.

After Stenson pleaded true to the enhancement allegations, the judge assessed punishment at life

imprisonment on both counts, allowing the sentences to run concurrently. Stenson raises two points

of error on appeal. In his first point of error, Stenson contends that the trial court erred in proceeding

with trial when Stenson had been served with the indictment less than ten days before the trial. In

his second point of error, Stenson argues that the trial court erred in not suppressing the alleged

victim’s pretrial identification of Stenson in a photographic lineup. For the reasons that follow, we

affirm the judgments of the trial court.
                                         BACKGROUND

               On the morning of August 24, 2001, Stenson approached Florine Ponce while she

worked in her garden outside her Manor, Texas, home. Stenson asked Ponce for a bucket of water

and a coat hanger, stating that his car had stalled down the street. Ponce directed Stenson to a bucket

in a nearby lot and proceeded through the back door of her home to retrieve a coat hanger, locking

the door behind her. Ponce exited through the front door of her home, handed Stenson the coat

hanger, and told him he could use her garden hose for water.

               After Ponce turned her back to Stenson to return inside, Stenson attacked Ponce from

behind, hitting her and knocking her down. He demanded money and a car and threatened to kill her.

Stenson continued to hit Ponce in the face and pull her hair as Ponce resisted by screaming and

hitting and kicking Stenson.

               During the struggle, Stenson picked Ponce off the ground by her bra strap and put her

in a headlock. He proceeded to drag Ponce to the rear of her home and into her screened-in back

porch. Upon entering the back porch area, Stenson continued to hold Ponce in a headlock, causing

her to scratch her legs and feel dizzy and lightheaded. Ponce attempted to squeeze Stenson’s genitals

to escape, but this seemed to have no effect on Stenson. Stenson threw Ponce against a bench. He

pulled the cord off of an electric fan in the screened-in porch and continued his demands for money.

As Ponce began to walk away to retrieve the money, Stenson pulled her back by her hair and shoved

her towards the back door leading into her home. Because the door was locked, Stenson kicked the

door in and pushed Ponce inside the house.




                                                  2
               Once inside, Stenson continued to hit Ponce and demand money and valuables.

Stenson found Ponce’s son’s wallet and continued pressing Ponce for more money. Ponce directed

Stenson to her bedroom and gave him a jar of coins. In the bedroom, Stenson threatened to kill

Ponce with an electric screwdriver if she did not give him money. Stenson pulled a cord off a

scanner and tied Ponce’s arms behind her back. He stuffed a pair of panties in Ponce’s mouth and

tied a belt around her head to keep the panties in place. Stenson pushed Ponce onto the bed, tied her

feet together, then threw her in the bedroom closet and shut the door. Ponce freed herself, but

Stenson confronted her at the bedroom door, tied her up, and again shut her in the closet. Ponce tried

to escape from the closet a second time, but Stenson immediately slammed the closet door. On

Ponce’s third attempt to free herself, she was unable to open the closet door. While Ponce was

confined in the closet, she heard Stenson continue to search her home.

               Stenson departed in Ponce’s car with her purse and other money he had obtained from

her home. Ponce was found in the closet by a neighbor who had been alerted to noises of a

disturbance. On August 30, 2001, Stenson was arrested by police in Seguin, Texas, while driving

Ponce’s vehicle.

               A jury convicted Stenson of aggravated robbery and unlawful restraint with

substantial risk of serious bodily injury, finding that Stenson used a deadly weapon in the

commission of both offenses. In the punishment phase of the trial, Stenson pleaded true to the

enhancement allegations that he had been convicted of aggravated assault in 1992, theft of property

in 1986, and burglary of a motor vehicle in 1985. The court sentenced Stenson to life imprisonment

on both counts, allowing the sentences to run concurrently.



                                                  3
                                             DISCUSSION

Indictment served less than ten days before trial

                In his first point of error, Stenson claims that the trial court erred in allowing the trial

to go forward when the indictment had been served on Stenson less than ten days before the trial date

in violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United States

Constitution.

