Robelio Aviles-Barroso v. State ( 2015 )

Affirmed as Modified and Majority and Concurring Opinions filed August 27, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00142-CR
ROGELIO AVILES-BARROSO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1364839
MAJORITY OPINION
A jury convicted appellant Rogelio Aviles-Barroso of capital murder1 and the trial
court assessed his punishment at life imprisonment. Appellant contends on appeal that
(1) the trial court reversibly erred by allowing witness testimony about a “pre-trial voice
identification” and allowing an “in-trial identification” because the pre-trial voice
identification was unduly suggestive and led to a substantial likelihood of
misidentification; (2) his conviction is not supported by legally sufficient evidence
because the identification testimony was inadmissible and the accomplice witness
1
See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).
testimony was not sufficiently corroborated; and (3) his bill of costs should be modified
to delete several assessed costs because they constitute “a penalty as applied to”
appellant and were not “orally pronounced as part of his sentence.” We affirm the trial
court’s judgment as modified.
BACKGROUND
A. Overview
Diana Garcia, her six-year old son Angelo Garcia, and her boyfriend Jose Arturo
Rodriguez lived in a small two-bedroom apartment in Houston, Texas in 1992. Diana
and Arturo had been selling drugs out of their apartment. Obel Cruz-Garcia was their
drug supplier. Cruz-Garcia and his wife’s cousin, Carmelo Martinez Santana, regularly
came to Diana’s and Arturo’s apartment to deliver drugs until Cruz-Garcia and Arturo
“got into a little misunderstanding” sometime in 1992; afterwards, Diana and Arturo
decided to stop selling drugs.
On the evening of September 30, 1992, Diana and Arturo were awakened by a
loud noise coming from their living room. Their front door had been kicked in. Arturo
got out of bed, walked toward the front door, and was met by a tall, husky, masked man
holding a gun. The man ordered Arturo to go back into the bedroom, kneel down, and
put his face on the bed; he tied up Arturo with a cord and started beating Arturo. The
man also ordered Diana to lay face-down on the bed.
A second masked man then entered the bedroom holding a gun. Diana was
covered with a sheet and sexually assaulted by the second man who had entered the
bedroom. The second man never spoke a word. Only the first man spoke to Diana and
Arturo in English and Spanish; according to Diana, the first man “did all the talking.”
While Diana was being sexually assaulted, she could hear Angelo crying and Arturo
being beaten. After the sexual assault, the men ransacked the bedroom and left. Diana
managed to untie herself and Arturo. She realized that Angelo had been kidnapped and
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contacted the police.
Police believed the crimes were drug-related and the perpetrators kidnapped
Angelo to use him as a “bargaining chip.” The FBI suspected that Cruz-Garcia was the
second man who had sexually assaulted Diana; he had not entered the apartment until
Diana’s and Arturo’s eyes were covered because Diana and Arturo would have been
able to recognize Cruz-Garcia, “his voice, his stature.” Very early on in the
investigation, law enforcement learned that Cruz-Garcia fled Houston for Puerto Rico or
the Dominican Republic. Police interviewed Cruz-Garcia’s wife, Santana, and several
other individuals and collected DNA samples. The investigation continued.
On November, 5, 1992, “skelet[al] remains with a rock next to the body or on the
body and clothing” were found on the bank near Goose Creek in Baytown. Dental
records confirmed that the remains were Angelo’s. However, many years passed and
the crimes committed on September 30, 1992, went unresolved.
The Houston Police Department created a cold case squad within the homicide
division to work on unsolved crimes in November 2004. Sergeant Mehl joined the
squad and started working on solving Angelo’s murder. In May 2008, Sergeant Mehl
found Cruz-Garcia, whom he knew had been a primary suspect in the case, in custody in
Puerto Rico and obtained a DNA sample from him. Cruz-Garcia’s DNA profile
matched the DNA profile developed from Diana’s rape kit. Later, Cruz-Garcia was
charged with the capital murder of Angelo.
Police continued investigating to find the man who had first entered Diana and
Arturo’s apartment and beaten Arturo. During the investigation, police played voice
recordings for Diana of Cruz-Garcia, Santana, and an individual named Leonardo
German because Diana told the police in 1992 that she could identify the first man by
his voice. After hearing the three individuals’ voice recordings, Diana did not identify
any of them as the first man.
3
Law enforcement decided to interview Santana again to see if he could help
identify the first man who was involved in Angelo’s abduction. Santana was located in
a prison in Pennsylvania where he was serving a sentence for a drug-related offense.
During his interview with two FBI agents, Santana at first denied knowing anything
about Angelo’s kidnapping and murder but then acknowledged being with Cruz-Garcia
and appellant the night Angelo was killed in 1992. Santana revealed he had gone with
Cruz-Garcia and appellant to Diana’s and Arturo’s apartment. He described in detail
his, Cruz-Garcia’s, and appellant’s involvement in the kidnapping and murder of
Angelo.
After learning of appellant’s involvement in the crimes, law enforcement worked
on locating appellant. It took Investigator Kerry Gillie several months to find appellant;
it seemed appellant “moved around a lot.” Investigator Gillie went to appellant’s house
in Georgia and introduced himself as a police officer from the Harris County District
Attorney’s Office in Houston. Appellant agreed to be interviewed by Investigator
Gillie. After the interview, appellant called his wife on his cell phone. Appellant’s
interview and phone call both were recorded. Following the interview and phone call,
Investigator Gillie arrested appellant and charged him with capital murder on October
16, 2012.
While appellant was in custody in Houston, Diana called assistant district
attorney Natalie Tise to stop by for a visit. Diana would visit with Tise and Investigator
Gillie regularly to discuss “what was going on with the case;” on this occasion, they
discussed travel plans for Cruz-Garcia’s trial, which had been reset. During Diana’s
visit, Investigator Gillie asked Diana to listen to a voice recording to “see if she
recognized the voice as being a person that was involved that night that Angelo Garcia,
Jr. was taken, if she recalled that voice.” Investigator Gillie then played the recording
of appellant’s phone call to his wife. Diana immediately recognized appellant’s voice
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as the voice of the man who first entered her apartment in 1992.
B. Hearing on Motion to Suppress
Appellant’s trial for capital murder was held from January 27, 2014 to February
4, 2014. After voir dire, the trial court held a hearing outside the jury’s presence on
appellant’s motion to suppress the identification of appellant’s voice “based on an
improper and suggestive audio review.”
At the hearing, the trial court heard testimony from several experts who opined on
identification procedures; voice identification and memory decay; and how memories of
traumatic events are stored in the human brain. The trial court also heard testimony
from Investigator Gillie, who described how the voice identification of appellant
occurred; he also described how Diana immediately and positively identified appellant’s
voice as being the voice of the first man. Officer U.P. Hernandez, who had been
involved in the investigation of the case since October 1, 1992, and had interviewed
Diana at the time, testified that Diana described the first man’s appearance. He
described Diana’s statements that the man spoke with a foreign Spanish accent and that
she could recognize the man’s voice. Investigator Micah Webb, who also had been
involved in the investigation, testified that Diana had listened to voice recordings of
Cruz-Garcia, Santana, and Leonardo German during the investigation but did not
identify any of the voices as being the voice of the first man.
Appellant argued at the hearing that Diana’s voice identification was inadmissible
for two reasons. First, he contended the “method used in this case was improperly
suggestive” because (1) Diana did not state that she could recognize the first man’s
voice until later in the investigation; (2) appellant is “20 years older, his voice has
changed,” and Diana did not point to anything specific in his voice except to say the
man spoke in a different Spanish dialect; (3) the State did not present Diana with a voice
line-up of two or three individuals from Puerto Rico speaking with the same dialect as
5
appellant; and (4) the other three voice recordings played for Diana were of men she had
known, and they were not played the same day as appellant’s voice recording. Second,
he contended that a 20-year gap between Diana first hearing appellant’s voice and her
identification of appellant’s voice was too long for an identification to be accurate.
The trial court denied appellant’s motion to suppress and stated:
And the Court is prepared to make a ruling on the record regarding
the defendant’s motion to suppress the in-court identification of the
defendant, having heard testimony concerning this motion . . . . And this
morning I do want to make the following findings on the record.
I do find that according to the testimony of the two investigators,
Investigator Gillie and also Investigator -- let me make sure I’ve got that
name -- U.P. Hernandez. According to Investigators Kerry Gillie and U.P.
Hernandez, who had an opportunity to review the offense reports and who
did investigation throughout the investigation on this case, testified that
Diana Garcia was a witness to the original offense of alleged capital
murder in this case, and that she did have an adequate opportunity to listen
to the assailant at the time of the offense, that according to Officers Gillie
and U.P. Hernandez, that Diana had been blindfolded, her home broken
into, her son was kidnapped, and she was allegedly sexually assaulted
during the time she heard one assailant speak to at least one other assailant
present and did not ever see this individual -- this individual’s face.
I also make the finding that according to the detectives, Diana
Garcia, the witness, said she could identify the assailant’s voice at an
interview close in time to the alleged offense and that she had paid enough
attention to describe the assailant’s voice, the dialect, or a language
peculiarity at an interview that was made close in time to the alleged
commission of the offense.
I do make a finding that Diana Garcia’s reaction, described by
Investigator Gillie, to the voice showup or the voice exemplar that was
played to her, the voice being that of the defendant, Rogelio Aviles-
Barroso, was described by Officer -- excuse me -- Investigator Gillie as
being very emotional at the time she heard the voice of the assailant, that
she cried, and her I.D. was positive that that voice was the voice of her
assailant. I do make a finding that that exemplar was played to her some
20-plus years after the offense allegedly occurred.
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I do make a finding that Investigator Gillie never suggested to Diana
Garcia, the witness, whose voice that was or suggest that that voice was
that of her assailant, and that the pretrial identification procedure was not
impermissibly suggestive on its face, that other voice samples had been
played for Diana Garcia previously and she was not able to identify those
other exemplars as being that of her assailant.
I do make a finding that since it was such an extended time between
the crime and the playing of the voice exemplar to Diana Garcia that that is
a concern to the Court and that it could be unreliable. However, that’s
diminished due to the testimony of the expert that was put on by the State,
explaining that, giving a reasonable explanation, and that the totality of the
circumstances reveals that there was no substantial likelihood of
misidentification and that the pretrial procedure was not impermissibly
suggestive.
So, I am going to let it go to the jury. The defendant’s motion to
suppress the in-court identification of the defendant, the voice
identification, is denied. So, we’ll let that go to the jury.
I also will allow the jury to hear all three experts that testified in this
hearing regarding the different aspects of voice identification and their
expertise, this being a very unique identification. And the different aspects
that they address will each be able to be thoroughly presented before the
jury.
Trial resumed after the trial court’s ruling on appellant’s motion to suppress.
C. Trial Testimony
Diana testified at trial in detail about the events that occurred on September 30,
1992.
