                         NUMBER 13-12-00514-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ALEX ESTUARDO RAMIREZ DIAZ A/K/A
ALEX ESTUARDO RAMIREZ A/K/A JUAN
CARLOS REYES-ALVARADO A/K/A
JUAN RAMIREZ A/K/A JUAN,                                                 Appellant,

                                          v.

THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Alex Estuardo Ramirez Diaz a/k/a Alex Estuardo Ramirez a/k/a Juan

Carlos Reyes-Alvarado a/k/a Juan Ramirez a/k/a Juan challenges his conviction by a jury

for murder. See TEX. PENAL CODE ANN. § 19.03(b) (West 2011). By four issues, which
we consolidate and re-number as one, appellant argues that the trial court erred in

permitting two witnesses to identify him during trial where their pre-trial identifications

were based on photo line-ups that were impermissibly suggestive. We affirm.

                                           I. Background1

        In September 1996, appellant was indicted on two counts of murder in connection

with the shooting death of Jose Luis Uribe. See id. Appellant was not arrested until

2011. He pleaded not guilty, and his case was tried to a jury.

        At trial, there was testimony that on August 15, 1996, a man whom Uribe knew as

"Juan Ramirez" came by the house Uribe shared with his wife and his wife's son and

niece. "Juan" was driving a white car. Uribe and the man had an argument, the man

left, and later returned to the home and shot Uribe with a .22-caliber rifle. Uribe died

almost immediately.

        The primary issue at trial was the identification of the man who shot Uribe.

Alejandro Hernandez, a friend of Uribe, testified that he was at Uribe's home on the day of

the shooting.      He testified that he had known "Juan" for "about a year" before the

shooting, that he had seen him "maybe about five times." Hernandez testified that on the

day of the shooting, "Juan" came to Uribe's house around 4 p.m., and "Juan" and Uribe

had an argument in the front yard. Hernandez broke up the fight, and "Juan" left angrily,

saying that he was going to come back and kill Uribe. Hernandez testified that "Juan"

returned, in a white car, shortly after making the threat and began shooting. Hernandez

testified that he, Uribe, Uribe's wife, and Uribe's wife's daughter were in the front yard at


        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
                                                     2
the time. Hernandez then identified appellant in court as the man he knew at the time as

"Juan" and testified that he was the man who shot Uribe.

        After this testimony, the State admitted, over defense counsel's objection, the

photo line-up Hernandez had been shown the day after the shooting. 2 The line-up

included six photographs of Latino men.                Five of the photographs had identical

backgrounds. The final photograph, which was the photograph of appellant, had a

different background. Both on the night of the shooting and in his testimony at trial,

Hernandez pointed to appellant's photo in the line-up and stated that was the man who

shot Uribe.

        After identifying appellant in the photo line-up, Hernandez provided further details

surrounding the shooting. He testified that the weapon appellant used was a "large" gun

that "looked like a rifle, like a shotgun type." He also testified that appellant shot at the

front yard from the street, that "[appellant] remained by the car."

        Uribe's wife, Odelia, identified appellant as the man she knew at the time as "Juan"

and testified that he was the shooter. Odelia testified that she had poor eyesight. She

was seventy-eight years old at the time of trial and in her early sixties at the time of the

shooting. Gloria Longoria, Odelia's niece, testified that she witnessed the shooting; that

"Juan" was the shooter; and that appellant was the man she once knew as "Juan."

Longoria testified that she knew appellant before the shooting, specifically, that she had

previously danced with him at a night club.

        Rudy Saenz, Uribe's wife's son, testified that he also knew "Juan Ramirez." He

testified that he "part[ied]" with "Juan" on "a few occasions" and that if they "got too

        2
        State's Exhibit 2, which contains the photo line-up shown to Hernandez, indicates that Hernandez
was shown the line-up on August 16, 1996 at 3:45 a.m., less than twelve hours after the shooting.
                                                   3
drunk," he and "Juan" "had some sex." He identified appellant in court as the man he

knew at the time as "Juan." Saenz was in his room inside Uribe's home at the time of the

shooting. He testified that he did not see the shooting and did not hear anything.

       Saenz then testified that on the morning after the shooting,3 he was shown a photo

line-up by a deputy. The line-up was admitted as State's Exhibit 1. It contained the

same line-up as the one shown to Hernandez. Both on the night of the shooting and in

his testimony at trial, Saenz pointed to appellant's photo in the line-up and stated that was

the man whom he knew at the time as "Juan."

       Finally, Christina Perez testified that at the time of the shooting, she was dating a

man known as "Juan Ramirez." She identified appellant in court as the man she knew at

the time as "Juan." On the day of the shooting, she let "Juan" borrow her white car.

Prior to the shooting, "Juan" had also asked Perez to buy him a gun; she testified that she

bought him a rifle at a pawn shop.

       After the close of evidence, the jury returned a guilty verdict. The trial court

sentenced appellant to sixty years' incarceration. This appeal followed.

                                         II. Discussion

       By one issue, appellant complains that the trial court erred in denying his motions

to suppress Hernandez and Saenz's in-court identifications where their pre-trial

identifications were based on impermissibly suggestive photo line-ups.

