                            NUMBER 13-13-00464-CR

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG


MARCO ARNOLDO OLVERA JR.,                                                   Appellant,


                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Perkes and Longoria
            Memorandum Opinion by Chief Justice Valdez
      Appellant, Marco Arnoldo Olvera, challenges his conviction for aggravated

robbery. See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2013 3d C.S.). By

four issues, appellant contends that: (1) the trial court erred in denying the motion to

suppress the victim’s pre-trial identification of appellant because the photo array used by

the police was impermissibly suggestive; (2) the trial court erred in denying the
subsequent motion to suppress the in-court identification of appellant because it was

tainted by the impermissible pre-trial identification; (3) the trial court erred by prematurely

giving the jury an Allen charge in violation of Texas Code of Criminal Procedure article

36.16; and, (4) the language of the supplemental Allen charge was coercive. We affirm.

                                    I.     BACKGROUND

       Appellant was charged by indictment with aggravated robbery, and entered a plea

of not guilty. See id. After a pre-trial hearing, the trial court denied appellant’s motion to

suppress the victim’s photographic identification and his subsequent motion to suppress

any in-court identification made by the victim. The victim, and sole witness, testified that

he was watching a movie on his iPad at a La Quinta hotel lobby where his grandmother

worked when the suspect came to him and started a conversation. The victim further

testified that the suspect left briefly only to return and rob him of his watch, iPod and iPad

at knifepoint.   Appellant was apprehended that night for public intoxication and was

identified by the victim after he was presented with a photographic array the next day.

During the trial, the victim described his attacker as a Caucasian-Hispanic, wearing a gray

jacket and a white t-shirt, with a little bit of hair and stubble on his face. When asked by

the prosecutor to point out his attacker, in the courtroom, the victim identified appellant.

       During jury deliberations, the trial court submitted a supplemental charge, or Allen

charge, to the jury after it requested a re-reading of testimony. See Allen v. United States,

164 U.S. 492, 501–02 (1896). The appellant’s objection to the charge was overruled. At

the conclusion of the deliberations, the jury found appellant guilty of the offense as

charged in the indictment, and the trial court assessed punishment at twenty-five years’

imprisonment in the Texas Department of Criminal Justice. This appeal followed.



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                              II.    PRE-TRIAL IDENTIFICATION

       By his first issue, appellant argues that the pre-trial identification was impermissibly

suggestive because in the array of photographs shown to the victim, only appellant was

wearing a white shirt, matching the description given of the suspect. However, in his pre-

trial motion to suppress the identification, appellant did not argue that the identification

procedure used was impermissibly suggestive because appellant’s clothing in the array

of photographs was the same as the suspect’s or because the witness was young and

impressionable. In fact, appellant failed to argue that his appearance in the photographic

array differed in any way from the individuals in the other photographs shown to the

witness.    Instead, in his motion to suppress, appellant argued that the array of

photographs was impermissibly suggestive because one of the investigators prepared

appellant’s photo, and then used that photo to find five other photos that looked similar.

        Because appellant based his pre-trial motion on an entirely different argument

than he currently presents, he has failed to preserve the error for appeal. TEX. R. APP. P.

33.1 (requiring a party, in order to preserve an error for appeal, to object, state the

grounds with sufficient specificity, and obtain an adverse ruling); see also Gallo v. State,

239 S.W.3d 757, 768 (Tex. Crim. App. 2007) (providing that appellate arguments must

comport with objections at trial); See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.

Crim. App. 2004) (holding that complaint made on appeal must comport with the

complaint made in the trial court or the error is forfeited); See Neal v. State, No. 08-07-

00232-CR, 2010 WL 160206, at *4 (Tex. App.—El Paso Jan. 13, 2010) (not designated

for publication).




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      Even if the argument were preserved, we would still find that the pre-trial

identification of appellant was not impermissibly suggestive. We set aside a pre-trial

identification only if the procedure was so suggestive and conducive to misidentification

that it would deny the defendant due process of law, if the out-of-court identification is

used at trial. Simmons v. United States, 390 U.S. 377, 384 (1968); Barley v. State, 906

S.W.2d 27, 32–33 (Tex. Crim. App. 1995) (en banc); Loserth v. State, 963 S.W.2d 770,

771–72 (Tex. Crim. App. 1998) (en banc). “Suggestiveness” may be a result of an

individual procedure or the cumulative effect of numerous procedures.        Barley, 906

S.W.2d at 33.

