

Opinion issued November 17, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00723-CR
———————————
Jose J. Santiago, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 248th District Court
Harris County, Texas

Trial Court Case No. 1161112
 

 
O P I N I O N
A
jury convicted appellant Jose J. Santiago of the felony offense of aggravated
robbery with a deadly weapon.  See Tex.
Penal Code Ann. §§ 29.02, 29.03(a)(2) (West 2011).  The jury assessed punishment at 37 years in
prison.  Santiago argues that the trial
court erred by admitting identification evidence, and he challenges the legal
sufficiency of the evidence to support his conviction.  We affirm.
Background
          Abid
Ali was leaving his house around 5:30 a.m. to go to work when four armed men
confronted him.  The men were later
identified as Jose Zuniga Castaneda, Jorge Enrique Martinez, Teodoro Robles, and
Jose Santiago.  The four men ordered Ali
back into his house where they bound his hands with duct tape.  They held him in the kitchen for several minutes,
threatened to kill him, and took his jewelry and money.  Three of the four intruders—Santiago, Robles,
and Castaneda—then went upstairs while Martinez remained downstairs with Ali.
Ali’s wife and three
children were sleeping upstairs.  The
intruders bound his wife’s arms, legs, and mouth with duct tape.  An adult son was awakened, brought to his
mother’s room at gunpoint, placed face-down on the floor, and bound by his feet
and hands.  Ali was brought upstairs and into
the bedroom, followed by his 11-year-old son, who also was brought into the
room at gunpoint.  The Alis’ daughter called
9-1-1 and reported the intrusion, before Castaneda entered her room and brought
her at gunpoint to join the rest of her family. 
At this time, all of the intruders were present in the room.
The family remained in
the room for seven to ten minutes while the intruders demanded money.  The men forced Ali to open his safe, and they took
all of the jewelry stored inside it.  At
trial, Ali testified that all four men pointed guns at him during the robbery,
and he specifically testified that Santiago had a gun during the
encounter.  The Alis all repeatedly
testified that they feared for their lives, that the four men threatened to
kill them, and that they stole money and jewelry.  At some point during the robbery, Santiago
left the room and went downstairs.
Approximately 15
minutes after initially entering the house, Santiago yelled “policia” from
downstairs, warning the others that the police had arrived.  Officer A. Daugherty arrived first on the
scene and saw three men fleeing out the back door, but he did not see a fourth
man leave.  Once the officers arrived on
the scene and cleared the house, they separated the members of the Ali family
and told them not to discuss the incident with one another.
Officer D. Oldner was
the second officer to arrive on the scene, and he testified that he found Santiago
in a car two blocks away from the Alis’ home. 
Oldner noticed Santiago’s car rolling from a parked position with its
lights turned off.  Santiago turned the
lights on and continued driving, but Oldner shined a spotlight on him and
recognized him as matching the description of one of the suspects.  Oldner activated his emergency lights to
initiate a traffic stop, but Santiago sped away.  Santiago then jumped from the car, and Oldner
chased him on foot, eventually using a taser to stop him.
Santiago was charged
with aggravated robbery.  Before
trial, Santiago moved to exclude any in-court identification by Ali.  The trial court denied the motion based on Ali’s
identification of Santiago at the pretrial hearing.  The jury found Santiago guilty of aggravated
robbery, and this appeal ensued.
Analysis
I.                 
Admissibility of in-court identification
In his first issue, Santiago
contends that he was denied due process when the trial court admitted Abid Ali’s
