









Opinion filed May 24, 2007
















The court on this day, July 19, 2007, has withdrawn the opinion and
  judgment dated May 24, 2007, and substituted the opinion and judgment dated
  July 19, 2007.








 




Opinion filed May 24, 2007
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                 ____________
 
                                       Nos. 11-05-00312-CR & 11-05-00313-CR 
                                                     __________
 
                                   OSVALDO
LOPEZ, JR., Appellant
 
                                                             V.
 
                                        STATE
OF TEXAS,
Appellee
 

 
                                         On
Appeal from the 259th District Court
 
                                                          Jones County, Texas
 
                                             Trial
Court Cause Nos. 9004 & 9005
 

 
                                                                   O
P I N I O N
 
The jury convicted Osvaldo Lopez, Jr. of two
deliveries of cocaine:  (1) a second
degree felony offense enhanced to a first degree felony offense of more than
one gram but less than four grams that occurred on September 4, 2001 (Cause No.
11-05-00313-CR) and (2) a state jail felony offense of less than one gram that
occurred on September 6, 2001 (Cause No. 11-05-00312-CR).  The trial court assessed punishment at forty
years confinement in Cause No. 11-05-00313-CR and at two years confinement in
Cause No. 11-05-00312-CR, both sentences to run concurrently.




Appellant asserts that he was provided with
ineffective assistance of counsel because his trial counsel failed (1) to
object to the traffic stop of appellant for narcotics officers to obtain his
driver=s license
information and (2) to object to the unduly suggestive procedure of the
undercover officer in identifying appellant from his driver=s license photograph.  Appellant also asserts that, without the
in-court identification of appellant by the undercover officer, which was a
result of the impermissible pretrial procedure, the evidence was legally and
factually insufficient to support the convictions.  Lastly, appellant contends that the trial
court erred in admitting impeachment evidence of prior offenses dismissed under
Tex. Pen. Code Ann. ' 12.45 (Vernon 2003) by an earlier
court that had considered them in the punishment of appellant for an earlier
felony conviction.  We modify and affirm.
Background Facts
Sergeant Teofilo Garcia Jr. of the Texas
Department of Public Safety (DPS) was a narcotics officer based in Anson.  On September 4, 2001, a cooperating
individual told him that a man named AJunior@ would sell cocaine if Sergeant Garcia
wanted to set up a buy.  Born in Anson,
Sergeant Garcia had lived there most of his life and knew many of the people
who were involved with drugs, and they knew him.  Sergeant Garcia had received information that
the Aguirre family had been trafficking in drugs.  The cooperating individual=s reference to AJunior,@ his mentioning of the names of members
of the Aguirre family, and his description of where the named persons lived led
Sergeant Garcia to wrongly assume that the cooperating individual was talking
about Robert Aguirre Jr. as the potential seller of cocaine.  Sergeant Garcia=s
assumption had the additional support of the cooperating individual=s description of the pickup that AJunior@
would be driving: a white Ford F150 with a buyer=s
tag.  Sergeant Garcia had seen Larry
Aguirre, Robert Aguirre Jr.=s
brother, driving that pickup, and he had seen the pickup at the Aguirre
residence.