                The State contends that Stenson has procedurally defaulted on his Fifth, Sixth, and

Fourteenth Amendment constitutional claims on appeal because he did not object on such grounds

at trial. The only ground Stenson raised at trial was a violation of Texas Code of Criminal Procedure

article 27.11. A party must generally object with specificity at the trial court to preserve an error for

appeal. See Tex. R. App. P. 33.1(a) (West 2003). This rule generally applies even to due process

violations. Jaenicke v. State, 109 S.W.3d 793, 795 n.3 (Tex. App.—Houston [1st Dist.] 2003, pet.

ref’d); see Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997). Therefore, Stenson

did not preserve his due process claims for appeal if he did not specifically object on these grounds

at trial. In a pretrial hearing on service of the indictment, Stenson’s counsel asked the trial judge if

he was “denying [the] request to postpone trial in accordance with [defendant’s] right to ten-days

notice after service of indictment.” During preliminary proceedings at trial, Stenson’s attorney again

asked for a postponement of trial because “defendant was not given his full ten days notice.”

Because notice is an important component of due process and the purpose of article 27.11 conforms

with due process principles, in the interest of justice we will construe Stenson’s objection broadly

and examine his constitutional claims. See Powell v. State of Alabama, 287 U.S. 45, 64 (1932)



                                                    4
(notice is basic element of constitutional requirement of due process); Papakostas v. State, 145

S.W.3d 723, 727 (Tex. App.—Corpus Christi 2004, no pet.) (due process complaint arising from

denial of motion for continuance preserved by defense counsel’s remark at trial that defendant had

no notice of the hearing because notice is essential component of due process); see also Williams v.

Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) (court construes points of error liberally to adjudicate

justly, fairly and equitably the rights of litigants). We will also analyze Stenson’s claim under article

27.11 because Stenson’s brief is consistent with his objection at trial to a violation of the article.

                The standard of review for error in denying a motion for continuance is abuse of

discretion. Duhamel v. State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986). If a trial court operates

within the boundaries of its discretion, we will not disturb its ruling on appeal. McFarland v. State,

845 S.W.2d 824, 837-38 (Tex. Crim. App. 1992).

                Texas has specific right-to-time statutes that indicate how soon a case can proceed

to trial after service of the indictment on the accused. Texas Code of Criminal Procedure article

27.11 states that “[i]n all cases the defendant shall be allowed ten entire days, exclusive of all

fractions of a day after his arrest, and during the term of the court, to file written pleadings.” Tex.

Code Crim. Proc. Ann. art. 27.11 (West 1989). Article 27.12 provides that “[i]n cases where the

defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days time

mentioned in the preceding Article to file written pleadings after such service.” Tex. Code Crim.

Proc. Ann. art. 27.12 (West 1989). Stenson was entitled to service of a copy of the indictment

pursuant to article 25.01, which states:




                                                   5
       In every case of felony, when the accused is in custody, or as soon as he may be
       arrested, the clerk of the court where an indictment has been presented shall
       immediately make a certified copy of the same, and deliver such copy to the sheriff,
       together with a writ directed to such sheriff, commanding him forthwith to deliver
       such certified copy to the accused.


Tex. Code Crim. Proc. Ann. art. 25.01 (West 1989).

               The purpose of these right-to-time statutes is to afford the accused or his counsel the

opportunity to carefully examine the formal accusation and to prepare and file any necessary

pleadings related to the accusation. Oliver v. State, 646 S.W.2d 242, 245 (Tex. Crim. App. 1983);

Keener v. State, 103 S.W. 904, 906 (Tex. Crim. App. 1907) (decided under predecessor statute to

article 27.12 which entitled defendant to two days rather than ten); Roberts v. State, 93 S.W.3d 528,

532 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). When an accused timely and properly

invokes his rights under the statute, the court must afford him the statutory ten days. Oliver, 646

S.W.2d at 245; Roberts, 93 S.W.3d at 532. However, the right-to-time statutes are not properly

invoked when the objectives of the statute have been achieved. Roberts, 93 S.W.3d at 532; see

Keener, 103 S.W. at 906. We must assess whether the objectives of the right-to-time statutes have

been achieved in the case before us.