      Texas courts have held that identification procedures where a defendant is wearing

the same clothing as the suspect are not impermissibly suggestive. Smith v. State, 930

S.W.2d 227, 228–29 (Tex. App.—Beaumont 1996, pet. ref’d); see also Robinson v. State,

No. 05-10-01022-CR, 2012 WL 130616, at *2 (Tex. App.—Dallas Jan. 18, 2012) (mem.

op., not designated for publication) (concluding photo array was not impermissibly

suggestive when it depicted defendant wearing a blue-collared polo like one suspect was

wearing); Hopkins v. State, No. 14-07-00531-CR, 2009 WL 508379, at *4 (Tex. App.—

Houston [14th Dist.] Mar. 3, 2009, pet. ref’d) (mem. op., not designated for publication)

(concluding photo array was not impermissibly suggestive when it depicted defendant

wearing white muscle shirt like one suspect was described wearing); Hudson v. State,

No. 14-07-00888-CR, 2009 WL 196060, at *5 (Tex. App.—Houston [14th Dist.] Jan. 29,

2009, pet. ref’d) (mem. op., not designated for publication) (concluding photo array was

not impermissibly suggestive when it depicted defendant wearing dark-colored hooded

sweatshirt similar to those worn by robbers). Furthermore, even if the defendant is the



                                            4
only person in a photographic array wearing clothing matching the suspect’s, the

procedure is still not impermissibly suggestive. Mungia v. State, 911 S.W.2d 164, 168

(Tex. App.—Corpus Christi 1995, no pet.) (determining that a photo array was not

impermissibly suggestive when the defendant was the only person wearing a dark colored

shirt and the suspect was described as wearing a black shirt). Appellant acknowledges

this case law, but contends that the present case is distinguishable because the victim is

a young and impressionable child and therefore these prior holdings should not apply.1

       However, appellant cites no case law showing that an otherwise permissible

identification procedure is rendered impermissible because of the age of the person

making the identification. Moreover, the Texas Court of Criminal Appeals has noted that

a twelve-year-old witness’s pre-trial identification of defendant is permissible and that, in

fact, the child’s curiosity can be a factor that increases a child’s attention to detail. Barley,

906 S.W.2d at 35 (twelve-year-old witness had inexhaustible curiosity when viewing a

robbery, in addition to a vested interest in the safety of his mother). We are unpersuaded

by appellant’s argument that the witness’s age automatically discredits his identification

of appellant. We therefore conclude that the pre-trial identification procedure was not

impermissibly suggestive. Smith, 930 S.W.2d at 228–29; Barley, 906 S.W.2d at 35.

Appellant’s first issue is overruled.

                                    III.     IN-COURT IDENTIFICATION

       By his second issue, appellant argues that the trial court erred when it denied

appellant’s motion to suppress the subsequent in-court identification because it was

tainted by the impermissible photo array identification. Subsequent in-court identifications


       1   The victim and sole witness, was thirteen-years-old at the time of the trial.


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may be deemed inadmissible if “tainted by an impermissibly-suggestive pretrial

photographic identification.” Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).

To determine if an in-court identification is inadmissible, the court must consider the

totality of the circumstances and determine (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 at trial. Simmons,

390 U.S. at 384. Therefore, exclusion of the in-court identification is contingent on a

finding that the pre-trial identification was impermissibly suggestive. See id. Because we

have determined that appellant has not shown that the pre-trial identification procedure

was impermissibly suggestive, we cannot conclude that the in-court identification was

tainted. See id.

       Moreover, even if this court were to assume that the pre-trial identification

procedure was impermissibly suggestive, we would still conclude that appellant failed to

show that the in-court identification was tainted.

              A defendant who contends on appeal that a trial court erred in
       allowing an in court identification of him . . . has a difficult and heavy burden
       to sustain, for unless it is shown by clear and convincing evidence that a
       complaining witness’ in court identification of a defendant as the assailant
       was tainted by improper pre-trial identification procedures and
       confrontations, the in court identification is always admissible.

Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. [Panel Op.] 1982).