in-court identification of him as one of the robbers.  Santiago argues that Ali’s prior out-of-court
identification was based on impermissibly suggestive procedures and thus
tainted Ali’s subsequent in-court identification.
“[A] pre-trial identification
procedure may be so suggestive and conducive to mistaken identification that
subsequent use of that identification at trial would deny the accused due
process of law.”  Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995)
(citing Stovall v. Denno, 388 U.S. 293,
87 S. Ct. 1967 (1967)).  Santiago
contends that “an in-court identification must be predicated upon a reliable
pre-trial out-of-court identification” and that “identification testimony is
unreliable if a witness failed to identify the defendant at [an] identification
procedure prior to [the] challenged identification,” but these assertions do
not inform our legal analysis of the admissibility of Ali’s testimony
identifying Santiago as one of the robbers. 
To the contrary, eyewitnesses to a crime are commonly permitted at trial
to identify a defendant as the perpetrator, without any requirement of a prior
out-of-court identification.  The
authorities relied upon by Santiago do not suggest otherwise.[1]
Instead, the admissibility of an in-court
identification is determined by a two-step analysis: “1) whether the
out-of-court identification procedure was impermissibly suggestive; and 2)
whether that suggestive procedure gave rise to a very substantial likelihood of
irreparable misidentification.”  Id. at 33 (footnote omitted).  “An analysis under these steps requires an
examination of the ‘totality of the circumstances’ surrounding the particular
case and a determination of the reliability of the identification.”  Id.  We review the trial court’s factual findings
deferentially, but we review de novo the trial court’s legal determination of
whether the reliability of an in-court identification has been undermined by an
impermissibly suggestive pretrial identification procedure.  See,
e.g., Loserth v. State, 963
S.W.2d 770, 773–74 (Tex. Crim. App. 1998).
There are four pretrial episodes
relating to Ali’s testimony and Santiago’s allegations of suggestive identification
procedure: (1) Ali’s observation of the intruders in his home during the robbery;
(2) his response to seeing Santiago in a police car shortly after the
robbery took place; (3) a photographic lineup; and (4) Ali’s
identification of Santiago in court at the pretrial hearing on the
identification issue.  We will review
each of these episodes, based on evidence provided at a pretrial hearing and
during Ali’s testimony at trial, all under the appropriate standard of review
as described above.
The robbery.  The evidence shows that Ali had an opportunity to see Santiago during the crime and that
he paid attention to the events as they unfolded.  At the time of the robbery, Ali saw the faces of the four robbers
in a lighted area near his garage when they approached him with guns.  He also saw them in his kitchen where the light
was bright enough for him to see them for two to three minutes.  He testified that he was “able to get a good
look at their faces” in the light of both the patio and the kitchen, and he
specifically testified that he remembered seeing Santiago going upstairs.  He also saw the men in the upstairs bedroom during
the 15- to 20-minute robbery.  Based on
this evidence, the trial court specifically found that Ali “did have the opportunity to see the people coming inside.”
The show-up.  After responding to the scene of the crime, Officer Daugherty had instructed the family to
remain separated and not to discuss the robbery.  Within a couple of hours, Officer Castleberry
gave Ali an opportunity to identify Santiago after he was
captured near the scene.  Each of the
three captured suspects was placed in a separate patrol car by himself.  There is no evidence that that the Alis collaborated
in their identifications, that they saw the men in handcuffs, or that any of