Diana recalled that she and Angelo went to bed around 10:00 p.m. on September
30, 1992, and that Arturo went to bed shortly thereafter. Just a short time after she had
fallen asleep, Diana woke up because of a loud bang coming from the front door leading
into the living room. Arturo got up to see what was going on. Diana then saw Arturo
walking backwards into the bedroom because a tall, husky, masked man pointed a gun
at Arturo and ordered him to “Go back, go back.” The man told Arturo, “Walk back,
lay down, lay down on the side of the bed.” The man also instructed Arturo to kneel
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down by the bed, put a pillow in his mouth, and “open [his] hands to the back;” he tied
Arturo with the alarm clock cord and immediately started beating Arturo. Diana asked
the man in English and Spanish, “Why are you doing this?” The man told Diana to
“turn face-down” and to “turn around and lie on [her] stomach, right, lie flat on the
bed.” At that time, she saw a second masked, armed man by the apartment door but she
could not get a good look at him.
Diana testified that she could hear the first man’s voice in the small bedroom and
“very much” focused on his voice. She testified that, after she laid face-down on the
bed, a pillow and a sheet were put over her head. The second man then tied her hands
on her back, turned her around and sexually assaulted her; “[t]he pillow and the sheet
were still on [her] face.” The second man never said a word, and Diana never saw his
face. During this time, Diana could hear the first man beating Arturo and her son
Angelo crying. After the sexual assault, the men left and she managed to untie herself
and Arturo. Diana realized that the men had kidnapped Angelo and called the police.
Diana was interviewed at the police station in the early morning on October 1,
1992, by Officer U.P. Hernandez after her sexual assault exam at the hospital and signed
her statement around 6:30 a.m. that morning. Diana testified that she described the first
masked man who entered the apartment to Officer Hernandez as being a “6-foot or a
little bit higher,” “husky, well built,” “dark complected” Hispanic man with “big,
bulging, very white” eyes and “big, bubbly,” “purple-ish” lips. Diana told Officer
Hernandez “from the very beginning, October 1st” that she could “recognize the voice
of the person, the first man who did all of the talking,” and she could “remember his
eyes and his mouth or how he looked in a mask.”
Diana testified that the first man spoke English and Spanish with a “very, very
different accent.” His accent was “entirely different” from “an accent from a person
from Mexico.” Diana testified that she had never seen the first man before or heard his
8
voice. According to Diana, the first man could not have been Santana because Santana
was skinny, shorter, and “white complected.” She also testified that she would have
been able to recognize Cruz-Garcia’s and Santana’s voices.
The State showed Diana a photo of appellant’s face from 1992 marked as State
exhibit 101; as instructed by the State, Diana covered up the face, except for appellant’s
lips and eyes. Diana then stated stated that she recognized “his eyes” and “his lips.”
She testified that “those eyes and lips look like the eyes and lips of the man that was the
first man in the room that night.” Diana also identified appellant in the courtroom as the
person “who looks like” the man in State exhibit 101. The State offered State exhibit
101 into evidence but the trial court did not allow its admission at that time.
Diana testified that Sergeant Mehl called her years after the sexual assault and
Angelo’s abduction to tell her that police had located and arrested Cruz-Garcia in Puerto
Rico. DNA evidence showed that Cruz-Garcia was the man who had sexually assaulted
her in 1992. It took some time to bring Cruz-Garcia from Puerto Rico to Houston for
trial. Diana testified that she and Assistant District Attorney Tise met many times to
prepare for Cruz-Garcia’s trial, at which Diana testified in the summer of 2013. While
preparing for Cruz-Garcia’s trial, Diana came to Tise’s office to listen to voice
recordings of Cruz-Garcia, Santana, and German because police were still investigating
the identity of the first man who entered Diana’s apartment in 1992.
Diana testified that she heard the three men’s voice recordings, but she did not
identify any of the played voices as being the voice of the first man. Diana stated that
the three recordings were not played on the same day one after another; rather, the
different voice recordings were played for her “over a period of time.” Diana
acknowledged knowing Cruz-Garcia and Santana but testified that she “really, really
didn’t know” German. Diana testified that she would regularly visit Tise when she
would come to Houston and Tise would give her an update on the case. Diana
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remembered coming to Tise’s office one day in 2012 as Tise was preparing for Cruz-
Garcia’s trial. Diana testified that a voice recording was played for her, and she
identified the voice she heard on the recording as the voice of the first man who came
into her apartment. With regard to how the voice identification occurred, Diana testified
as follows:
[DIANA:] Normally when I come to Houston, I call you [Tise] and I tell
you I’m in Houston. And you said: Good. If you have time, you want to
come by? And I asked you what time. And you say: Whenever is
convenient. I said: Fine, I will come tomorrow morning.
[THE STATE:] Okay. And on that particular occasion, you happened to
be in town and came by my office?
[DIANA:] Yes.
[THE STATE:] And usually when that would happen, I would update you
on the case, that kind of thing?
[DIANA:] Yes, ma’am.
[THE STATE:] On that day, did I ask you to listen to a [sic] another voice
on a tape?
[DIANA:] It was more like we were talking about the case. You were on
this side of the table and you played something on the computer and I heard
his voice.
* * *
[THE STATE:] And, so, basically we were just talking and I clicked on
the computer and played something?
[DIANA:] Yes. You clicked on the computer.
[THE STATE:] And do you remember that Investigator Gillie was also
there?
[DIANA:] It was Officer Gillie, you, Ms. Tise, me, and my oldest sister,
Bennie.
[THE STATE:] Okay. And before that tape was played, did anybody say
to you: Diana, we want you to listen to this and this is a suspect in the
case?
[DIANA:] No, nobody didn’t -- you didn’t tell me that.
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[THE STATE:] Did you -- were you sitting there thinking, I’m fixing to
hear the voice of a suspect in the case?
[DIANA:] I was just sitting there listening to you and asking what was
going on with the case and it clicked and I heard it.
[THE STATE:] Okay.
[DIANA:] And I started crying and I said: That’s the voice of the man
who came into my house, into my bedroom.
[THE STATE:] And was that the voice of the tall man?
[DIANA:] The tall, dark complected man, yes.
[THE STATE:] The one who came first.
[DIANA:] The one that came in first.
[THE STATE:] And the one that was --
[DIANA:] The only one that I saw that night.
[THE STATE:] And the only one that was doing the talking?
[DIANA:] Yes, ma’am.
[THE STATE:] When you heard the man, the little tape of the man’s
voice, was he being interrogated or was he on the phone?
[DIANA:] I just heard his voice, but at the time I didn’t know he was
interrogated until -- when I heard his voice, he was talking to a lady.
[THE STATE:] Was he on the phone?
[DIANA:] He was on his cell phone.
[THE STATE:] Okay. Talking on the phone. He wasn’t being questioned
by police officers. Did you hear a police officer?
[DIANA:] I didn’t see no police officers. The man was on the phone.
[THE STATE:] Talking to a lady?
[DIANA:] To a lady on the phone.
[THE STATE:] Okay. Did anybody, prior to putting that tape on, tell you:
We are going to play you the voice of the tall man to pick out?
[DIANA:] No.
[THE STATE:] Did anybody prepare you for -- or tell you or suggest to
you that you needed to pick this person?
* * *
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[DIANA:] No, nobody told me.
[THE STATE:] Why did you identify that voice?
[DIANA:] I can still identify the voice if I hear the man. It’s still in me.
The voice is still inside me just the same as when I feel somebody hug me
from my back. I still feel my son hugging me from my back. It’s still
inside my heart, inside my feelings. The voice is still in my head.
[THE STATE:] Will you ever forget that voice?
[DIANA:] I don’t think so.
During cross-examination, Diana stated that, when she listened to the voice recording,
she was not “listening for a suspect” but that “[i]t was an ‘oops’ when the voice came on
the computer.” She stated: “I recognized the voice. I recognized his voice.” She
acknowledged that, at the time of the identification, she was not played “anybody else’s
voice that had that same dialect . . . to compare it to.” Diana testified that she was
shown “a group of pictures of all the suspects involved in this case” in 1992.
Appellant’s trial counsel then introduced State exhibit 101 into evidence and the trial
court admitted the exhibit. Appellant’s trial counsel inquired whether Diana had seen
State exhibit 101 in 1992, and she replied that she had not seen the picture in 1992.
Diana testified that the man pictured in State exhibit 101 “looks like the man that
went into [her] bedroom.” The State published State exhibit 101 to the jury. Looking at
exhibit 101, Diana testified that the man pictured is a “dark-complected” man; his skin
looks “very dark;” his eyes appear to be “very, very white;” and his “lips look dark
purple.” Diana denied ever telling the police that two black men came into her
apartment in 1992; she claimed that she “said a dark man, dark complected.”
Investigator Webb testified at trial that he was assigned to assist Tise in preparing
for Cruz-Garcia’s trial as well as identifying the other man involved in the crimes that
occurred in 1992. In an effort to find the man who was with Cruz-Garcia in 1992,
Investigator Webb played voice recordings of Cruz-Garcia, Santana, and German for
Diana. Investigator Webb testified that Diana did not identify any of the voices
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belonging to the first man “who did all the talking that night” as the man law
enforcement was looking for.
He testified that Cruz-Garcia and Santana were from the Dominican Republic and
German appeared to be from St. Croix, Virgin Islands. Investigator Webb identified
photos of Cruz-Garcia, Santana, and German admitted as State exhibits 34, 34-C, and
34-H respectively. He also identified appellant on State exhibit 34-B. He testified that
Cruz-Garcia and Santana were not “bulky-built” but that appellant was. Investigator
Webb also testified that investigation revealed that appellant used the names: Roger,
Bori, and Candido Lebron.
The jury also heard from Investigator Gillie, who took over Investigator Webb’s
duties assisting in the investigation of the case. Investigator Gillie testified that he
worked on finding the other man “involved in this crime back in 1992.” After Santana
revealed during a FBI interview that appellant was the man involved in the crimes
together with Cruz-Garcia, Investigator Gillie worked on locating appellant.
Investigator Gillie testified that he located appellant in Georgia after several months of
searching. He went to appellant’s house and introduced himself but appellant did not
“appear shocked” to see him; appellant told Investigator Gillie that he knew “what this
is about. It’s about that little boy a long time ago in Houston.” Appellant agreed to be
interviewed by Investigator Gillie. After the interview, appellant called his wife on his
cell phone. Appellant’s interview and phone call both were recorded. Investigator
Gillie testified that appellant was then charged with capital murder and brought to
Houston to stand trial.
Investigator Gillie testified that, while appellant’s case was pending, Diana called
to visit with him and Tise. According to Investigator Gillie, Diana would call whenever
she was in Houston “to stop by and see how the case is going and say ‘hi,’ see if she
needed to do anything,” and he and Tise would accommodate her visit. During one visit
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in 2012, Investigator Gillie decided to let Diana listen to the tape recording of the phone
call appellant had made to his wife after his interview in Georgia because it was the first
time law enforcement had a recording of appellant’s voice. Investigator Gillie testified
regarding how the tape recording was played for Diana and her reaction upon hearing
the voice recording:
[THE STATE:] Before she listened to it, did you give her any information
at all about who she was going to hear?
[GILLIE:] No, nothing like that at all.
[THE STATE:] What were you trying to be careful of?
[GILLIE:] We didn’t want to be suggestive in any way. You know, I just
told her I wanted her to listen to the voice and see if she recognized the
voice as being a person that was involved that night that Angelo Garcia, Jr.
was taken, if she recalled that voice. And I told her would she listen, to
just listen to the voice, not really the content.
[THE STATE:] Okay. Do you think she was expecting for the voice to all
of sudden come on that moment on the computer?