       We review de novo the question of whether a pretrial identification procedure was

impermissibly suggestive. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App.

2009). Reliability is the linchpin in determining the admissibility of an identification.

       3
         State's Exhibit 1, which contains the photo line-up shown to Saenz, indicates that Saenz was
shown the line-up on August 16, 1996 at 4:25 a.m.
                                                 4
Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). In our review, our first

inquiry is whether the pretrial identification procedure was impermissibly suggestive.

Gamboa, 296 S.W.3d at 581. If we conclude that the procedure was impermissibly

suggestive, we then determine if the impermissibly suggestive nature of the pretrial

line-up gave rise to a substantial likelihood of irreparable misidentification. Id. at 581–82.

If the pretrial procedure is found to be impermissibly suggestive, identification testimony

would still be admissible where the totality of the circumstances shows no substantial

likelihood of misidentification. See Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App.

2008) (citing Ibarra, 11 S.W.3d at 195). Appellant must show by clear and convincing

evidence that the identification has been irreparably tainted before his conviction can be

reversed. See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995).

       Assuming without deciding that the pretrial identification procedures used in this

case were impermissibly suggestive, appellant has failed to show by clear and convincing

evidence that these procedures gave rise to a substantial likelihood of irreparable

misidentification. We consider the following factors when determining the likelihood of

irreparable misidentification: (1) the witness's opportunity to view the perpetrator at the

time of the offense; (2) the witness's degree of attention during the offense; (3) the

accuracy of the witness's prior description of the perpetrator; (4) the witness's level of

certainty regarding his identification at the time of confrontation; and (5) the lapse of time

between the offense and the subsequent confrontation. Gamboa, 296 S.W.3d at 582;

Luna, 268 S.W.3d at 605. Ultimately, we will find a witness's in-court identification

admissible when it is of an independent origin from any pre-trial identification. See

Zepeda v. State, 797 S.W.2d 258, 260 (Tex. App.—Corpus Christi 1990, pet. ref'd); see

                                              5
also Jimenez v. State, No. 13-99-00776-CR, 2002 WL 228794, at *12 (Tex.

App.—Corpus Christi Feb. 14, 2002, pet. ref'd) (mem. op., not designated for publication);

Ochoa v. State, No. 13-00-00033-CR, 2001 WL 997355, at *1–2 (Tex. App.—Corpus

Christi Apr. 12, 2001, no pet.) (not designated for publication).

       Here, both Hernandez and Saenz provided identifications that were independent

of their photo line-up identifications and the facts underlying those independent

identifications made it unlikely there would be an irreparable misidentification.

Hernandez testified that he had known appellant for close to a year before the shooting.

He testified that he had been at Uribe's home when appellant first arrived and had broken

up the initial fight between the two men. He was able to give a detailed description of the

type of gun that was used and, because he was in the front yard, was very close to the

shooter who was by his car at the curb. Finally, less than twelve hours had passed since

the shooting when Hernandez identified appellant in the photo line-up.            Although

Hernandez's testimony does not contain a detailed description of appellant's appearance

at the time of the shooting, Hernandez had ample opportunity to view appellant at the time

of the offense, was generally familiar with appellant because of his year-long

acquaintance with him, was greatly involved in the events leading up to the shooting, and

identified appellant as the perpetrator shortly after the shooting. See Gamboa, 296

S.W.3d at 582 (listing as relevant factors the witness's opportunity to view the perpetrator

and the witness's degree of attention during the offense). These independent bases for

Hernandez's identification of appellant make it unlikely that there was a misidentification.

See Zepeda, 797 S.W.2d at 260.

       Saenz's testimony was likewise reliable. See Ibarra, 11 S.W.3d at 195. From

                                             6
our review of the record, it is apparent that the State used Saenz to generally identify

appellant as the "Juan Ramirez" who was known to socialize in the same circles as

Saenz's family and friends. In short, Saenz's testimony was used as a link in the State's

chain connecting the man known to everyone at the time as "Juan" to appellant. And in

that regard, Saenz's identification of appellant was of an independent origin and did not

rely exclusively on the photo line-up. Saenz knew appellant from parties and had had

sex with appellant. These independent factors made it unlikely that Saenz misidentified

appellant. See Zepeda, 797 S.W.2d at 260; see also Gamboa, 296 S.W.3d at 581–82.

       In sum, we conclude that both Hernandez and Saenz's in-court identifications of

appellant were admissible. Their in-court identifications were underpinned by numerous

facts that were independent of their photo line-up identifications. See Zepeda, 797

S.W.2d at 260. Thus, the totality of the circumstances show that the identifications were

reliable. See Luna, 268 S.W.3d at 605; Ibarra, 11 S.W.3d at 195. The trial court did not

err in allowing Hernandez and Saenz to identify appellant in court. Appellant's issue is

overruled.

                                     III. Conclusion

       We affirm the judgment of the trial court.



                                                             NELDA V. RODRIGUEZ
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 19th
day of December, 2013.


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