the officers expressly suggested these were the robbers.  Ali testified
at trial that he identified “all three” of the men shown to him, though he also
testified with respect to Santiago: “At that time I wasn’t sure, so I said I’m
not sure at that time.”
The photographic line-up. 
Santiago contends that an
impermissibly suggestive photographic line-up conducted during the course of
the police investigation tainted Ali’s subsequent in-court identifications. 
He argues that Ali failed to identify him in a photographic line-up
prior to trial.  Ali testified that he
did not remember being shown pictures of Santiago.  The police officer who prepared the photographic
line-up testified that he included photographs of Castaneda, who had escaped
the scene of the robbery, but he did not include a picture of Santiago.
The
pretrial hearing.  Finally, at the pretrial hearing on
Santiago’s motion to exclude in-court identifications of him, Ali testified
that although he was not sure about his identification on the day of the
robbery, “now I see him in the court, I recognize him now more than at that
time. . . .  I can go back and the more I
look at him, the more I’m getting sure that he was the one who also was there .
. . .”  It was at this hearing that Ali
first testified to the details about his observations of Santiago at the time
of the robbery and the subsequent events of the show-up identifications.  As a result of this hearing, the trial court
ruled that the out-of-court show-up identification was not improper.  The trial court also denied Santiago’s motion to exclude Ali’s identification testimony at trial based on the identification at the pretrial hearing.
Santiago challenges the show-up
identification, the photographic line-up, and the pretrial in-court
identification as being impermissibly suggestive.  This step of the analysis embraces both the
suggestiveness of the procedure[2] and the justification for
its use.[3]  See
Barley, 906 S.W.2d at 33 (holding “that the procedures utilized might have
been suggestive, but not impermissibly
so”).  Such a challenge can succeed only
when clear and convincing evidence shows that improper pretrial identification
procedures and confrontations tainted the in-court identification.  See Delk
v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).  The State contends that Santiago failed to establish by clear and
convincing evidence that Ali’s in-court identification was tainted by an
impermissibly suggestive pretrial procedure, and therefore we need not consider
the likelihood of misindentification.
The initial show-up procedure at the crime scene was not shown to be
impermissibly suggestive, as such confrontations have been acknowledged as
being necessary in many cases.  See
Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1981); see also
Fite v. State, 60 S.W.3d 314, 318 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d); Louis v. State, 825 S.W.2d 752, 756–57 (Tex. App.—Houston
[14th Dist.] 1992, pet. ref’d); Jackson v. State, 682 S.W.2d 692, 695
(Tex. App.—Houston [1st Dist.] 1984, pet. ref’d).  As explained by the Court of Criminal Appeals,
First of all by viewing the
alleged perpetrator of the offense immediately after the commission of the
offense, the witness is allowed to test his recollection while his memory is
still fresh and accurate.  Additionally
the quick confirmation or denial of identification expedites the release of
innocent suspects.  Thus the innocent
suspect need not be transported to jail and detained until a lineup can be
constructed.  Furthermore the police
would be able to release the innocent suspect and continue their search for the
criminal while he is still within the area and before the criminal can
substantially alter his looks and dispose of evidence of the crime. Finally,
any possible prejudice resulting from such a confrontation can be exposed by
rigorous cross-examination of the witness. 
 
