      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00101-CR




                                    Manuel Barrientes, Appellant

                                                 v.

                                    The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
      NO. D-1-DC-05-201674, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                           MEMORANDUM OPINION


               A jury found appellant Manuel Barrientes guilty of the aggravated sexual assault of

a child, and the court assessed a twenty-four year prison term. See Tex. Penal Code Ann. § 22.021

(West Supp. 2008). Appellant brings forward four issues urging that his statement to the police

should have been suppressed, a pretrial photographic identification was impermissibly suggestive,

and a photograph of the complainant and a recording of a telephone call were erroneously admitted.

We overrule these contentions and affirm the conviction.

               On April 1, 2005, the thirteen-year-old complainant was sexually assaulted in the

back seat of an automobile by two men who called themselves “Manny B” and “Big C.” The

complainant had met the men earlier that afternoon at a convenience store. The complainant was

taken home by the men following the assaults. She immediately told her mother what had happened,

and her mother called the police.
               This incident received a large amount of media coverage, which in turn generated

numerous calls to Crime Stoppers. From information received in these calls, the police were able

to identify “Manny B” as appellant and “Big C” as Duran Souza. On April 6, the complainant was

interviewed by a victim’s services counselor and shown two sets of six photographs, one of which

contained a photograph of appellant. The complainant identified appellant’s photo as “Manny B.”

Also on April 6, appellant called Crime Stoppers, identified himself, and was connected to Officer

Anthony Nelson. Appellant told Nelson that he and Souza wanted to meet with him and tell their

side of the story. Nelson agreed to meet appellant and Souza in a parking lot near the police

department’s child abuse office. Nelson testified that before meeting appellant, he ran a warrant

check and learned that there were outstanding warrants for appellant’s arrest.1

               The meeting took place as arranged. Nelson frisked both men for weapons, noticed

the odor of marihuana, and advised them not to bring drugs to the interview. Nelson then instructed

appellant, who was driving his own car, to follow Nelson’s vehicle to the police office. Nelson

testified that as he waited at a red light, he noticed in his rear-view mirror that appellant and Souza

had “a little panic in their faces.” When the light turned green, appellant did not follow Nelson but

instead turned “and began to evade.” Nelson pursued appellant and called for backup. Appellant

was stopped, and both he and Souza were handcuffed and transported to the child abuse office.

There, appellant gave a written statement in which he admitted having sexual intercourse with the

complainant but claimed that it was consensual.




    1
       Another officer testified that the warrants were for a probation violation and some traffic
tickets.

                                                  2
                                            STATEMENT

                Appellant objected to the admission of his written statement on the ground that it was

the product of an unlawful warrantless arrest. The trial court overruled this contention after finding

that there were outstanding warrants to arrest appellant, albeit not for this offense. The court further

ruled that the police were authorized to arrest appellant without a warrant because they had probable

cause to believe that he had sexually assaulted the complainant and there were exigent circumstances

that justified them in the belief that there was no time to procure a warrant.

See Tex. Code Crim. Proc. Ann. art. 14.04 (West 2005).

                Appellant urges that the trial court erred by relying on the outstanding warrants to

justify his arrest. He points out that Nelson testified that he had no prior intention to arrest appellant

that day and argues that “the determination to arrest [appellant] had everything to do with [appellant]

deciding not to voluntarily make a statement to the police, and not any potentially outstanding

warrants.” Appellant did not make this “pretext arrest” argument to the trial court. Moreover, the

validity of an arrest is not determined by the subjective motivations of the officer who makes the

arrest but by the objective facts surrounding the arrest. Garcia v. State, 827 S.W.2d 937, 943-44

(Tex. Crim. App. 1992). The objective fact is that Nelson knew that there were outstanding warrants

for appellant’s arrest. Finally, appellant does not challenge the trial court’s alternative ruling that

the arrest was lawful under article 14.04.2 For all of these reasons, we overrule appellant’s




   2
      In a single sentence in his brief, appellant asserts that “the facts of this arrest do not meet the
facts of Article 14.03 of the Code of Criminal Procedure.” See Tex. Code Crim. Proc. Ann. art.
14.03 (West Supp. 2008). The trial court did not cite article 14.03 as a basis for its ruling.

                                                    3
contention that his written statement was tainted by an unlawful arrest and that the trial court erred

by overruling his objection to its admission on that ground.

                Appellant also objected to the admission of his statement on the ground that he was

not shown to have voluntarily waived his rights under Miranda and article 38.22.

See Miranda v. Arizona, 384 U.S. 436 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, § 2

(West 2005). Appellant does not deny that he was advised of his rights, but he complains that he

was never asked if he wished to waive his right to remain silent.

                Appellant’s statement was taken by Officer Anthony Bigongiari. The officer testified

that he advised appellant of his rights before questioning him, that appellant appeared to understand

those rights, and that appellant told him that he wanted to make a statement.             Bigongiari

acknowledged that after advising appellant of his rights, he never specifically asked appellant if he

wished to waive those rights. The trial court ruled that no “magic words” were required and that the

totality of the circumstances demonstrated that appellant made a knowing and voluntary waiver of

his right to remain silent.

