                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-387-CR


KENNETH LEON MENDIOLA                                            APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                                 OPINION

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      A jury convicted Appellant Kenneth Leon Mendiola of aggravated robbery

with a deadly weapon and assessed his punishment at twenty-five years’

confinement in the Institutional Division of the Texas Department of Criminal

Justice. The trial court sentenced him accordingly. Appellant brings a single

point on appeal, arguing that the trial court reversibly erred by failing to

suppress the complainant’s in-court identification of Appellant because it was

tainted by an improperly suggestive identification procedure.   Although the
pretrial photograph array was impermissibly suggestive because Appellant’s

photograph was both larger and darker than the other photographs in the array,

thereby calling attention to his photograph, the array did not give rise to a

substantial likelihood of misidentification. We therefore affirm the trial court’s

judgment.

      On December 13, 2005, Dors Ward, Jr., the owner of D. Ward

Construction Company, drove to an apartment complex to meet with Rick

Spires, a man he knew from a Bible study, to talk about remodeling an

apartment. Appellant accompanied Spires to the meeting.

      When Ward arrived at the apartments, he got out of his pickup truck and

then turned back toward the truck to get his briefcase. Spires placed a knife

to Ward’s throat. Appellant stabbed Ward under his right ear, causing only a

superficial wound. Appellant and Spires then forced Ward to get in his truck

and drive from one bank ATM to another, withdrawing money out of his

account. During this time, Spires and Appellant each held a serrated kitchen

knife, five or six inches long, on Ward.

      After Ward had depleted his account, Spires and Appellant forced him to

drive his truck back to the apartment complex where he had first met them.

Spires got his truck and ordered Ward to follow him into an empty parking lot

in a warehouse district. At the parking lot, Spires stopped, got into Ward’s

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truck, told Appellant to “finish the job,” and went back to his truck to wait.

Appellant then stabbed Ward in the neck. Ward and Appellant struggled, and

Ward managed to fight off Appellant; during the struggle, Ward’s hands and

arms were cut and his lung was punctured. Appellant then ran over to Spires’s

truck, and he and Spires drove away.

      Ward put his fingers on his wounds to stop the bleeding as much as

possible and drove away. He ultimately crashed his truck into the sidewalk of

a car dealership. Justin Wayne Stringer, a salesman working at the dealership,

approached the truck after seeing Ward crash. Stringer, who had had EMT

training, testified that Ward appeared to have a serious injury to a major artery

in his neck and several stab wounds to the chest. Another witness called 911.

Ward was taken to the hospital and remained hospitalized for six days; he was

later hospitalized again because of internal bleeding.

      The day after the robbery, Detective Lopez talked with Ward and obtained

descriptions of Spires and Appellant. One week after the robbery, Ward was

asked to view two photo spreads. He identified Appellant from one photo

spread and Spires from the second photo spread.

      In his sole point, Appellant argues that the trial court erred by failing to

suppress the complainant’s in-court identification of him because it was tainted




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by an improperly suggestive identification procedure.      The Texas Court of

Criminal Appeals has instructed us that

             [i]n considering the scope of due process rights afforded a
      defendant with regard to the admission of identification evidence,
      the United States Supreme Court has held that a pre-trial
      identification procedure may be so suggestive and conducive to
      mistaken identification that subsequent use of that identification at
      trial would deny the accused due process of law. Hence, the Court
      formulated a two step analysis to determine the admissibility of an
      in-court identification: 1) whether the out-of-court identification
      procedure was impermissibly suggestive; and 2) whether that
      suggestive procedure gave rise to a very substantial likelihood of
      irreparable misidentification. An analysis under these steps requires
      an examination of the “totality of the circumstances” surrounding
      the particular case and a determination of the reliability of the
      identification.1

      The burden is upon the party challenging the identification to prove each

prong by clear and convincing evidence. 2 If the first prong of this test is not

met, we do not address the second prong to evaluate the likelihood of

irreparable misidentification.3 If, however, we determine that the identification

procedure was impermissibly suggestive, we must still determine whether such




      1
        … Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995)
(citations and footnotes omitted), cert. denied, 516 U.S. 1176 (1996).
      2
        … Goldberg v. State, 95 S.W.3d 345, 378 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d), cert. denied, 540 U.S. 1190 (2004).
      3
          … Barley, 906 S.W.2d at 34.

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suggestive pretrial procedure gave rise to a substantial likelihood of irreparable

misidentification.4

      We have examined the photo spread complained of by Appellant and note

that the photograph of Appellant is both larger and darker than the other

photographs.        Additionally, it fills more of the space provided for the

photograph than do the others. The eye of one who knows nothing about the

case is immediately drawn to the photograph of Appellant because it is so

distinctive in relation to the remaining photographs. We therefore hold that the

out-of-court identification procedure was impermissibly suggestive. 5

      We therefore must determine whether the suggestive procedure gave rise

to a very substantial likelihood of irreparable misidentification.6 Ward testified

that he met with Appellant on two occasions.            The first occasion was

approximately a week before the stabbing. He was with Appellant for an hour

or slightly less.     They were evaluating the damage done to the apartment

complex to determine remodeling costs.         Ward testified that he did not


      4
        … Moore v. State, 140 S.W.3d 720, 731 (Tex. App.—Austin 2004, pet.
ref’d) (citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967,
971 (1968), and Brown v. State, 64 S.W.3d 94, 99 (Tex. App.—Austin 2001,
no pet.)).
      5
      … See United States v. Merkt, 794 F.2d 950, 958 (5th Cir. 1986), cert.
denied, 480 U.S. 946 (1987); Barley, 906 S.W.2d at 33–34.
      6
          … See Simmons, 390 U.S. at 384, 88 S. Ct. at 971.

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remember Appellant’s name, just his face. He also testified that he had not

been sure that he wanted Appellant to work on the job because he looked like

he was on drugs.

       Ward saw Appellant again on the day of the stabbing. They met around

5:30 p.m. at the apartments. He testified that he spent a little over two hours

with Appellant and Rick Spires. When asked to clarify his testimony that he

had spent a little over two hours with the two men, Ward testified, “It was

right after—after it got dark, and it was all over with. It was approximately two

hours’   worth.”     He   identified   Appellant   as   “the   one   that   did   the

stabbing. . . [, t]he most stabbing.” He also testified that he was 100% sure

that the person sitting next to defense counsel was the person who stabbed

him.

       Considering the totality of the circumstances, including the opportunity

Ward had to observe Appellant on the two separate days, we hold that

Appellant has failed to satisfy the second prong of the test; that is, we hold

that the suggestive procedure did not give rise to a very substantial likelihood

of irreparable misidentification—Ward had ample opportunity to observe

Appellant and was unequivocal in his identification at trial.




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     We therefore overrule Appellant’s sole point and affirm the trial court’s

judgment.




                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

PUBLISH

DELIVERED: October 9, 2008




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