             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 179 TH DISTRICT COURT
                              HARRIS COUNTY

       A LCALA, J., filed a dissenting opinion.

                                  DISSENTING OPINION

       This Court’s majority opinion upholds the conviction against Juan Balderas, appellant,

despite the facts that his photo was the sole one in the photo array matching the physical

description of the shooter; that it took the eyewitness two days of discussions with a police

officer who showed her the array for her to make a positive identification of appellant, even

though she had previously known appellant as “Apache”; and that the in-court identification

of appellant at his trial that took place over eight years after the offense appears to have been
                                                                                     Balderas - 2

tainted by the procedures used to obtain the earlier identification from the photo array. I

disagree with this Court’s majority opinion’s conclusion that the pretrial identification

procedure in this case was not impermissibly suggestive. I also disagree that the in-court

identification that was made over eight years later was reliable. I would sustain appellant’s

eighth issue, find the error harmful, reverse appellant’s conviction and death sentence, and

remand for a new trial.

  I. The Highly Suggestive Photo Spread Violated Appellant’s Due-Process Rights

       After reviewing the applicable law for eyewitness-identification evidence, I explain

why I conclude that the photo-spread lineup that was used in this case was extremely unfair

in that it included only one photo that matched the description of the shooter, and I will show

that there was a substantial likelihood of misidentification in the later in-court identification

of appellant.

       A. Applicable Law

       The Due Process Clause bars the admission of identification evidence when the

introduction of that evidence is “so extremely unfair that its admission violates fundamental

conceptions of justice.” Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012) (quoting

Dowling v. United States, 493 U.S. 342, 352 (1990)). Admission of an in-court identification

after pretrial identification procedures that are so impermissibly suggestive as to be

conducive to misidentification constitutes a denial of due process. Simmons v. United States,

390 U.S. 377, 384 (1968). Accordingly, “[a]n in-court identification is inadmissible when
                                                                                  Balderas - 3

it has been tainted by an impermissibly suggestive pretrial photographic identification.”

Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009); see also Luna v. State, 268

S.W.3d 594, 605 (Tex. Crim. App. 2008); Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim.

App. 1999). A pretrial identification procedure may be impermissibly suggestive if the

suspect is the only individual in a photo array who closely resembles the pre-procedure

description. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). The test for

determining whether an identification is admissible under these circumstances 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.” Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (quoting

Simmons, 390 U.S. at 384). Reliability is the “critical question”:

       If the totality of the circumstances reveals no substantial likelihood of
       misidentification despite a suggestive pretrial procedure, subsequent
       identification testimony will be deemed reliable, reliability being the linchpin
       in determining the admissibility of identification testimony.

Id. (citations and quotations omitted). In assessing reliability under the totality of the

circumstances, the following five non-exclusive factors should be “weighed against the

corrupting effect of” the suggestive pretrial 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 the confrontation, and (5) the length of time between the

crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). The
                                                                                   Balderas - 4

party challenging the identification bears the burden to prove, by clear and convincing

evidence, that the in-court identification has been irreparably tainted before a court will

reverse a conviction on that basis. Barley, 906 S.W.2d at 34.

       B. The Pretrial Identification Procedure Was Impermissibly Suggestive

       Wendy Bardales was present at the time of the December 2005 shooting of Eduardo

Hernandez. Hernandez was killed when he was shot at least nine times in the back and head

by a gunman who entered the apartment where Hernandez was socializing with several

friends. Wendy was one of the several witnesses present at the time of the shooting, but she

was the only one who claimed that she could identify the gunman. Wendy was later

interviewed at the police station on the night of the shooting.

