          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                       NO. AP-77,036

                               JUAN BALDERAS, Appellant

                                              v.

                                 THE STATE OF TEXAS


                   ON DIRECT APPEAL FROM CAUSE NO. 1412826
                         IN THE 179TH DISTRICT COURT
                               HARRIS COUNTY

     R ICHARDSON, J., filed a concurring opinion in which M EYERS, J OHNSON, and
N EWELL, JJ. joined.

                               CONCURRING OPINION

       I join the majority’s decision to affirm the judgment of the trial court.

A.     Speedy Trial

       Among his points of error, Juan Balderas claims that the trial court erred by not

granting his motion to dismiss for lack of a speedy trial. Balderas was arrested for Eduardo

Hernandez’s murder in December of 2005. General voir dire began eight years later on

January 13, 2014. However, Balderas did not file his Motion For A Speedy Trial until
                                                           Balderas Concurring Opinion — 2

January 17, 2014. In this motion, Balderas (1) claimed that the State has not made a diligent

effort to pursue a trial for the eight years he has been incarcerated; (2) asserted that he “has

at all times been ready for trial;” and (3) “requested that the above entitled matter be brought

to trial.” The trial court held a hearing on Balderas’s motion on February 12, 2014.

Although Balderas filed his motion for speedy trial after trial had begun, his attorney

explained to the court that Balderas was seeking a dismissal based on lack of a speedy trial.

At the hearing, the State presented evidence that, early on, the defense sought additional time

to create a mitigation packet in an effort to persuade the State to not seek the death penalty.

The trial court’s docket sheet reflects that on May 12, 2010, trial was reset at the request of

the defense. From January 2008 through December 2014, the court’s docket sheet reflects

seven trial resets “by agreement of both parties.” At the hearing, the State presented

testimony that, on May 10, 2012, the trial court granted a motion for continuance filed by the

defense “over strong objection by the State,” and in August of 2012, another defense motion

for continuance was granted over strenuous objection by the State. The trial court denied

Balderas’s motion. This Court evaluated the trial court’s decision, applying the Barker v.

Wingo1 factors. I agree with the majority’s conclusion that Balderas’s right to a speedy trial

was not violated.

B.     Sufficiency of the Evidence

       Balderas also claimed that the evidence was insufficient to support his conviction.

I agree with the majority that the evidence linking Balderas to the shooting of Eduardo


       1
           407 U.S. 514, 530 (1972).
                                                         Balderas Concurring Opinion — 3

Hernandez, both of whom were members of the La Tercera Crips street gang, was sufficient

to support the jury’s verdict. Officers received an anonymous tip that caused them to suspect

Balderas of killing Eduardo. After eyewitness Wendy Bardelas viewed a photo lineup, she

identified Balderas as the shooter. The officers obtained an arrest warrant, and went to where

they believed Balderas was residing. When he saw the officers approaching, Balderas

dropped a large black bag and green tote box he’d been carrying and fled on foot. The

officers pursued Balderas and eventually spotted him hiding under a parked vehicle. The

murder weapon, a silver .40 caliber handgun, was recovered by police from one of the

containers Balderas had dropped. A magazine clip that fit the handgun was found in

Balderas’s rear pocket.

       Israel Diaz, who was also a La Tercera Crips gang member, testified to the following:

(1) About three to four days before the killing, gang members met to discuss Eduardo’s

disloyalty to the gang. (2) They decided that Eduardo needed to be killed. (3) It was

“understood” by the gang members that, although any member could do the killing, the most

likely one was Balderas since he had brought Eduardo into the gang. (4) Diaz became aware

Eduardo was killed three days later when “one of the guys” called him. (5) Diaz went to the

crime scene on the night of the offense. He saw police vehicles and an ambulance. Diaz saw

Balderas “a few steps away from the apartments.” Balderas was wearing a dark sweater-like

shirt and khaki pants. (6) Diaz said that Balderas approached Diaz and the other gang

members who were there and “he just hugged everyone like sort of when you haven’t seen
                                                           Balderas Concurring Opinion — 4

nobody in a long time, like joyful, and he gave each individual a hug and when he got

towards me, he gave me a hug and a kiss on the cheek,” which was unusual. (7) Diaz

testified that Balderas “basically just took credit for the whole thing,” and that Balderas said

“he got him, he finally got him.” Diaz said that Balderas “had his [silver] handgun and he

was just exchanging the magazine, the clip.”

