i          i      i                                                                  i       i      i




                                  MEMORANDUM OPINION

                               Nos. 04-09-00717-CV & 04-09-00718-CV

                              IN THE MATTER OF N.K.M., a Juvenile

                      From the 289th Judicial District Court, Bexar County, Texas
                        Trial Court Nos. 2009-JUV-01790 & 2009-JUV-01693
                              Honorable Carmen Kelsey, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: September 1, 2010

AFFIRMED

           In two cases tried together, N.K.M. was adjudicated as having engaged in delinquent conduct

by committing aggravated assault with a deadly weapon, and aggravated robbery along with

aggravated kidnapping. He was committed to the Texas Youth Commission (TYC) for a 20-year

determinate sentence on each case, to be served concurrently. On appeal, N.K.M. argues the

complainant’s in-court identification was tainted by a suggestive pretrial identification procedure in

one case, and that the evidence of identity was factually insufficient in the other case. We affirm the

trial court’s judgment in both cases.
                                                                     04-09-00717-CV & 04-09-00718-CV



                            FACTUAL AND PROCEDURAL BACKGROUND

       These two cases arise out of two incidents that occurred on the same night in the same

Converse, Texas neighborhood. On April 22, 2009, at approximately 11:00 p.m., Oscar Barella was

sitting in his garage working on a hobby when he noticed a young man standing there pointing a gun

at him. Barella confronted the young man, demanding, “what are going to do, are you going to shoot

me for what, over what? . . . So you can get caught, go to jail and be somebody’s bitch, take it up the

a**?” The young man’s demeanor changed and he backed off. Barella stood up, realized he was

quite a bit taller than the young man, and again demanded, “are you going to shoot me, go ahead, go

ahead.” The young man turned and fled. Barella chased him on foot, and saw him jump into the

open passenger door of a Dodge Magnum which sped off. Barella wrote down the license plate

number and called 911. When officers arrived, Barella described the young man as having “light

skin,” about 5 feet 6 inches tall, 150 pounds, and wearing a dark colored light jacket and dark ski

mask. Barella told the officers that he had focused on the young man’s eyes the entire time, and he

was sure he could pick out the young man if he ever saw his eyes again. Barella stated the encounter

lasted about two minutes.

       At approximately 11:30 p.m., while the officers were still at Barella’s house, a call came in

that some other officers had spotted the Dodge Magnum about one-half mile away and were giving

chase. The two suspects crashed the car, bailed out, and ran into a wooded area where they escaped.

When the Dodge Magnum was processed, officers determined it had been stolen from Timothy

Downey on April 15, 2009. Downey testified that he was carjacked at gunpoint in his driveway by

one person, but there was at least one more person involved because a vehicle was blocking his

driveway at the time.


                                                  -2-
                                                                             04-09-00717-CV & 04-09-00718-CV



        Later that same night of April 22, 2009, at approximately 12:00 or 12:30 a.m., Ethel Carter

was sitting inside her parked car reading a newspaper and waiting for her daughter to arrive with a

key to the front door. Carter’s house is at the other end of the same street where Barella lives. Two

young men wearing gloves and masks approached Carter’s Mercedes Benz which was parked in the

driveway. Carter could see their eyes, nose, and mouth under the masks; she described one young

man as “dark-complected” and the other as “light-complected.” The dark-complected young man

pointed a gun at Carter’s head and asked whether she had a safe or any jewelry or guns inside the

house. The light-complected young man held a gun on Carter while the dark-complected young man

kicked the front door in; they took Carter inside where she was instructed to lie down on the floor.

The light-complected young man pointed the gun at Carter’s head while the dark-complected young

man ransacked the house. Carter was told to face the floor and not look at them. They assured her

they were not going to hurt her unless she called the police, at which point they would come back

to kill her. At one point during the incident, the light-complected young man had his mask pulled

up and Carter saw some of his face; she realized, “he’s just a kid.” The young men took the keys to

Carter’s Mercedes Benz and tied her up before they left in her car. When the police arrived, Carter

described the young men to Bexar County Sheriff’s Detective Kenneth Murray, stating the dark-

complected one was wearing dark pants or jeans,1 and the light-complected one was wearing blue

shorts and blue and white tennis shoes.

