








In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-02-00171-CR
____________

ALEJANDRO ROBLES VASQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 263rd District Court 
Harris County, Texas
Trial Court Cause No. 9403769 




O P I N I O N
          Appellant, Alejandro Robles Vasquez, was indicted for murder.  After the trial
court denied his pre-trial motion to suppress identification, appellant reached a plea
agreement with the State.  Pursuant to that agreement, appellant pled guilty and was
sentenced to 10 years’ confinement in prison.  In his sole issue, appellant contends
the trial court erred in denying his motion to suppress.  We affirm.
Factual & Procedural Background
          Appellant’s conviction stemmed from a shooting that occurred on February 2,
1994.  That night, while at a bar, appellant shot and killed Jorge Alberto Marroquin.
Augustine Lopez, an acquaintance of appellant, witnessed the shooting and was also
shot in the incident.  Lopez was taken to a hospital, where he was shown two
photographic lineups.  Each contained photographs of six individuals.  Lopez was
unable to identify anyone.  Subsequently, on February 14, 1994, Lopez was shown
a third photographic lineup that contained a photograph of appellant and five other
individuals.  This time, Lopez identified appellant.
          After he was indicted for murder, appellant filed a motion to suppress Lopez’s
out-of-court identification.  Appellant argued that the identification procedure was
impermissibly suggestive, in violation of his due process rights under the Fourteenth
Amendment.  See U.S. Const. amend. IV.  After conducting a hearing, the trial court
ruled the identification procedure was not suggestive and denied the motion. 
Appellant subsequently pled guilty, and the trial court granted permission to pursue
this appeal. Standard of Review
          We review a trial court’s decision on a motion to suppress identification under
an abuse of discretion standard.  See Villareal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996).  Under this standard, we give almost total deference to a trial
court’s determination of historical facts supported by the record, especially when the
trial court’s fact findings are based on an evaluation of credibility and demeanor of
witnesses.  Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998).  We give
the same amount of deference to the trial court’s rulings on “application of law to fact
questions,” also known as “mixed questions of law and fact,” if the resolution of
those questions turns on an evaluation of credibility and demeanor.  Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We review de novo “mixed questions of
law and fact” that do not fall within this category.  Id.   
          When faced with a challenge to an out-of-court identification, a trial court must
look to the totality of the circumstances surrounding the identification to determine
if a procedure was so unnecessarily suggestive and conducive to irreparable mistaken
identification that the defendant was denied due process of law.  Webb v. State, 760
S.W.2d 263, 272 (Tex. Crim. App. 1988).  In the first step in this analysis, the trial
court determines whether the identification procedure was impermissibly suggestive. 
Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995).  If the trial court
determines the identification is impermissibly suggestive, the court must then
consider the factors enumerated in Neil v. Biggers to determine whether the
suggestive procedure gave rise to a substantial likelihood of irreparable
misidentification.  409 U.S. 188, 93 S. Ct. 375 (1972).
  Throughout this process, the
burden is on the movant to show impermissible suggestion and substantial likelihood
of misidentification by clear and convincing evidence.  See Barley, 906 S.W.2d at 33-34.    
Impermissibly Suggestive Identification
          Appellant must first show that the procedure used to obtain Lopez’s
identification was impermissibly suggestive.  Suggestiveness may be created by the
manner in which the pre-trial identification procedure is conducted.  Barley, 906
S.W.2d at 33.  For example, police may point out the suspect or suggest that a suspect
is included in the line-up or photo array.  Id.  The content of the line-up itself may
show suggestiveness if the suspect is the only individual who closely resembles the
pre-procedure description.  Id.  Furthermore, an individual procedure may be
suggestive or the cumulative effect of procedures may be suggestive.  Id.  
          Appellant argues that the trial court erred by denying his motion to suppress
Lopez’s identification of appellant because (1) Lopez was intoxicated on the night of
the shooting, (2) Lopez had little recollection of appellant’s features and was unable
to provide a description of the shooter, (3) Lopez’s identification was very tentative,
(4) 12 days lapsed between the shooting and Lopez’s identification of appellant, (5)
police officers forced Lopez to identify appellant, and (6) an officer told Lopez after
the identification that appellant was the shooter.  We find these arguments
unpersuasive.
          Appellant’s first four arguments do not show that the identification procedure
was somehow tainted or impermissibly suggestive.  Lopez’s intoxication, poor
recollection, tentative nature, and delayed identification relate solely to the credibility
and reliability of Lopez as an identification witness and not to the suggestive nature
of the identification procedure.  Although Lopez’s credibility becomes relevant when
conducting a Biggers analysis to determine whether an impermissibly suggestive
identification procedure gave rise to a substantial likelihood of irreparable
misidentification, appellant must first show that the procedure itself was
impermissibly suggestive before he is entitled to a Biggers analysis.  See Barley, 906
S.W.2d at 34-35.
          Appellant also argues that police officers coerced or forced Lopez to identify
him.  However, nothing in the record supports this contention.  Lopez was repeatedly
asked at the suppression hearing whether he was coerced or forced to identify
appellant, and each time Lopez responded “no.”  Appellant’s contention is without
merit.            
          Finally, appellant contends that, after Lopez identified him, a police officer told
Lopez that appellant was the shooter.  But because Lopez cannot speak English and
had difficulty testifying through an interpreter, his testimony is unclear on this point. 
Lopez testified to the following:
          The State:    So the police officers told you that number two (appellant)
was the man, yes or no; is that correct?
 
          Lopez:         No.  I also told them that it was — I have also told them
that it was he.  No, no.  He didn’t tell me to tell them.  He
asked me if I recognized and then later I said yes.
 
          The State:    But you just signed this on number two.  You just stated
that they told you he (appellant) was the one that had killed
the other man?
 
          Lopez:         No, no.  I am telling you that when they were showing me
that (photo spread), I told them that it was he.  When I
signed, that’s when they told me that it was he.
    
          The police officer that obtained Lopez’s identification testified that at no point
during the identification process did an officer tell Lopez that appellant was the
shooter.
  In its ruling, the trial court stated:
The fact that there is such a language barrier and the fact that I think the
witnesses were all over the place with regard to the issue of whether or
not they were required to or weren’t required to (identify) . . . it’s this
Court’s opinion, based on the demeanor and the fact that this disability
of the witnesses to fully express themselves through an interpreter that
I am satisfied that the identifications were not improper. 
 
          To the extent that Lopez’s testimony does conflict with that of the officer,
resolution of this conflict turns on an evaluation of credibility and demeanor and is
properly reserved to the trial court.  See State v. Ross, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000); State v. Boone, 45 S.W.3d 743, 745 (Tex. App.—Houston [1st
Dist.] 2001, pet. ref’d).  Accordingly, we defer to the trial court’s determination that
the procedure used to obtain Lopez’s identification was not impermissibly suggestive.
          Because appellant has not shown that Lopez’s out-of-court identification was
obtained through an impermissibly suggestive procedure, we need not conduct a
Biggers analysis.  We hold that the trial court did not err in denying appellant’s
motion to suppress.
          We overrule appellant’s sole point of error.         
Conclusion
          We affirm the judgment of the trial court. 
 
     /s/  Elsa Alcala 
                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

Publish.  Tex. R. App. P. 47.4.   