               Stenson was formally served with a certified copy of his indictment in this matter on

July 31, 2003 and trial commenced on August 4, 2003. In a pretrial hearing on August 4, 2003,

Stenson objected to the commencement of trial because ten days had not passed from service of the

relevant indictment as allowed in Texas Code of Criminal Procedure article 27.11.

               At this hearing, Stenson admitted to being aware of the indictment and his trial

counsel acknowledged that he had been given ample time to prepare for trial. Stenson also stated

                                                 6
that he had been in court numerous times before in regard to the case in question and was aware of

several previous dates when the court originally set the case for trial.

                The record reveals that the indictment in this case was returned on October 22, 2001.

Stenson was arrested and brought before a magistrate on February 15, 2002. Attorney Greg Zaney

was appointed to represent Stenson on February 20, 2002. On March 12, 2002, Stenson’s attorneys

filed a number of motions in this case, including two motions in limine, a motion for discovery, a

motion to suppress evidence, and a motion for discovery of exculpatory and mitigating evidence.

On April 18, 2002, the State filed a settlement offer outlining the terms of a possible plea bargain

for the attack on Ponce. On May 6, 2002, the trial court conducted a pretrial hearing in this case at

which appellant and his attorney were present. At this hearing, Ponce testified regarding the attack

at issue in this case.

                On August 23, 2002, attorney Tom Weber, who later represented Stenson at trial, was

appointed to represent Stenson. Weber filed motions and other documents for Stenson in this case

including a motion in limine, a request for notice of extraneous offenses, the defendant’s election

for the jury to assess punishment, a motion to suppress evidence, and a request for notice under

Texas Code of Criminal Procedure Rule 404(b) and Article 37.07(g). The docket sheet indicates that

the case had several jury trial settings in the winter and spring of 2003.

                The court of criminal appeals has held that the right-to-time statutes are not properly

invoked on facts similar to those in the record before us. See Wray v. State, 232 S.W. 808, 809-10

(Tex. Crim. App. 1921); Keener, 103 S.W. at 906; Tatmon v. State, 786 S.W.2d 523, 524-26 (Tex.

App.—Austin 1990) (holding trial court did not err in overruling right-to-time objection when



                                                  7
defendant’s attorney obtained copy of the indictment, had more than ten days to prepare for trial,

filed various pretrial motions, and discussed indictment with defendant), aff’d on other grounds, 815

S.W.2d 588 (Tex. Crim. App. 1991). In Keener, defendant’s counsel obtained a copy of the

indictment approximately three months before trial and the defense had an opportunity to prepare

all necessary motions during a nine-month period. The court conceded that this statute is mandatory

but still required “a reasonable construction so as to protect appellant’s rights, while at the same time

not obstructing or delaying trials.” Keener, 103 S.W. at 906. The court of criminal appeals held that

the defendant’s objection lacked merit because the objectives of the right-to-time statute had been

achieved and because the defendant appeared to be invoking the statute simply for delay. See

Keener, 103 S.W. at 905-06. In Wray, the court of criminal appeals found no error in the trial court’s

denial of defendant’s right-to-time objection where defendant’s counsel received a copy of the

indictment more than a month before trial, defendant and his attorney had conferred about the case,

and defendant’s attorney advised defendant of the nature of the accusation against him. See 232

S.W. at 810.

                In addition, in Roberts, the Fourteenth District Court of Appeals held that the trial

court did not abuse its discretion in denying a motion for continuance where, despite defendant being

served with the formal indictment on the first day of trial, defendant’s counsel informed the trial

court that she had reviewed the indictment on several occasions, discussed the charges with her

client, and acknowledged that she had sufficient time to prepare for trial. 93 S.W.3d at 532-33. In

addition, neither the defendant nor his counsel requested an opportunity to file any additional

motions or pleadings. Id. at 533.



                                                   8
               Stenson asks the court to distinguish these cases from his case because three

indictments, each for separate incidents, were pending against him. Stenson argues that he should

have been accorded a continuance to prepare for the case that was actually going forward. This

argument is not convincing as Stenson’s attorney stated that he had ample time to prepare for trial

on the specific indictment proceeding to trial and did not raise the issue of three pending indictments

at trial.