        Detective Murray had a “person of interest” in mind who he believed was connected with

another series of robberies in the area. Murray went to Wagner High School the next morning and



        1
         … Detective Murray testified that Carter described the dark-complected young man as wearing “dark shorts,
dark socks and tennis shoes.”

                                                       -3-
                                                                     04-09-00717-CV & 04-09-00718-CV



asked for a picture of the young man of interest. Murray obtained the photo, and then asked the

principal to call the young man up to the main office so he could compare his clothing with Carter’s

description. The young man arrived wearing dark shorts and black socks. He was accompanied by

another young man wearing blue basketball shorts, blue and white tennis shoes, and a glove on his

left hand. A camera took a photo as each young man entered the school office. A few days after the

robbery, Detective Murray went to Ms. Carter’s home and showed her a series of photo line-ups.

Carter was unable to pick out anyone from the full-face photo displays. Carter did, however, pick

out N.K.M. from a six-person “eyes-only” photo lineup–although she was “not quite sure.” After

she picked out N.K.M’s photo from the lineup, Detective Murray showed Carter the photo of N.K.M.

taken at Wagner High School the morning after the robbery when he was wearing blue basketball

shorts, blue and white tennis shoes, and a glove on one hand. Carter confirmed that the blue tennis

shoes and blue shorts matched what the light-complected young man was wearing the night of the

robbery. When Detective Murray later showed the same “eyes-only” photo lineup to Barella, he

picked out N.K.M. with no hesitation. Barella “had no doubt whatsoever” about the identification.

       The State charged N.K.M. in two separate cases with engaging in delinquent conduct by

committing aggravated assault with a deadly weapon against Oscar Barella and aggravated

kidnapping/aggravated robbery against Ethel Carter. N.K.M. pled “not true” in both cases, and they

were tried jointly before a jury. N.K.M. filed a motion to suppress the photo identification evidence,

which was denied. After hearing the trial evidence, the jury found that N.K.M. engaged in

delinquent conduct by committing aggravated assault with a deadly weapon against Oscar Barella,

and by committing aggravated kidnapping and aggravated robbery with a deadly weapon against

Ethel Carter. The State sought determinate sentences in each case. The court adjudicated N.K.M.


                                                 -4-
                                                                      04-09-00717-CV & 04-09-00718-CV



as having engaged in delinquent conduct as alleged in both cases, found a need for disposition, and

committed N.K.M. to TYC for concurrent determinate sentences of 20 years in each case, with a

possible transfer to the Texas Department of Criminal Justice. N.K.M. now appeals.

                                               ANALYSIS

        In two issues, N.K.M challenges the trial court’s judgment asserting that: (1) it erred in

denying his motion to suppress Oscar Barella’s in-court identification because it was tainted by a

suggestive pre-trial identification procedure; and (2) the evidence of identity in the Ethel Carter case

is factually insufficient.

Oscar Barella Case — Impermissibly Suggestive Pretrial Identification Procedure

        N.K.M. argues that the pretrial photo lineup that Detective Murray showed Barella was

impermissibly suggestive because Murray told Barella the photo array contained a “person of

interest;” therefore, N.K.M. asserts it tainted Barella’s in-court identification which should have been

suppressed. The State points out that Barella denied that Murray made such a statement, and asserts

that, even if he did, it did not render the procedure impermissibly suggestive and did not create a

substantial likelihood of misidentification.

        Standard of Review.     We review a ruling on a motion to suppress in a juvenile case under

the same standard used in a criminal case. TEX . FAM . CODE ANN . § 51.17(c) (Vernon Supp. 2009);

In the Matter of S.J., 977 S.W.2d 147, 151 (Tex. App.—San Antonio 1998, no pet.). We afford

almost total deference to the trial court’s determination of historical facts that the record supports,

especially when the fact findings are based on an evaluation of the witnesses’ credibility and

demeanor, but review the court’s application of the law to the facts de novo. Carmouche v. State,

10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.


