Affirmed and Opinion filed August 14, 2014.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00222-CR

                 JESUS MARTINEZ MENDOZA, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1354334

                                OPINION


      In one issue, appellant Jesus Martinez Mendoza contends the trial court
abused its discretion in denying his motion to suppress evidence of his pretrial
identification on the bases that the out-of-court identification procedure was
impermissibly suggestive and the identification was unreliable. We affirm.
                                    Background

      According to testimony adduced at trial, one evening around 11:00 p.m., the
two complainants were walking to their vehicle in a Wal-Mart parking lot when
they were approached by appellant and two other men, Luis Aranda Morales and
Enrique Mendiola Alvarez. Appellant asked the complainants, “[W]hat did you
say to me[,]” then cursed at them, and accused them of insulting him and his
group.    The complainants replied that they were not looking for trouble,
apologized, and continued walking toward one of their vehicles.           The group
approached them again, this time “circl[ing]” them, “cussing” at them, and
“gesturing and . . . putting their hands in their pockets as if they had a weapon.”
One of the members of the group showed a pistol to them and asked, “You want
problems[?]” The complainants again apologized and continued on.

      After the complainants got into the front seats of the vehicle, Alvarez stood
outside the front driver’s side door, Morales stood outside the front passenger’s
side door, and they both pointed pistols at the complainants. Appellant stood at the
front of the vehicle, acting as the lookout with his hand under his shirt as if he had
a weapon. The men robbed the complainants at gunpoint and fled after a fourth
person picked them up in a yellow Dodge Ram pickup truck. A fifth person was
also in the truck.

      Officers shortly thereafter stopped a truck matching the complainants’
description with five Hispanic males inside approximately one-and-a-half miles
from the Wal-Mart. Officers transported the complainants in separate police cars
to the location where the suspects had been apprehended. An officer conducted an
“on-the-scene” identification of the suspects. He brought out each suspect one at a
time, and the complainants were separated from each other when they viewed each
suspect. One complainant positively identified three of the suspects, and one

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complainant identified four.1 Both complainants positively identified appellant.

       Appellant and Alvarez were tried together.2 The jury found appellant guilty
of aggravated robbery with a deadly weapon and assessed appellant’s punishment
at eight years’ confinement.

                                             Discussion

       Appellant contends the trial court abused its discretion in denying his motion
to suppress the complainants’ pretrial identification of him on the basis that the
procedures used for the identification violated his constitutional right to due
process. We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008);
Adams v. State, 397 S.W.3d 760, 763 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). In doing so, we view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Adams,
397 S.W.3d at 763. The trial judge is the sole trier of fact and judge of the
credibility of witnesses and the weight to be given to their testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Adams, 397 S.W.3d at 763.
We afford almost total deference to the trial court’s express or implied
determination of historical facts, while reviewing the court’s application of the law
to the facts de novo. Wiede, 214 S.W.3d at 25; Adams, 397 S.W.3d at 763. We
will sustain the trial court’s ruling if it is reasonably supported by the record and
correct under any theory of law applicable to the case. Laney v. State, 117 S.W.3d
854, 857 (Tex. Crim. App. 2003); Adams, 397 S.W.3d at 763-64.


       1
           The complainant who identified four suspects did not testify at trial.
       2
         See Tex. Code Crim. Proc. art. 36.09 (allowing “two or more defendants who are jointly
or separately indicted or complained against for the same offense or any offense growing out of
the same transaction [to] be, in the discretion of the court, tried jointly”).

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      Typically, a defendant’s attack is against an in-court identification as being
tainted by an impermissibly suggestive pretrial identification procedure.         See
Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.—Texarkana 2002), aff’d, 106
S.W.3d 103 (Tex. Crim. App. 2003). However, appellant neither objected at trial
to the in-court identification of him by the complainant who testified nor
challenges it on appeal. The failure to complain or object in the trial court to in-
court identifications waives any complaint regarding the in-court identifications on
appeal. Mason v. State, 416 S.W.3d 720, 738 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d). Therefore, we consider only appellant’s arguments concerning
the pretrial identification procedure. See id.

      A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process. Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App.
1995).   We review de novo the question of whether a pretrial identification
procedure amounted to a denial of due process. Gamboa v. State, 296 S.W.3d 574,
581 (Tex. Crim. App. 2009); Adams, 397 S.W.3d at 764. First, we determine if the
pretrial identification procedure was impermissibly suggestive.        Gamboa, 296
S.W.3d at 581; Adams, 397 S.W.3d at 764. Second, if we conclude that the
procedure was impermissibly suggestive, we then determine if the impermissibly
suggestive nature of the pretrial identification gave rise to a substantial likelihood
of irreparable misidentification. Gamboa, 296 S.W.3d at 581–82; Adams, 397
S.W.3d at 764. If the pretrial procedure is found to be impermissibly suggestive,
identification testimony would nevertheless be admissible where the totality of the
circumstances shows no substantial likelihood of misidentification. Adams, 397
S.W.3d at 764. Appellant must show by clear and convincing evidence that the
identification has been irreparably tainted before we can reverse his conviction.