       On the night of the shooting, police officers obtained a description of the shooter from

Wendy before she was shown any photo spread. Wendy said that she saw the gunman enter

the apartment, that her eyes followed him until he left, and that he wore a black jacket with

a hood pulled over his head, but that, at one point, when his hood fell down, she got a good

look at his face. She said that she had never seen the gunman before, and that he had a mark

on his face but she did not recall where it was. She stated,

       I got a good look at his face. I have never seen him before. He was Hispanic
       and about 16-17 years old. He was around 5 foot 5 inches to 5 foot 7 inches
       tall. I remember him having a dark birth mark on his face but I can’t
       remember exactly where. He was very skinny and clean shaven. He had black
       hair, it was short. He had a fade type haircut. He was wearing a black sweat
       shirt hooded jacket and khaki pants.

       Also on the night of the shooting, a police officer showed Wendy a photo-spread array
                                                                                    Balderas - 5

that did not include appellant’s photo. Wendy did not identify anyone as the shooter, but she

said that she recognized one of the people shown, Israel Diaz, who was a friend of

Hernandez’s. At that time, Wendy changed her earlier description of the shooter by claiming

that the gunman had a dark mark on his cheek, which was different from her prior claim that

she did not know where the facial mark was located.

       Six days after the shooting, a police officer showed Wendy a different photo array

with six photos, one of which was appellant’s photo. Rather than create a unique photo

spread for this particular case, the officer used a photo spread from a prior investigation that

had included appellant’s photo. Appellant’s photo was the only one depicting a person with

a dark mark on his cheek, wearing a black hooded sweatshirt, and matching Wendy’s

physical description of the shooter. When she saw the photo spread, Wendy immediately

pointed at appellant’s photo and identified him as “Apache,” describing him as a friend of

Hernandez’s and Diaz’s. Wendy did not positively identify appellant as the shooter at that

time. Rather, she made more tentative statements that appellant “could be the shooter,” that

he “looked like the shooter,” and that his “face looked exactly like the shooter’s face.”

Wendy’s indefinite remarks about appellant’s photo left the officer unable to characterize her

identification as “positive” when he left from his meeting with her.

       Unsatisfied with his not having obtained a positive identification from Wendy, the

officer visited her again the next day to further discuss the same photo spread. Wendy again

told the officer that appellant’s photo had the same face as the shooter, but she did not
                                                                                   Balderas - 6

positively identify him as the shooter. The officer then told her to use her hands to cover the

hair of each subject because the gunman had worn a hood over his head. Wendy placed her

hands over the hair on each of the photos. When she put her hands over appellant’s hair, her

eyes “grew wide” and “began to water.” She then said she was absolutely positive in her

identification of appellant as the shooter.

       I conclude that the pretrial identification procedure in this case was impermissibly

suggestive, and I, therefore, disagree with the trial court’s assessment that, because all

subjects were light-skinned, short-haired Hispanic males of the same general age and build,

appellant’s photo did not stand out in the six-photo array. Appellant’s photo was the sole one

in the photo spread that matched Wendy’s description of the shooter as having a dark mole

or birthmark on his face or cheek, a fade-style haircut, and wearing a black sweatshirt or

jacket with a hood. The fact that appellant’s photo was the only one in the photo spread

possessing two of the distinctive characteristics of the shooter—a dark birth mark or mole

and a black hooded sweatshirt—coupled with the suggestive nature of the procedure itself

that involved the officer showing Wendy the same photo array twice to obtain a positive

identification, rendered the procedure impermissibly suggestive. See Barley, 906 S.W.2d at

33-34 (explaining that suggestiveness “may be created by the manner in which the pre-trial

identification procedure is conducted, for example by police pointing out the suspect or

suggesting that a suspect is included in the line-up or photo array,” by the “content of the

line-up or photo array itself if the suspect is the only individual closely resembling the pre-
                                                                                      Balderas - 7

procedure description,” or by the “cumulative effect” of the suggestive procedures).