[GILLIE:] No. I don’t think she was expecting it at all because of the way
the conversation was going about the other case and we had asked her and
then hit ‘play’ on the computer and she started -- as soon as he started
talking --
* * *
[THE STATE:] But prior to playing the tape for Diana, did you say to her:
We arrested this guy in Georgia and we want you to listen to his voice and
see if this is the guy?
[GILLIE:] No, not at all.
[THE STATE:] You wouldn’t have ever done that, would you?
[GILLIE:] No.
[THE STATE:] Okay. You just told her: We want you to listen to
something, didn’t tell her what it was going to be, and that you wanted to
see if she recognized the voice?
[GILLIE:] Yes, that’s true.
[THE STATE:] So, how did it happen that the tape was played or the CD
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was played on the computer?
[GILLIE:] The CD was in, I just asked her to listen just a minute ago, she
said she would. And getting it organized or getting ready to hit ‘play’ and
hit ‘play’ and --
[THE STATE:] Do you think it took her off guard at first? Was she --
[GILLIE:] No, I don’t think she was ready. Because she wasn’t even
looking that way at that time. She wasn’t even looking, like she was
looking to hear something. She was -- her sister was sitting there and I was
sitting there. It wasn’t like it was something she was ready for at all.
[THE STATE:] Okay. So, when you hit ‘play,’ what happened?
[GILLIE:] It was dramatic. She broke down and just went down and
started crying. And she said: That’s him, that’s him.
[THE STATE:] After that happened, did it take a little while for her to
calm down?
[GILLIE:] Yes. She was shaking. And it took a pretty good while to get
her to calm down just so that we could talk to her. Because I had -- I
needed to ask her some more stuff, but she was really upset.
[THE STATE:] And after she identified that voice, did you clarify with her
which individual -- where she recognized that voice from?
[GILLIE:] Yes. As soon as she calmed down, I asked her, I said: When
you say that’s him, what do you mean that’s him? And she said: That’s
him, the other guy that night, the tall guy that was in the room when
Angelo was taken. And she was adamant about it.
[GILLIE:] Did she tell you she was sure?
[THE STATE:] She said she was absolutely positive.
During cross-examination, Investigator Gillie testified that Arturo never made “a
positive identification for [appellant].” He also testified that no other voice recordings
were played for Diana besides the three previously played during the investigation.
Investigator Gillie testified that he listened to the voices and dialect of appellant as well
as of Cruz-Garcia, Santana, and German; there were differences in the voices “in certain
things” and “[n]one of them sounded like Tex-Mex.”
Investigator Gillie also testified that he was careful not to play any recording of
15
appellant’s interrogation for Diana; he played only the recording of appellant’s phone
call to his wife. He stated that the call started with greetings between appellant and his
wife, and Diana “almost immediately” identified the voice. Investigator Gillie further
testified that, when Arturo heard the recording of appellant’s voice, Arturo “just
couldn’t remember” the voice and reminded Investigator Gillie that he “was being
assaulted when that was happening” and then proceeded to show scars on his head from
the beating.
Several law enforcement officers who were involved in the investigation of the
case early on testified that Diana had described the first man who entered the apartment
as a tall, dark-skinned man speaking with a foreign accent.
Sergeant James Devereaux, who was called to the apartment the night of
September 30, 1992, testified that Diana had told him that night that “she got a good
look at the first suspect, the tall masked man, but didn’t get a chance to really see the
second person.” Diana also “described a foreign accent being spoken by that first man”
who entered the apartment.
Sergeant C.E. Elliott, who was also called to the apartment the night of the
crimes, testified that he only briefly spoke to Diana and that Diana described the
suspects as dark-skinned Hispanics with a foreign accent. Sergeant Elliot understood
that Diana was not describing “an African-American individual from the United States”
but the suspects were “probably from South America, Cuba, Dominica [sic], Puerto
Rico, that are not black Americans.”
FBI Special Agent Eric L. Johnson, who was involved in the investigation of
Angelo’s kidnapping from its inception, testified that the “focus of [the] investigation
was pretty much Hispanics [sic] males from other countries, Central America, with
foreign accents.” Agent Johnson agreed with appellant’s trial counsel that Diana
“state[d] very specific things about the person wearing the mask that comes in first.” In
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particular, Agent Johnson agreed that she stated the first person who entered her
apartment “had purple lips, that the person had white -- their eyes were very, very white
around the white part, it bulged out, and I can remember this person even though that
person had a mask on.”
Sergeant Swaim testified that, on October 6, 1992, he visited the apartment Cruz-
Garcia and his wife had lived in before Cruz-Garcia fled Houston. Sergeant Swaim
learned that a tall Hispanic male was staying at the apartment. At the apartment, a tall
Hispanic male answered the door and introduced himself as Candido Lebron. The man
said he was from St. Croix and gave Sergeant Swaim a St. Croix birth certificate with
the name Candido Lebron. When the man could not answer questions about his birth
certificate and could not state his parents’ names listed on the birth certificate, Sergeant
Swaim asked the man to accompany him to the police station to be interviewed by a
Spanish-speaking officer. The man went with Sergeant Swaim to the police station; he
was interviewed and photographed there at that time.
At trial, Investigator Swaim identified State exhibit 84 as being a photo of the
Hispanic male whom he encountered at Cruz-Garcia’s apartment and who identified
himself as Candido Lebron. Investigator Swaim testified that the photo was taken on
October 6, 1992, six days after Angelo was abducted. He identified appellant in court
as “an older version of the individual that [he] interviewed on that day.”
FBI Special Agent Michael Hochrein testified that he and another agent visited
Santana in a Pennsylvania prison in May 2011 to conduct an interview and determine if
Santana knew anything about Angelo’s abduction. At first, Santana denied knowing
about Angelo’s kidnapping and murder but then he admitted being with Cruz-Garcia
and appellant the night Angelo was taken from his home and killed in 1992. Agent
Hochrein testified that Santana revealed he had gone with Cruz-Garcia and appellant to
Diana and Arturo’s apartment. Santana described in detail how he, Cruz-Garcia, and
17
appellant were involved in the kidnapping and murder of Angelo that night.
The jury also heard Santana’s testimony at trial. Santana testified that he was
born in the Dominican Republic but left the country to go to Puerto Rico when he was
about 18 years old because it is easier to immigrate to the United States from there. He
testified that he and Cruz-Garcia came to the United States to sell drugs. At first, the
two were partners but then Cruz-Garcia took control of the business; he also had a lot of
control over Santana.
According to Santana, he became friends with appellant in early 1992. He knew
appellant as Rogelio or Bory. Santana explained that “Bory” means “from Puerto Rico”
and Santana believed appellant to be from Puerto Rico. Santana identified appellant in
court as the man he knew as Bory or Rogelio but stated that appellant was “big and tall
and much more muscular” back in 1992. Santana also identified appellant in a
photograph admitted as State exhibit 34-B and agreed that “that is the way Bory or
Roger looked back in 1992.” Santana testified that appellant was “certainly bigger and
taller” than he and Cruz-Garcia were.
Cruz-Garcia also became friends with appellant, and the three men “started going
everywhere” together. Santana testified that he, Cruz-Garcia, and appellant drove to
Diana’s and Arturo’s apartment on September 30, 1992, because Cruz-Garcia wanted to
“look for his drugs and his money.” Cruz-Garcia parked his car in “the back dark part
of the apartments, a small street that was behind the apartments with not much traffic.”
Cruz-Garcia instructed Santana to wait in the car while he and appellant went to Diana’s
and Arturo’s apartment, which was not visible from where Cruz-Garcia had parked his
car. Cruz-Garcia was armed with a pistol and appellant carried a pocket knife when
they went to the apartment; both men wore masks.
Santana sat in the car and waited while appellant and Cruz-Garcia were in Diana
and Arturo’s apartment for about 20 to 30 minutes. When Cruz-Garcia returned to the
18
car, Santana saw him carrying Diana’s son Angelo in his arms. Santana asked him why
he brought Angelo with him. He responded that Angelo saw his face and recognized
him; he then handed Santana the child. Cruz-Garcia also told Santana that he had
sexually assaulted Angelo’s mother. Appellant came back to the car, and Cruz-Garcia
drove Santana, appellant, and Angelo to a wooded area in Baytown.
Cruz-Garcia stopped the car and told appellant: “Bory, you already know what
you have to do.” Santana saw appellant take Angelo out of the car; Santana walked
away from the car feeling ill. Cruz-Garcia stayed at the front of the car holding his
pistol. Appellant took Angelo to the back of the car; Santana could not see appellant
and Angelo but he heard Angelo moan. Santana walked to the back of the car and saw
Angelo laying face-up on the ground “full of blood.” Cruz-Garcia ordered Santana and
appellant to put the child’s body in the car, and they complied. Cruz-Garcia then drove
back toward the city. On the way, Cruz-Garcia stopped by a river and ordered appellant
and Santana to throw Angelo’s body in the water. Cruz-Garcia also ordered appellant
and Santana to sink Angelo’s body in the water, so they looked for rocks and placed
them on Angelo’s body until it sank.
As they continued driving toward Houston, Cruz-Garcia handed Santana the
“knife that was used to kill the little boy” and told Santana to “dump it out to the
freeway.” Thereafter, two of the car’s tires blew up. The three men managed to get to a
hotel in Pasadena where Cruz-Garcia called Bienviendo Melo because Cruz-Garcia kept
a second car at Melo’s home. After picking up Cruz-Garcia’s car from Melo’s home,
appellant stayed at a hotel and Cruz-Garcia and Santana drove to Cruz-Garcia’s
apartment. The next day, Cruz-Garcia and Santana asked a friend to repair the car with
the blown-out tires; they then washed the car and sold it. Santana testified that Cruz-
Garcia sold the car for cash and bought a ticket to leave the country. Santana drove
Cruz-Garcia to the airport, and he left the country. Santana never told police about
19
Angelo’s kidnapping and murder until 2011 when two FBI agents interviewed him in a
Pennsylvania prison.
Linda Hernandez, who was Melo’s girlfriend at the time of the murder, testified at
trial that Cruz-Garcia called her home at about 1:30 a.m. on October 1, 1992, to speak to
Melo. Hernandez testified that Cruz-Garcia asked Melo to pick him up in the car Cruz-
Garcia had lent Melo but Melo refused and told Cruz-Garcia to pick up the car himself.
According to Hernandez, Cruz-Garcia and Santana arrived at her home around 2:30 a.m.
by taxi. Santana appeared very nervous but Cruz-Garcia was calm. The two men drove
off in the car. Hernandez testified that Santana returned the car to Melo a few days
later; the car was dirty “[l]ike it’s been to the beach.”
The jury also heard testimony from three experts, Dr. David Lisak, Prof. Phillip
Lyons, and Dr. Al Yonovitz, who opined regarding identification procedures, voice
identification and memory decay, and how memories of traumatic events are stored.
After deliberation, the jury found appellant guilty of the capital murder of
Angelo, and the trial court assessed appellant’s punishment at life imprisonment.
Appellant timely filed an appeal.
ANALYSIS
I. Identification
In his first issue, appellant argues that the “trial court reversibly erred by allowing
(1) testimony about [Diana]’s pre-trial voice identification of” appellant because Diana
identified appellant’s voice “under suggestive circumstances that unquestionably
encouraged [Diana] to identify the voice she heard as that of the only remaining
unknown suspect from a twenty-year-old offense;” and (2) Diana’s “in-trial
identification of [appellant] in photograph and in person” because Diana identified
appellant at trial “for the first time only after knowing that the voice she identified under
20
unduly suggestive circumstances belonged to” appellant, and “this identification is
inseparable from the unduly suggestive pre-trial voice identification.”
