Reversed and Remanded and Opinion Filed December 31, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01454-CR
                                      No. 05-13-01455-CR

                            THE STATE OF TEXAS, Appellant
                                        V.
                           ANDRES DELEON-GLORIA, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                        Trial Court Cause No. F11-13347, F11-13348

                                           OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                 Opinion by Justice FitzGerald
       Appellee was charged with two aggravated assault offenses arising from the same

transaction but involving different victims. A co-defendant, David Ruiz-Hiracheta, was also

charged with the same offenses. Counsel for Ruiz-Hiracheta filed a motion to suppress the

identification of appellee and Ruiz-Hiracheta as perpetrators, asserting that the identification was

irreparably tainted because the police did not use a photo lineup procedure and improperly

influenced the process by which identification of the alleged perpetrators was obtained.

Appellee’s counsel joined in the motion. The trial court granted the motion to suppress, and the
State now appeals the trial court’s ruling.1 In a single issue, the State argues the trial court erred

in suppressing the evidence identifying the perpetrators. We reverse the trial court’s order.

                                                         BACKGROUND

          Troy Moore testified he was half white and half Mexican and spoke and understood

Spanish.         Just before dark on the night of September 20, 2011, while visiting in a friend’s

apartment at the Metrocrest Apartments in Carrollton, Texas, Moore observed a Hispanic male

lead two black males and one black female to the door of apartment number 246. He saw the

Hispanic male and female enter the apartment. The two black males stayed outside, then left, but

soon returned to the apartment and entered it after knocking on the door. A few minutes later,

Moore saw the female come out and leave, followed in a short time by the two black men, who

left running. A group of Hispanics came out of the apartment and chased the two black males.

          Moore went to speak with the persons in apartment 246 and learned they had been robbed

by the black men. Moore offered to assist the robbery victims by taking them to a vehicle he

thought was connected with the robbers. He told them, “I think I found the car. Just follow me,

but don’t get mad if it’s not them.”

          Moore walked with several of the persons from apartment 246 to the parking lot of a

nearby beauty school where there was a single car that Moore identified as the one used by the

robbers that evening. A pick-up truck arrived and one of the men with Moore walked over to the

truck and stated that this was “the car.” The driver of the truck peered into the car and said “it’s

them” three times.

          Two of the men who had walked with Moore from the apartment complex pulled out

handguns and began shooting several rounds into the car as it backed up. But the car was not one


   1
       The State’s appeal is brought pursuant to TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5), (d) (West 2014).




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used by the robbers. The passengers in the car, a man and a woman, were not involved in the

robbery. The victims were wounded by the gunfire and called the police. Moore and the men

who had accompanied him ran back to the apartment complex and took off. Moore called his

sister, who encouraged him to contact the police. Moore then contacted the police.

       The police identified the renter of apartment 246 but learned that she lived several miles

from the apartment. Police went to her location and found four Hispanic males that they

determined lived in apartment 246. These four individuals were brought to the police station for

questioning.

       Officer Jason Peattie, a detective with the Carrollton Police Department, testified at the

hearing. On September 20, 2011, the day after the incident, Moore was brought to the police

station to identify suspects in the investigation. The police escorted him to and from the station.

       The Carrollton Police Department has a written policy concerning photo lineups. Peattie

testified that the purpose of the procedures is to avoid erroneous eyewitness identification. The

procedures require a sequential six-person photo line-up administered by a detective who is not

associated with the case. As Peattie explained, a detective involved in the investigation would be

aware of who the suspects are. Having an uninvolved detective administer the lineup is to

“prevent any possibility of influencing the lineup.”

       Peattie was involved in the investigation of the incident. When Moore arrived at the

station, no lineup was conducted. Peattie testified that there was no lineup because Moore knew

where the individuals lived and had been with them at the time of the offense. Consequently,

Peattie stated, “we did not feel . . . a six-person lineup was necessary.”

       Peattie showed Moore a single photograph of two of the four suspects that had been

brought into questioning. Although four suspects had been brought in for questioning, Moore

was shown only two photographs because they had not yet taken pictures of the other two

                                                 –3–
suspects. Peattie could not recall what he said to Moore when he showed him the photographs,

nor could he recall exactly what Moore said when he viewed the pictures. Peattie testified that

Moore “just identified the suspects as the people he had been with the prior night.”

       Peattie could not recall whether there was a video of a live interview with one of the

suspects playing when Moore was escorted into the room. Peattie also could not recall which

suspect was being interviewed when Moore was shown the video. Nonetheless, Peattie

acknowledged that Moore was shown a video of at least one live interview after he was shown

the two still photographs.

       The trial judge asked Peattie what he said to Moore when he handed him the two

pictures. Peattie stated that he could not recall the exact words, but he was sure it was something

like, “Are these the individuals you were with?” The trial judge also asked Peattie what he said

when he showed Moore the video. Peattie stated that “viewing the pictures and the video, [he

was] asking the witness to state that these people [were] involved in the shooting incident.”

       Officer Snyder also met with Moore when he came to the station on September 20.

