                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo
                                     ________________________

                                          No. 07-13-00403-CR
                                     ________________________

                          MICHAEL ANGELO MEDRANO, APPELLANT

                                                      V.

                                 THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 108th District Court
                                        Potter County, Texas
                Trial Court No. 66,850-E; Honorable Douglas R. Woodburn, Presiding


                                            December 30, 2014

                                   MEMORANDUM OPINION
                        Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Following a jury trial, Appellant, Michael Angelo Medrano, was convicted of the

first degree felony offense of aggravated robbery. 1 A jury assessed his sentence at

twelve years confinement.2 The judgment entered contained an affirmative finding of

the use of a deadly weapon. By two issues Appellant contends (1) the trial court erred


        1
          TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). An offense under this section is a first degree
felony. Id. at § 29.03(b).
        2
            The Judgment incorrectly states that the trial court assessed sentence.
by not suppressing all identification evidence following an impermissibly suggestive

photo lineup and (2) the evidence presented was legally insufficient to sustain the

deadly weapon element of the offense. We affirm.


                                      BACKGROUND


       On March 9, 2013, Tonya Brown was sitting in her car in the drive-through line at

a Sonic restaurant, waiting for her order with her window rolled down, when a car pulled

up behind her without stopping to order. A man exited that car, approached her with a

handgun (even touching the barrel of the gun to her shoulder) and demanded that she

give him her wallet. When Tonya asked him if he was serious, he pulled back the slide

on the gun, as if to load it, and again demanded her wallet. When Tonya starting

honking the horn of her car, the would-be robber made a quick exit, which was

witnessed by others. The encounter lasted approximately thirty to forty-five seconds.


       Tonya called the police and drove to her residence. When the police arrived, she

described the man as a Hispanic male, twenty-five to thirty years old, stocky build, five

foot five inches to five foot nine inches tall, with a birthmark or mole on his face by his

right eye. She also described him as wearing a white baseball cap, white shirt, a blue

jacket, and jeans. She described the handgun as a black semi-automatic that looked

very real.


       Based on a description of the vehicle being driven, the police developed a

suspect in the robbery. On March 14th, Tonya went to the Amarillo Police Department

to view a photo lineup of six individuals. She identified Appellant as the man who

attempted to rob her on March 9th.

                                            2
        Appellant was subsequently charged by indictment with the offense of

aggravated robbery. The indictment alleged that he “did then and there, while in the

course of committing theft of property and with the intent to obtain and maintain control

of the property, intentionally or knowingly threaten or place Tanya Brown in fear of

imminent bodily injury or death and the defendant did use or exhibit a deadly weapon

namely, a handgun.”3 Prior to trial, Appellant filed a Motion to Suppress Photographic

Identification, wherein he sought to prohibit the in-court identification of Appellant by any

witness who had previously been shown the photo lineup. Appellant contended the

lineup was impermissibly suggestive. Specifically, he contended his photograph was

“the only one in which a person with a mole or birthmark on their face was depicted.”

The motion was not ruled on prior to trial. In lieu thereof, the judge announced that it

would be considered during the trial. During trial, the motion was partially granted when

the trial court ruled that the photo lineup itself was impermissibly suggestive, but not so

suggestive as to taint the reliability of Tonya’s in-court identification of Appellant.

Accordingly, the State was prohibited from offering evidence of the lineup, but Tonya

was permitted to testify concerning her identification of Appellant as the man who

attempted to rob her. In particular, Tonya testified that her in-court identification of

Appellant was based upon her up-close, face-to-face encounter with Appellant. During

the punishment phase of his trial, Appellant testified he attempted to rob a person in the

vehicle in front of him at the Sonic restaurant while using a deadly weapon.4




        3
            The record reflects two different spellings of the victim’s name.
        4
           The Texas Court of Criminal Appeals has overruled “any last vestiges of the De Garmo
doctrine,” making it clear that an appellant does not forfeit his right to complain on appeal about errors
occurring during the guilt-innocence phase of a trial by admitting guilt during the punishment phase of
trial. Jacobson v. State, 398 S.W.3d 195, 196 (Tex. Crim. App. 2013).
                                                    3
                ISSUE NO. ONE—SUPPRESSION OF IN-COURT IDENTIFICATION


       The in-court identification of an accused is “inadmissible when it has been tainted

by an impermissibly-suggestive pretrial photographic identification.” Ibarra v. State, 11

S.W.3d 189, 195 (Tex. Crim. App. 1999). This does not mean, however, that a court

must automatically exclude an in-court identification that follows an unnecessarily

suggestive photo lineup. “It is the ‘substantial likelihood of misidentification’ that may be

engendered by [the prior] suggestive procedure that works the deprivation of due

process.” Tijerina v. State, 334 S.W.3d 825, 836 (Tex. App.—Amarillo 2011, pet. ref’d)

(quoting Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). “The test 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.” Ibarra, 11 S.W.3d at 195 (quoting Simmons

v. United States, 377 U.S. 377, 384, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968)).