A. Pre-Trial Identification
We begin by addressing appellant’s contention that the trial court should not have
admitted any testimony regarding Diana’s pre-trial voice identification of appellant
because Diana identified appellant’s voice “under suggestive circumstances that
unquestionably encouraged” her to identify the voice she was played while visiting with
Tise and Investigator Gillie as the voice of the first man who came into her apartment
on September 30, 1992. Appellant correctly contends that he preserved his argument
for appeal. Based on the arguments presented at the hearing on appellant’s motion to
suppress, the trial court was asked to suppress Diana’s pre-trial and in-court
identification of appellant’s voice; and the trial court denied appellant’s motion to
suppress. See Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987) (“It is
settled that when a pre-trial motion to suppress evidence is overruled, the accused need
not subsequently object to the admission of the same evidence at trial in order to
preserve error.”).
We thus consider whether the trial court should have suppressed testimony
regarding Diana’s pre-trial identification of appellant’s voice because it resulted from an
unduly suggestive identification procedure.
We review a trial court’s ruling on a motion to suppress evidence for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Mendoza v.
State, 443 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We afford
almost total deference to a trial court’s determination of historical facts. Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given their
testimony. Id.; Adams v. State, 397 S.W.3d 760, 763 (Tex. App.—Houston [14th Dist.]
21
2013, no pet.). The trial court is entitled to believe or disbelieve all or part of a
witness’s testimony, even if that testimony is uncontroverted, because it has the
opportunity to observe the witness’s demeanor and appearance. Valtierra, 310 S.W.3d
at 447.
If the trial court makes express findings of fact, we view the evidence in the light
most favorable to its ruling and determine whether the evidence supports these factual
findings. Id.; State v. Smith, 335 S.W.3d 706, 714 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d).
We review a trial court’s application of the law to the facts de novo. Mendoza,
443 S.W.3d at 362; Adams, 397 S.W.3d at 763; see Valtierra, 310 S.W.3d at 447. We
will sustain the trial court’s ruling if that ruling is reasonably supported by the record
and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-
48; Mendoza, 443 S.W.3d at 362; Adams, 397 S.W.3d at 763.
“[A] pretrial 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.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App.
2001). To determine the admissibility of a pretrial identification, we use a two-step
analysis asking (1) whether the pretrial procedure was impermissibly suggestive; and (2)
if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood
of irreparable misidentification. Santos v. State, 116 S.W.3d 447, 455 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d); see also Neil v. Biggers, 409 U.S. 188, 198
(1972). 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. Conner, 67 S.W.3d at 200; Barley v. State, 906 S.W.2d 27, 33 (Tex.
Crim. App. 1995). A defendant must prove the pre-trial identification is unreliable by
proving both elements by clear and convincing evidence. See Santos, 116 S.W.3d at
22
451.
If the indicia of reliability outweigh the influence of an impermissibly suggestive
pretrial identification, then the identification testimony is admissible. Santos, 116
S.W.3d at 451, 455-56; see Neil, 409 U.S. at 199. Therefore, even if the pretrial
procedure is found to be impermissibly suggestive, identification testimony nevertheless
is admissible if the totality of the circumstances shows no substantial likelihood of
irreparable misidentification. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App.
1999); Adams, 397 S.W.3d at 764. If the totality of the circumstances indicates that a
substantial likelihood of misidentification exists, then admission of the identification of
the defendant amounts to a denial of due process. See Neil, 409 U.S. at 198-99; Adams,
397 S.W.3d at 764.
The analysis of an identification of a voice differs somewhat from that of an
identification by sight, but the standards used to validate a visual identification are
equally applicable. See Davis v. State, 180 S.W.3d 277, 283 (Tex. App.—Texarkana
2005, no pet.) (analyzing admissibility of voice identification); see also Williams v.
State, 116 S.W.3d 788, 792 (Tex. Crim. App. 2003) (“‘while one’s voice and
handwriting are, of course, means of communication,’ a voice or handwriting exemplar
‘is an identifying physical characteristic’”) (quoting United States v. Dionisio, 410 U.S.
1, 6-7 (1973)). Because the sole purpose of the use of the tape recording of appellant’s
voice was the same as the use of a photo of appellant would have been had Diana been
asked to attempt an identification from appearance, we will apply the same types of
strictures as are used in the more typical situation involving visual identification. See
Davis, 180 S.W.3d at 282.
We first will determine whether the pretrial voice identification procedure in this
case was impermissibly suggestive. Suggestiveness may arise from the manner in
which a pretrial identification procedure was conducted. Barley, 906 S.W.2d at 33. For
23
example, a police officer may point out the suspect or suggest that a suspect is included
in the line-up or photo spread. Id. An identification may be suggestive based on a
single procedure or the cumulative effect of multiple procedures. Id.
Even if a pretrial identification procedure may have been suggestive, a defendant
must establish by clear and convincing evidence that the procedure was impermissibly
suggestive. See Santos, 116 S.W.3d at 451, 455-56. To be impermissibly suggestive,
“the identification procedure utilized must in some way be so defective as to indicate or
suggest the [individual whom] the witness is to identify.” See Ward v. State, 474
S.W.2d 471, 475 (Tex. Crim. App. 1972). “Suggestiveness must be determined by the
circumstances of each case.” Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App.
1987) (holding that showing a witness several photo spreads containing the same photo
of defendant on different occasions was impermissibly suggestive).
At the suppression hearing, Investigator Webb testified that he played recordings
of Cruz-Garcia’s, Santana’s, and German’s voices for Diana at Tise’s office after Cruz-
Garcia had been charged with capital murder. At the time, law enforcement knew that
Cruz-Garcia was the man who had sexually assaulted Diana and were looking for the
other, yet unidentified, man “who did all the talking.” Investigator Webb testified that
he and Tise decided to play the three men’s voice recordings for Diana to determine
whether one of the three men “might be our unidentified person.” Diana knew some of
the men whose voices Investigator Webb had played; and evidence showed that Diana
knew Cruz-Garcia “for a period of time.” According to Investigator Webb, Diana did
not identify any of the three voices he played for her as being the voice of the “man who
did all the talking.”
Investigator Gillie also testified at the suppression hearing, describing how the
voice identification of appellant occurred and that Diana immediately and positively
identified appellant’s voice as being the voice of the first, “tall man that came into her
24
room that night” and who “was doing all the talking.” Investigator Gillie testified that
Diana came to Tise’s office to talk about Cruz-Garcia’s trial reset and discuss travel;
Diana’s visit was not “planned and she did not come down in order to hear a voice and
I.D. it” nor was Diana “told that that was going to happen.” According to Investigator
Gillie, he and Tise decided during their visit with Diana to play a portion of appellant’s
recorded phone call to appellant’s wife for Diana. Investigator Gillie testified regarding
the instructions he gave Diana before playing the taped phone call for her and her
immediate reaction upon hearing the recording as follows:
[THE STATE:] Prior to playing the statement, did you give [Diana] some
instructions?
[GILLIE:] Yes.
[THE STATE:] And what were those?
[GILLIE:] To listen to the voice on the tape and not the contents and try
and see if she recognized the sound of the voice and how it sounded and
see if she recalled that.
[THE STATE:] And did you tell her that the voice may or may not have
anything to do with the crime that she w[a]s the victim of all of those years
ago?
[GILLIE:] Several times.
[THE STATE:] And did you explain to her she was under no obligation to
pick anyone?
[GILLIE:] Absolutely.
[THE STATE:] Just if she recognized someone to let us know?
[GILLIE:] That, and if she didn’t recognize someone to let us know.
[THE STATE:] And if she recognized someone from the events that
happened all those years ago?
[GILLIE:] Yes.
[THE STATE:] Okay. And then you played the audio of . . . the phone
call, correct?
[GILLIE:] Yes, ma’am.
[THE STATE:] And you said that she reacted. How strong a reaction was
25
it?
[GILLIE:] It was hard for her. She was noticeably heartbroken. You
know, it looked like there for a minute she almost stopped breathing.
[THE STATE:] It was very emotional?
[GILLIE:] It was very emotional. I mean . . .
[THE STATE:] She started crying?
[GILLIE:] Yes.
[THE STATE:] And she immediately said that was the voice of the tall
man that came into her room that night?
[GILLIE:] Yes.
[THE STATE:] And did she express to you how certain she was?
[GILLIE:] She said she was absolutely positive he was the one that was
doing all the talking.
[THE STATE:] When he came in the room?
[GILLIE:] He was the one that did all the talking.
[THE STATE:] And is your understanding of the offense that -- from
reviewing the report of the offense that one of the individuals that came
into her room that night did all the talking and the other was silent?
[GILLIE:] Yes.
Investigator Gillie also testified that, although recordings of Cruz-Garcia’s, Santana’s,
and German’s voices were played for Diana during the investigation in the same way
appellant’s voice recording was played for her, Diana did not identify any of the three
men’s voices as belonging to the first man who entered her apartment and “who did all
the talking.”
Appellant presented testimony from criminal justice professor Dr. Phillip Lyons.
Dr. Lyons testified as an “expert on identification procedures, and specifically
photographic lineups and eyewitness identification.” Dr. Lyons testified that he has
been “involved in assisting law enforcement agencies identify appropriate identification
procedures.” He has worked with the Law Enforcement Management Institute of Texas
26
on developing a proposed model identification policy that law enforcement could
employ, but the legislature did not adopt the policy. The model identification policy
strongly discourages showups and “recommend[s] photographic arrays as preferential to
live lineups.” To minimize suggestibility, the model policy proposes that an
independent officer should present sequential photos to a witness for identification
instead of a photo array.
Dr. Lyons testified that he has not been “involved with voice recognition
identification of any means” and that everything he learned about voice identification
was based on his study of a few published articles and studies on voice recognition. He
opined that concerns of suggestibility are equally present in eyewitness and voice
identifications. He agreed that “just like trying your best to get to sequential [photo]
identification with an unbiased officer, the same thing would be apparently applicable to
voice recognition.” Dr. Lyons also agreed that “when a person has been given an
opportunity to hear multiple voices that would be a less suggestive technique;” it would
be the “encouraged” approach which “would be less likely to lead to misidentification.”
Dr. Lyons was asked by appellant if “the time between the exposure to the voices
[has] any effect? For example, if you came in and you were asked to hear three or four
or five voices on one day right after each other, versus one day you hear one voice, three
or four days later you hear another voice, would that change the factors regarding
suggestibility, that method?” Dr. Lyons responded he was “not aware of any studies
that have compared those two different approaches.” He stated: “What you just
described to me doesn’t really sound like a lineup, though. It sounds like a number of
sequential individual presentations.”
In denying appellant’s motion to suppress, the trial court rejected appellant’s
argument that the pre-trial identification procedure was impermissibly suggestive
because (1) Investigator Gillie never suggested to Diana that the voice played was that
27
of her assailant; (2) other voice samples had been previously played for Diana; and (3)
Diana did not identify any of the previously played voices as being the voice of her
assailant.