       In determining if a defendant has met his burden to show that there is a “very

substantial likelihood for irreparable misidentification,” a court will consider five non-

exclusive factors, which were enumerated by the United States Supreme Court in Neil v.

Biggers. 409 U.S. 188, 199–200 (1972); see also Webb v. State, 760 S.W.2d 263, 269

(Tex. Crim. App. 1988) (en banc); Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App.


                                              6
1987) (en banc).     “These factors are weighed against the corrupting effect of any

suggestive identification procedures.” Barley, 906 S.W.2d at 35. The 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. Biggers, 409 U.S.

at 199–200.

       Here, a review of the Biggers factors show that the procedure did not increase the

likelihood of irreparable misidentification at trial: (1) the witness testified that he engaged

the suspect for five or six minutes, which prior courts have held is plenty of time to view

the suspect, see Cantu, 738 S.W.2d at 252; Ibarra, 11 S.W.3d at 196; (2) although the

witness was watching a movie, there is no mandatory assumption that the witness was

not paying attention when the suspect conversed with him, and it is highly unlikely the

witness was not paying attention when being robbed at knifepoint later, see Cantu, 738

S.W.2d at 253 (reasoning that a witness who is also a victim has a greater degree of

attention than a casual bystander); (3) the witness did not give the most detailed

description, but the description given was far from general, allowing a viable composition

of photos matching the suspect; (4) the witness testified that he was “one-hundred

percent certain” that he recognized the appellant as the attacker during the photographic

lineup; and (5) the photographic lineup was presented to the witness the day after he was

attacked, a short period of time between the crime and identification.

       Therefore, even if the argument was preserved for appeal, appellant did not

establish by clear and convincing evidence that the pretrial identification procedure was

impermissibly suggestive and the subsequent in-court identification was unreliable as a



                                              7
result. See Jackson, 628 S.W.2d at 448; Johnson v. State, 891 S.W.2d 284, 286–87

(Tex. App.—San Antonio 1994, no pet.). Appellant’s second issue is overruled.

                IV.    THE TRIAL COURT’S SUBMISSION OF THE ALLEN CHARGE

         During the guilt/innocence phase, the trial court gave a supplemental Allen charge

following a request by the jury for the court reporter to re-read certain testimony from the

trial. See Allen, 164 U.S. at 501–02. Appellant’s trial counsel objected to the charge on

the grounds that “the jury ha[d] not indicated they cannot reach a verdict . . . [and] going

forward in this manner will irreparably cause [the] jury to do violence to their conscience

and to their decisions.” The objection on this ground was overruled by the court. By his

third issue on appeal, appellant contends that the trial court erred when it prematurely

gave the jury an Allen charge in violation of Texas Code of Criminal Procedure article

36.16.

         An Allen charge is given to a deadlocked jury to inform them of the consequences

if a verdict is not reached. See Allen, 164 U.S. at 501–02. Article 36.16 of the Texas

Code of Criminal Procedure sets out when a charge may be given to the jury:

         After the argument begins no further charge shall be given to the jury unless
         required by the improper argument of counsel or the request of the jury, or
         unless the judge shall, in his discretion, permit the introduction of other
         testimony, and in the event of such further charge, the defendant or his
         counsel shall have the right to present objections in the same manner as is
         prescribed in Article 36.15.

TEX. CRIM. PROC. CODE ANN. art. 36.16.

         Texas courts have held that a trial court does not err by giving an Allen charge,

even before a jury has unequivocally stated it is deadlocked. Loving v. State, 947 S.W.2d

615, 620 (Tex. App.—Austin 1997, no pet.); see Black v. State, No. 05-10-01558-CR,

2012 WL 206501, at *2 (Tex. App.—Dallas Jan. 25, 2012, pet. ref’d) (mem. op. not


                                              8
designated for publication) (reasoning that the court could issue an Allen charge after the

jury requested information and had been deliberating for nearly as long as the

presentation of evidence in the case). The procedure in this case was similar to that

followed in other cases.