Garza, 633 S.W.2d at 512 (citations
omitted).  All of these considerations apply to the circumstances of the show-up procedure used in
this case, when the show-up was conducted within hours of the robbery.  Santiago has not shown by clear and
convincing evidence that there was any abuse of the procedure.  The evidence showed that Santiago was not
seen in handcuffs, the police did not state that he was considered a suspect,
and, at the scene, the Alis did not discuss whether Santiago was one of the men
who had entered their home.  Moreover, the
trial court could have concluded that the in-court identification of Santiago was
not tainted by the show-up procedure because Ali admitted at the pretrial
hearing that he was not sure about identifying Santiago at the time, yet he
indicated that his identification of Santiago was based on seeing him in the
courtroom and his memory of the robbery.
          With respect to the photographic
line-up, the evidence presented at the
pretrial hearing and at trial affirmatively showed that no photographic line-up
including Santiago was ever shown to Ali. 
Rather, the only photographic line-up that Ali viewed in connection with
this case included a picture of Santiago’s co-conspirator, Castaneda.  In the absence of evidence that Ali was shown
a photographic line-up including Santiago, we view the disputed facts in the light most favorable to the
trial court’s ruling and conclude that Santiago was not included in any
pretrial photographic line-up that could have undermined the reliability of Ali’s subsequent identifications.
Finally, Santiago relies upon the circumstances of
the pretrial hearing itself as being impermissibly suggestive.  But Santiago offers no authority suggesting
that an evidentiary hearing on a motion to suppress can itself constitute an
impermissibly suggestive identification procedure depriving him of due process.  The record reflects no objection to the
hearing proceeding with Ali and Santiago both present in the courtroom.  The only arguments and authorities offered to
the trial court suggested that if an in-court identification is the fruit of an
improper pretrial identification, it must be excluded unless the State proves
by clear and convincing evidence that the in-court identification is based on
an independent source.[4]  See United States v. Wade, 388 U.S.
218, 240, 87 S. Ct. 1926, 1939 (1967); Jackson v. State, 657 S.W.2d 123,
130 (Tex. Crim. App. 1983).  Accordingly,
to the extent that Santiago contends on appeal that the pretrial hearing on his
motion to suppress was itself an inappropriately suggestive environment for him
to be identified by the complainant, we conclude that this argument does not
comport with the objection at trial and therefore has been waived.  See Tex.
R. App. P. 33.1(a).
Considering
the totality of the circumstances, Santiago has not identified an impermissibly
suggestive out-of-court identification procedure that could have tainted the
subsequent proceedings in the case.  See Barley, 906 S.W.2d at 33.  We overrule Santiago’s first issue.
II.              
Legal
sufficiency
In his second issue, Santiago
challenges the sufficiency of the evidence to support his conviction for aggravated
robbery. 
We review the legal
sufficiency of evidence to support a criminal conviction to determine “whether,
after viewing the evidence in the light most favorable to the prosecution, 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, 319,
99 S. Ct. 2781, 2789 (1979).  As
the exclusive judge of the facts, the jury may believe or disbelieve all or any
part of a witness’s testimony.  Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991).  The jury, which
heard testimony from the complainant, was in the best position to weigh the
evidence, and on appeal the court will defer to the jury’s assessment of
credibility under these circumstances.  See
Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). 
A person is guilty of
aggravated robbery if, in the course of committing theft and with the intent to
obtain or maintain control of property, he intentionally or knowingly
threatened or placed another in fear of imminent bodily injury or death and
used or exhibited a deadly weapon. See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2)
(West 2011).  Santiago does not argue
that the evidence is inadequate to demonstrate that the crime of aggravated
robbery was committed.  Instead, he contends
that there is no credible evidence connecting him to the other robbers.  
A conviction may be
based on the testimony of a single eyewitness. 
Davis v. State, 177 S.W.3d
355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  Ali testified that four men, including
Santiago, forced him into his house and robbed him and his family at gunpoint.  Specifically, Ali testified that Santiago
held a gun to him.  The Alis testified
that they feared for their lives during the encounter and that all four men
threatened to kill them while demanding and taking money and jewelry.  
Santiago contends that
the evidence was insufficient because the State introduced no forensic evidence
connecting him to the scene of the crime. 
However, the State presented evidence which demonstrated that Santiago
could not be excluded as a contributor to a mixture of DNA found on one of the
gloves found near the scene.  Based on the forensic and other
evidence at trial, including Ali’s eyewitness testimony, a rational jury could have
concluded that Santiago was one of the robbers. 
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.  The lack of additional forensic evidence does
not render the evidence of his guilt legally insufficient.  See Johnson v. State, 176 S.W.3d 74, 77–78 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d) (holding that lack of forensic
evidence will not overturn guilty verdict based on insufficiency of evidence
where other evidence connects defendant to crime).
In addition, when
evaluating the sufficiency of evidence to establish aggravated robbery with a
deadly weapon, guilt may be reasonably inferred when the defendant’s actions,
including flight, demonstrate a consciousness of guilt.  See
Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989).  “Flight is no less relevant if it is only
flight from custody or to avoid arrest.” 
Id.  
Officer Oldner
testified that after arriving at the scene of the crime, he saw Santiago in a
car, parked in front of the Alis’ home,
drive away with no headlights on although it was still dark.  He testified that after he spotlighted the
car, Santiago’s eyes became “real wide” as he saw the officer, and he turned
the corner.  Rather than stop when the
officer attempted to initiate a traffic stop, Santiago sped up, and he jumped
from the moving vehicle, causing the officer to pursue him on foot.  Santiago unsuccessfully attempted to jump
over a fence before the officer used his taser to stop him.
Viewing all the
evidence in the light most favorable to the prosecution, we conclude that a
rational jury could have found that Santiago was guilty of aggravated
robbery.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.  We therefore hold
that the evidence is legally sufficient to support the jury’s
verdict, and we overrule Santiago’s second issue.  See id.
                                                     Conclusion
          We
affirm the trial court’s judgment.
 