Because Sergeant Garcia was well known in Anson,
Sergeant James Rhodes was the undercover officer to purchase the cocaine.  Sergeant Rhodes told the cooperating
individual to contact AJunior@ to set up a purchase of two grams of
cocaine for $100 per gram later in the afternoon of September 4.  Sergeant Rhodes testified that, after
appellant drove up in the white Ford F150 pickup, the cooperating individual
simply introduced appellant as AJunior@ and then left.  Sergeant Rhodes then purchased 1.65 grams of
cocaine from appellant for $200. 
Sergeant Garcia testified that he was conducting surveillance for
Sergeant Rhodes but that he did not see AJunior,@ only the white Ford F150 pickup with
buyer=s
tags.  
Two days later, on September 6, Sergeant Rhodes
was preparing to make an undercover buy of methamphetamine from an individual
named Wilcox.  AJunior@ was driving a white Chevrolet pickup,
spotted Sergeant Rhodes, and stopped and asked Sergeant Rhodes if he would like
to purchase $20 worth of cocaine. 
Sergeant Rhodes made a second buy of .26 grams from AJunior.@
When Sergeant Rhodes delivered the two packets of
cocaine to the DPS lab, he listed the suspect as Robert Aguirre Jr. on both
initial reports.  The first report was
dated September 5, a Wednesday, and the second report was dated September
7.  After the second buy, Sergeant Rhodes
described AJunior@ to Sergeant Garcia who then realized
that the AJunior@ described was not Robert Aguirre Jr.
because Robert was a much larger person. 
A day or so later, Sergeant Garcia saw a person, whom he thought might
be the person described by Sergeant Rhodes, driving one of the Aguirres= pickups.  Sergeant Garcia asked another DPS trooper to
make a traffic stop to identify the driver. 
The trooper stopped appellant for not signaling and obtained the
information on appellant=s
driver=s
license.  Based on that information,
Sergeant Rhodes obtained appellant=s
driver=s license
photograph from Austin
and identified appellant as the seller of the cocaine.  He then corrected the two lab reports to read
AOsvaldo Lopez@
instead of ARobert
Aguirres [sic] Jr.@
  Sergeant
Rhodes positively identified appellant at trial, stating that he remembered the
tear-drop tattoo by appellant=s
left eye as Aclear as
a bell@ even
though he had omitted that detail in his reports.  Sergeant Rhodes was certain B A100%
sure@ B that appellant was the person who had
sold him cocaine on September 4 and 6. 
He had stood approximately two to three feet from appellant, who was
behind a steering wheel, when he purchased the cocaine.  Sergeant Rhodes testified that appellant
drove a white Ford F150 on September 4 and a white extended cab Chevrolet
pickup on September 6.  The Chevrolet
pickup was registered in the name of Larry Aguirre, and appellant was also
driving that pickup when he was given a traffic ticket on October 23, 2001.




Appellant testified that he was married to an
Aguirre sister and that his sister was married to Larry Aguirre.  He also admitted driving the various Aguirre
pickups because he did not own a vehicle. 
Appellant testified that, when he was released from prison in April
2001, he came to live with his sister and Larry Aguirre in Anson.  He still lived with Aguirre family members at
1832 Avenue H, and he remembered driving an Aguirre pickup when he was stopped
on October 23. During his testimony, appellant said that he had never been to
1901 Avenue P even though Sergeant Rhodes had testified that the white
Chevrolet pickup was registered in the name of Larry Aguirre at 1901 Avenue P.  Sergeant Garcia also testified that he
followed the white Ford F150 to 1901 Avenue P on September 4 just before the
pickup was driven to Avenue G where Sergeant Rhodes made the first buy.
Ineffective Assistance of Counsel
In appellant=s
second issue, appellant asserts that he received ineffective assistance of
counsel because his trial counsel failed to object to the traffic stop of
appellant to obtain his driver=s
license information and to object to the unduly suggestive identification
procedure followed by Sergeant Rhodes.  
In order to determine whether appellant=s trial counsel rendered ineffective
assistance at trial, we must first determine whether appellant has shown that
counsel=s
representation fell below an objective standard of reasonableness and, if so,
then determine whether there is a reasonable probability that the result would
have been different but for counsel=s
errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v.
State, 988 S.W.2d 770 (Tex. Crim. App. 1999).  We must indulge a strong presumption that
counsel=s conduct
fell within the wide range of reasonable professional assistance, and appellant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.  Stafford
v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
Appellant argues that his trial counsel was
ineffective because he did not timely object and move to suppress appellant=s identification on the basis of an
illegal traffic stop.  Sergeant Garcia testified
that he remembered Trooper Brewster stopping appellant for not signaling.  Sergeant Garcia had just seen the person
described by Sergeant Rhodes in the Aguirre pickup and asked Trooper Brewster
to make a stop.  Sergeant Garcia did
state that Trooper Brewster, after the stop, called him with the driver=s license information.  Trooper Brewster was in Iraq at the
time of trial.