       C. The In-Court Identification Was Unreliable Under the Totality of the
       Circumstances

       Having concluded that the pretrial identification procedure in this case was

impermissibly suggestive, it is necessary to determine whether Wendy’s in-court

identification of appellant that occurred over eight years after the offense was nevertheless

reliable under the totality of the circumstances. See Loserth, 963 S.W.2d at 772 (explaining

that the relevant inquiry is whether the procedure was so impermissibly suggestive as to give

rise “to a very substantial likelihood of irreparable misidentification”) (quoting Simmons, 390

U.S. at 384). As explained above, this inquiry requires a weighing of the five non-exclusive

factors established by Biggers, 409 U.S. at 199. “The underlying Biggers factors are, taken

individually, historical facts and, as such, should be viewed deferentially.” Loserth, 963

S.W.2d at 773. The reviewing court should therefore consider the historical facts underlying

the five Biggers factors in a light favorable to the trial court’s ruling. Id. The factors, viewed

in this light, are then weighed de novo against “the corrupting effect” of the suggestive

pretrial identification procedure. Id. at 773-74; see also Gamboa, 296 S.W.3d at 581

(explaining that this Court “review[s] de novo a trial court’s ruling on how the

suggestiveness of a pre-trial photo array may have influenced an in-court identification”).

       Here, although I acknowledge that we owe deference to the trial court’s determination

of historical facts underlying its ruling, the relevant facts are largely undisputed. See Loserth,

963 S.W.2d at 773. Thus, the primary question before this Court is one of law—that is,
                                                                                    Balderas - 8

whether adequate indicia of reliability exist to outweigh the suggestiveness of the pre-trial

photo array. Id. at 773-74. After addressing each factor below, I conclude, based on a de

novo weighing of the factors, that appellant has satisfied his burden of showing by clear and

convincing evidence that, under the totality of the circumstances, the impermissibly

suggestive pre-trial identification procedure in this case gave rise to a substantial likelihood

of misidentification. Barley, 906 S.W.2d at 33-34.

       My conclusion that Wendy’s eyewitness identification of appellant was wholly

unreliable is based in large part on the same considerations as those addressed by Dr.

Malpass, the eyewitness-identification expert who testified in this case. Dr. Malpass said that

Wendy’s identification of appellant is problematic because it evolved over time.

Additionally, he explained that the viewing of successive photo spreads increases the

possibility of memory contamination.       Dr. Malpass determined that the officer’s act of

returning with the same photo array the day after Wendy had been unable to positively

identify appellant would have conveyed a signal to Wendy that she needed to provide a more

positive identification, which is exactly what she did in this case.

       I note here that historically Texas has had a significant problem with the

misidentification of suspects based on flawed pretrial identification procedures.

Misidentification of people has been a large part of the reason for the high number of

innocent people who have been wrongfully convicted in Texas. The problem with suggestive

identifications was significant enough that it was recently addressed by the Texas Legislature
                                                                                     Balderas - 9

though legislation that came into effect after this offense. For example, Article 38.20 of the

Code of Criminal Procedure now requires law enforcement agencies to adopt policies for

photograph and live lineup identification procedures that would require, if possible, that the

photospread be shown to an eyewitness by someone unfamiliar with the identity of the

suspect in the case so as to prevent opportunities to influence the witness. See T EX. C ODE

C RIM. P ROC. Art. 38.20, § 3. It is highly unlikely that the manner in which the identification

procedures were conducted in this case would comply with the requirements of this statute,

even if the identification were otherwise admissible in a trial court. See id. § 5. Until this

Court disallows tainted identifications based on suggestive photo spreads, as occurred in this

case, Texas will continue to be a leader in the wrongful convictions of innocent people.

Although I do not suggest that appellant is innocent of this offense, I conclude, as explained

more fully below, that he is entitled to a new trial that should be conducted absent the tainted

identification that occurred in this case.

       Applying the relevant legal standard to the instant facts, here there were no factors that

would make Wendy’s identification otherwise reliable. The Supreme Court has determined

that an identification based on a suggestive photo spread may be admitted if there is evidence

that shows that the corrupting effect of the suggestive identification procedure was

ameliorated by five other circumstances that are weighed for their persuasive value. See

Biggers, 409 U.S. at 199. But these circumstances are unpersuasive in this case.