 
                                                                   Michael
Massengale
                                                                   Justice

 
Panel consists of Justices Keyes, Sharp, and
Massengale.
Justice Sharp, concurring in the judgment.
Publish.  Tex. R. App. P. 47.2(b).
 




[1]
        For
the proposition that “an in-court
identification must be predicated upon a reliable pre-trial out-of-court
identification,” Santiago relies upon Neil
v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972), Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977), and Sam v. State, 771 S.W.2d 210 (Tex.
App.—Houston [1st Dist.] 1989, pet. ref’d). 
For the proposition that “identification testimony
is unreliable if a witness failed to identify the defendant at [an]
identification procedure prior to [the] challenged identification,” he relies
on Herrera v. State, 682 S.W.2d 313
(Tex. Crim. App. 1984), and Hasker v.
State, 725 S.W.2d 443, 445 (Tex. App.—Houston [1st Dist.] 1987, no
pet.).  Each of these cases dealt with
the effect of an allegedly suggestive pretrial identification, but none
supports Santiago’s argument that due process requires that a witness identify
a defendant out of court before he can do so in court.  See
Brathwaite, 432 U.S. at 114, 97 S.
Ct. at 2253 (reversing court of appeals decision ordering habeas relief based
on admission of identification resulting from suggestive and unnecessary
procedure while emphasizing that “reliability is the linchpin in determining
the admissibility of identification testimony”); Biggers, 409 U.S. at 201, 93 S. Ct. at 383 (identification was
admissible due to reliability of witness despite the fact that “the victim made
no previous identification at any of the showups, lineups, or photographic
showings”); Herrera, 682 S.W.2d at
318 (“[I]n-court identification will only be inadmissible if the State fails to
show by clear and convincing evidence that the identification is not tainted”);
Sam, 771 S.W.2d at 211 (“Even if the
identification procedure is suggestive and unnecessary, the admission of the
identification testimony does not violate due process if the identification is
‘sufficiently reliable.’”); Hasker,
725 S.W.2d at 445 (“There is no reversible error due to a substantial
likelihood of misidentification, when there was a distinct observation at the
time of the event which, in light of the surrounding circumstances, can be
considered credible enough to serve as an independent origin for the in-court
identification.”).
 


[2]
          See, e.g., Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)
(impermissibly suggestive to show only one photograph to witness, “presented to
her as the person who was in custody, under indictment, for the murder of her
husband”).
 


[3]
        See, e.g., Cantu v. State, 738 S.W.2d 249, 252 & n.1 (Tex. Crim. App.
1987) (suggestiveness of showing witness “several arrays on different
occasions, all containing appellant’s photograph” must be considered in light
of circumstances which might make such procedure necessary, such as when police
“are certain a witness recognizes a suspect but fears to identify his
photograph”).


[4]
        The
authorities contained in Santiago’s written motion to suppress included United States v. Wade, 388 U.S. 218, 87
S. Ct. 1926 (1967), Dispensa v. Lynaugh,
847 F.2d 211 (5th Cir. 1988), Holloway v.
State, 691 S.W.2d 608 (Tex. Crim. App. 1984), cert. granted and judgment vacated on other grounds, 475 U.S. 1105,
106 S. Ct. 1508 (1986), Thompson v. State,
480 S.W.2d 624 (Tex. Crim. App. 1972), and Martinez
v. State, 437 S.W.2d 842 (Tex. Crim. App. 1969).  None of these opinions considered whether a
pretrial hearing can itself be impermissibly suggestive of the defendant’s
identity so as to require exclusion of a witness’s identification at the
hearing. 
 