                                                  -5-
                                                                      04-09-00717-CV & 04-09-00718-CV



App. 1997). Whether a pre-trial photo identification procedure was so impermissibly suggestive that

it may have tainted an in-court identification is reviewed de novo. Gamboa v. State, 296 S.W.3d

574, 581 (Tex. Crim. App. 2009); Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Crim. App. 1998).

When the trial court does not make express findings of fact and conclusions of law, we assume the

court made implicit findings of fact in support of its ruling as long as such findings are supported

by the record. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). We will sustain the

trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law

applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

       Analysis.       An in-court identification is inadmissible when it has been tainted by an

impermissibly suggestive pre-trial photo identification procedure. Gamboa, 296 S.W.3d at 581;

Loserth, 963 S.W.2d at 772. The appellant bears the burden to show by clear and convincing

evidence that the in-court identification is unreliable. Madden v. State, 799 S.W.2d 683, 695 (Tex.

Crim. App. 1990). The test is whether, considering the totality of the circumstances, “the

photographic identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Gamboa, 296 S.W.3d at 582 (quoting

Simmons v. United States, 390 U.S. 377, 384 (1968)); Loserth, 963 S.W.2d at 772. In assessing

reliability under the totality of the circumstances, the court considers the following factors de novo:

(1) the witness’s opportunity to view the appellant at the time of the offense; (2) the witness’s degree

of attention; (3) the accuracy of the witness’s prior description of the appellant; (4) the witness’s

level of certainty at the time of the confrontation; and (5) the length of time between the offense and

the confrontation. Gamboa, 296 S.W.3d at 582 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972));

Loserth, 963 S.W.2d at 772.


                                                  -6-
                                                                     04-09-00717-CV & 04-09-00718-CV



       As the State points out, there was conflicting testimony at the suppression hearing as to

whether Detective Murray informed Barella there was a “person of interest” in the six-person photo

lineup. Murray testified at the hearing that before he showed Barella the photo lineup, he stated,

“[t]hat I had a series of six photographs I wanted him to look at. That I wasn’t sure if anybody in

the six photographs were [sic] the actor involved, but at least one of them was a person of interest.”

Murray stated he did not suggest who Barella should pick out. Barella testified that before he

showed him the photo array, Murray told him, “Well, I’ll show you a lineup. All it is is [sic] just a

focus on their eyes. You take a look at it and pick out the person you think it may be.” Barella

stated that Murray did not indicate who he thought it was, but also did not tell him the person may

not be in the line-up. Murray just asked him, “is he in this lineup?” On cross-examination at the

hearing, Barella was asked whether he recalled the detective telling him a “person of interest” was

in the photo spread, and Barella answered “No.”

       At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990). We must view the evidence in the record, and all reasonable inferences, in the light most

favorable to the trial court’s ruling, and must sustain the ruling if it is reasonably supported by the

record and is correct on any applicable theory of law. Villarreal, 935 S.W.2d at 138. Applying that

standard of review, we must assume the trial court made implicit fact findings in support of its denial

of the motion to suppress, and that it chose to believe Barella’s testimony that Murray did not

mention a “person of interest” being in the photo lineup.

       Even assuming that Murray did tell Barella that a “person of interest” was in the photo

lineup, and that Murray’s statement was “impermissibly suggestive,” we conclude that N.K.M. failed


                                                  -7-
                                                                      04-09-00717-CV & 04-09-00718-CV



to carry his burden to prove the identification procedure gave rise to a “very substantial likelihood

of irreparable misidentification.” Madden, 799 S.W.2d at 695 (appellant has burden to show by clear

and convincing evidence that in-court identification is unreliable due to impermissibly suggestive

pre-trial procedure). Assessing reliability under the Biggers’ factors, the record shows that Barella

viewed his assailant for approximately two minutes, and paid close attention to the young man’s eyes

during the entire encounter. Barella testified that he could not see the young man’s whole face

because of the ski mask, but he “focused on his eyes” throughout the whole two-minute scenario.