Appellant argues that the “use of a single voice for identification played twenty
years after the offense suggested to [Diana] that the voice belonged to the only
remaining unknown suspect in case.” Appellant argues that playing a single voice is as
suggestive as showing a single photo because there is no ability to compare the played
voice with other similar voices. According to appellant, neither Tise nor Investigator
Gillie “successfully diminished the suggestive context in which [Diana] heard only
[appellant]’s voice as a suspect for identification purposes twenty years after the
offense” because they did not play a voice lineup for Diana. Appellant also argues that,
although Diana was played voice recordings of Cruz-Garcia, Santana, and German
before being played appellant’s voice, Diana knew the three men, and appellant’s voice
was the only unfamiliar voice that was played for Diana.
Contrary to appellant’s assertion, the evidence presented at the suppression
hearing does not show that Diana “personally knew” all three men whose voices she did
not identify as being the voice of the “man who did all the talking.” The evidence
presented at the hearing shows that Diana knew Cruz-Garcia “for a period of time.”
The evidence does not support appellant’s contention that his voice was the only
“unfamiliar voice” played for Diana.
Appellant cites Davis v. State as authority that playing a witness a single voice
recording constitutes an impermissibly suggestive identification procedure. See Davis,
180 S.W.3d at 281-83. Davis is distinguishable. In Davis, the police played only one
voice recording for the complainant during the entire investigation. Id. at 281. Here,
Diana was played voice recordings of three different men during the investigation, albeit
not on the same day as she was played the recording of appellant’s voice.
28
Further, no one suggested to Diana that appellant’s voice recording was that of a
suspect; nor was she told or encouraged to identify or “pick anyone” after listening to
appellant’s voice recording. Contrary to appellant’s assertion, the evidence does not
establish that Diana “was expecting to hear the voice of the tall man.” Instead, evidence
establishes that Diana did not expect to hear any voice recording during her visit with
Tise and Investigator Gillie; Diana was at Tise’s office to discuss the fact that Cruz-
Garcia’s trial had been reset, “discuss travel,” and get an update on Cruz-Garcia’s case
in general.
Playing appellant’s voice recording for Diana would no more have suggested that
the “voice belonged to the only remaining unknown suspect in the case” than when she
was played recordings of Cruz-Garcia’s, Santana’s, and German’s voices. Appellant’s
argument that, “[w]ithout a [voice] lineup for comparison, [Diana] understandably
latched onto this voice as belonging to the only remaining unknown suspect,” is not
persuasive. This is so because Diana knew Cruz-Garcia had been charged with capital
murder, and that law enforcement was trying to find the “only remaining unknown
suspect” when she heard recordings of Cruz-Garcia’s, Santana’s, and German’s voices;
yet, Diana did not identify any of the three voices as being the voice of the man “who
did all the talking.”
Based on the record before us and considering the totality of the circumstances,
we conclude that the pre-trial identification procedure was suggestive but not
impermissibly so. Even if appellant had proven by clear and convincing evidence that
the pre-trial voice identification procedure used by law enforcement was unduly
suggestive, we cannot conclude that it gave rise to a substantial likelihood of irreparable
misidentification so as to make the identification testimony inadmissible.
In determining whether an impermissibly suggestive identification procedure
gave rise to a substantial likelihood of irreparable misidentification, we weigh the
29
following factors: (1) the witness’s opportunity to hear the criminal 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’s voice; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between the crime and the
confrontation. See Neil, 409 U.S. at 199; Santos, 116 S.W.3d at 453, 455-56. Because
these factors are issues of historical fact, we weigh them deferentially in a light
favorable to the trial court’s ruling. See Ibarra, 11 S.W.3d at 195-96; Adams, 397
S.W.3d at 764. We then weigh the factors, viewed in this light, de novo against the
“corrupting effect” of the suggestive pretrial identification procedure. See Ibarra, 11
S.W.3d at 195-96; Adams, 397 S.W.3d at 764.
At the suppression hearing, the trial court heard testimony from several experts
and police investigators relevant to the reliability of Diana’s pre-trial identification of
appellant’s voice. Appellant asked his expert on eyewitness identification procedures,
Dr. Lyons, to opine on a person’s ability to “recognize voices over a period of time
where there has been any time lapse.” Dr. Lyons stated that “there is a decay effect.
And as more time goes by, people do accurately identify at lower rates than if the
attempted identification is sooner after the -- sooner after the voice is heard.”
Appellant’s counsel asked: “Where a person is speaking Spanish, but a person comes
from a different location, is there any difficulty in recognizing the voices where the
accent is different?” Dr. Lyons answered that he was “not aware of any studies that
have been done that have looked at regional accent or dialects, only at different
languages.”
On cross-examination, Dr. Lyons stated that he has no direct experience in the
area of voice identification, and what he has learned about voice identifications was the
“result of doing research and studying scholarly articles in preparation for [his]
testimony.” Dr. Lyons also stated that, at most, three articles were relevant to this case
30
and the issue of the effect of a time lapse on a voice identification. None of the articles
was based on studies that “involved a situation where an individual actually went
through a real-life traumatic event, something that would stick with you for a long time,
and test their memory as to that voice and their ability to I.D. it after a long period of
time.”
Dr. Lyons stated that in the past 20 years there has been a “tremendous amount of
research” conducted in the area of “trauma and the impact it has on attention and
processing and encoding” as well as how the brain stores memories of traumatic events.
Dr. Lyons testified that research has shown that memories of traumatic events “can be
extremely durable over time.” He testified that he was “familiar with the line of
research that talks about how during a traumatic event sometimes sensory memories,
like the things that you hear, the things that you feel, are the things that are most likely
to revisit you over a period of years as you relive that trauma.” He admitted that it is a
different scenario to ask someone to remember a voice after hearing “something that’s
meaningless to them, doesn’t have a big impact on their life” versus “the memory of a
traumatic event that you might relive over and over in your mind for years.”
Further, Dr. Lyons agreed that “if a person hears someone who speaks Spanish
and English and they understand both Spanish and English but there is a dialect that’s a
little different, there are no studies talking about the accuracy of that kind of
identification.” Dr. Lyons testified that he is not aware of any studies that “address the
issue of regional dialect.” Finally, Dr. Lyons testified that studies show that a person
who is blindfolded or whose face is covered is “much more likely to remember that
voice . . . because [the] primary focus is on that voice rather than the visual.”
Appellant also called Dr. Al Yonovitz, a professor of hearing and speech, to
testify as an expert on voice identification. Dr. Yonovitz testified that “on voice
identification specifically for memory, there is a smaller set of research papers and they
31
all tend to agree with each other.” He testified that memory decay is a concern in voice
identifications and “all of the studies after three months will show that a person is just
guessing and their chances of being correct are below chance level, after only three
months.” According to Dr. Yonovitz, “there have been studies that suggest that when a
person hears a voice and then there’s a lapse of time before they’re asked to identify that
voice, that there is a large percentage of misidentification in those types of cases.”
On cross-examination, Dr. Yonovitz stated that he has testified many times
regarding decay of memory for voices rather than voice identification. He agreed that
the “body of research that has been done in the area of memory and auditory
identification is very limited.” He testified that the studies he relied on to support his
testimony regarding memory decay for voices were conducted with random volunteers
and students in a non-traumatic, sterile research environment, in which the volunteers
were read a random passage and later asked to identify the voice of the speaker. Dr.
Yonovitz testified that there is no research regarding whether hearing a voice under
distressing circumstances has any effect on a listener’s memory.
Dr. Yonovitz testified that there is no research involving individuals who have
experienced a traumatic event and made voice identifications. He stated that he is “not
at all familiar with the research that’s been done in the area of how the human mind
stores sensory memories from a traumatic event [in] another area of the brain.” He also
stated that he has “never testified or been qualified as an expert on the issue of memory
when it comes to auditory identification;” he “never testified on issues in memory for
witnesses, only on matching of voices from an unknown to a known.”
The State called its own expert, Dr. Phillip Lisak. Dr. Lisak is a clinical
psychologist who specializes in the area of trauma and violence and who “interviewed,
evaluated, and treated hundreds of individuals who have been traumatized,” including
sexual assault victims. He opined that “[m]emory is dramatically affected by traumatic
32
experience. And that is something that we have known from clinical work over
decades, but we now understand much more thoroughly because of the advances in
neuroscience in the last 15 to 20 years. We understand how the brain encodes those
experiences and also then how people either recall them or the experience[s] sometimes
actually recall themselves.”
Clarifying that he is not an expert in auditory recall or voice recognition
specifically, Dr. Lisak testified that based on knowledge of how “the brain encodes
traumatic experiences very differently, that the recall of those experiences is very
different, actually involves different parts of the brain. So, I would say as a researcher
that anybody who is studying anything having to do with recall, if it involves a
traumatic experience, must take that into consideration because it is very, very -- it’s
going to be very different from recall of ordinary events.”
Dr. Lisak explained in detail how traumatic events affect a person’s memory of
those events. He provided “examples of memories that have been triggered many, many
years after the initial event that caused the trauma in the first place.” He also discussed
examples of individuals he treated who had a triggering response from a memory dating
back 20 to 30 years. This occurs “because the memories that we have of sensory
experiences after a traumatic event or during the course of a traumatic event are stored
differently than other types of memories.”
On cross-examination, Dr. Lisak stated that he has no opinion regarding whether
the “decayative memory process affects the ability of a person to make an accurate
identification.” During re-direct examination, Dr. Lisak explained that “what we have
extensive clinical evidence for is the durability of these fragmented sensory memories
that trauma survivors are almost universally left with. There is -- there is not research
that I know of that has studied . . . how long do these memories endure, is there a decay
process. I’m not aware of any research that’s been done on those types of traumatic,
33
fragmented sensory memories.” Dr. Lisak also testified that, in his clinical experience,
he has seen examples of auditory memories lasting “well beyond 20 years.”
The trial court also heard testimony from Officer U.P. Hernandez, who had been
involved in the investigation of the case since October 1, 1992, and had interviewed
Diana at the time. Officer Hernandez testified that Diana described the man “she heard
that night in the bedroom, who was doing all the talking” as being tall, about 6-foot, and
muscular with almost purple lips. He also testified that Diana claimed from the
beginning — the morning after the incident — that she could identify the man’s voice if
she heard it again.
She told Officer Hernandez that the man spoke English and Spanish with a
foreign accent — not “the normal Spanish that you hear from individuals who have
immigrated here from Mexico.” She meant that the man did not speak “the kind of
Spanish” that Texans like Diana or Officer Hernandez speak, which is “more plain,
there is no accent to it.” Officer Hernandez testified that he knew what Diana meant
when she said the man was speaking with a foreign accent; “[s]he was talking about
someone that could either be from the Dominican Republic, could have been a
Colombian, or a Puerto Rican.” Officer Hernandez stated that, in his experience,
individuals from “central American countries, especially the Islands, speak Spanish in a
very different way than” he speaks Spanish.
Investigator Webb testified that he and Tise played voice recordings of Cruz-
Garcia, Santana, and Leonardo German for Diana during the investigation. According
to Investigator Webb, Diana did not identify any of the three men’s voices played for
her as being the voice of the “man who did all the talking.”
