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                                 MEMORANDUM OPINION

                                        No. 04-07-00889-CR

                                         Gilbert AGUIRRE,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 218th Judicial District Court, Karnes County, Texas
                                 Trial Court No. 05-11-00128-CRK
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: February 11, 2009

AFFIRMED

           Gilbert Aguirre was convicted by a jury of aggravated assault and was sentenced to seven

years imprisonment. Aguirre’s sentence was suspended, and he was placed on seven years

community supervision. On appeal, Aguirre contends: (1) the evidence is legally and factually

insufficient to support the jury’s verdict; (2) a pre-trial identification procedure was impermissibly

suggestive; (3) the trial court erred in not probating his fine; and (4) no factual basis supported the
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amount of restitution Aguirre was required to pay. On November 5, 2008, we issued an opinion and

order setting aside the amount of restitution contained in the trial court’s judgment, abating the

appeal, and remanding the cause to the trial court for a hearing to determine a just amount of

restitution. The reporter’s record from the hearing was filed on December 2, 2008, and the appeal

was reinstated. After evidence in support of the amount of restitution was admitted at the hearing,

defense counsel agreed that restitution should be set in the amount of $883.00. Because the

foregoing disposes of Aguirre’s issue regarding the restitution amount, we only address Aguirre’s

other issues.

                                           BACKGROUND

       Jason Baldera and several of his friends crossed the street to visit a school friend at a

neighboring house. A fight erupted between Baldera and his friends and the people at the other

house. Baldera was stabbed multiple times and was taken to a hospital for treatment.

                                  SUFFICIENCY OF THE EVIDENCE

       In his first two issues, Aguirre challenges the sufficiency of the evidence to establish: (1) his

identity as the person who stabbed Baldera; and (2) his use of a deadly weapon. 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 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.



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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.

       Identification of the defendant as the person who committed the offense charged is part of

the State’s burden of proof beyond a reasonable doubt. Miller v. State, 667 S.W.2d 773, 775 (Tex.

Crim. App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.—Texarkana 2008, no pet.).

In this case, a confidential informant told the investigating officer that Aguirre was the person who

stabbed Baldera. Both Baldera and a second eyewitness, Jeremy Villarreal, identified Aguirre as the

person who stabbed Baldera from a photo lineup. In addition, Roland Olivarez, who also was

stabbed during the fight, testified that Aguirre told another person that he had stabbed Baldera.

Although defense counsel questioned the credibility of the eyewitnesses’ testimony, given the vague

descriptions of the assailant that they initially provided, the fact finder’s determination with regard

to their credibility is not clearly wrong or manifestly unjust. Accordingly, the evidence is legally and

factually sufficient to support the jury’s finding that Aguirre stabbed Baldera.

       Although a knife is not a deadly weapon per se, a knife can be shown to be a deadly weapon

through proof of the manner of its use, its size and shape, and its capacity to cause serious bodily

injury. Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982). The State does not have to

introduce the knife into evidence to prove the knife was a deadly weapon. Magana v. State, 230

S.W.3d 411, 414 (Tex. App.—San Antonio 2007, pet. ref’d); Nickerson v. State, 69 S.W.3d 661, 669

(Tex. App.—Waco 2002, pet. ref’d). Wounds inflicted upon a victim are a factor to consider in

determining whether a weapon qualifies as a deadly weapon. Id.



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        In this case, pictures of the wounds inflicted on Baldera were introduced into evidence. The

jury heard testimony that Baldera suffered five stab wounds on his back, one on his chest, and on his

ear. Baldera was bleeding profusely from the wounds when he arrived at the emergency room. The

treating physician in the emergency room, Dr. Ryan Cradeur, was focused on whether Baldera’s

lungs had been penetrated which would cause them to collapse. Dr. Cradeur testified that Baldera

could have died from the wounds. Given the nature of the stab wounds, Dr. Cradeur believed

Baldera might require surgical intervention; therefore, Baldera was air-lifted by helicopter to another

hospital with surgeons on staff for better care. In view of the evidence presented, including the

doctor’s expressed concerns and his testimony that Baldera could have died from the wounds, we

conclude that the evidence is legally and factually sufficient to support the jury’s finding that Aguirre

used a deadly weapon in the assault.