               The trial court did not abuse its discretion in this case by denying Stenson’s motion

for continuance and proceeding with trial. Stenson was aware of the indictment despite the fact that

he had not been formally served; he attended a pretrial hearing over a year before trial in which

Ponce testified to the events that were to be tried in this case. Stenson’s counsel expressed that he

had ample time to prepare for trial. In addition, Stenson’s counsel previously filed numerous

motions on Stenson’s behalf and did not seek to file any new motions or pleadings. The objectives

of the right-to-time statutes have been met in this case.         Assuming Stenson preserved the

constitutional claims he now raises, such claims lack merit. The facts of this case do not indicate

that Stenson’s rights to notice and due process under the United States Constitution were violated.

This point of error is overruled.


Pretrial identification

               In his second point of error, Stenson alleges that the trial court erred in failing to

suppress Ponce’s pretrial identification of Stenson in a photographic lineup because the pretrial

procedure was impermissibly suggestive.




                                                  9
               The Manor Chief of Police and another officer conducted the pretrial identification

procedure on August 31, 2001, seven days after the attack on Ponce. During the procedure, the two

officers told Ponce they were going to show her pictures of a possible assailant. They explained that

they were not going to guide her and that she could take her time. They instructed her, in the event

she recognized the assailant, to point at that person and initial and date the photograph. The police

chief also stated that he believed a possible suspect was in the photo lineup, though Ponce does not

remember such a statement. Ponce testified that the officers assured her that she need not recognize

the assailant and that it was alright if she could not identify him in the photo spread. When police

revealed the photo array to Ponce she immediately pointed to Stenson’s picture and began crying.

               Police compiled the photo array by using a photograph of Stenson taken following

his arrest on August 30, 2001 and obtaining five computer-generated photographs from the Austin

Police Department database that matched Ponce’s description of the assailant. Police Officer Wesley

Doss copied the six photographs to create a one-page photo array for Ponce to view.

               Stenson asserts the pretrial identification was impermissibly suggestive for two

reasons: (1) the background and texture of his photograph differed from others in the array and he

was the only man pictured with a beard and a mustache, and (2) the chief of police informed Ponce

that the person he believed to be the assailant was present in the photo array. Stenson asks us to

consider whether the pretrial identification procedure utilized in this case was impermissibly

suggestive and should have been suppressed by the trial court.

               Stenson contends in this appeal that the trial court erred in failing to suppress Ponce’s

pretrial identification of Stenson in the photo array. Stenson objected to the admission of the array



                                                  10
in a pretrial hearing and during the State’s examination of Manor Chief of Police Robert Snyder;

however, Stenson’s counsel introduced the photo array into evidence as Defendant’s Exhibit 1 when

he cross-examined Ponce. Because of this admission, he cannot complain on appeal of admission

of that evidence. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988); see Thompson v.

State, 480 S.W.2d 624, 627 (Tex. Crim. App. 1972). In the interest of justice, however, we will treat

Stenson’s point of error as a complaint that the trial court erroneously allowed Ponce to identify

appellant before the jury during trial because her in-court identification had been tainted by an

impermissibly suggestive pretrial identification procedure.

                In reviewing a motion to suppress an in-court identification due to an impermissibly

suggestive pretrial identification procedure, we give almost total deference to the trial court’s

findings of fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). As to the trial court’s

findings on mixed questions of law and fact, the standard of review depends on whether the facts

turn on an evaluation of credibility and demeanor. Id. Whether a photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of

misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility

and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). Accordingly, we

will apply a de novo standard of review. Moore v. State, 140 S.W.3d 720, 730 (Tex. App.—Austin

2004, pet. ref’d).

                The United States Supreme Court has held that a pretrial identification procedure may

be so suggestive and conducive to mistaken identification that subsequent use of that identification

at trial would deny the defendant due process of law. Stovall v. Denno, 388 U.S. 293, 301-02 (1967);



                                                  11
Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995); Webb, 760 S.W.2d at 269; Moore,

140 S.W.3d at 730.       The Supreme Court formulated a two-step analysis to determine the

admissibility of an in-court identification following a pretrial identification: (1) whether the out-of-

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

procedure gave rise to a very substantial likelihood of irreparable misidentification. Simmons v.