       First, Wendy’s opportunity to view the shooter at the time of the crime was impeded
                                                                                   Balderas - 10

by the hoodie worn during the entire event, except for a short time during which the hood fell

down. Although it may be true, as Wendy claimed, that she watched the shooter the whole

time that he was in the apartment, the shooter wore a hoodie covering his head the entire time

that he was there, except for the moment when his hood fell down. The length of Wendy’s

entire observation of the shooter, therefore, is immaterial because it has little value in

discerning the reliability of her identification of appellant’s face in a photo array. What is

pertinent is the amount of time that Wendy had an unobstructed view of the shooter’s face,

which only occurred during the brief moment when his hood fell down. Because the

shooter’s face was obstructed by the hood he wore over his head during most of the offense,

that fact weighs against the reliability of Wendy’s identification of appellant’s photo.

Furthermore, Wendy knew appellant by the name of “Apache” prior to the night of the

shooting, but she did not mention that to police officers when she gave a physical description

of the shooter before she was shown a photo spread; instead she represented to police officers

that she had never seen the shooter before. If her opportunity to view the shooter was

adequate to give rise to a reliable identification, it would be reasonable to expect that Wendy,

at a minimum, would have told police officers that she believed she had seen the shooter

before, even if she could not recall that his name was “Apache.” Thus, this factor weighs

against a determination of reliability.

       Second, regarding Wendy’s degree of attention, although she was focused on the

events and shooter during the crime, this does not necessarily correlate with a reliable
                                                                               Balderas - 11

identification in this case in which the facts show that the shooter’s head was covered by a

hood during most of the events and that Wendy was in a state of shock over the events.

Wendy claimed to have fixated on the shooter, but, as explained above, she could only see

his entire face during the instance when his hood fell off. It is reasonable to believe that

Wendy’s attention was not focused on the shooter because, on the night of the offense,

Wendy did not tell police that she recognized the shooter as a person she knew as “Apache,”

the name that she used to refer to appellant. Even a week later, when Wendy was shown the

photospread that contained appellant’s photo, she did not immediately identify him as the

shooter; instead it took her two viewings of the photo spread, along with a suggestion from

the police officer that she manipulate the photos by placing her hands over the individuals’

hair, before she made a positive identification. Other circumstances that suggest that

Wendy’s degree of attention was minimal are that she misdescribed the murder weapon and

misstated that she had been shot at. Dr. Malpass explained why an identification by an

eyewitness can be impeded or degraded by the shock of the criminal events. In sum, despite

Wendy’s claim that she fixated on the shooter, the record fairly demonstrates that, when she

spoke to police officers on the night of the offense, she did not identify appellant as the

shooter even though she knew him as “Apache,” it took her two days of looking at the same

photo spread before the officer showing her the photo spread would characterize her

identification as a positive one, and she misdescribed other key aspects of the shooting

including the color of the weapon and who had been shot at. Thus, this factor also weighs
                                                                                Balderas - 12

against a finding of reliability.

       Third and fourth, Wendy lacked accuracy in her prior description of the shooter, and

her level of certainty in her identification of appellant is unconvincing. As the chart below

demonstrates, Wendy’s claims about her ability to identify the shooter lacked consistency.

At first, Wendy said that she had never seen the gunman before, but when she first saw

appellant’s photo in the photo spread, she identified appellant as a friend of Hernandez and

Diaz rather than as the shooter. At first, Wendy said that the shooter had a mark on his face

but she did not know where on his face. Later, Wendy specified that the mark was on the

shooter’s cheek. At first, Wendy could not positively identify appellant as the shooter when

she was shown the second photo spread, but the next day when the same officer returned to

her with the same photo spread asking her to be more definitive in her identification, she

positively identified appellant as the shooter. These questionable aspects of Wendy’s

identification are summarized in the chart below:
                                                                                   Balderas - 13

        Issue                    Wendy’s First Statements         Wendy’s Later Statements

 Whether she had seen the        She initially told police        She identified appellant in
 gunman before.                  before she saw the photo         the second photo spread as
                                 spread that she had never        a friend of her friend.
                                 seen the gunman before.