       According to officer testimony, earlier on the day of the offense, Eduardo was visited

by Jose Vasquez, a fellow gang member who, on that day, was wearing a red H.E.B. shirt.

After Vasquez talked to Eduardo, Eduardo became very upset and concerned that he might

be in trouble with his fellow gang members for socializing with members of other gangs and

prioritizing his girlfriend, Karen Bardelas. In the course of their investigation, the police

looked at Balderas’s phone records. On the date of the offense, Balderas called Jose Vasquez

at 7:41 p.m. and again at 9:56 p.m., which is near the time that Eduardo was killed. The

investigating officers believed this evidence to be a significant link between Balderas and

Eduardo.

C.     The Pre-trial Identification Procedure

       Balderas claims that the photo lineup shown to Wendy Bardelas—the only eyewitness

to identify Balderas as the shooter—was impermissibly suggestive. He claims that, as a

result of the improperly suggestive photo array, Wendy’s in-court and out-of-court

identifications of him should have been suppressed.
                                                                   Balderas Concurring Opinion — 5

        “Due process requires the suppression of an in-court identification only if (1) an

impermissibly suggestive out of court procedure (2) gave rise to a very substantial likelihood

of irreparable misidentification.”2         In Barley v. State, this Court held that a pre-trial

identification procedure may be suggestive, “but not impermissibly so.”3 Suggestiveness may

be created “by the content of the line-up or the photo array itself if the suspect is the only

individual closely resembling the pre-procedure description.” 4 That is what we have in this

case. Wendy described the shooter as wearing a black hooded sweatshirt and having a dark

birthmark on his face. She was shown a photo array in which Balderas was the only person

fitting this description. He was the only one in the photo array wearing a black hoodie

(although one other man was in a dark grey hoodie) and the only one with a dark mark on his

left cheek. Even though it was established through testimony that this mark was not a

birthmark, but was a scratch, Balderas was still the only person in the lineup with this

distinctive type of mark on his face.

        Nevertheless, “a suggestive identification procedure does not, in itself, intrude upon

a constitutionally protected interest.”5 Even if the pretrial identification procedure was

        2
        Williams v. State, 937 S.W.2d 479, 488 (Tex. Crim. App. 1996) (citing Neil v. Biggers, 409
U.S. 188, 198 (1972)).
        3
            906 S.W.2d 27, 33 (Tex. Crim. App. 1995).
        4
            Id.
        5
          See Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983) (“[I]t is well established
that, even where the pre-trial identification procedure is impermissibly suggestive, in-court testimony
of an identification witness will still be admissible as long as the record clearly reveals that the witness’
prior observation of the accused was sufficient to serve as an independent origin for the in-court
                                                             Balderas Concurring Opinion — 6

impermissibly suggestive, Wendy’s identification of Balderas as the shooter could still be

considered reliable under the totality of the circumstances.6            We assess reliability by

weighing five factors against the corrupting effect of any suggestive identification procedure:

(1) the opportunity of the witness to view the suspect 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 that confrontation; and (5)

the length of time between the crime and the confrontation.7 While I would view the pre-trial

identification procedure as suggestive, and perhaps impermissibly so, I agree that Wendy’s

identification of Balderas as the shooter was reliable under the totality of the circumstances.

        1.        The opportunity of the witness to view the suspect at the time of the crime

        Wendy testified that she was sitting in front of the couch in the small apartment when

the shooter entered. She said that he was in the apartment for what seemed like “an eternity,”

and she was watching him the whole time he was there.

        2.        The witness’s degree of attention

        Wendy testified that the entire time that the shooter was in the apartment, she was

looking at him. She said her eyes followed him everywhere. She did not move from the spot

where she was sitting because she “was frozen.” When Wendy was taken to the police




identification.”).
        6
            Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008).
        7
            Id.
                                                         Balderas Concurring Opinion — 7

station on the night of the offense, she told the police that she had seen the shooter’s face.

Wendy testified that, although she was “in shock” during the shooting, she was able to get

a good look at the shooter’s face. Wendy said that she saw the shooter’s face when his hood

fell down off of his head.

       At the time, Wendy did not immediately recognize Balderas. It did not register with

her that she had met him before. Wendy explained that, “At that moment, [her] mind was

not all put together, and [she] just couldn’t think. [They] were just playing, doing nothing,

he arrived. And then, just all the sudden, this happens.” She said that she was “in shock,”

and that she was “frozen” because she had just “seen someone killing [her] friend.” The

following exchange took place during the suppression hearing outside of the jury’s presence:

       Q.     You didn’t think at the time to tell the police, I know who this guy is
              and I’ve seen him four weeks ago?

