                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NOS. 2-09-183-CR
                                    2-09-184-CR

MAXIMO DUARTE                                                           APPELLANT

                                            V.

THE STATE OF TEXAS                                                            STATE

                                        ------------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                  I. Introduction

      Appellant Maximo Duarte appeals his convictions for two counts of engaging

in organized criminal activity—aggravated assault with a deadly weapon, a firearm. 2

In two points, Duarte contends that the trial court erred by (1) denying his motion to




      1
           See Tex. R. App. P. 47.4.
      2
         See Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2009) (defining
“engaging in organized criminal activity”); see also id. § 22.02 (Vernon Supp. 2009)
(defining “aggravated assault”).
suppress identification and (2) denying his request for a jury instruction on the lesser

included offense of aggravated assault. W e affirm.

                      II. Factual and Procedural Background

      On the evening of May 5, 2008, in the Peppertree Apartments’ parking lot in

Fort W orth, Julian Valladares, Raul Lopez, Randy Ortiz and his sister Jessica were

sitting in Raul’s Camaro smoking marijuana when two vehicles, one unidentified and

one identified as a green Impala, pulled up behind Raul’s Camaro and parked as if

to prevent Raul from leaving.        Several males then exited the two vehicles

proclaiming they were “Latin Kings.” 3 W hen Raul stepped out of his car, the male

driver of the green Impala (“the driver”) ran at Raul and punched him—Raul fought

back. Julian, Randy, and Jessica exited the Camaro.

      At some point, one of the males who had exited either the green Impala or the

unidentified vehicle took out a handgun. He fired the gun towards Raul while Raul

fought with the driver and then pointed the gun at Randy, who turned and ran inside

his sister’s nearby apartment. The man fired several shots towards the apartment.

The shots penetrated the walls but did not hit anyone inside. He then turned and

shot Julian three times at close range, once in the shoulder, once in the head, and

once in the face. W hile all of this was occurring, Julian heard someone yelling the

name “Casper.” After shooting Julian, the man threw some gang signs, looked at

Robert Reyna, a resident of the apartments who was standing nearby, and said,


      3
           The Latin Kings are a criminal street gang.

                                           2
“Latin Kings, bitch.” He then got back into one of the vehicles and left with his

companions. Julian survived the shooting.

       During the investigation, the complainants and other witnesses described the

shooter as a light-complected Hispanic with long braided hair. The police officers

in the Fort Worth gang unit were aware of only one member in the Latin Kings who

had long braided hair—Duarte. Detective L. Luevanos, who was assigned to Fort

W orth’s gang unit, prepared a photographic lineup containing Duarte’s picture and

showed it to Julian, Randy, Raul, and Jessica. Jessica hesitantly identified Duarte

as the shooter, writing next to his picture, “I belive [sic] this is the shoty [sic].” Julian,

Randy, and Raul were unable to identify anyone as the shooter. The State charged

Duarte with two counts of engaging in organized criminal activity by committing

aggravated assault with a deadly weapon against Randy and Julian.

       At trial, Duarte sought to suppress an in-court identification of him by anyone

who had viewed the photographic lineup, claiming that it was impermissibly

suggestive and substantially likely to cause misidentification on the bases cited in

his motion.4 After a hearing, the trial court denied Duarte’s motion to suppress. Both

Randy and Julian identified Duarte in court as the shooter, and Jessica confirmed

her out-of-court identification of Duarte. Robert also made an in-court identification




       4
        That is, “[i]n particular, the photographic arrangements shown to the
witness[es] [were] suggestive because Defendant was the only person of long hair
and light complexion among pictures of persons with dark complexions.”

                                              3
of Duarte. It is unclear from his testimony whether he viewed the photographic

lineup. Raul did not testify at the trial.

       Detective Armando Garza of the Fort W orth gang unit testified extensively

about the Latin Kings, including their colors and signs. He testified that Duarte was

on file with the Fort W orth gang unit as a gang member and had been known to be

a Latin King for quite some time. The State submitted photographs of Duarte

wearing Latin Kings’ gang colors and throwing Latin Kings’ gang signs. The State

also presented photographs of Duarte’s tattoos, representing membership in the

Latin Kings. Detective Luevanos testified about the procedure used to create the

photographic lineup and about Jessica’s “hesitant” identification of Duarte.

       Erica Rousey, who has a child with Duarte and was his girlfriend at the time

of the shooting, testified that Duarte had come home the night of the shooting about

four in the morning and had instructed her to tell the police, if they asked, that he had

been with her. She also testified that Duarte was a member of the Latin Kings, that

he, or his brother, had carved “LKN,” which stands for “Latin King Nation,” and a

corona, symbolizing the Latin Kings, into her table, and that Duarte’s nickname was

“Casper.”