       Moreover, “even if the trial court erred in giving the Allen charge at the point which

it did, such error would only be reversible if the charge, on its face, was so improper as

to render jury misconduct likely or jury misconduct was demonstrated to have occurred in

fact.” Bledsoe v. State, 21 S.W.3d 615, 622 (Tex. App.—Tyler 2000, no pet.); see Love

v. State, 909 S.W.2d 930, 936 (Tex. App.—El Paso 1995, pet. ref’d); Davis v. State, 709

S.W.2d 288, 291 (Tex. App.—Corpus Christi 1986, pet. ref’d). As we determine below,

on its face, the charge was not so improper as to render jury misconduct likely, and there

is no demonstration that jury misconduct occurred. Accordingly, the trial court did not err

by presenting the Allen charge to the jury. See Loving, 947 S.W.2d at 620; Love, 909

S.W.2d at 936; Davis, 709 S.W.2d at 291. Appellant’s third issue is overruled.

                           V.       THE LANGUAGE OF THE ALLEN CHARGE

       By his fourth issue, appellant argues that the trial court erred because the language

of the charge was coercive. An Allen charge is coercive if it conveys the court’s opinion

on the case or pressures jurors into reaching a particular verdict. Arrevalo v. State, 489

S.W.2d 569, 571 (Tex. Crim. App. 1973). Specifically, appellant argues that the charge

focused its direction toward jurors maintaining or acquiescing with the majority’s viewpoint

and decision.2


       2   The Allen Charge in this case read as follows:

       You are instructed that in a large portion of the case, absolute certainty cannot be expected.
       Although the verdict must be the verdict of each individual juror, and not a mere

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       Here, the charge given by the trial court was similar to the charge upheld in West

v. State, 121 S.W.3d 95, 108 (Tex. App.—Fort Worth 2003). In West, the charge was

held to be non-coercive and consistent with similar instructions used throughout the state.

See id.; Arrevalo, 489 S.W.2d at 571–72; Willis v. State, 761 S.W.2d 434, 437–38 (Tex.

App.—Houston [14th Dist.] 1988, pet. ref’d); Rodela v. State, 666 S.W.2d 652, 652–53

(Tex. App.—Corpus Christi 1984, pet. ref’d); Ray v. State, 649 S.W.2d 142, 146–47 (Tex.

App.—Fort Worth 1983, pet. ref’d), superseded by rule on other grounds, Bee v. State,

974 S.W.2d 184, 188–89 (Tex. App.—San Antonio 1998, no pet.).

       The only significant difference between the charge in this case and the charge in

West is the charge’s conclusion. We note that the charge in West concludes, “[w]ith this

additional instruction, you are instructed to continue deliberations in an effort to arrive at

a verdict that’s acceptable to all members of the jury if you can do so without doing

violence to your conscience.” West, 121 S.W.3d at 108 (emphasis added). The charge

in this case concludes: “Therefore, you are instructed that it is your duty to decide this

case, and if you can conscientiously do so, reach a verdict.”

       On appeal, appellant argues that the charge is unduly coercive and pressured the

jury into reaching a verdict because it failed to instruct the jury to try to reach a verdict

acceptable to all jurors. We find that the lack of that specific statement does not transform




       acquiescence in the conclusion of other jurors, yet each juror should show a proper regard
       to the opinion of another juror. You should listen, with a disposition to be convinced, to the
       arguments of the other jurors. If a larger number of jurors are deciding the case one way,
       those in the minority should consider whether they are basing their opinion on speculation
       or surmise and not on the evidence in the case, keeping in mind the impression the
       evidence has made on a majority of the jurors of equal honesty and intellect as the minority.
       Bear in mind also that if you do not reach a verdict in this case, that a mistrial will be granted
       and that this case will be tried again to a different jury, but the next jury will be in no better
       position to decide the case than you are, and they will face the same questions that you
       are now facing.

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the normally acceptable charge into one that is coercive. Like West, “the Allen charge

given here does not tell the jury that one side or the other possesses the superior

judgment, nor does it tell them to distrust their judgment.”        Id. at 109.     Therefore

appellant’s argument is ultimately unpersuasive, and we conclude that the Allen charge

issued by the trial court is not coercive. Appellant’s fourth issue is overruled.

                                    VI.    CONCLUSION

       We affirm the trial court’s judgment.

                                                         /s/ Rogelio Valdez
                                                         ROGELIO VALDEZ
                                                         Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
17th day of July, 2014.




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