                The Supreme Court has held that a waiver of the right to remain silent may be inferred

from the actions and words of the suspect, and that “an explicit statement of waiver is not invariably

necessary.” North Carolina v. Butler, 441 U.S. 369, 373-76 (1979). The “blue card” from which

Bigongiari read appellant his rights was introduced in evidence. On the back of the card is the

preprinted statement, “I have received and understand the warning on the other side of this card. I

agree to waive these Rights and to make a Statement.” Appellant signed the card below this

statement after being advised of his rights. Below appellant’s signature are the date, the time, and



                                                  4
Bigongiari’s signature as witness. The written statement itself also begins with a listing of

appellant’s rights, each initialed by appellant. Below this is the statement, “I do hereby knowingly,

intentionally and voluntarily waive my right to be silent and my right to have a lawyer present to

advise me. I make the following statement in writing without any threats or promises of any kind

having been made to me.” We agree with the trial court that the record demonstrates that appellant

knowingly and voluntarily waived his rights under Miranda and article 38.22, including the right

to remain silent.

                 No error in the admission of appellant’s written statement to the police is presented.

Issue one is overruled.


                                           IDENTIFICATION

                 By his fourth issue, appellant challenges the propriety of the April 6, 2005,

photographic lineup in which he was identified by the complainant. He contends that this photo

lineup was unduly suggestive, and that the trial court erred by admitting both the evidence of the

pretrial photographic identification and the complainant’s in-court identification.

                 The record reflects that appellant objected to the testimony of the victim’s services

counselor who conducted the photographic lineup, but he did not object to the complainant’s in-court

identification. Because appellant did not present to the trial court his contention that the in-court

identification was tainted by the earlier photographic lineup procedure, this contention was not

preserved for review. See Tex. R. App. P. 33.1(a).

                 A photographic lineup must contain individuals who fit the rough description of the

suspect,   but      it   is   not   essential   that   each   individual   photograph   be   identical.

                                                       5
Brown v. State, 64 S.W.3d 94, 100 (Tex. App.—Austin 2001, no pet.). In Brown, the defendant

contended that the photo spread was impermissibly suggestive because his photograph was

overexposed, making it distinguishable from the others. Id. We noted, however, that each of the

six photographs in the spread was of a young African American with short hair and comparable

facial features, each man was wearing similar clothing, and the backgrounds of all the photographs

were similar. Id. We also noted that the complainant was not told that a suspect was included in the

spread. Id. at 101. We held that the photographic array was not impermissibly suggestive. Id.

               In the case now before us, the victim’s services counselor showed the complainant

two sets of six photographs. Appellant’s photograph was in only one of the sets, and his was the

only photograph identified by the complainant.3 The counselor testified that before showing the

complainant the photographs, “I told her that the suspects in the case may or may not be included

in the lineup and that she should not feel compelled to identify somebody.” The challenged photo

spread consists of six photographs of young Hispanic males, each of whom has short hair and is

wearing a black shirt. All six photographs appear to have been taken against a blank background

but, for some reason, the backgrounds in two of the photographs, including appellant’s, are

noticeably darker than the backgrounds in the other four photographs. Appellant contends that this

difference in the background darkness rendered the photo spread impermissibly suggestive.

Considering the totality of the circumstances, however, we agree with the trial court that this




   3
     Appellant challenges only the set of six photographs that included him. The second set of
photographs does not appear in the record.

                                                 6
one factor did not unduly single out appellant’s photograph so as to render the identification

procedure impermissibly suggestive.

               The trial court did not err by admitting evidence of the complainant’s pretrial

identification of appellant. Issue four is overruled.


                                         OTHER ISSUES

               In issue two, appellant contends that the trial court erred by admitting

State’s exhibit one, a recording of the 911 call made by the complainant’s mother after the

complainant told her about the assault. Appellant contends that because both the complainant and

her mother testified, the recording was cumulative and its probative value was outweighed by the

danger of unfair prejudice. See Tex. R. App. P. 403.

               In issue three, appellant contends that the trial court erred by admitting

State’s exhibit two, a photograph of the complainant. The complainant’s mother testified that the

photograph, which appears to be an ordinary studio portrait, accurately shows the complainant’s

appearance in 2005. Appellant contends that because the complainant’s age and appearance were

not at issue, this exhibit was also more prejudicial than probative.

               Appellant objected to the admission of the 911 recording, but not on the ground he

now urges on appeal. See Tex. R. App. P. 33.1(a). Appellant did not object to the admission of the

complainant’s photograph. Appellant argues, however, that the admission of the photograph was

“plain error” under federal case law. Although not cited by appellant, we also note that the rules of

evidence allow the consideration on appeal of fundamental errors affecting substantial rights even

though they were not brought to the attention of the trial court. Tex. R. Evid. 103(d).

                                                  7
               Appellant refers us to no case authority holding that the admission of similar evidence

under similar circumstances was plain or fundamental error. We find no basis in the record for

concluding that the admission of either exhibit one or exhibit two was so manifestly improper as to

constitute fundamental error that should be considered in the absence of a pertinent trial objection.

Issues two and three are overruled.

               The judgment of conviction is affirmed.




                                              ___________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: March 18, 2009

Do Not Publish




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