  Whether she could identify     She initially said the           She later said that the mark
 the mark on the gunman’s        gunman had a mark on his         was on the gunman’s
 face.                           face but she could not say       cheek.
                                 where on his face.

 Whether the identification      When she first saw the           When she saw the same
 of appellant in the second      photo spread, she said           photo spread the next day,
 photo spread was positive.      appellant’s photo “could be      she was positive that
                                 the shooter” and that he         appellant was the shooter.
                                 looked exactly like the
                                 shooter.



As the chart above illustrates, Wendy’s identification of appellant as the shooter is unreliable

because she said she had never seen the shooter before, and yet when she saw appellant’s

photo she recognized him as someone she knew who was called “Apache.” She picked the

only person who matched her description of the shooter: the photo of the person with a facial

mark on his cheek and wearing a hoodie. And her level of certainty was weak in that it took

the officer two days to elicit from her a positive identification of appellant as the shooter.

       Fifth, although the length of time between the crime and Wendy’s identification of

appellant in the photo spread was minimal, with Wendy picking appellant’s photo out of the

photo array at seven days after the offense, the in-court identification is totally unreliable as

it occurred more than eight years after Wendy witnessed the crime. After such a long period,

it is highly unlikely that Wendy’s in-court identification was completely independent from
                                                                                  Balderas - 14

the photo spread.    That is, eight years after the murder, Wendy was not likely truly

identifying appellant as the shooter based on her independent memory of that night, but

rather was simply identifying appellant in court because he was the person sitting at counsel

table who had been arrested and charged for this offense based on her prior photo spread

identification of him.

       Weighing the relevant factors and considering the totality of the circumstances, I

conclude that appellant has demonstrated by clear and convincing evidence that the

corrupting effect of the suggestive pre-trial identification procedure in this case created a

substantial risk that Wendy misidentified appellant as the shooter due to the lack of any

factors to show that her identification of him in court was reliable. Consequently, Wendy’s

in-court identification of appellant as the gunman should not have been admissible. See

Ibarra, 11 S.W.3d at 195. In light of the highly suggestive identification procedures that

occurred in this case and irreparably tainted in-court identification by Wendy, I would hold

that the trial court erred by permitting this identification and that this violated appellant’s

federal due-process rights.

                                     II. Harm Analysis

       Because appellant’s complaint is premised on a violation of his due-process rights,

the constitutional-error harm standard applies here. See Stovall v. Denno, 388 U.S. 293, 301-

02 (1972); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under that

standard, “[i]f the appellate record in a criminal case reveals constitutional error that is
                                                                                   Balderas - 15

subject to harmless error review, the court of appeals must reverse a judgment of conviction

or punishment unless the court determines beyond a reasonable doubt that the error did not

contribute to the conviction or the punishment.” T EX. R. A PP. P. 44.2(a). Constitutional error

may be harmless if there is “overwhelming” untainted evidence to support the conviction.

See Harrington v. California, 395 U.S. 250, 254 (1969); see also Wesbrook v. State, 29

S.W.3d 103, 119 (Tex. Crim. App. 2000). Conversely, the error was not harmless if there

is a reasonable likelihood that it “materially affected the jury’s deliberations.” Neal v. State,

256 S.W.3d 264, 284 (Tex. Crim. App. 2008). Thus, the court must evaluate the reasonable

possibility that the “constitutional error was actually a contributing factor in the jury’s

deliberations in arriving at [its] verdict—whether, in other words, the error adversely affected

‘the integrity of the process leading to the conviction.’” Scott v. State, 227 S.W.3d 670, 690

(Tex. Crim. App. 2007).

