Balderas, Juan A/K/A Apache ( 2016 )

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
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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
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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
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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
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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
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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-
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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,
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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
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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
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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
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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
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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:
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
PUBLISH