The traffic stop of appellant for identification
was valid.  A police officer may stop and
briefly detain persons suspected of criminal activity, but the officer must
possess a reasonable suspicion to justify the investigative detention.  Terry v. Ohio,
392 U.S. 1 (1968); Davis v. State,
947 S.W.2d 240, 242-44 (Tex. Crim. App. 1997). 
Sergeant Garcia had reasonable suspicion to stop appellant when he
spotted appellant in the Aguirre pickup: 
Sergeant Garcia had received information that the Aguirres were involved
in drug trafficking, he recognized the Aguirre pickup that appellant was
driving, and he believed that appellant was the person described by Sergeant
Rhodes.  See also Pichon v. State,
683 S.W.2d 422, 426 (Tex. Crim. App. 1984) (Aa
defendant=s face
cannot be a suppressible fruit of an illegal arrest@).  Appellant=s
trial counsel did not err by not challenging the stop.
Appellant also argues that his trial counsel was
ineffective because he did not object to Sergeant Rhodes=s
in-court identification of appellant as having been the result of an
impermissibly suggestive pretrial procedure. 
By this challenge to the admissibility of Sergeant Rhodes=s in-court identification, appellant
has to prove (1) that the out-of-court identification procedure was
impermissibly suggestive and (2) that the suggestive procedure gave rise to a
very substantial likelihood of irreparable misidentification.  Barley v. State, 906 S.W.2d 27, 33
(Tex. Crim. App. 1995).  The second
element directly implicates appellant=s
due process rights.  Simmons v. United States, 390 U.S. 377, 384
(1968).  If appellant makes this showing,
the in-court identification was inadmissible unless the State proved by clear
and convincing evidence that the identification was of Aindependent
origin.@  United
 States v. Wade, 388 U.S. 218, 240 (1967).  Reliability is the linchpin in determining
the admissibility of identification testimony. 
Manson v. Brathwaite, 432 U.S. 98, 114 (1977).  




Appellant has satisfied his burden as to the first
element.  The use of a lone photograph,
without any of the traditional safeguards of a lineup or a photographic array,
is inherently suspect and has been uniformly condemned by courts.  Stovall v. Denno, 388 U.S. 293, 302
(1967); Loserth v. State, 985 S.W.2d 536, 543 (Tex. App.CSan Antonio 1998, pet. ref=d). 
Having determined that Sergeant Rhodes=s
viewing of a single photograph was an impermissibly suggestive procedure, we
next consider whether appellant has established that the procedure gave rise to
a very substantial likelihood of irreparable misidentification.  Photographic identification of an accused
prior to trial does not automatically taint an in-court identification.  Ward v. State, 474 S.W.2d 471, 475
(Tex. Crim. App. 1971).  Unless it is
shown by clear and convincing evidence that the witness=s
identification was irreparably tainted, a conviction will not be reversed on
that ground. Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App.
1984).
The United States Supreme Court in Brathwaite
and in Neil v. Biggers, 409 U.S. 188, 199 (1972), held that, even if an
identification procedure is suggestive and unnecessary, the admission of
identification testimony does not violate due process so long as the
identification possesses sufficient aspects of reliability.  Emphasizing that the totality of the
circumstances must be reviewed, the Court set forth five nonexclusive factors
to be considered: (1) the opportunity of the witness 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 criminal; (4) the level of certainty demonstrated by
the witness at the confrontation; and (5) the length of time between the crime
and the confrontation.    
The facts in this case are similar to those in Brathwaite.  In Brathwaite, a trained undercover
state police officer purchased heroin from a seller through the open doorway of
an apartment while standing for several minutes within two feet of the seller
in a hallway illuminated by natural light. 
The undercover officer described the seller to another police officer
who, suspecting from the description that the defendant might be the seller,
left a police photograph of the defendant at the office of the undercover
officer.  Two days later, the undercover
officer identified the picture as the defendant.  The Court held that, under the totality of
the circumstances, there did not exist a very substantial likelihood of
irreparable misidentification.  The
observer was a trained police officer who had a sufficient opportunity to view
the suspect, accurately described him, positively identified the defendant=s photograph, and made the photograph
identification only two days after the crime.
Sergeant Rhodes had two opportunities to view
appellant from two or three feet away. 
Sergeant Rhodes was a trained undercover officer who could be expected
to pay scrupulous attention to detail, for he knew that subsequently he would
have to find and arrest his seller. 
Sergeant Rhodes=s
description of appellant prior to seeing the photograph was sufficient to
enable Sergeant Garcia to have appellant stopped a few days later.  Sergeant Rhodes was adamant in his testimony
during trial that appellant was the person who sold cocaine to him on two
occasions.  Finally, the photographic
identification took place only a few days after the cocaine purchases. As in Brathwaite,
we do not have a passage of weeks or months between the crime and the viewing
of the photograph.  See Brathwaite,
432 U.S.
at 116.  