Barella explained that it was just his reaction–“I looked him in the eyes, and that’s all I could see.”

While Barella’s opportunity to observe the young man was somewhat limited by the ski mask, his

degree of attention to a particular facial feature, the eyes, was very high; moreover, that high degree

of attention was sustained for a two-minute period. When the officers arrived, Barella told them he

could identify the young man if he saw his eyes again. Murray showed Barella the “eyes only” six-

person photo lineup only a few days after the incident. Barella studied each of the six photos for a

few seconds, and “focused right on” Number 6, which was N.K.M. Barella testified he was certain

that Number 6 was the young man in his garage. As to the accuracy of Barella’s description of his

assailant, there was very limited evidence presented at the suppression hearing from which the

accuracy of his description could be determined. Weighing the Biggers’ factors against the

“corrupting effect” of the presumably suggestive pre-trial identification, we conclude that Barella’s

high degree of attention to his assailant’s eyes for the entire encounter, his absolute certainty of his

identification of N.K.M. from the photo array, and the short time period between the incident and

the pre-trial identification all weigh heavily in favor of his in-court identification being reliable.




                                                  -8-
                                                                      04-09-00717-CV & 04-09-00718-CV



Loserth, 963 S.W.2d at 773-74. Accordingly, the trial court did not err in denying N.K.M.’s motion

to suppress the identification evidence.

Ethel Carter Case — Factual Sufficiency of Evidence of Identity

        In the second case, N.K.M. asserts the evidence is factually insufficient to support the jury’s

finding that he is one of the persons who committed the aggravated kidnapping and aggravated

robbery against Ethel Carter. N.K.M. contends that Carter’s identification of him as the perpetrator

was “‘so weak’ as to render the evidence factually insufficient.” The State concedes that Carter’s

identification was less than positive but contends there is other corroborating evidence that, when

combined with Carter’s identification, is sufficient to support the jury’s verdict.

        Standard of Review. In reviewing the sufficiency of the evidence in a juvenile adjudication

proceeding, we apply the sufficiency standards of review used in criminal cases. In re T.K.E., 5

S.W.3d 782, 784-85 (Tex. App.—San Antonio 1999, no pet.). When conducting a factual

sufficiency review, we consider all the evidence in a neutral light, and will set aside the verdict only

if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); In re K.T., 107 S.W.3d 65, 71 (Tex.

App.—San Antonio 2003, no pet.). An appellate court may reverse for factual insufficiency in only

two instances: if the evidence in support of the verdict, although legally sufficient, is so weak that

the verdict is clearly wrong and manifestly unjust; or if, considering conflicting evidence, the verdict

is outweighed by the great weight and preponderance of the evidence. Lancon, 253 S.W.3d at 705.

Finally, our review must be appropriately deferential so as to avoid merely substituting our judgment

for that of the jury. Id.; Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).




                                                  -9-
                                                                        04-09-00717-CV & 04-09-00718-CV



        Analysis.     N.K.M. asserts the in-court identification testimony by Carter was “so weak”

that it is factually insufficient to support the jury’s finding that he was a perpetrator of the aggravated

kidnapping and aggravated robbery against Carter. It is well established that the State must prove

beyond a reasonable doubt that the accused is the person who committed the alleged offense.

Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984); Roberson v. State, 16 S.W.3d 156,

167 (Tex. App.—Austin 2000, pet. ref’d). The identity of the accused as the perpetrator may be

proved by direct or circumstantial evidence, or by inferences drawn from such evidence. Roberson,

16 S.W.3d at 167. We apply the same sufficiency standards to both direct and circumstantial

evidence. Id.; McGee v. State, 774 S.W.2d 229, 238 (Tex Crim. App. 1989). A witness’s less than

positive identification of the defendant goes to the weight of the evidence. Valenciano v. State, 511

S.W.2d 297, 299 (Tex. Crim. App. 1974).

