Omar Alberto Ramirez v. State of Texas ( 2002 )

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                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Omar Alberto Ramirez

Appellant

Vs.             No. 11-01-00230-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted appellant of aggravated sexual assault and assessed his punishment at confinement for life and imposed a fine of $10,000. We affirm.

The victim testified that an unknown Hispanic male came to her apartment on the afternoon of July 3, 2000, posing to be an air conditioner repairman. After the victim permitted him to enter her apartment, the man threatened the victim and her child with a knife if the victim did not have sex with him.^[1] The man first ordered the victim to take off her clothes and then forced her to have intercourse with him.

The police apprehended appellant near the victim=s apartment on that same afternoon. The police had received reports of two other attacks on women on that day at apartments located within close proximity to the victim=s apartment. The two attacks were committed by a Hispanic male posing as a repairman. The police considered appellant to be a suspect in the three attacks. Appellant was arrested for presenting counterfeit immigration paperwork to the police.^[2]   A few hours after the assault, the police presented a photographic lineup to the victim.   The victim identified appellant as her assailant. The other two assault victims also identified appellant as their assailant when presented with the same photographic lineup. After the victim identified appellant, the investigating detective questioned appellant regarding the assault. Appellant denied assaulting the victim, and the detective requested appellant=s consent to give a tissue sample for possible DNA comparison.   Appellant executed a written consent form permitting his tissue sample to be collected.      The victim also identified appellant as her assailant at trial, testifying that she would never forget his face. She also identified the knife which was recovered from appellant as being the knife used by her assailant. The State=s DNA expert testified that appellant=s DNA profile was consistent with the DNA profile of spermatozoa found on the victim. The expert further testified that, in the Texas Hispanic population, the random match probability for the DNA profile of the spermatozoa was 1 in 222 quadrillion.

Appellant testified that he went to work early on the morning in question. He got off work early in the afternoon and walked to a friend=s apartment.^[3] He then walked to his sister=s apartment. Appellant stated that he was waiting for his sister to return home when the police arrived. Appellant testified that his sister lives very close to the victim=s apartment. He further testified that he had seen and exchanged greetings with the victim on several occasions as he walked past her apartment on his way to or from his sister=s apartment. Appellant asserted that this is a case of mistaken identity because his face looked familiar to the victim when she observed the photographic lineup because of their past encounters. In rebuttal to appellant=s account of his whereabouts on the day in question, the State called the other two victims who had identified appellant as their attackers. Both of these victims testified that appellant had tried to attack them in their apartments on the day in question by posing as a repairman.

Appellant presents three issues on appeal. First, he attacks the in-court identification by the victim as being the result of an impermissibly suggestive lineup procedure. Appellant filed a pretrial motion to suppress the evidence of identification which the trial court overruled. An in-court identification is inadmissible when it has been tainted by an impermissibly-suggestive pretrial photographic identification. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Cr.App.1998). Determining the admissibility of an in-court identification that is challenged by a defendant requires a two-step analysis. First, we consider whether the pretrial identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33 (Tex.Cr.App.1995), cert. den=d, 516 U.S. 1176 (1996). Second, if the procedure was impermissibly suggestive, we determine whether the procedure gives rise to a very substantial likelihood of irreparable misidentification. Barley v. State, supra at 33. The defendant bears the burden to prove these two elements by clear and convincing evidence. Barley v. State, supra at 34. If the totality of the circumstances reveals no substantial likelihood of misidentification despite an impermissibly suggestive pretrial procedure, the in-court identification testimony will be deemed reliable. Loserth v. State, supra at 772.

Whether the trial court erred in admitting into evidence a witness= identification of the accused involves a mixed question of law and fact. Loserth v. State, supra at 772-73. We extend great deference to the trial court=s resolution of the historical facts pertinent to the case. Loserth v. State, supra at 773. However, the consequences arising from the historical facts are reviewed de novo. Loserth v. State, supra at 773-74. Thus, under the applicable case law, we will conduct a de novo review of the trial court=s decision to deny the motion to suppress the in-court identification which appellant claimed was based on an impermissibly suggestive lineup.

Appellant argues that the photographic lineup was conducted in an impermissible manner. He contends that the detective who conducted the lineup impermissibly informed the victim that a suspect had been arrested and that the suspect=s photograph was included in the lineup.^[4] While this may have suggested that the victim should identify one of the photographs, it was not an impermissible suggestion. A photographic lineup is not rendered unnecessarily suggestive simply because the victim is told that it contains a suspect because the victim would normally assume that to be the case when presented with a lineup. See Harris v. State, 827 S.W.2d 949, 959 (Tex.Cr.App.), cert. den=d, 506 U.S. 942 (1992). Moreover, there is no evidence that the detective suggested to the victim that she should identify appellant as her assailant.