The State in this case demonstrated by clear and
convincing evidence that the identification of appellant was of independent
origin (Sergeant Rhodes=s
observation of defendant during the two sales). 
See Spencer v. State, 466 S.W.2d 749, 753 (Tex. Crim. App.
1971).  Although appellant has relied
heavily in his argument that Sergeant Rhodes failed to mention appellant=s teardrop tattoo in his reports, that
omission went to the weight of Sergeant Rhodes=s
testimony, not its admissibility.  Garza
v. State, 633 S.W.2d 508, 513 (Tex. Crim. App. 1981).  The impermissible procedure did not give rise
to a very substantial likelihood of irreparable misidentification.  Appellant=s
second issue is overruled.  Appellant=s trial counsel was not ineffective for
not objecting to the stop or the method by which Sergeant Rhodes identified
appellant.
Legal and Factual Sufficiency of the Evidence
In appellant=s
third and fourth issues, appellant asserts that the evidence was legally and
factually insufficient to support the convictions.  Although appellant=s
sufficiency arguments are primarily based on his contention that the in-court
identification of appellant by the undercover officer was due to an
impermissible pretrial procedure, with which we have disagreed, we nevertheless
will address the third and fourth issues. 
In order to determine if the evidence is legally
sufficient, we must review all of the evidence in the light most favorable to
the verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia,
443 U.S. 307 (1979); Jackson v. State,17 S.W.3d 664 (Tex. Crim. App.
2000).  To determine if the evidence is
factually sufficient, the appellate court reviews all of the evidence in a
neutral light.  Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v.
State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23
S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404,
407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129
(Tex. Crim. App. 1996).  Then, the
reviewing court determines whether the evidence supporting the verdict is so
weak that the verdict is clearly wrong and manifestly unjust or whether the
verdict is against the great weight and preponderance of the conflicting
evidence.  Watson, 204 S.W.3d at
414-15;  Johnson, 23 S.W.3d at
10-11.




Sergeant Rhodes was firm in his in-court
identification of appellant as the one who sold him cocaine on two
occasions.  There are other factors
pointing to appellant as the one who drove the Ford F150 on September 4 and the
white Chevrolet pickup on September 6. 
Both pickups were known by Sergeant Garcia to belong to the Aguirres,
and there was testimony that the Chevrolet pickup was registered in the name of
Larry Aguirre.  Appellant admitted, and
the evidence showed, that he was driving the Chevrolet pickup on October 23
when appellant was the subject of a traffic violation.  Appellant obviously was driving an Aguirre
pickup when he was stopped in September and Trooper Brewster obtained his
driver=s
license.  Appellant did not own a vehicle
and freely admitted that he drove the Aguirre pickups when he needed a
vehicle.  The fact that an Aguirre pickup
was involved in both cocaine buys is indicative that either an Aguirre or
someone closely associated with the Aguirres was driving the pickups.  Appellant was married to a sister of an
Aguirre, and his own sister was married to Larry Aguirre, the owner of the
Chevrolet pickup.
The evidence was legally and factually sufficient
to support the conviction of appellant for both offenses.  We overrule appellant=s
third and fourth issues.
Prior Offenses Dismissed Under Section 12.45
In his first issue, appellant argues that the
trial court erred in admitting impeachment evidence of prior offenses that
appellant had pleaded guilty to under Section 12.45 of the Penal Code.  The offenses had been considered by another
court in connection with the punishment of appellant for an earlier felony
conviction.  In this case, appellant does
not object to the use of the earlier felony conviction for illegal investment
under Tex. Health & Safety Code Ann.
' 481.126 (Vernon Supp. 2006).  Appellant=s
objection is that the dismissed offenses under Section 12.45 B possession of 400 grams or more of
cocaine and possession of five pounds or less but more than four ounces of
marihuana B should
not have been used to impeach him because they were not final convictions as
required by Tex. R. Evid. 609.
The State argues that appellant failed to object
timely, that the two dismissed offenses were part of the felony conviction
judgment, and that the two dismissed offenses could be considered for
impeachment purposes, citing Perea v. State, 870 S.W.2d 314, 318 (Tex.
App.CTyler 1994,
no pet.).  We agree that appellant failed
to timely object to the evidence relating to the two offenses that were taken
into consideration under Section 12.45 and then dismissed.