                                   IDENTIFICATION PROCEDURE

        In his third issue, Aguirre contends that an impermissibly suggestive pretrial photographic

identification tainted Baldera’s in-court identification. We make the following two inquiries in

determining the admissibility of an in-court identification: (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. See

Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). The defendant has the burden to show

by clear and convincing evidence that the in-court identification is unreliable. Id. The admissibility

of an identification is a mixed question of law and fact that we review de novo. See Loserth v. State,

963 S.W.2d 770, 773 (Tex. Crim. App. 1998).




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       Although Aguirre’s brief focuses on the second step of this two-part inquiry, we must first

evaluate the pretrial photo lineup itself to determine whether it was impermissibly or unduly

suggestive. Delk, 855 S.W.2d at 706; McClenton v. State, 167 S.W.3d 86, 96 (Tex. App.—Waco

2005, no pet.). A lineup is considered unduly suggestive if other participants are greatly dissimilar

in appearance from the suspect. McClenton, 167 S.W.3d at 96. A suspect may be greatly dissimilar

in appearance from the other participants because of his distinctly different appearance, race, hair

color, height, or age. Id. Minor discrepancies between lineup participants, however, do not render

a lineup impermissibly suggestive. Id.

       The lineup in this case was prepared using a computer program that generated random

photographs based on similarities to Aguirre’s photograph. Although Aguirre is the only person in

the lineup wearing a necklace, this is a minor discrepancy and fails to establish by clear and

convincing evidence that the lineup was impermissibly suggestive.

       Even if we were to consider the second step in the analysis, we would weigh the following

factors against the questionable corrupting effect of the lineup in assessing reliability under the

totality of the circumstances: (1) the opportunity of the witness 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 level of certainty demonstrated by the witness at the confrontation, and (5)

the length of time between the crime and the confrontation. Loserth, 963 S.W.2d at 772. In this

case, the witnesses testified that the area in which the assault occurred was well-lit by a street lamp

and porch lights. Baldera had a good opportunity to witness Aguirre, stating that he turned around

and saw him which is confirmed by the stab wounds to his chest and ear. Baldera stated that he got

a good look at his assailant. Baldera was shown the lineup approximately nine days after the offense



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and only took seconds to identify Aguirre. Although Baldera’s prior description of his assailant was

vague, even if the trial court had determined that the lineup was impermissibly suggestive, the trial

court would not have erred in determining that no substantial likelihood of irreparable

misidentification occurred given the totality of the circumstances. Therefore, the trial court did not

err in admitting Baldera’s in-court identification.

                                          PROBATED FINE

       In his fourth issue, Aguirre contends the trial court erred in not probating the fine assessed

as part of his sentence. The State agrees with Aguirre regarding the law, i.e. a judge cannot order

that a fine probated by a jury be paid as a condition of probation. See Martinez v. State, 874 S.W.2d

267, 267 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). However, the State disagrees that the

trial judge did not probate the fine. Although the trial judge expressed a lack of clarity with regard

to whether the fine should be probated at the sentencing hearing, she concluded by stating that “we’ll

look into that and whatever the law requires of that, that’s what we’ll do.” The trial court’s Order

Imposing Conditions of Community Supervision clearly states, “Pay the fine in the amount of

$5000.00 PROBATED.” The inclusion of the word “fine” in the portion of the order stating the

terms for the payments Aguirre was required to make does not change our analysis. As the State

explains in its brief, the calculation of the payment terms excluded the amount of the fine.

Accordingly, Aguirre’s fourth issue is overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Rebecca Simmons, Justice

DO NOT PUBLISH



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