       Duarte testified that he was not the shooter, that he was not a member of the

Latin Kings, and that “Casper” was not his nickname. He stated that he was with

Erica the night of the shooting and that she had lied about him not being with her

because they had broken up. He also stated that his older brother was a Latin King


                                             4
and that his older brother’s nickname was “Casper.” Duarte admitted that his tattoos

represented membership in the Latin Kings but went on to state that the Latin Kings

“would be mad at [him]” for having the tattoos since he was not a member of the

gang. Duarte’s mother testified that Duarte had been a Latin King when they lived

in Chicago but that he was not currently a member and that he was not nicknamed

“Casper.”

       At the close of evidence, Duarte requested a lesser included offense

instruction on aggravated assault. The trial court denied Duarte’s request and

charged the jury on two counts of engaging in organized criminal activity. The jury

found Duarte guilty on both counts and assessed punishment at thirty-five years’

confinement, each count to be served concurrently. The trial court sentenced Duarte

accordingly. This appeal followed.

                    III. Admissibility of In-Court Identification

       In his first point, presenting the same grounds that he argued at trial, Duarte

asserts that the trial court erred by denying his motion to suppress in-court

identifications by persons who had viewed the photographic lineup prior to trial

because the photographic lineup was impermissibly suggestive and created a

substantial likelihood of misidentification at trial.

A. Standard of Review

       The question of whether a pretrial identification procedure was impermissibly

suggestive is a mixed question of law and fact that does not turn on an evaluation


                                            5
of credibility and demeanor. See Loserth v. State, 963 S.W .2d 770, 773 (Tex. Crim.

App. 1998). Accordingly, we apply a de novo standard of review. Id.

B. Applicable Law

      An in-court identification is inadmissible if tainted by an impermissibly

suggestive pretrial identification. Id. at 771–72. In determining whether the trial

court correctly admitted an in-court identification, we employ a two-step analysis:

first, we examine whether the out-of-court identification procedure was impermissibly

suggestive and if so, we then examine the totality of the circumstances to determine

whether the impermissibly suggestive procedure gave rise to the substantial

likelihood of irreparable misidentification. Barley v. State, 906 S.W .2d 27, 33 (Tex.

Crim. App. 1995).     If a court finds that a pretrial identification procedure was

impermissibly suggestive, it 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, 199, 93 S. Ct. 375, 382

(1972); Ibarra v. State, 11 S.W .3d 189, 195 (Tex. Crim. App. 1999). 5 The defendant

has the burden to show by clear and convincing evidence that the pretrial

identification procedure was impermissibly suggestive and that the in-court

identification is unreliable. Barley, 906 S.W .2d at 33–34.


      5
          The Biggers factors are (1) the witness’s opportunity 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 suspect, (4) the level of certainty at the time of
confrontation, and (5) the time between the crime and confrontation. 406 U.S. at
199–200, 93 S. Ct. at 382.

                                           6
C. Discussion

      Duarte argues that the pretrial photographic identification procedure was

impermissibly suggestive because (1) “his photograph is brighter than the other five”

lineup photographs, (2) his photograph is one of only two depicting persons without

facial hair, and (3) his photograph is the only one “which closely resembles the

description given by the witnesses.”

      A pretrial identification procedure may be suggestive, but that does not

necessarily mean it is impermissibly so.      Id. at 34.   Suggestiveness may be

implicated by the manner in which a pretrial identification procedure is conducted,

as in suggesting a suspect is included in the array or when the suspect is the only

individual who closely resembles the pre-procedure description. See id. at 33. A

lineup is considered unduly suggestive if the appearance of other participants is

greatly dissimilar from the suspect. Withers v. State, 902 S.W .2d 122, 125 (Tex.

App.—Houston [1st Dist.] 1995, pet. ref’d). A suspect may be greatly dissimilar in

appearance from the other participants based on a distinctly different appearance,

race, hair color, height, or age. See id. However, minor discrepancies among lineup

participants will not render a lineup impermissibly suggestive. See Partin v. State,

635 S.W .2d 923, 926 (Tex. App.—Fort W orth 1982, pet. ref’d). The participants in

a lineup do not have to be identical to satisfy the requirements of due process. See

Buxton v. State, 699 S.W .2d 212, 216 (Tex. Crim. App. 1985).




                                         7
      This case is unique in that neither Randy, Julian, nor Raul identified Duarte

as the shooter when showed the photographic lineup. And it is unclear from the

record whether Robert ever saw the photo lineup at issue. 6 Only Jessica made an

identification from the photographic lineup, and her identification was hesitant. We

were unable to find, and Duarte does not cite, any cases in which an argument was

made that a photographic lineup was impermissibly suggestive and yet the

witnesses who viewed the photographic lineup failed to make an identification from

it. Contra Mendiola v. State, 269 S.W .3d 144, 145 (Tex. App.—Fort W orth 2008, no

pet.) (acknowledging that witness identified appellant from the photo spread);

Mendoza v. State, No. AP-75213, 2008 W L 4803471, at *24 (Tex. Crim. App. Nov.

5, 2008) (not designated for publication) (stating that witness identified “appellant

almost immediately upon seeing the photo array”); Newton v. State, Nos. 05-07-

01070-CR, 05-07-01071-CR, 05-07-01072-CR, 2008 W L 5221185, at *1 (Tex.