Investigator Gillie confirmed that Diana was played recordings of Cruz-Garcia’s,
Santana’s, and German’s voices but did not identify any of the voices as being the voice
of the attacker. Investigator Gillie recalled that Cruz-Garcia and Santana were from the
34
Dominican Republic; and German was from St. Croix and spoke Spanish with a “little
dialect.” Investigator Gillie testified that Diana had provided a description of the voice
of the “man who did all the talking” before she was played appellant’s voice and
identified it. He testified that Diana had stated the voice “was distinct. Not like our -- I
can just say it like this, Tex Mex. It’s not like that kind of Spanish. It was like from the
Islands, Honduras, or Puerto Rico or something like that kind of Spanish. . . . It’s just
different than Tex Mex . . . .”
According to Investigator Gillie, Diana was played a recording of a phone call
appellant had made to his wife and almost immediately identified appellant’s voice as
that of the man “who did all the talking.” Investigator Gillie testified that, “[a]fter
playing a very short amount of the” recording, Diana “just put her hands in her face”
and said: “That’s him, that’s him.” Diana started crying; she was “noticeably
heartbroken;” “it looked like there for a minute she almost stopped breathing;” and “she
was very emotional.” Investigator Gillie testified that Diana “said she was absolutely
positive he was the one that was doing all the talking.”
At the suppression hearing, appellant began his argument to the trial court by
stating: “[W]hat we’re actually trying to do today is determine a two-prong process.
I’m asking this Court to be the gatekeeper as to whether or not the method that was used
in this particular identification was suggestive and that it was too long in duration to be
accurate.” After spending a considerable amount of time arguing that Diana’s
identification of appellant’s voice is inadmissible because the pre-trial identification
procedure used by law enforcement was impermissibly suggestive, appellant only
briefly addressed the second prong — whether the allegedly impermissibly suggestive
identification procedure gave rise to a substantial likelihood of misidentification —
stating:
The second part of the case, Judge, in all of the cases, including
35
Davis,[2] time becomes a relevant factor on whether or not that court
should allow the identification to come in. All of them -- some of them say
eight months, some of them say one year, some of them -- but they all say
the same -- there is no court that under the circumstances like it is today, 20
years later, that that’s going to come in.
In fact, they all say it’s the [sic] suspect after a shorter period of
time. The longest that I can come up with, I think, was a year-and-a-half.
Except for the time factor, appellant’s argument did not address any of the other four
factors the court has to consider in determining whether a pre-trial procedure used by
law enforcement gave rise to a very substantial likelihood of misidentification.
In denying appellant’s motion to suppress, the trial court concluded that the
“totality of circumstances reveals that there was no substantial likelihood of
misidentification” because (1) Diana had an “adequate opportunity to listen to the
assailant at the time of the offense;” (2) Diana’s “home [was] broken into, her son was
kidnapped, and she was allegedly sexually assaulted during the time she heard one
assailant speak;” (3) Diana said that “she could identify the assailant’s voice at an
interview close in time to the alleged offense and that she had paid enough attention to
describe the assailant’s voice, the dialect, or a language peculiarity;” (4) when Diana
was played a recording of appellant’s voice, she was “very emotional at the time she
heard the voice of the assailant, that she cried, and her I.D. was positive that that voice
was the voice of her assailant;” and (5) any concern that the “extended time between the
crime and the playing of the voice exemplar to Diana” would render Diana’s
identification unreliable is “diminished due to the testimony of the expert that was put
on by the State, explaining that, giving a reasonable explanation.”
Appellant contends that the first two factors addressing likelihood of irreparable
misidentification — the witness’s opportunity to hear the criminal at the time of the
crime and the witness’s degree of attention — weigh against admitting evidence of
2
See Davis v. State, 180 S.W.3d 277 (Tex. App.—Texarkana 2005, no pet.).
36
Diana’s identification of appellant’s voice because her “identification is based on a few
phrases that she heard spoken to her husband twenty years ago.” We disagree.
The evidence presented at the motion to suppress hearing supports the trial
court’s finding that Diana had (1) “an adequate opportunity to listen to the assailant at
the time of the offense, that according to Officers, . . . her home [was] broken into, her
son was kidnapped, and she was allegedly sexually assaulted during the time she heard
one assailant speak;” and (2) “paid enough attention to describe the assailant’s voice,
the dialect, or a language peculiarity at an interview that was made close in time to the
alleged commission of the offense.”
Investigator Gillie testified that (1) Diana was “the victim of a rape on the same
night as her child being abducted;” (2) based on his review of the offense report, “one of
the individuals that came into her room that night did all the talking and the other was
silent;” and (3) Diana described the voice of the man who “did all the talking.” Officer
Hernandez testified that Diana made “clear to [him] during [his] conversations with her”
that one of the men who came into her bedroom the night her son was abducted “did all
the talking.” She gave a description of his voice and stated from the beginning of the
investigation that she could identify the man’s voice. Investigator Webb testified that
Diana “had always said” that two men were involved in the crime, one was the “rapist”
and the other man “who was in the room and did all the talking during the incident.”
There is no evidence that Diana was not attentive or that her attention was distracted.
There is no evidence that Diana heard only “a few phrases” spoken to her husband that
night; nor is there any evidence that Diana did not have an adequate opportunity to hear
appellant’s voice during the time she was being raped by Cruz-Garcia and her son
abducted.
Regarding the third factor — the accuracy of the witness’s prior description of the
criminal’s voice — appellant contends that Diana’s “vague description does not provide
37
sufficient detail to justify allowing any testimony about” Diana’s pre-trial identification.
Appellant contends that Diana “g[a]ve officers a general description of the tall man’s
accent as ‘some sort of a [non-Mexican] foreign accent.’”
The evidence supports the trial court’s determination that Diana “describe[d] the
assailant’s voice, the dialect, or a language particularity.” Officer Hernandez testified
Diana told him that the man “who did all the talking” spoke English and Spanish with a
foreign accent and not “the normal Spanish that you hear from individuals who have
immigrated here from Mexico.” Officer Hernandez stated Diana meant that the man did
not speak “the kind of Spanish” that Texans speak, which is “more plain, there is no
accent to it.” He stated that he knew what Diana meant when she said the man was
speaking with a foreign accent; “[s]he was talking about someone that could either be
from the Dominican Republic, could have been a Colombian, or a Puerto Rican.”
Investigator Gillie confirmed that Diana had described the voice as “distinct. Not
like . . . Tex Mex. . . . It was like from the Islands, Honduras, or Puerto Rico or
something like that kind of Spanish. . . . different than Tex Mex.” Further, the evidence
shows that Diana never gave an inaccurate description of appellant’s voice, even if it
was not very precise and detailed.
With regard to the fourth factor — the level of certainty demonstrated by the
witness at the confrontation — the evidence supports the trial court’s determination that
Diana’s reaction was “very emotional at the time she heard the voice of the assailant,
that she cried, and her I.D. was positive that the voice was the voice of her assailant.”
And appellant acknowledges in his brief that Diana positively identified appellant’s
voice.
Investigator Gillie testified that Diana almost immediately upon hearing
appellant’s voice identified it as that of the man “who did all the talking.” Investigator
Gillie testified that, when Diana heard appellant’s voice, she started crying; was
38
“noticeably heartbroken;” “almost stopped breathing;” “was very emotional;” and stated
that “she was absolutely positive he was the one that was doing all the talking.” The
evidence establishes that a high degree of certainty surrounded Diana’s identification of
appellant’s voice at the time she was confronted with his voice. We also note that Diana
never identified anyone else as the man “who did all the talking.”
With regard to the fifth factor — the length of time between the crime and the
confrontation — appellant argues that, “[s]tanding alone, the 20 years time lapse
between the offense and [Diana]’s hearing of the lone voice is sufficient to demonstrate
the substantial likelihood of irreparable misidentification.” We decline appellant’s
invitation, unsupported by authority, to create a bright-line length of time at which all of
the other factors are rendered immaterial as a matter of law. Moreover, appellant’s
urging that the passage of time is dispositive ignores expert witness testimony about
memory created by traumatic events that the trial court was entitled to credit.
The State presented testimony from Dr. Lisak regarding the durability of
memories created by traumatic events. Dr. Lisak explained that “[m]emory is
dramatically affected by traumatic experience.” He also explained how “the brain
encodes traumatic experiences very differently” from ordinary events and that the recall
of traumatic experiences is very different and involves different parts of the brain, so
that it is “very different from recall of ordinary events.” Dr. Lisak explained in detail
how traumatic events affect a person’s memory of those events. He provided “examples
of memories that have been triggered many, many years after the initial event that
caused the trauma.” He testified that there is extensive clinical evidence about the
durability of sensory memories, including “auditory experiences coming from sounds”
that “trauma survivors are almost universally left with.” Dr. Lisak also testified that he
has seen in his clinical experience examples of auditory memories durable “well beyond
20 years.”
39
Additionally, appellant’s expert, Dr. Lyons, acknowledged that research has
shown that memories of traumatic events “can be extremely durable over time.”
Further, appellant’s expert, Dr. Yonovitz, admitted that the studies he relied on to
support his testimony that memory of voices decays over time were conducted with
volunteers in a non-traumatic, sterile research environment.
In light of the experts’ testimony at the suppression hearing, we cannot agree with
appellant that the passage of 20 years between the crime and Diana’s identification,
although a significantly long period of time, “is sufficient to demonstrate the substantial
likelihood of irreparable misidentification” or weighs against admitting evidence of
Diana’s identification of appellant’s voice.
The evidence supports the trial court’s determination that concern about the
“extended time between the crime and the playing of the voice exemplar to Diana” is
“diminished due to the testimony of the expert that was put on by the State, explaining
that, giving a reasonable explanation.”
Weighing the evidence of reliability against the pre-trial identification procedure
used in this case, the procedure did not give rise to a very substantial likelihood of
irreparable misidentification so as to deny appellant due process, even if it was unduly
suggestive. Appellant did not establish by clear and convincing evidence that Diana’s
pre-trial identification of appellant’s voice was inadmissible. Accordingly, the trial
court did not abuse its discretion in allowing testimony about Diana’s pre-trial
identification. See Davis, 180 S.W.3d at 283-85 (trial court did not abuse its discretion
by denying appellant’s motion to suppress witness’s identification of appellant’s voice
even though only his voice was played for witness during the investigation).
B. In-Trial Identification
We now turn to appellant’s argument that the trial court reversibly erred by
allowing Diana to make an in-court identification of appellant “in photograph and in
40
person” because the in-court identification was “tainted by the unduly suggestive pre-
trial identification of [appellant].” Appellant contends that his argument is preserved for
review on appeal because he filed a motion to suppress and objected at trial. We
disagree.
Appellant did not ask the trial court to suppress Diana’s in-court identification of
him by photograph or in person, nor did appellant object at trial to the in-court
identification arguing that it is inadmissible because it is “tainted by an unduly
suggestive pre-trial identification [procedure]” as he now argues on appeal.
At the suppression hearing, all the arguments focused exclusively on Diana’s
identification of appellant’s voice. Appellant never mentioned any identification other
than by voice, and the trial court ruled only on the admissibility of the voice
identification: “The defendant’s motion to suppress the in-court identification of the
defendant, the voice identification, is denied.”
During trial and before the State called Diana to the stand, the following
exchange occurred. This exchange confirms that appellant previously had complained
about only the admission of a voice identification. Appellant agreed to the State asking
Diana whether she could identify appellant in-court based on a 20-year-old photograph
of appellant:
(Open court, defendant present, no jury)
THE COURT: I’m listening.