       A.     At that minute, I couldn’t even think right.

       Q.     If you couldn’t think right, then how did you give a statement to the
              police?

       A.     Because he asked me to tell him what I had remembered and I was
              trying to remember what had happened right there and then.

       Q.     And after they asked you this, you said you had never seen him before,
              right?

       A.     Yes.

       Q.     But now you’re telling us that that was not true, right?

       A.     Now and before. Later on when I gathered all my thoughts that I was
              thinking everything over, right? Then I remember him.
                                                                Balderas Concurring Opinion — 8

        3.      The accuracy of the witness’s prior description of the criminal

        In the statement Wendy gave to the officers on the night of the shooting, she described

the shooter as “Hispanic and about 16-17 years old.” She said he was about 5'5" to 5'7" tall,

and he had “a dark birth mark on his face.”8 Wendy described him as “clean shaven” and

“very skinny.” She said he had short black hair in a “fade type haircut,” and “he was wearing

a black sweat shirt hooded jacket and khaki pants.” This was an accurate description of

Balderas.

        4.      The level of certainty demonstrated by the witness at the confrontation

        Wendy said that, when the officer showed her the photo lineup with Balderas in it, she

was able to identify Balderas. Pointing to Balderas’s photo, Wendy told the officer that,

“he’s the one that was running around, and he’s the one that killed Eduardo.” Wendy

testified that when she saw Balderas’s photo in the photo spread, she “went back to that night

and it was him, the person that [she] saw.” Wendy said that she did not even notice that he

was wearing a black hoodie in that photograph. When testifying at trial, Wendy made an in-

court identification of Balderas as “the one who shot Eduardo.” When asked if the person

she picked out in the photo spread as the shooter is the defendant, Wendy replied, “yes.”



       8
          Much was made of Wendy’s statement to the police on the night of the killing that the shooter
had a dark birthmark on his face. But, at the suppression hearing, she agreed that the mark on the left
side of Balderas’s face in the photo lineup was a scratch, not a birthmark. Likewise, the police officer
who showed Wendy the photo lineup six days after the shooting testified that he would agree that
whatever mark that was on Balderas’s cheek in the photo lineup was not a birthmark or any kind of
permanent mark, and that there was no dark birthmark on Balderas’s cheek at trial similar to the one
on his face in the photo lineup. At trial it was shown that Balderas does have a mole on his right cheek
that is not visible on the photo in the lineup.
                                                          Balderas Concurring Opinion — 9

       The officer testified that, when he first showed Wendy the photo lineup, Wendy

“immediately pointed to the male in Position No. 5, Juan Balderas, and said that she knew

him as Apache. . . . She told me that he looked like the shooter.” He said that Wendy told

him she had not seen Apache for six months, but that “his face looked exactly like the

shooter’s face.” He confirmed that Wendy seemed certain in her identification, that she did

not hesitate or stare at the photo spread for any length of time before she picked him out and

said that she was positive that Balderas’s face was the same face as the shooter.

       Because the officer was somewhat “confused” about the words Wendy used to

identify Balderas as the shooter, he decided to meet with Wendy the next day to get

clarification on her identification. He said that, when he showed Wendy the same photo

spread he had shown her the day before, she confirmed that Balderas was the shooter. “She

then said Apache did the killing. She stated she was absolutely positive the male in the

picture was the same male that killed Eduardo.” Wendy then asked the officer if she could

write in Spanish on the back of the photo array that she was positive about her identification

of Balderas as the shooter. The officer also agreed that English was Wendy’s second

language and that perhaps there had been a communication problem that would explain why

her statements regarding the photo spread the day before confused him.

       5.     The length of time between the crime and the confrontation

       The officer showed Wendy the photo lineup with Balderas’s photo on December 12,

2005, six days after the offense occurred. The photo of Balderas in the photo array was an
                                                         Balderas Concurring Opinion — 10

H.P.D. booking photo that was probably taken in November of 2005. Although the trial took

place several years after the offense occurred, Wendy’s identification of Balderas as the

shooter occurred only days after the offense.

D.     Conclusion

       Therefore, even if the photo array might have been suggestive, I agree with the trial

court’s conclusion that the totality of the circumstances reveals no substantial likelihood of

misidentification. Therefore, I concur in the majority’s disposition to affirm the judgment

of the trial court.

FILED:         November 2, 2016

PUBLISH