United States, 390 U.S. 377, 384 (1968); Barley, 906 S.W.2d at 33; Moore, 140 S.W.3d at 730. An

analysis under these two steps requires an examination of the totality of the circumstances

surrounding a particular case and a determination of the reliability of the identification. Barley, 906

S.W.2d at 33. Each case must be considered on its own facts. Simmons, 390 U.S. at 384.

               Under the first step of the analysis, even if a pretrial procedure is suggestive, it may

not be impermissibly so. Barley, 906 S.W.2d at 33; Moore, 140 S.W.3d at 730. Suggestiveness may

be created by the manner in which the pretrial identification procedure is conducted, for example by

police pointing out the suspect or suggesting that a suspect is included in the lineup or photo array.

Barley, 906 S.W.2d at 33; see Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999) (police

stating that suspect was included in photo array was suggestive but not impermissibly so).

Suggestiveness may also be created by the content of the array itself if the suspect is the only

individual closely resembling the pre-procedure description. Barley, 906 S.W.2d at 33. Every

photographic lineup should contain individuals who fit the rough description of the suspect, but it

is not essential that all individuals be identical. Herrera v. State, 682 S.W.2d 313, 319 (Tex. Crim.

App. 1984); Brown v. State, 64 S.W.3d 94, 100 (Tex. App.—Austin 2001, no pet.). Neither due

process nor common sense requires such exactitude. Turner v. State, 600 S.W.2d 927, 933 (Tex.



                                                  12
Crim. App. 1980). However problematic photo lineups may be, they remain useful. Brown, 64

S.W.3d at 100. Mere showing of pictures to a witness prior to an in-court identification is not a

denial of due process. Proctor v. State, 465 S.W.2d 759, 764 (Tex. Crim. App. 1971).

               There are numerous examples of what does and does not constitute impermissible

suggestiveness. For example, a lineup that consists of five persons, two of whom have beards and

who are not physically close to the suspect in size and hair color is not impermissibly suggestive.

Turner, 600 S.W.2d at 932; Brown, 64 S.W.3d at 100. The same is true even if a defendant appears

older than others in the lineup. Williams v. State, 675 S.W.2d 754, 757 (Tex. Crim. App. 1984);

Brown, 64 S.W.3d at 100. On the other hand, a lineup will be impermissibly suggestive if the

defendant was the only white male in the photographic array and the other photos were of Mexican-

American males. Brown, 64 S.W.3d at 100; Tapley v. State, 673 S.W.2d 284, 286 (Tex. App.—San

Antonio 1984, writ ref’d).

               The pretrial identification was not impermissibly suggestive in this case. The array

contained six photos, all of young African-American males with short hair and similar facial

features. Despite Stenson’s claim that he was the only man pictured with a beard and a mustache,

several of the men pictured appear to have facial hair in accord with Ponce’s description of the

assailant. Differing facial hair is insufficient on its own to conclude that a photo array is

impermissibly suggestive. See Turner, 600 S.W.2d at 932. In regard to the appearance of the

photographs, though Officer Doss testified that Stenson’s picture had a different background and

texture because it was copied from an original photograph instead of a computer-generated image,

Doss felt including a new photo of Stenson was necessary due to the change in Stenson’s appearance



                                                13
from previous photos contained in the police department database. In addition, while the police chief

stated that he believed the suspect was in the photo array, Ponce did not remember such a statement,

and such a statement alone is insufficient to render a pretrial identification procedure impermissibly

suggestive. See Webb, 760 S.W.2d at 272; Ibarra, 11 S.W.3d at 196. At a pretrial hearing on the

admission of the pretrial identification, Ponce stated that “[the police] said if you can’t identify him

or if he is not there, it is okay[.]” These features of the pretrial identification do not lead us to

conclude that it was impermissibly suggestive.

               Even if the pretrial identification was impermissibly suggestive, it would have to have

created a very substantial likelihood for irreparable misidentification to warrant reversal of the

conviction. See Simmons, 390 U.S. at 384. An impermissibly suggestive pretrial procedure will not

make an in-court identification unreliable if the totality of the circumstances reveals no substantial

likelihood of misidentification. Ibarra, 11 S.W.3d at 195; Webb, 760 S.W.2d at 269.