        N.K.M. asserts that Carter’s identification of him was too uncertain to constitute factually

sufficient evidence. During trial, when Carter was asked if she saw either the dark-complected or

the light-complected young man in the courtroom, she replied, “It’s him.” When asked to say it

louder, Carter stated, “I think that’s him over there,” and described the clothing N.K.M. was wearing

in court. When the prosecutor asked Carter if she was sure that was one of the boys inside her house,

she replied, “I’m not positively sure, but I think so.” She testified he was the light-complected one

whose mask had been pulled up. Carter also testified about her pre-trial identification of N.K.M.

from an “eyes-only” photo lineup. Carter stated she picked out N.K.M.’s photo, but wrote a note on

the back stating, “I think this is the person, but I’m not quite sure.” Detective Murray testified that

when Carter picked out N.K.M.’s photo, she initially said, “this is him, this is the one,” but then she

wrote on the back of the photo that she was “not quite sure.” Murray explained that he then showed


                                                   -10-
                                                                       04-09-00717-CV & 04-09-00718-CV



Carter the photo from Wagner High School “just to put her mind at ease.” When Carter saw the

school photo, she stated, “those are the shorts, those are the shoes,” and became nervous and started

shaking and tearing up. Detective Murray testified that, in his opinion, Carter wrote the note stating

she was “not sure” about the identification because she had been threatened during the robbery and

was afraid of retaliation.

        An uncertain in-court identification is not, by itself, sufficient to support a guilty verdict.

Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.—Dallas 1991, no pet.) As the State points out,

however, the presence of corroborating facts or circumstances connecting the accused to the crime,

when coupled with a less-than-certain eyewitness identification, may be sufficient to support the

jury’s finding of identity. Id.; Redwine v. State, 305 S.W.3d 360, 367 (Tex. App.—Houston [14th

Dist. ] 2010, pet. filed); Swartz v. State, 61 S.W.3d 781, 788-89 (Tex. App.—Corpus Christi 2001,

pet. ref’d); United States v. Hawkins, 658 F.2d 279, 289 (5th Cir. 1981) (when there is other

evidence of identity, the tentative nature of the in-court identification is not fatal).

        Here, there was other evidence connecting N.K.M. to the robbery at Carter’s home. Barella

positively identified N.K.M. with complete certainty as the masked assailant who threatened him at

around the same time on the same evening as the robbery at Carter’s house. Barella’s house is on

the opposite end of the same street as Carter’s house. This evidence shows that N.K.M. was in the

area of Carter’s house at the time of the robbery—wearing a ski mask. In addition, the photo of

N.K.M. taken the next morning at school matched Carter’s description of the blue clothes and shoes

the light-complected assailant wore, and Carter confirmed the matching clothes when she saw the

school photo. Moreover, Carter’s emotional reaction to the school photo showing N.K.M.’s full

body corroborates her uncertain identification.


                                                  -11-
                                                                      04-09-00717-CV & 04-09-00718-CV



       Finally, N.K.M.’s own statements connected him to the events of April 22, 2009. When

Detective Murray interviewed N.K.M. in the presence of his father, N.K.M. admitted being a “hard-

core” member of the Crips gang. Murray testified that in his experience the Crips’ colors are light

blue. When asked about the photo of him taken at Wagner High School on April 23, 2009, N.K.M.

stated that he remembered that because he got called in to the principal’s office for wearing the blue

colors at school. N.K.M. explained that he told the principal that he had put those clothes on the

night before. When his father objected that he was only a “wannabe” gang member, N.K.M.

corrected him in the presence of Detective Murray, stating that he is “hard core, everyone at the

school knows it, that he doesn’t have to wear blue every day because everybody knows it, [and] that

he only wears the blue when he intends to go out and hurt somebody.”

       Combining the pre-trial and in-court identifications by Carter with the corroborating facts

and circumstances in the record, we conclude that the evidence of N.K.M.’s identity as the

perpetrator of the aggravated kidnapping/robbery against Carter is factually sufficient to support the

jury’s verdict. The identity evidence is not “so weak” as to render the verdict “clearly wrong and

manifestly unjust.” Lancon, 253 S.W.3d at 705.

       Based on the foregoing reasons, we affirm the trial court’s judgment in both cases.



                                                        Phylis J. Speedlin, Justice




                                                 -12-