       A constitutional-error harm analysis does not focus on the propriety of the outcome of

the trial, that is, whether the jury verdict was supported by the evidence. Id. Rather the focus

is on the probable impact of the constitutional error on the conviction in light of the

existence of other evidence. See Wesbrook, 29 S.W.3d at 119. The entire record must be

evaluated in a neutral, impartial, and even-handed manner—not in the light most favorable

to the prosecution. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989). In

analyzing harm, the court must assess whether there was a reasonable possibility that the

error, either alone or in context, “moved the jury from a state of non-persuasion to one of
                                                                                   Balderas - 16

persuasion.” Scott, 227 S.W.3d at 690. This examination may consider (1) the nature of the

error, (2) the extent to which the error was emphasized by the State, (3) the probable

implications of the error, and (4) the weight the jury would likely have assigned to it in the

course of deliberations. Snowden v. State, 353 S.W.3d 815, 817 (Tex. Crim. App. 2011); see

also Scott, 227 S.W.3d at 690 (noting that “how weighty the jury may have found the

erroneously admitted evidence [should] be compared to the balance of the evidence with

respect to the element or defensive issue to which it is relevant”). This list is not exclusive,

and the harm analysis for constitutional error should account for “any and every circumstance

apparent in the record that logically informs an appellate determination whether ‘beyond a

reasonable doubt [that particular error] did not contribute to the conviction or punishment.’”

Snowden, 353 S.W.3d at 822 (quoting T EX. R. A PP. P. 44.2(a)). Accordingly, given my

conclusion that appellant’s due-process rights were violated by Wendy’s tainted

identification, I would reverse his conviction unless the record establishes, beyond a

reasonable doubt, that admitting Wendy’s identification of him as the shooter did not

contribute to his conviction.

       The first factor requires consideration of the nature of the error, but to understand that

matter, a review of the record as a whole is required. See Snowden, 353 S.W.3d at 822. It

is necessary to review the untainted evidence admitted against appellant, as well as the

evidence produced by the defense in response to the State’s case. Excluding Wendy’s

identification, the State’s case consisted primarily of circumstantial evidence that appellant
                                                                                Balderas - 17

had motive to kill Hernandez, that appellant was at the crime scene moments after the

shooting occurred, and that appellant was in possession of the murder weapon when he was

arrested days after the shooting occurred. But without Wendy’s identification, the State was

left with evidence supplied by Israel Diaz, a gang member with significant motives to testify

falsely, and appellant’s possession of the murder weapon over a week after the shooting,

making it much less persuasive as a meaningful link to the crime.

       To establish motive and opportunity, prosecutors called Israel Diaz to testify that

Hernandez had betrayed their gang, La Tercera Crips (“LTC”), by affiliating with other

gangs and cooperating with police. Diaz testified that certain LTC members agreed that

Hernandez should be killed for his disloyalty. To explain why appellant would undertake to

kill Hernandez, Diaz stated that appellant bore an unspoken responsibility for Hernandez as

his sponsor into the LTC gang. Diaz further testified that he and appellant met minutes after

the shooting just across the street from where it had occurred. Diaz said that, during that

meeting, appellant remarked that he “finally got him,” and that appellant reloaded a silver

semi-automatic handgun that looked similar to the handgun that was later proven to be the

murder weapon.

       The defense’s cross-examination, however, showed that Diaz’s testimony arguably

lacked credibility for two reasons. First, Diaz also had a motive to kill Hernandez. Prior to

Hernandez’s death, Diaz had stolen a car at gunpoint. He later loaned that car to Hernandez.