App.—Dallas Dec. 16, 2008, no pet.) (mem. op., not designated for publication)

(noting that witness ”identified appellant from a photographic line-up as the

perpetrator”). It seems to go without saying that in order to show by clear and

convincing evidence that a photographic lineup is suggestive, impermissibly or

otherwise, one must first show that the lineup resulted in an identification. Thus,



      6
        Detective Luevanos testified that he showed the photographic lineup to
Jessica, Randy, and Julian. Robert testified both that he had never been shown the
photospread in State’s Exhibit 43 and that he did see a photospread like it for this
case against Duarte.

                                         8
because the photographic lineup in this case resulted in only one hesitant

identification, we conclude it was not impermissibly suggestive. 7 Accordingly, the

trial court did not err by denying Duarte’s motion to suppress. W e overrule Duarte’s

first point.

                           IV. Lesser Included Offense

       In his second point, Duarte asserts that the trial court erred by refusing to

instruct the jury on the lesser included offense of aggravated assault.

A. Standard of Review

       W e use a two-step analysis to determine whether an appellant was entitled

to a lesser-included-offense instruction. Hall v. State, 225 S.W .3d 524, 528 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W .2d 666, 672–73 (Tex. Crim. App.),

cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come within article

37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09

(Vernon 2006); Moore v. State, 969 S.W .2d 4, 8 (Tex. Crim. App. 1998); see also

Ex parte Watson, No. PD-0294-08, 2009 W L 4825129, at *9 (Tex. Crim. App. Dec.

16, 2009) (op. on reh’g) (discussing lesser included offenses under article 37.09(1)).

Second, some evidence must exist in the record that would permit a jury to rationally

find that if the appellant is guilty, he is guilty only of the lesser offense. Hall, 225


       7
          Because Duarte is unable to satisfy by clear and convincing evidence the
first step in the two-step analysis outlined in Barley, we need not and do not address
the second step of the test—that is, based on the totality of the circumstances,
whether the impermissibly suggestive procedure gave rise to the substantial
likelihood of irreparable misidentification. See Barley, 906 S.W .2d at 33.

                                           9
S.W .3d at 536; Salinas v. State, 163 S.W .3d 734, 741 (Tex. Crim. App. 2005);

Rousseau, 855 S.W .2d at 672–73. The evidence must be evaluated in the context

of the entire record. Moore, 969 S.W .2d at 8. There must be some evidence from

which a rational jury could acquit the appellant of the greater offense while convicting

him of the lesser included offense. Id. The court may not consider whether the

evidence is credible, controverted, or in conflict with other evidence. Id. Anything

more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser

charge. Hall, 225 S.W .3d at 536.

B. Discussion

      To support Duarte’s conviction for engaging in organized criminal activity, the

State was required to prove that Duarte committed or conspired to commit

aggravated assault as a member of a criminal street gang. See Tex. Penal Code

Ann. § 71.02(a)(1) (stating that a person commits the offense of engaging in

organized criminal activity “if, with the intent to establish, maintain, or participate .

. . as a member of a criminal street gang, the person commits or conspires to

commit one or more of the [enumerated offenses],” which includes aggravated

assault). Thus, aggravated assault is a lesser included offense of engaging in

organized criminal activity. See Adams v. State, 40 S.W.3d 142, 145 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (holding that convicting defendant of

engaging in organized criminal activity means jury necessarily found defendant

committed lesser offense of aggravated assault). Having satisfied the first step of

                                           10
the lesser included offense analysis, we must next determine whether there is some

evidence in the record that would permit a jury to rationally find that if Duarte is

guilty, he is guilty only of aggravated assault—that is, that Duarte was not acting as

a Latin King when he committed the aggravated assault. See Hall, 225 S.W.3d at

536.

       Duarte argues that his testimony that he was not a member of the Latin Kings

is some evidence that he is guilty only of aggravated assault. However, Duarte also

testified that he was not the shooter and that he was with his girlfriend Erica the night

of the shooting. Moreover, the only evidence the jury received pertaining to the

shooter was that the shooter was a Latin King. There was no evidence from any

source that the shooter was not or might not be a Latin King. Thus, Duarte’s

evidence, coupled with the remaining evidence, if believed by the jurors, would have

supported only an acquittal, not a conviction for the lesser included offense of

aggravated assault. See, e.g., Lofton v. State, 45 S.W .3d 649, 652 (Tex. Crim. App.

2001) (holding that appellant’s testimony that he committed no offense is not

adequate to raise lesser included offense); Martin v. State, 246 S.W .3d 246, 267

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (same). Consequently, the trial court

did not err by failing to instruct the jury on the lesser included offense of aggravated

assault. Accordingly, we overrule Duarte’s second point.




                                           11
                                  V. Conclusion

      Having overruled both of Duarte’s points, we affirm the trial court’s judgment.



                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 27, 2010




                                        12