               In determining whether a very substantial likelihood for irreparable misidentification

has been created, we assess reliability by considering several non-exclusive factors enumerated by

the Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These factors include: (1) the

witness’s opportunity to view the criminal act, (2) the witness’s degree of attention, (3) the accuracy

of the suspect’s description, (4) the level of certainty at the time of confrontation, and (5) the time

between the crime and confrontation. Id.; Ibarra, 11 S.W.3d at 195. These factors are to be treated

as issues of fact and reviewed in the light most favorable to the trial court’s ruling. Ibarra, 11

S.W.3d at 195; Loserth, 963 S.W.3d at 773; Moore, 140 S.W.3d at 731. The five factors, viewed

in this manner, are then reviewed de novo against “the corrupting effect” of the suggestive pretrial



                                                  14
identification procedure. Ibarra, 11 S.W.3d at 195-96; Loserth, 963 S.W.2d at 773-74; Moore, 140

S.W.3d at 731. If indicia of reliability outweigh suggestiveness then an identification is admissible.

Barley, 906 S.W.2d at 34.

               First, we conclude that Ponce had more than an adequate opportunity to view Stenson

at the time of the crime. Ponce testified that she viewed Stenson as he was walking toward her home

and when they were face to face on several occasions throughout the attack. The attack occurred on

a bright, sunny morning, providing Ponce a clear view of Stenson’s face. At trial, Ponce answered

affirmatively when asked if she got a good look at her attacker’s face.

               Second, the evidence showed that Ponce was highly attentive during the incident.

Ponce was not a casual observer to the crime but Stenson’s victim. Her attention was focused on

Stenson throughout the attack as he was the sole assailant.

               Third, Ponce accurately described Stenson prior to the pretrial identification.

Following the attack, Ponce provided police with a detailed description of Stenson, noting his

physical and facial features and the clothes he was wearing during the incident. She stated that the

suspect was a black male, approximately 20-25 years of age, 5'7" to 5' 10" in height, wearing a black

muscle shirt, black basketball shorts and black tennis shoes. Ponce also advised police that the

suspect possibly had a small mustache and tattoos on his arms. A forensic sketch artist attempted

to draw Ponce’s description, but Ponce was not satisfied with the drawing that was created, and said

the sketch artist did not correctly depict her attacker. Though Stenson was thirty-three years old at

the time of the attack, this difference alone does not render Ponce’s description inaccurate.




                                                 15
               Fourth, Ponce identified Stenson with a high level of certainty at the time of the

pretrial procedure. During the pretrial identification, Ponce immediately pointed at Stenson’s

photograph and began crying. Ponce also positively identified Stenson at trial as the perpetrator and

noted the difference in his weight between the time of the attack and trial. Ponce never wavered in

her certainty that Stenson was her assailant, consistently identifying him both inside and outside of

court. In court, when asked if she had any doubt as to whether Stenson was the assailant, she replied

that she did not.

               Fifth, very little time had passed between the crime and the pretrial identification.

Ponce identified Stenson in a photo array seven days after the attack at her home. This span of time

does not detract from the reliability of Ponce’s identification of Stenson in the photo array.

               Viewing the facts of this case in the light most favorable to the trial court’s ruling,

we conclude from the totality of the circumstances that the pretrial identification was not

impermissibly suggestive. Assuming arguendo that it was, the Biggers reliability factors were

sufficiently met; weighing the evidence of reliability against the suggestiveness of the pretrial

identification procedure, no substantial risk of irreparable misidentification was created so as to deny

Stenson due process. The trial court did not err in denying Stenson’s motion to suppress the pretrial

identification. This point of error is overruled.


                                          CONCLUSION

               We hold that the trial court did not err in allowing Stenson’s trial to proceed when

the indictment had been served on Stenson less than ten days before the trial date as the objectives

of the right-to-time statutes have been achieved. In addition, we conclude that the trial court did not

                                                    16
err in denying Stenson’s motion to suppress Ponce’s pretrial identification of Stenson in a photo

lineup. Accordingly, we affirm the judgments of the trial court.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: March 24, 2005

Do Not Publish




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