Police stopped Hernandez while he was driving the stolen car. When police questioned
                                                                                  Balderas - 18

Hernandez about the car, Hernandez implicated Diaz in its theft, and Diaz was ultimately

charged with aggravated robbery. Thus, jurors were presented with evidence that Diaz had

a motive to kill Hernandez, either to prevent Hernandez from testifying against him for the

robbery or to retaliate for the betrayal of gang loyalty. Second, Diaz’s testimony at trial was

procured by the State on the eve of appellant’s trial in exchange for the State reducing Diaz’s

pending capital-murder charge in another case to aggravated robbery. Diaz, therefore, had

an incentive to testify against appellant to secure a reduced charge. Moreover, the defense

offered the testimony of Walter Benitez, another LTC member, who contradicted much of

Diaz’s testimony. Benitez testified that, in fact, it was an LTC member named Victor

Arevalo who had killed Hernandez and that appellant actually advocated against killing

Hernandez when LTC members discussed his disloyalty. In light of Diaz’s motive to have

committed this offense, the fact that his testimony was given in exchange for reduced charges

on another offense, and the testimony that a different gang member killed Hernandez, the

State’s evidence from Diaz weakly connected appellant to Hernandez’s murder.

       It is true that evidence connects appellant to the murder weapon. But this connection

to the murder weapon was not exclusive of other LTC members, who would have had similar

motive to kill Hernandez and who had access to the same cache of weapons during the ten-

day interval of time between the shooting and seizure of the weapon. Police officers testified

that ten days after the shooting, appellant was arrested pursuant to a warrant. At that time,

appellant and another individual were holding boxes when police arrived to make the arrest.
                                                                                   Balderas - 19

When he saw police approaching him, appellant set the box down before both he and the

other individual ran from the police. After the officers arrested appellant, they inspected the

contents of the box that appellant had been holding moments earlier. Inside the box were

various firearms, one of which was later identified as the murder weapon through ballistics

testing. However, the defense introduced testimony that LTC was not a well-armed gang,

and it was common for gang members to pool and share weapons. This is evidenced by the

number of weapons in the box. Thus, while finding the murder weapon in appellant’s

possession at the time of his arrest ten days after the shooting is some evidence of appellant’s

guilt, its weight is less significant because it establishes only a loose connection between

appellant and the murder weapon under these particular circumstances.

       Additional circumstantial evidence admitted at trial suggested that Hernandez was

killed due to his LTC gang association. The day he was murdered, Hernandez and an LTC

gang member had a private discussion after which Hernandez was worried because he knew

something was wrong or something bad was going to happen. Also, the day that Hernandez

was killed, LTC-themed graffiti had been spray painted near the apartment where he was

killed. Karen Bardales, Wendy’s sister who was also present at the time of the murder,

testified that Hernandez “knew something was going to happen” upon seeing the graffiti.

       While the State’s case showed that, in all likelihood, Hernandez was killed by an LTC

member, the only evidence admitted to persuasively show appellant to be the specific LTC

member who shot Hernandez was Wendy’s identification. Without Wendy’s eyewitness
                                                                                Balderas - 20

identification, it cannot be said beyond a reasonable doubt that the jury’s deliberation upon

the rest of the State’s evidence would have remained unchanged and would still have

produced the same guilty verdict.

       The second factor requires consideration of the extent to which the error was

emphasized by the State. Here, the State relied heavily on Wendy’s identification, which was

the sole piece of evidence directly linking a specific LTC gang member, appellant, to this

offense. In the absence of this evidence, the State would have been forced to concede that

other LTC gang members had a similar motive to kill Hernandez and also had access to the

murder weapon.

       The third factor requires consideration of the probable implications of the error. I

conclude there is a reasonable likelihood that the jury believed the testimony of Diaz and

disregarded the testimony of Benitez because the jury had heard from Wendy—the only

eyewitness to the murder who claimed to have seen the killer’s face—that appellant was the

shooter. Wendy’s identification corroborated Diaz’s testimony that appellant was present

near the crime scene shortly after the killing and that he was carrying a handgun that

appeared similar to the murder weapon. Additionally, Wendy’s identification of appellant

as the shooter provided the context for Diaz’s testimony that appellant’s remark that he

“finally got him” was a reference to appellant having killed Hernandez.