To preserve a complaint for appellate review, a
defendant must make a timely, specific objection to the trial court.  Tex.
R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.
Crim. App. 1996).  A complaining party
must object at the earliest possible moment and obtain an adverse ruling.  Dixon
v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).  The sequence is to object when it is
possible, to request an instruction to disregard if the prejudicial event has
occurred, and to move for a mistrial if a party thinks an instruction to
disregard is not sufficient.  The
essential requirement to preserve complaints for appellate review is a timely,
specific request that the trial court refuses. 
Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); Fuller v. State,
827 S.W.2d 919, 926 (Tex. Crim. App. 1992).
Prior to the jury returning and appellant taking
the stand to testify, the trial court held a hearing to determine the
admissibility for impeachment purposes of the two prior offenses that had been
considered in the punishment for appellant=s
prior felony offense.  The record
reflects that the State was presenting to the trial court several documents B a certified copy of the judgment and
sentence in the earlier illegal investment case, the State=s motion to dismiss the two counts
charging possession of cocaine and possession of marihuana, and the order B that were related to appellant=s 
illegal investment offense.[1]  The State urged that the two possession offenses
were admissible as part of the earlier judgment and that, in any event, they
were admissible for impeachment under Perea.  Appellant argued that the two offenses were
not convictions as required by Rule 609. 
The trial court overruled appellant=s
objection and held that the Adocuments@ were admissible. 
After appellant completed his direct testimony,
the prosecutor began his cross-examination by confirming that appellant had
pleaded guilty to the offense of illegal investment in 1997.  He then asked appellant about the second
count in that indictment, possession of cocaine, and the third count,
possession of marihuana.  Appellant
acknowledged that he had admitted his guilt to those two charges and that they
were taken into account by the trial court in sentencing him for the offense of
illegal investment.  It was not until the
prosecutor offered the earlier judgment into evidence that appellant=s attorney objected to the documents Afor the reasons previously stated.@ 
The trial court overruled his objection.




The objection came too late.  Appellant waived any objection to his
testimony about the illegal investment conviction and the earlier court=s consideration of the other two counts
and, thus, waived any objection to the documents.  Where the same evidence or argument is
presented elsewhere during a trial without objection, no reversible error
exists.  McFarland v. State, 845
S.W.2d 824, 840 (Tex. Crim. App. 1992). 
Appellant=s first
issue is overruled.
This Court=s
Ruling
In Cause No. 11-05-00312-CR, the judgment of the
trial court is modified to reflect that the offense is a state jail
felony.  In Cause No. 11-05-00313-CR, the
judgment of the trial court is modified to reflect that appellant entered a
plea of true to the enhancement allegation and that the trial court found the
enhancement allegation to be true.  As
modified, the judgments of the trial court are affirmed.
 
 
TERRY McCALL
JUSTICE
 
May 24, 2007
Do not publish.  See
Tex. R. App. P. 47.2(b).
Panel
consists of:  Wright, C.J.,
McCall,
J., and Strange, J.




[1]Only the certified copy of the judgment was later
introduced into evidence.  The record
does not contain the State=s motion to dismiss the two possession counts or the
order dismissing them.