Appellant also contends that the lineup was impermissibly suggestive because of differences between his appearance and the appearance of the other men.   Appellant argues that the other men appeared to be younger than he was and that they lacked the distinctive facial hair pattern which he possessed. The photographic lineup consisted of photographs of the upper torso of six Hispanic males.   Each of the men had some degree of facial hair, ranging from a mustache to a mustache and goatee.     The fact that the other men do not have features identical to appellant=s appearance does not automatically invalidate a photographic lineup. See Dickson v. State, 492 S.W.2d 267, 271 (Tex.Cr.App.1973). Neither due process of law nor common sense requires that pictures in a lineup be individuals whose every feature matches. Dickson v. State, supra at 271. Physical discrepancies between individual photographs in a lineup are not inherently impermissibly suggestive. See Williams v. State, 675 S.W.2d 754, 757 (Tex.Cr.App.1984). We find that the dissimilarities between appellant=s appearance and those of the other men were not such as to impermissibly suggest to the victim to identify appellant as her assailant.

Moreover, even if we were to conclude that the lineup in this case was impermissibly suggestive, we would be compelled to conclude that it did not give rise to a substantial likelihood of irreparable misidentification. Where a lineup is found to be impermissibly suggestive, many factors are considered to further determine whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. The following nonexclusive factors should be weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness= degree of attention; (3) the accuracy of the witness= prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the time and confrontation. Neil v. Biggers, 409 U.S. 188, 199 (1972); Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Cr.App.1999), cert. den=d, 531 U.S. 828 (2000). We consider these five factors deferentially in a light favorable to the trial court=s ruling. Loserth v. State, supra, at 773-74. The factors, viewed in this light, are then weighed de novo against the corrupting effect of the suggestive pretrial identification procedure. Loserth v. State, supra, at 773-74.

The victim had ample opportunity to observe the assailant in this case. He confronted the victim in her apartment and forced her to engage in sexual intercourse with him. He did not wear a mask during the attack. The photographic lineup was presented to the victim only a few hours after the attack. The victim began to cry hysterically when she saw appellant=s photograph. The victim testified that she would never forget her assailant=s face. She further testified that her in-court identification of appellant was based in part upon her recollection of appellant=s face independent of the lineup. We do not find a substantial likelihood of misidentification in this case. Appellant=s first issue is overruled.

Appellant argues in his second issue that the trial court erred in overruling his motion to suppress evidence seized from him. Appellant filed a pretrial motion entitled AMotion to Suppress Illegal Search and Seizure.@ The motion sought to suppress the State=s recovery of a tissue sample from appellant for purposes of DNA comparison. He argued in the motion that the taking of the sample was improper for the following reasons: (1) the probable cause for taking the sample was based on an impermissible suggestive identification process and was the result of coercion, enticement, persuasion, threat and repetition, and prolonged interrogation; (2) defendant was deprived of his right to counsel and did not intelligently and knowingly waive his right to counsel; and (3) the interrogators failed to render any tests to determine whether the defendant was mentally competent, literate, or otherwise capable of understanding his rights against self-incrimination and his rights under TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon 1979 & Pamph. Supp. 2002). The trial court conducted a hearing which focused on the three grounds alleged in appellant=s motion. The detective who recovered the tissue sample testified that he questioned appellant about the offense after the victim identified him as her assailant. The detective began the questioning by advising appellant of his rights in Spanish.^[5] Appellant proclaimed his innocence during the questioning. The detective advised appellant that appellant could establish his innocence by giving a tissue sample for DNA testing. Appellant executed a form printed in Spanish wherein he gave his written consent to the taking of the tissue sample. The detective testified that appellant understood the admonishments contained on the consent form and that appellant cooperated in the process of taking the tissue sample from inside of his mouth.

Appellant argues on appeal that the evidence should have been suppressed because there was no probable cause to arrest him. It does not appear that appellant raised this ground for suppression at trial. This complaint is, therefore, waived for appellate review. See TEX.R.APP.P. 33.1(a). Voluntary consent is a permissible basis upon which a warrantless search may be conducted. See Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Cr.App.2002). In determining whether an accused=s consent to search is voluntary, appellate courts must look to the totality of the circumstances. See Johnson v. State, supra at 653. Consent is not rendered involuntary merely because the accused is under arrest at the time consent is requested. See Johnson v. State, supra at 653. The record in this cause supports the trial court=s implied finding that appellant knowingly and voluntarily consented to the taking of the tissue sample. Issue No. 2 is overruled.

Appellant attacks the factual sufficiency of the evidence in his third issue.   When reviewing the factual sufficiency of the evidence, we review all the evidence, but not in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996); Reaves v. State, 970 S.W.2d 111, 116 (Tex.App. - Dallas 1998, no pet=n). We reverse only if: (1) the evidence in support of the verdict, considered as standing alone, is factually too weak to support it or (2) the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App.2000). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App.1997).   The evidence in support of the verdict is not factually insufficient standing alone, given the victim=s identification of appellant as her assailant and the DNA evidence linking appellant to the crime. Furthermore, the evidence contrary to the verdict is not so overwhelming as to render the verdict clearly wrong and unjust. Issue No. 3 is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

July 25, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

     ^[1]The victim was seven month=s pregnant at the time of the assault.

     ^[2]Appellant was a citizen of Honduras.

     ^[3]Appellant did not recall the friend=s last name. The friend did not testify at trial.

     ^[4]The evidence regarding the detective=s statements to the victim is not clear. The detective denied telling the victim that the suspect=s photograph was in the lineup. The victim testified through an interpreter, and her testimony on this point is not clear. We will assume that the detective advised the victim of the suspect=s arrest for the purpose of considering appellant=s argument.

     ^[5]The detective testified that he was fluent in Spanish.