Snyder testified that Peattie brought Moore to his desk. A surveillance camera had captured the

incident on video, and Snyder had this surveillance video paused on one of his computer screens

when Moore was brought to his desk. Snyder showed Moore still shots that had been obtained

from the video. In one shot, Moore identified himself as the individual in “the lower right” and

the two shooters shoulder-to-shoulder firing at the vehicle. Moore was then shown the entire

video, and he identified Ruiz-Hiracheta and appellee. Snyder did not ask Moore how long he had

known these two individuals, and the entire meeting took place in less than five minutes.

According to Snyder, there was no hesitation when Moore identified the individuals in the

photographs. He did not identify the individuals by name, but instead stated, “this is the guy.”




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       When Moore viewed the surveillance video, the video of the live interviews of Ruiz-

Hiracheta and appellee were displayed on a split screen on another computer in Snyder’s cubicle.

       Moore testified he could not recall if he had ever seen any of the individuals in apartment

246 before the night in question. Moore told the people in the apartment that he had followed the

robbers’ car. He offered to show them the car, but said, “don’t get mad if it is not them.” Moore

did not recall how many people walked from apartment 246 to the parking lot where the car was

parked. A truck pulled up and “one of the guys told them the car is right here.” The driver of the

truck looked into the car and said “it’s them” three times. Then, “two guys pulled out their guns,

and then the car reversed and that’s when they started shooting.” After the shooting, everyone

ran to the apartments. In back of the apartments, Moore told them to leave because the persons

they shot might come back and shoot them. So they got in their cars and left.

       When Moore was shown the two pictures he identified at the police station, Moore

testified that he had identified them that night, “but to this day, right now, these faces don’t look

familiar.” Moore stated he had no hesitation in identifying the people in the photographs when he

was at the police station. Moore stated that when he went over to apartment 246, he stayed

outside, but there was enough light to “see who was there.” He also said that during the several

minutes the group walked over to the parking lot, he was close enough to see with whom he was

walking.

       Moore testified that he did not know the names of any of the individuals at the apartment.

When Peattie showed him the photographs, he said, “are these the two?” Moore also saw the

video of the live interviews and told the police “those were the two shooters.” Moore recalled

seeing a still shot from the surveillance video, and stated that he showed the police that he was

standing to the right of the shooters. Moore further testified that he went back to the police

station a second time. He does not recall when this occurred in relationship to his first visit to the

                                                 –5–
station. Moore said that he did the same thing again—police showed him the pictures and videos

and asked him questions.

          Moore further testified he saw each member of the group in the apartment, on the way to

and at the scene of the shooting, and again in back of the apartments, that there was sufficient

lighting at each location, and that he was close enough to identify them. He did not hesitate to

identify two from their photographs.

          By October of 2013, during the suppression hearing, Moore stated that he did not believe

he could recognize the individuals in the photographs, and he did not see them in the courtroom.

When the hearing concluded, the trial court granted the motion to suppress. The court did not

make any findings of fact and conclusions of law.

                                                             ANALYSIS

          The State asserts appellee did not meet his burden to establish that the procedure used by

the police gave rise to a substantial likelihood of misidentification.

          On appeal, we review a trial court’s ruling on a motion to suppress evidence based on a

claim that an impermissibly suggestive pretrial identification procedure violated the defendant’s

due process rights under the standard of review set forth in Guzman v. State.2 Under this

standard, we afford almost total deference to a trial court’s determination of facts, especially

when the trial court’s findings are based on an evaluation of credibility and demeanor.3 We

afford the same deference to a trial court’s determination of mixed questions of law and fact if

the resolution of those ultimate questions turns on an examination of credibility and demeanor of




   2
       955 S.W.2d 85 (Tex. Crim. App. 1997); see also Loserth v. State, 963 S.W.2d 770, 771 (Tex. Crim. App. 1998).
   3
       Guzman, 955 S.W.2d at 89; Moore v. State, 140 S.W.3d 720, 730 (Tex. App.—Austin 2004, pet. ref’d).



                                                                   –6–
the witness.4 However, a trial court’s determination of mixed questions of law and fact that do

not turn on credibility and demeanor are reviewed de novo.5

               A pretrial identification may not be so suggestive and conducive to mistaken

identification that subsequent use of that pretrial identification at trial would deny the accused

due process of law.6 Both pretrial identification and potentially tainted in-court identification are

evaluated using the same two-step analysis.7 Under this analysis, we consider: (1) whether the

pretrial identification procedure was impermissibly suggestive; and, if so, (2) whether that

suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification.8

The defendant must prove both elements by clear and convincing evidence.9 An analysis of these

steps requires an examination of the “totality of the circumstances” surrounding the particular

case and a determination of the reliability of the identification.10 Reliability is the linchpin in

determining the admissibility of identification testimony.11

               With regard to the first prong, it is well established that suggestiveness may arise from

the manner in which the pretrial identification procedure is conducted or from the content of the

resulting photo array itself.12 Suggestiveness may arise from the manner in which the pre-trial

identification is conducted if, for example, police point out the suspect or suggest that a suspect




     4
         Guzman, 955 S.W.2d at 89.
     5
         Id.
     6
         Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995) (citing Stovall v. Denno, 388 U.S. 293 (1967)).
     7
       See Hernandez v. State, No. 01-06-00779-CR, 2013 WL 1804436, at *14 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op., not
designated for publication).
     8
         See Barley, 906 S.W.2d at 33 (citing Simmons v. United States, 390 U.S. 377, 384 (1968)).
     9
         Id. at 33–34.
     10
          Cantu v. State, 738 S.W.2d 249, 251 (Tex. Crim. App. 1987)
     11
          See Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
     12
          Barley, 906 S.W.2d at 33.