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See Mason, 416 S.W.3d at 738.

      Pretrial Identification Not Impermissibly Suggestive. Although “on-the-
scene” confrontations, also referred to as “show-up” identifications, have some
degree of suggestiveness, their use is necessary in cases where time is of the
essence in catching a suspect and an early identification is aided by the fresh
memory of the victim. Fite v. State, 60 S.W.3d 314, 318 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d); see also Santiago v. State, 425 S.W.3d 437, 442
(Tex. App.—Houston [1st Dist.] 2011, no pet.) (“The initial show-up procedure at
the crime scene was not shown to be impermissibly suggestive, as such
confrontations have been acknowledged as being necessary in many cases.”).
Several benefits may be attained from this procedure. First, by viewing the alleged
perpetrator of the offense immediately after the commission of the offense, the
witness is allowed to test his recollection while his memory is still fresh and
accurate. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.]
1981); Louis v. State, 825 S.W.2d 752, 756 (Tex. App.—Houston [14th Dist.]
1992, pet. ref’d). Second, quick confirmation or denial of identification expedites
the release of innocent suspects. Garza, 633 S.W.2d at 512; Louis, 825 S.W.2d at
756. Third, the police are able to release any innocent suspects and continue their
search for the criminal while he is still within the area and before the criminal can
substantially alter his looks and dispose of evidence of the crime. Garza, 633
S.W.2d at 512; Louis, 825 S.W.2d at 756. Fourth, any possible prejudice resulting
from such a confrontation can be exposed by rigorous cross-examination of the
witness. Garza, 633 S.W.2d at 512; Louis, 825 S.W.2d at 756. We consider the
totality of circumstances in determining whether a show-up identification was
impermissibly suggestive. Garza, 633 S.W.2d at 512; Louis, 825 S.W.2d at 757.

      All of the above considerations apply to the pretrial identification procedures

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used in this case. The pretrial identification occurred approximately one hour after
the robbery, which allowed the complainants to view the suspects while the events
surrounding the robbery were still fresh in the complainants’ minds. The suspects
were found soon after the robbery in a vehicle matching the description given by
the complainants about a mile-and-a-half away from where the robbery occurred,
which allowed quick confirmation or denial of identification of the suspects.

        The police employed safeguards to reduce any influence the complainants
could have had on each other in the identification process by keeping them
separate en route to and during the show-up, which prevented them from
comparing or discussing the suspects’ features during that timeframe. 3 The officer
conducting the show-up separately gave each complainant instructions that the
suspects may or may not have been the persons who committed the crime. He
said,

        I told them we’re going to pull some people out. They may or may
        not be the people that committed the offense. If you know it’s the
        person, if you’re positive[,] tell us[,] and if it’s not[,] tell us then also
        ‘cause we don’t want to get the wrong people.

The police presented each suspect one at a time, and the suspects were illuminated
by police car spotlights and could be seen clearly. The complainant who testified
said he got a good look at the suspects as the police brought them out.

        Each complainant was able to identify the three suspects who directly
confronted them during the robbery. The complainant who testified was not able
to identify the two suspects who had arrived in the truck to pick up the others, and
the other complainant was able to identify only one of the two. The complainants,

        3
        Appellant complains that an officer admitted “[i]t could [have] be[een] possible” for the
complainants to have seen each other’s reactions during the show-up. However, there is no
evidence they did so: the complainants viewed each suspect from separate patrol cars.

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therefore, distinguished the suspects they saw well versus those that they did not
see well or at all. Finally, appellant’s attorney cross-examined the complainant
and officer at trial. This gave defense counsel an opportunity to expose any
possible prejudice resulting from the pretrial identification procedure. See Garza,
633 S.W.2d at 512; Louis, 825 S.W.2d at 756.

       Considering the totality of the circumstances, we conclude the pretrial
identification process conducted in this case was not impermissibly suggestive.
We overrule appellant’s sole issue. 4

       We affirm the judgment of the trial court.


                                      /s/            Martha Hill Jamison
                                                     Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).




       4
          Appellant argues we should consider the following factors to determine if the
impermissibly suggestive nature of the pretrial identification gave rise to a substantial likelihood
of irreparable misidentification: (1) the witnesses’ opportunity to view appellant at the time of
the crime; (2) the witnesses’ degree of attention; (3) the accuracy of the witnesses’ prior
description of the criminal; (4) the witnesses’ level of certainty at the time of confrontation; and
(5) the length of time between the offense and the confrontation. See Gamboa, 296 S.W.3d at
582. However, we need not do so because we conclude the identification procedure was not
impermissibly suggestive. See Adams, 397 S.W.3d at 764; see also Santos v. State, 116 S.W.3d
447, 451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).

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