       In determining the substantial likelihood of misidentification an appellate court

should consider five non-exclusive factors: (1) the opportunity of the witness to view the

accused at the time of the offense; (2) the degree of attention the witness paid during

the encounter; (3) the accuracy of the prior description of the accused given by the

witness; (4) the level of certainty demonstrated by the witness at the time of

confrontation; and (5) the length of time between the offense and the confrontation. Neil

v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L.Ed. 2d 401 (1972).


       Whether the trial court erred in admitting the in-court identification of the accused

involves mixed questions of law and fact. Loserth v. State, 963 S.W.2d 770, 772 (Tex.

Crim. App. 1998). Accordingly, while an appellate court should give great deference to
                                             4
the trial court’s determination of the historical facts, the question of whether those facts

render the identification unreliable is a matter which should be reviewed de novo.

Tijerina, 334 S.W.3d at 837.


       Assuming, arguendo, that the trial court was correct in its determination that the

photo-lineup was impermissibly suggestive, we must still determine whether, under the

totality of the circumstances, Tonya’s in-court identification testimony was reliable, i.e.,

whether there was no substantial likelihood of irreparable misidentification.


       Considering the first two Biggers factors, the opportunity of the witness to view

the accused at the time of the offense and the degree of attention the witness paid

during the encounter, while viewing the historical facts in the light most favorable to the

trial court’s ruling, Tonya Brown had the opportunity to view the person accosting her for

thirty to forty-five seconds, at extremely close range, while engaging in a back and forth

conversation. She had an unobstructed view of his facial features, under adequate

lighting from the Sonic restaurant, and under circumstances of heightened attention.

Accordingly, these factors weigh in favor of a reliable in-court identification.


       As to the third Biggers factor, the accuracy of the prior description of the accused

given by the witness, we note that while Tonya’s description was not 100 percent

accurate, it was substantially accurate. She recalled specific facial features, including

his eyes, a small face, little nose, and a birthmark or mole on the right-hand side of his

eye. She described the assailant as a light-skinned Hispanic male, approximately five

foot five inches to five foot nine inches in height, twenty-five to thirty years old, clean

shaven with a stocky build, wearing a white baseball cap, white shirt, dark blue jacket

and jeans. While the evidence shows that Appellant does not have a mark on the right
                                              5
side of his face, but instead has one on the left side, this discrepancy is not fatal to the

accuracy of Tonya’s identification. Overall, the third Biggers factor weighs in favor of

reliability.


        The level of certainty demonstrated by Tonya at the time of her in-court

identification, the fourth Biggers factor, also weighs in favor of a finding that her

identification was accurate and reliable. Tonya never equivocated concerning her in-

court identification, testifying specifically that her identification was based upon what

she observed the night of the robbery. Her identification of Appellant as the man who

accosted her was consistent and positive, even in the face of zealous cross-

examination.     Finally, as to the fifth Biggers factor, the length of time between the

offense and the confrontation, Tonya’s in-court identification was less than six months

after the robbery—hardly an amount of time that would call into question the reliability of

her testimony.


        Weighing the five Biggers factors and considering the in-court identification under

the totality of the circumstances, the record does not show that the identification of

Appellant was irreparably tainted by an impermissibly suggestive photo array.           The

historical facts do not give rise to a substantial likelihood of misidentification and the

indicia of reliability clearly outweigh the corrupting effect, if any, allegedly arising from

the out-of-court identification procedure. Appellant’s first issue is overruled.


                        ISSUE TWO—SUFFICIENCY OF THE EVIDENCE


         We review challenges to the sufficiency of the evidence under the standards

discussed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

                                              6
and Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We refer the parties

to those cases.


      According to the indictment in this case, in order to obtain a conviction, the State

was required to show that, while in the course of committing theft of property and with

the intent to maintain control of the property, Appellant intentionally or knowingly

threatened or placed Tonya Brown in fear of imminent bodily injury or death and did use

or exhibit a deadly weapon, namely, a handgun. TEX. PENAL CODE ANN. § 29.03(a)(2)

(West 2011). Tonya testified that during the robbery Appellant brandished a heavy

metal semi-automatic black handgun and that he pressed it against her shoulder.

Further testimony was given that the handgun used was similar to a Glock 9mm pistol

and that Appellant “racked the slide” on the weapon as if to load a round into the firing

chamber. A police witness testified that a handgun is a firearm and a deadly weapon.

Viewing this evidence in the light most favorable to the verdict, we find that a

reasonable juror could have found the essential elements of the offense charged

beyond a reasonable doubt. Specifically, we find a reasonable juror could have found

that Appellant used or exhibited a deadly weapon in the course of committing robbery.

Appellant’s second issue is overruled.


                                         CONCLUSION


      The judgment of the trial court is affirmed.




                                                 Patrick A. Pirtle
                                                    Justice

Do not publish.
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