       Furthermore, Wendy’s identification supports the inference that appellant had been

in possession of the murder weapon since the night of the shooting, and, therefore, appellant
                                                                               Balderas - 21

had killed Hernandez. Absent Wendy’s identification of appellant as the shooter, the jury

would have likely attributed less weight to appellant’s possession of a box with numerous

weapons, one of which was the murder weapon, and would have given more weight to the

testimony that LTC members pooled and shared their weapons. Appellant’s possession of

the box containing weapons while he was with another individual would have had little

persuasive value absent Wendy’s identification testimony. Because ten days had passed

between the shooting and appellant’s arrest while in possession of the murder weapon, the

shooter would have had ample opportunity to either dispose of the murder weapon or to re-

deposit the murder weapon in the LTC cache. Given this fact, appellant’s possession of the

murder weapon at the time of his arrest is only weak evidence of his guilt under these

circumstances.

       The fourth factor requires consideration of the weight the jury would likely have

assigned to Wendy’s identification in the course of deliberations. Although other evidence

supports the conviction, the quality of that evidence was weak because it included the

bartered-for testimony of Diaz, a fellow gang member with strong motives to kill Hernandez

who was near the apartment where Hernandez was shot at the time of the shooting, and

appellant’s possession of the murder weapon over a week after the offense. Wendy’s

eyewitness identification is the only evidence directly connecting appellant to the murder.

Without her testimony, the strength of the State’s case was significantly undermined.

       While a jury could have rationally reached a guilty verdict without Wendy’s
                                                                                       Balderas - 22

identification of appellant as the killer, that is not dispositive in finding that the constitutional

error at trial was harmless. After applying the correct standard under Rule 44.2(a) and

weighing the factors in view of the record in its entirety, I cannot conclude beyond a

reasonable doubt that the jury’s deliberation would have been unaltered and that the tainted

identification did not contribute to the conviction. The State relied heavily on Wendy’s

identification of appellant as the shooter because there were no other eyewitnesses who could

identify the shooter and no forensic evidence linking appellant to the murder scene. Diaz’s

testimony that appellant was near the location where Hernandez was killed shortly after the

murder, that appellant had a handgun at that time, and that appellant alluded to having shot

Hernandez would likely have been credited by the jury based on Wendy’s identification that

may have served as a basis for the jury to not only minimize Diaz’s bias but also to disregard

Benitez’s identification of another person as Hernandez’s killer. Moreover, the jury may

have seized upon Wendy’s identification to support the inference that, because appellant was

arrested while carrying a number of weapons, one of which was the murder weapon,

appellant had used the weapon to shoot Hernandez.

       Because I cannot conclude beyond a reasonable doubt that the admission of Wendy’s

identification testimony did not lend significant support to the State’s other circumstantial

evidence of appellant’s guilt, and because Wendy’s testimony might have provided a reason

for the jury to discount appellant’s defensive evidence, I cannot say beyond a reasonable

doubt that its admission did not contribute to the guilty verdict. I, therefore, would hold that
                                                                                    Balderas - 23

the admission of this evidence at trial was not harmless error.

                                        III. Conclusion

         Because most of the facts surrounding the procedures that led to the identification of

appellant are undisputed, this is not a case that requires deference to the trial court’s decision

to admit identification evidence. Rather, this is a case that requires this Court to apply the

law to the largely undisputed facts. By appropriately applying the law to the facts, I conclude

that the pretrial identification procedure in this case was so impermissibly suggestive as to

give rise to a substantial likelihood of misidentification, and I further conclude that appellant

has shown that there are no circumstances to show that Wendy’s identification of him in

court eight years after the offense was reliable so as to diminish the corrupting effect of the

procedure. Because I cannot conclude that the error was harmless, I respectfully dissent from

this Court’s judgment that affirms appellant’s conviction for capital murder and sentence of

death. Accordingly, I would reverse the judgment of the trial court and remand for a new

trial.

Filed: November 2, 2016

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