[TRIAL COUNSEL]: Judge, I’ve just been shown an exhibit that the State
wants to use in an identification process by Diana. Of course, we have the
main issue of in-court identification from the voice recognition I.D. Now
she’s cut out a mask --
* * *
[TRIAL COUNSEL]: She’s shown me this picture. She wants to take the
picture of my client that was taken near the time of this incident and put a
mask over it and see if she can identify that. I’d object that it’s been 20-
41
something years and it would be suggestive and --
[THE STATE]: Well, I mean, in an ordinary case, 20 years or 5 years,
whatever, however long it would be, the witness could be on the witness
stand and be asked to point the defendant out in the courtroom. And that
happens in every trial, in every case.
THE COURT: You want him to try on the mask? I don’t think it’s
appropriate to necessarily to put a mask over a picture.
[THE STATE]: Well, defense counsel has brought up in his opening
statement that she said she could identify him wearing a mask. She could -
- if she had seen his entire face, I would be asking her in court: Can you
identify the person, and that would not be suggestive. And it is not
suggestive in any trial, even though he’s sitting over there at counsel table
and -- I mean, that’s what we do.
THE COURT: Do we have the mask that was worn?
[THE STATE]: We don’t have a mask, but it’s a cut-out of a mask that
would be over his face that shows his eyes and part of his mouth that would
be exposed. As part of her description of him, she describes the eyes and
she describes the mouth.
THE COURT: Why can’t she -- I’m inclined to agree with defense
counsel, that --
[THE STATE]: Well --
THE COURT: It’s almost like a reenactment. I mean, you don’t have the
actual mask. And if you had the actual mask, I’d probably allow you to
require him to stand there and put on the actual mask, but if we don’t have
the actual mask --
[THE STATE]: We know it was a ski mask where his eyes and his mouth
were exposed. And this is a cut-out that exposes the eyes and mouth.
THE COURT: Well, can you ask her if she recognizes his eyes and his
mouth? Have you already done this in front of her?
[THE STATE]: No. I didn’t do it in front of her because I didn’t want
defense counsel to say that I had suggested --
THE COURT: I just think that it’s like a reenactment. If she can identify
his eyes and his mouth and she can look at them individually without
looking at the whole face and say those look like the same person, that’s
fine, but I don’t see how putting a drawn or imagined ski mask over a
picture is going to be a valid -- I mean the way it falls on the face and
42
everything might be completely different. I’m not going to allow that.
[THE STATE]: Okay.
THE COURT: But I will allow the question -- if she wants to look at his
face and say: Looking at his eyes, are those the eyes? Looking at his
mouth, is that the mouth?
* * *
THE COURT: . . . I’m talking about while she is on the stand here, I
would allow you to ask the question, if looking at him she recognizes his
eyes and his mouth.
[THE STATE]: Oh, I can’t do it even from -- this is a picture of him back
then. That’s critical in this case. Because I can show you the picture of him
back then and he does not look the same. So, it’s very important that the
picture she’s looking at is one from 20 years ago.
THE COURT: That’s fair. You can show her a picture and ask her from
the picture of him back then if she recognizes the eyes or recognizes the
mouth as being the same person. I don’t know what she would say, but I’m
not going to let you superimpose a mask over that and then say: Do you
recognize this person. Okay. I was misunderstanding a little bit what you
were wanting to do versus --
[TRIAL COUNSEL]: That’s exactly what she was going to do.
[THE STATE]: Yeah, that’s what I was going to do.
[TRIAL COUNSEL]: You weren’t misunderstanding.
* * *
THE COURT: Let’s make sure that my ruling is clear. I’m not going to let
you --
[THE STATE]: No. I understand.
THE COURT: -- superimpose the mask over, but if you have the picture of
what he looked like from back then and you want to ask her, based on that
picture, if she can identify the defendant’s eyes as being the eyes of the
individual that is -- that was the assailant that night and the nose, she can
do that, but I’m not going to let you superimpose a mask over that picture
to do the same thing. Does that make sense?
[THE STATE]: I understand your ruling perfectly.
THE COURT: Okay. Do you still have any objection, Mr. Brown, on
that?
43
[TRIAL COUNSEL]: That was my objection, Judge, and you’ve made the
ruling.
THE COURT: I know. Do you still have any objection to the picture itself
and asking that? I didn’t think you did.
[TRIAL COUNSEL]: No.
THE COURT: Okay. Very good. Let’s proceed.
During Diana’s testimony, as the State showed Diana a 20-year-old photo of appellant,
the following exchange occurred:
[THE STATE:] I’m going to show you a photo marked State’s Exhibit
101. And I want you to cover up what parts of the face that you need to
cover up to look at the eyes and the mouth. And first, tell me if you
recognize the eyes of this man.
[TRIAL COUNSEL]: Let the record reflect we object to this in-court
identification, Your Honor.
THE COURT: The record will so reflect.
[DIANA:] I do recognize his eyes. I do recognize his lips.
[THE STATE:] Do those eyes and lips look like the eyes and lips of the
man that was the first man in the room that night?
[DIANA:] Yes, ma’am. Yes.
[THE STATE:] Have you ever been shown this photo before?
[DIANA:] No, ma’am.
[THE STATE]: Your Honor, at this time, I’m going to offer State’s
Exhibit 101.
[TRIAL COUNSEL]: Again, we’d object. The reason being, the photo was
available in 1992 and this is the first time that --
[THE STATE]: I’ll object to the speaking objection.
THE COURT: Well, I’m going to sustain it as to relevance at this time,
unless somebody can identify who that person is in that photo.
[THE STATE]: Okay. . . . Having seen that photo, do you see an
individual in the room who looks like that?
[DIANA:] Yes.
[THE STATE:] And can you point him out for us, please?
44
[DIANA:] Him (indicating).
[THE STATE:] And can you describe him by an article of clothing?
[DIANA:] What he’s wearing right now?
[THE STATE:] Yes.
[DIANA:] He is wearing a light blue, grayish shirt, with a gray tie with
lines in it.
[THE STATE:] Your Honor, may the record reflect the witness has
identified the defendant?
THE COURT: The record will so reflect.
[THE STATE]: At this time, I will offer State’s Exhibit 101.
[TRIAL COUNSEL]: We’ll renew our objection.
THE COURT: I’m still going to sustain his objection just as to relevance
until we have someone that can testify who that is and when that
photograph was taken.
[THE STATE]: Yes, Your Honor.
THE COURT: Thank you. Please proceed.
Appellant failed to object to Diana’s in-court identification of appellant “in photograph
and in person” on the basis that the in-court identification was “tainted by the unduly
suggestive pre-trial identification [procedure].” Appellant’s only stated reason at trial
for objecting was that “the photo was available in 1992 and this is the first time that” it
was shown to Diana. We also note that, during his cross-examination of Diana,
appellant himself introduced the 20-year-old photograph — State’s exhibit 101 — into
evidence without objection.
“The failure to complain or object in the trial court to in-court identifications
waives any complaint regarding the in-court identifications on appeal.” Mason v. State,
416 S.W.3d 720, 738 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), cert. denied,
Mason v. Texas, 135 S. Ct. 1181 (2015); see Perry v. State, 703 S.W.2d 668, 670-71,
673 (Tex. Crim. App. 1986). Because appellant failed to raise this appellate contention
in the trial court, his argument that the trial court erroneously allowed Diana to identify
45
him in-court by photograph and in person presents nothing for our review. Accordingly,
we overrule appellant’s first issue.
II. Sufficiency of the Evidence
In his second issue, appellant argues that his conviction is not supported by
legally sufficient evidence because, aside from Diana’s identification testimony, “the
only remaining evidence to connect [appellant] to this offense is accomplice-witness
testimony.” According to appellant, “[t]he record carries no corroboration of Santana’s
accomplice-witness testimony beyond the identification testimony which the trial court
reversibly erred in admitting.”
A. Standard of Review and Applicable Law
A conviction cannot be secured upon the testimony of an accomplice unless that
testimony is corroborated by other evidence tending to connect the defendant to the
offense. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). Article 38.14 of
the Code of Criminal Procedure provides as follows: “A conviction cannot be had upon
the testimony of an accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc.
Ann. art. 38.14 (Vernon 2005); Cerna v. State, 441 S.W.3d 860, 864 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). In analyzing a challenge to the sufficiency of
corroborative evidence, we view the evidence in the light most favorable to the jury’s
verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).
To evaluate the sufficiency of corroboration evidence, we must eliminate all
accomplice testimony from consideration and examine the remaining portions of the
record to see if any evidence tends to connect the accused with the commission of the
crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The
corroborating evidence need not be sufficient by itself to establish guilt; there need only
46
be other evidence tending to connect the defendant to the offense. Id. Testimony of an
accomplice need be corroborated only as to facts “‘tending to connect the defendant
with the offense committed and not as to the corpus delicti itself.’” Id. (quoting Gribble
v. State, 808 S.W.2d 65, 71 n.13 (Tex. Crim. App. 1990)).
The non-accomplice evidence need not link appellant directly to the crime or
establish guilt beyond a reasonable doubt. Id.; McDuff v. State, 939 S.W.2d 607, 613
(Tex. Crim. App. 1997). And the accomplice testimony need not be corroborated on
every element of the offense. Griffin v. State, 936 S.W.2d 353, 357 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d). “There must simply be some non-accomplice
evidence which tends to connect appellant to the commission of the offense alleged in
the indictment.” Castillo, 221 S.W.3d at 691 (emphasis in original).
When there are two permissible views of the evidence, one tending to connect the
defendant to the offense and the other not tending to connect the defendant to the
offense, appellate courts should defer to that view of the evidence chosen by the
factfinder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The issue
is not how an appellate court independently would assess the non-accomplice evidence,
but whether a rational factfinder could conclude that the non-accomplice evidence tends
to connect the accused to the offense. Id. at 509. Direct or circumstantial non-
accomplice evidence is sufficient corroboration if it shows that rational jurors could
have found that it sufficiently tended to connect the accused to the offense. Smith v.
State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).
Each case must be judged on its own facts, and there is no set amount of non-
accomplice corroboration evidence that is required. Malone v. State, 253 S.W.3d 253,
257 (Tex. Crim. App. 2008). Proof that the accused was at or near the scene of the
crime at or about the time of its commission, when coupled with other suspicious
circumstances, may tend to connect the accused to the crime so as to furnish sufficient
47
corroboration to support a conviction. Id. But the presence of a defendant at the scene
of a crime, by itself, is insufficient to corroborate accomplice testimony. Id. Therefore,
we “consider the combined force of all of the non-accomplice evidence that tends to
connect the accused to the offense.” Smith, 332 S.W.3d at 442.
Appellant was charged by indictment with the offense of capital murder. The
jury was instructed to determine whether appellant, while in the course of committing or
attempting to commit the (1) kidnapping of Angelo Garcia, Jr.; or (2) burglary of a
building owned by Diana, intentionally caused the death of Angelo Garcia, Jr.
A person commits the offense of murder if he intentionally or knowingly causes
the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2011). A
person commits the offense of capital murder if the person commits murder as defined
in Texas Penal Code section 19.02(b)(1) and the person intentionally commits the
murder in the course of committing or attempting to commit kidnapping or burglary.
Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).
B. Sufficiency of Corroborating Evidence
On appeal, appellant contends that there is legally insufficient evidence to support
his conviction because Santana’s accomplice witness testimony was not sufficiently
corroborated. Appellant argues that, “aside from [Diana]’s [inadmissible] pre-trial
identification and in-court identification of [appellant] and aside from the accomplice-
witness testimony of” Santana, the record shows nothing more than appellant’s general
association with Cruz-Garcia and Santana, and appellant’s presence at Cruz-Garcia’s
apartment a few days after Angelo’s murder.
Contrary to appellant’s assertion, the record contains sufficient evidence to
corroborate Santana’s accomplice testimony.3 In fact, Diana’s identifications of
3
The State does not dispute that Santana is an accomplice witness. The jury charge includes an
instruction regarding accomplice witness testimony; it states that Santana is an accomplice witness.
48
appellant alone constitute sufficient corroborative evidence.
We note that appellant incorrectly asserts that Diana’s identifications of appellant
do not constitute corroborative evidence because they were inadmissible. First, we have
already determined that the trial court properly allowed testimony regarding Diana’s
pre-trial identification of appellant’s voice and Diana’s in-court identification of
appellant at trial. Second, appellant ignores the mandate that we consider “all evidence
in the record of the trial, whether it was admissible or inadmissible” in conducting a
sufficiency review. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013)
(citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).
The testimony of a single eyewitness alone can be sufficient to support a
conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lee v.
State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d
620 (Tex. Crim. App. 2006). Voice identification of a defendant may constitute a
sufficient basis for a conviction. See McInturf v. State, 544 S.W.2d 417, 418-19 (Tex.
Crim. App. 1976) (holding that voice identification based upon statements made during
the commission of the offense was direct evidence identifying the defendant as the
person who committed the crime); see also Terrell v. State, 766 S.W.2d 561, 564 (Tex.
App.—Beaumont 1989, no pet.) (holding that “[v]oice identification is sufficient in and
of itself to prove identity”); Williams v. State, 747 S.W.2d 812, 813 (Tex. App.—Dallas
1986, no pet.) (recognizing that voice identification based on statements made during a
crime is sufficient to identify a defendant).
Here, Diana testified in detail about the events that occurred the night of
September 30, 1992. She stated that a tall, husky, masked man broke into her small
apartment and instructed Arturo to lie down on the side of the bed in their small
bedroom while pointing a gun at Arturo. The man continued talking to Arturo and also
told Diana to turn around and “lie flat on the bed.” Diana testified that, after she laid
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face-down on the bed, a pillow and a sheet were placed over her head. She testified that
she could hear the man’s voice in her small bedroom and she “very much” focused on
the man’s voice. The first man was the only one who spoke to her and Arturo that
night; the second man who later entered the apartment and sexually assaulted her never
spoke. Diana testified that she had described the first man’s voice to Officer Hernandez
in the early morning of October 1, 1992. She also testified that she had described the
man as being a “6-foot or a little bit higher,” “husky, well built,” “dark complected”
Hispanic man with “big, bulging, very white” eyes and “big, bubbly,” “purple-ish” lips.
Diana positively identified appellant at trial as the first man who entered her
apartment. She also testified that she positively identified appellant’s voice pre-trial
during a visit with Tise and Investigator Gillie. She testified that, when she heard a
recording of appellant’s voice, she started crying and said, “That’s the voice of the man
who came into my house, into my bedroom . . . . The only one that I saw that night . . .
and the only one that was doing the talking.” When Diana was asked why she identified
appellant’s voice, she stated: “I can still identify the voice if I hear the man. It’s still in
me. The voice is still inside me just the same as when I feel somebody hug me from my
back. I still feel my son hugging me from my back. It’s still inside my heart, inside my
feelings. The voice is still in my head.”
We conclude that Diana’s testimony constitutes sufficient evidence to corroborate
Santana’s accomplice testimony. See McInturf, 544 S.W.2d at 418-19; Aguilar, 468
S.W.2d at 77; Lee, 176 S.W.3d at 458; Terrell, 766 S.W.2d at 564. Additionally, there is
other non-accomplice evidence which tends to connect appellant to the commission of
the capital murder of Angelo in this case.
At trial, Sergeant Swaim testified that, on October 6, 1992, he visited the
apartment Cruz-Garcia and his wife had lived in before Cruz-Garcia fled Houston
because Sergeant Swaim learned that a tall Hispanic male was staying at the apartment.
50
At the apartment, Sergeant Swaim was greeted by a tall Hispanic male who introduced
himself as Candido Lebron. Sergeant Swaim testified that the man stated he was from
St. Croix and gave Sergeant Swaim a St. Croix birth certificate with the name Candido
Lebron. Investigator Swaim identified at trial State exhibit 84 as being a photo of the
Hispanic male whom he encountered at Cruz-Garcia’s apartment and who identified
himself as Candido Lebron. Investigator Swaim testified that the photo was taken six
days after Angelo was abducted. He also identified appellant in court as “an older
version of the individual that [he] interviewed on that day.”
Further, Investigator Gillie testified at trial that he traveled to Georgia to locate
appellant after finding out appellant was involved in Angelo’s murder. Investigator
Gillie testified that he went to appellant’s house and introduced himself but appellant
did not “appear shocked” to see him. Appellant told Investigator Gillie that he knew
“what this is about. It’s about that little boy a long time ago in Houston.”
After eliminating Santana’s accomplice testimony from consideration and then
examining the remaining portions of the record, we conclude that the record contains
ample evidence that tends to connect appellant to the commission of the capital murder
of Angelo. Accordingly, we overrule appellant’s second issue.
III. Court Costs
In his third issue, appellant contends that the judgment and bill of costs should be
modified to delete several assessed costs because they constitute “a penalty as applied
to” appellant and were not “orally pronounced as part of his sentence.” Appellant
contends that the Crime Stoppers Fee, Criminal Justice Planning Fee, Officer Education
Fee, Crime Victims Compensation Fee, Judicial Training Fee, Jury Reimbursement Fee,
Support of Indigent Defense Fee, and Court Technology Fee assessed against him are
not compensatory costs but are punitive in nature because they do “not directly
reimburse” or “compensate anyone associated with this case” and, thus, should have
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been orally pronounced in court as part of his sentence to be valid. Appellant also
argues that the Crime Stoppers Fee, Criminal Justice Planning Fee, Officer Education
Fee, Crime Victims Compensation Fee, and Judicial Training Fee should not have been
assessed because there is “no statutory authority for the court to assess this fee.”
We begin by addressing appellant’s contention that the Crime Stoppers Fee,
Criminal Justice Planning Fee, Officer Education Fee, Crime Victims Compensation
Fee, and Judicial Training Fee should be deleted as court costs because there is “no
statutory authority for the court to assess this fee.”
The bill of costs reflects court costs assessed in the amount of $417.50, including,
as relevant to appellant’s argument, a $20 Crime Stoppers Fee, a $2.00 Criminal Justice
Planning Fee, a $3.50 Officer Education Fee, a $45 Crime Victims Compensation Fee,
and $1 Judicial Training Fee. The trial court included $417.50 in court costs in its
written judgment.
We have not found a statute that authorizes the individual assessment of these
particular fees and amounts nor has the State pointed us to any statute authorizing the
individual assessment. In fact, Texas Local Government Code section 133.102
indicates that the fees for crime stoppers, criminal justice planning, officer education,
compensation to victims of crime, and judicial training are not to be individually
assessed but are, instead, part of the mandatory $133 consolidated fee to be assessed “as
a court cost” upon a felony conviction; and this consolidated court cost is to be remitted
to the comptroller who is required to distribute it as mandated by section 103.102. See
Tex. Loc. Gov’t Code Ann. § 133.102 (Vernon Supp. 2014); see also Owen v. State,
352 S.W.3d 542, 548 (Tex. App.—Amarillo 2011, no pet.).
Therefore, we agree with appellant that there is “no statutory authority for the
court to assess” an individual Crime Stoppers Fee, Criminal Justice Planning Fee,
Officer Education Fee, Crime Victims Compensation Fee, and Judicial Training Fee as
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set out in the bill of costs. Because these fees cannot individually be charged against
appellant, the court costs assessed in the judgment thus have to be reduced by $71.50.
Accordingly, we sustain appellant’s third issue in this regard.4
We now turn to appellant’s assertion that the Jury Reimbursement Fee, Support of
Indigent Defense Fee, and Court Technology Fee assessed against him are not
compensatory costs but are punitive in nature because they do “not directly reimburse”
or “compensate anyone associated with this case” and, thus, should have been orally
pronounced in court as part of his sentence to be valid.
The Court of Criminal Appeals has explained that “[c]ourt costs, as reflected in a
certified bill of costs, need neither be orally pronounced nor incorporated by reference
in the judgment to be effective.” Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim.
App. 2011); see Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). “This is
because court costs do not ‘alter the range of punishment to which the defendant is
subject, or the number of years assessed’ and, thus, are not part of the sentence.”
Armstrong, 340 S.W.3d at 767 (quoting Weir, 278 S.W.3d at 367). Court costs are
compensatory in nature because they are a nonpunitive recoupment of the costs of
judicial resources expended in connection with the trial of a case. See Armstrong, 340
S.W.3d at 767; Weir, 278 S.W.3d at 366. “In contrast, fines generally must be orally
pronounced in the defendant’s presence” because fines are punitive and intended to be
part of the convicted defendant’s sentence. See Armstrong, 340 S.W.3d at 767.
Additionally, there is no requirement that there be an individualized connection
between each statutorily prescribed court cost and a particular case. See Peraza v. State,
Nos. PD-0100-15 & PD-0101-15, 2015 WL 3988926, at *6-7 (Tex. Crim. App. July 1,
4
We need not address appellant’s additional argument that the assessed Crime Stoppers Fee,
Criminal Justice Planning Fee, Officer Education Fee, Crime Victims Compensation Fee, and Judicial
Training Fee also constitute a penalty because they do not reimburse or compensate anyone in this
case.
53
2015). “[C]ourt costs should be related to the recoupment of costs of judicial
resources.” Id. at *6. However, statutorily prescribed court cost need not be
“necessary” or “incidental” to the trial of a criminal case; court costs must only be
“expended for legitimate criminal justice purposes.” Id. at *7.
In this case, the bill of costs assessed a Jury Reimbursement Fee, Support of
Indigent Defense Fee, and Court Technology Fee. These fees are all statutorily
mandated court costs. See Tex. Code Crim. Proc. Ann. art. 102.0045 (Vernon Supp.
2014) (Jury Reimbursement Fee); Tex. Loc. Gov’t Code Ann. § 133.107 (Vernon Supp.
2014) (Indigent Defense Fee); Tex. Code Crim. Proc. Ann. art. 102.0169 (Vernon Supp.
2014) (Court Technology Fee). Because there is no requirement that these three
statutorily imposed fees “directly compensate” or “reimburse anyone associated with
this case,” we overrule appellant’s third issue in this regard. See Peraza, 2015 WL
3988926, at *6-7.
CONCLUSION
We modify the trial court’s judgment to delete the amount of $71.50 from the
total amount of $417.50 in assessed court costs. As modified, we affirm the trial court’s
judgment.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J.,
concurring).
Publish — Tex. R. App. P. 47.2(b).
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