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is included in the photo array.13 Factors used in evaluating the reliability of a procedure in a

given case include the witness’s opportunity to observe the defendant, the degree of the witness’s

attention, the accuracy of prior descriptions, the degree of certainty of the witness with regard to

the identification, and the amount of time separating the crime and the confrontation.14

              In the present case, the first question is whether the identification procedure was

impermissibly suggestive. Departmental procedures had been established to safeguard against

erroneous eyewitness identification. However, Moore was not shown any type of photo array,

apparently because the officer believed Moore was acquainted with the individuals. Instead,

Peattie, an officer involved in the investigation, simply showed Moore two photographs and

asked whether the individuals depicted had committed the offense. This occurred within 24 hours

of the shooting, at a time when the entire event was fresh. Moore was shown the video of the

two suspects being interviewed and a surveillance video of the actual shooting as recorded in real

time.

              The police interview of Moore at which the two photos were viewed occurred close to

the time of the offense and, together with the witness’s certainty in his identification, tend to

support a lack of suggestiveness. The showing of the surveillance video does not detract from

the witness’s identification. However, in view of only the two suspects’ photos being shown to

the witness, we conclude the procedure was suggestive. We, therefore, proceed to consider

whether the procedure gave rise to a substantial likelihood of misidentification.15 We use the

totality of the circumstances test to determine whether there is a substantial likelihood of




   13
        Id.
   14
        Neil v. Biggers, 409 U.S. 188, 191 (1972).
   15
        See Barley, 906 S.W.2d at 33.



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misidentification.16 Factors employed to determine reliability include: the witness’s opportunity

to observe the defendant, the degree of the witness’s attention, the accuracy of the prior

descriptions, the degree of certainty of the witness in regard to the identification, and the amount

of time separating the crime and the confrontation.17

           Moore had the opportunity to view the shooters during the crime. He also had an

opportunity to observe these individuals when he spoke with them at the apartment, walked with

them from the apartment to the parking lot, and spoke to them again in the back of the

apartments before they dispersed. Moore testified that the lighting was sufficient for him to see

them in the apartment, as they walked to the parking lot, and again when they talked in back of

the apartments. Moore was in close proximity to the shooters when the crime occurred. Moore’s

identification of the shooters occurred the day after the shooting, when his memory was still

fresh. Every time Moore identified the shooters, he did so with a high level of certainty. Peattie,

Snyder, and Moore all testified about this high degree of certainty. All of these factors weigh

heavily against the likelihood of misidentification.         There is no evidence concerning any

inaccuracy of any prior descriptions Moore may have given to the police.

           It was appellee’s burden to establish a substantial likelihood of misidentification by clear

and convincing evidence.18 There is no evidence that detracts from the ability of the witness to

identify the perpetrators at the time of the incident, such as poor lighting conditions, limited

visibility, significant distances involved, or a short time period during which the witness had the

opportunity to observe the individuals.




   16
        See Manson, 432 U.S. at 114.
   17
        Biggers, 409 U.S. at 199–200.
   18
         See Barley, 906 S.W.2d at 33.



                                                   –9–
       On this record, we conclude appellee failed to meet his burden. Accordingly, the trial

court erred in granting the motion to suppress. The State’s issue is sustained. The trial court’s

order is reversed.




Do Not Publish
TEX. R. APP. P. 47
131454F.U05


                                                  /Kerry P. FitzGerald/
                                                  KERRY P. FITZGERALD
                                                  JUSTICE




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-01454-CR          V.                        Trial Court Cause No. F11-13347.
                                                      Opinion delivered by Justice FitzGerald.
ANDRES DELEON-GLORIA, Appellee                        Justices Fillmore and Stoddart participating.

        Based on the Court’s opinion of this date, the order of the trial court granting appellee
Andres DeLeon-Gloria’s motion to suppress is REVERSED and the cause REMANDED for
further proceedings consistent with this opinion.


Judgment entered December 31, 2014.




                                               –11–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                         On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-01455-CR          V.                        Trial Court Cause No. F11-13348.
                                                      Opinion delivered by Justice FitzGerald.
ANDRES DELEON-GLORIA, Appellee                        Justices Fillmore and Stoddart participating.

        Based on the Court’s opinion of this date, the order of the trial court granting appellee
Andres Deleon-Gloria’s motion to suppress is REVERSED and the cause REMANDED for
further proceedings consistent with this opinion.


Judgment entered December 31, 2014.




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