Walter Zuniga v. State ( 2011 )

Opinion issued June 16, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00715-CR

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Walter Zuniga, Appellant

V.

The State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Case No. 1170302

MEMORANDUM OPINION

          A jury convicted appellant, Walter Zuniga, of aggravated robbery and assessed punishment at 15 years’ confinement.  In three points of error, appellant contends that (1) the trial court erred in overruling his motion to suppress evidence of identification, (2) the evidence is legally insufficient, and (3) the trial court erred in admitting hearsay evidence.  We affirm.

BACKGROUND

On June 9, 2009, Houston Police Officer J. Hines was dispatched to an apartment complex to investigate a call regarding an aggravated robbery. The officer learned from one complainant, Marino Rosales, that while he and two friends, Hosea and Herman, were in the apartment complex parking lot, a khaki-colored Impala automobile approached. Rosales testified that he was looking at the Impala and admiring its color when one of its occupants inquired whether Rosales “had a staring problem.” According to Rosales, three men got out of the car and put bandanas over their faces. One of the men, later identified as Jesse Ivey, wore a purple Los Angeles Lakers jersey and red shoes; this man pointed a gun at Hosea and demanded money and jewelry and later demanded the same from Herman. A man wearing a white shirt and white baseball cap, later identified as Robert Garcia, approached Rosales with a gun and demanded money and jewelry. A third gunman approached Herman. Two other men, one of whom Rosales recognized as a schoolmate, John Zuniga, remained in the vehicle. The men returned to the vehicle when Rosales and his friends refused to hand over money and valuables. As they drove away, shots were fired from the car at the complainants.

A tow-truck driver, Tommy Kingston, witnessed the events and saw the Impala leaving the apartment complex parking lot. He saw gunfire coming from the passenger-side rear window, where a man wearing a baseball hat fired a revolver out of the window toward the apartment complex. He followed the Impala and was able to see the driver, the front seat passenger, and a rear passenger who wore a baseball hat.  He got a good look at the driver as the Impala passed his truck going in the opposite direction.  Kingston called authorities and reported the vehicle’s license plate number.

Officers later located the Impala in a driveway of a nearby residence owned by Conception and Luz Zuniga. The officers noted that the hood of the vehicle was warm to the touch and observed live ammunition rounds in the back seat. The officers then approached the home and knocked on the door.  When the Zunigas answered the door, the officers asked who had been driving the car and was that person at home.  Conception responded that he did not know if his son was home, but when asked by officers, he permitted them to enter and search for the suspects.

The officers located Ivey in one bedroom of the home, pretending to be sleeping even though he was fully clothed. He was wearing a purple and yellow Los Angeles Lakers jersey and red athletic shoes; he was perspiring. Officers located appellant and his brother, John Zuniga, a minor, in another bedroom.  Both were fully clothed, but pretending to be asleep. Appellant’s clothing matched that given by the complainant. Appellant and his brother also had on shoes and were perspiring. A fourth man, Andrew Salazar, was found hiding in the bathtub.  After the four suspects in the house were detained, a fifth suspect, Robert Garcia, was discovered hiding on the roof of the house.  He was wearing a white shirt and baseball cap.

    

Officers brought Rosales and his friends to the residence to view the five individuals detained. Rosales identified Ivey, John Zuniga his schoolmate, and Robert Garcia.  Although Rosales saw someone driving the car, he was not able to identify appellant.

Kingston, the tow-truck driver, and also arrived and viewed the show-up of the suspects.  He testified that he recognized the driver, front seat passenger, and the man shooting from the back seat.  He positively identified appellant as one of the men he had seen in the Impala. 

No one recognized Andrew Salazar, and he was permitted to leave. John Zuniga made a statement at the scene implicating a third brother, Emilio Zuniga, who was never found.

Appellant was tried, along with Ivey, for aggravated robbery. Neither Rosales nor Kingston could identify appellant at trial.  Garcia pleaded guilty before appellant’s trial, and in his plea stipulation, he stated that he committed the offense with appellant and Ivey.  However, in his presentence investigation and at trial, Garcia claimed that he committed the offense with Emilio Zuniga and Giovanni Arce.

A jury convicted both appellant and Ivey, and assessed appellant’s punishment at 15 years’ confinement.[1]

MOTION TO SUPPRESS

          In his first point of error, appellant contends the trial court erred in overruling his motion to suppress because (1) the pretrial show-up procedure was impermissibly suggestive and led to a likelihood of misidentification, and (2) the State failed to prove by clear and convincing evidence that the Zunigas consented to allow the police enter their home and search for appellant.

Standard of Review

We review the trial court’s ruling on a motion to suppress for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We view the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial judge is the “sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may choose to believe or disbelieve any part or all of a witness’s testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996) (citing Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991)). We defer to a trial court’s express or implied determination of historical facts, as well as to its application of law to fact questions if those questions turn on the evaluation of a witness’s credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We sustain the trial court’s ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

Show-Up Identification

          First, appellant contends that the show-up identification that the police conducted at the scene was impermissibly suggestive and led to a likelihood of misidentification.  When faced with a challenge to an out-of-court identification, a trial court should review all of the circumstances surrounding the identification and determine whether a procedure was unduly suggestive and, if so, whether it was conducive to an irreparable mistaken identification such that it denied the defendant due process of law. Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1988).  First, the trial court should examine whether the identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33-4 (Tex. Crim. App. 1995). “Show-up” identifications may be suggestive; however, even a one man show-up, without more, does not necessarily violate due process:

    

While it must be conceded that an on-the-scene confrontation has some degree of suggestiveness, in many situations its use is necessary. First of all[,] by viewing the alleged perpetrator of the offense immediately after the commission of the offense, the witness is allowed to test his recollection while his memory is still fresh and accurate. Additionally[,] the quick confirmation or denial of identification expedites the release of innocent suspects. Thus the innocent suspect need not be transported to jail and detained until a lineup can be constructed. Furthermore[,] the police would be able to release the innocent suspect and continue their search for the criminal while he is still within the area and before the criminal can substantially alter his looks and dispose of evidence of the crime. Finally, any possible prejudice resulting from such a confrontation can be exposed by rigorous cross-examination of the witness.

Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (citations omitted).

    

If the trial court determines that an out-of-court identification was impermissibly suggestive, then the court should consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure created a substantial likelihood of irreparable misidentification. 409 U.S. 188, 199-200, 93 S. Ct. 375, 382-83 (1972). A defendant bears the burden to show both impermissible suggestion and a substantial likelihood of misidentification by clear and convincing evidence. See Barley, 906 S.W.2d at 33–34.

Appellant argues that because the complainants were seated together in the back of a patrol car during the show-up, they could have influenced each other in their identifications of the suspects.  In Burns v. State, 923 S.W.2d 233, 237–38 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d), the defendant argued that a pretrial identification procedure was impermissibly suggestive because two witnesses were permitted to view the line-up in the same room.  The court rejected the argument that permitting witnesses to view a pretrial identification together, without more, is impermissibly suggestive.  Id. 

This was not a one man show-up—the police brought out and lined up all five men discovered in and around the Zuniga’s house. It is true that Rosales, Hosea, and Herman were together in the back of the patrol car at the time of the show-up identification procedure. However, Rosales testified that he and the other complainants did not discuss who to choose.  The police never suggested to the complainants who they should choose, and, in fact, told the complainants that the men they sought “may or not” be there. But, most importantly, Rosales did not identify appellant either at the show-up or during trial, and the identifications made by Hosea and Herman were not admitted at trial.  The only witness to identify appellant at the show-up was the wrecker driver, Tommy Kingston, and there is no evidence that he was anywhere near the complainants when he identified appellant at the scene.

Thus, appellant has failed to carry his burden to show an impermissibly suggestive pretrial show-up procedure.

Consent to Search

          Second, appellant contends that the State failed to prove by clear and convincing evidence that the Zunigas gave consent for the police to enter and search their home.  Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is per se unreasonable limited to a few well-delineated exceptions. U.S. Const. amend. IV, XIV; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973). A search pursuant to voluntary consent is an exception to the requirement that a search be based upon a warrant supported by probable cause. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).  At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances. Id. The Texas Constitution requires the State to show by clear and convincing evidence that the consent was valid. Id.

      Officer Hines testified at the suppression hearing that once the police located the Impala parked in the driveway of a house, he and several other officers walked to the front door of the house and knocked. Conception and Luz Zuniga, appellant’s parents, answered the door.  Hines told them that he would like to come in and speak with their son.  The Zunigas gave “specific verbal communication” permitting the officer’s to enter the house, and showed them to their son’s room in the back of the house.

Officer Kahn testified similarly at the suppression hearing:

[Prosecutor]: Did that officer [Hines] engage in conversation with [either of the Zunigas]?

[Kahn]: Yes. The first officer did engage in conversation.

[Prosecutor]: Okay. Okay. Do you recall what was said intitially?

[Kahn]: The basic premise was if they knew if someone was driving this vehicle and I think that person responded yes that’s my son’s car or it was his car and then he said that—the officer asked is your son here

. . .

Then he said that yes well—I think he said he didn’t know whether he was here or not then we asked do you mind if we you know search the house because we have some potential suspects that might have fled into your house.

[Prosecutor]: Okay. And what was their response?

[Kahn]: They welcomed us in. Said yeah sure come on in.

In contrast, both Conception and Luz Zuniga testified that they did not grant the police permission to enter and search their home.

Faced with contradictory testimony from Officers Hines and Kahn and the Zunigas, the trial court made the determination to believe the officers’ testimony over the Zunigas’. We defer to the trial court’s determination that the Zunigas consented to the search of their home. The officers’ testimony supports the trial court’s finding that the Zunigas consented and, thus, we will not disturb it. See Green, 934 S.W.2d at 98-99 (citing Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990) (“Since the trial court is the sole fact finder at a suppression hearing, this Court is not at liberty to disturb any finding which is supported by the record.”), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)).

      Regarding appellant’s complaint that the officers “neglected to obtain a signed consent to search” we note that written consent to search is not required to satisfy the consent exception to the warrant requirement. See Montoya v. State, 744 S.W.2d 15, 25 (Tex. Crim. App. 1987) (“A consent to search may be oral and still be valid.”), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).  Regarding appellant’s complaint that the officers did not utilize an interpreter, we note that both officers testified that Conception spoke to them in English and appeared to understand everything they said.  Also, Conception testified in English, thus the trial court could have reasonably concluded that he understood the officers when they talked with him in English.

Accordingly, we hold that the trial court did not abuse its discretion in overruling appellant’s motion to suppress.  We overrule appellant’s first point of error.

SUFFICIENCY OF THE EVIDENCE

          In his second point of error, appellant contends the evidence is legally insufficient to prove the element of identity.

Standard of Review

This Court reviews sufficiency-of-the-evidence challenges by applying the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).  See Ervin v. State, 331 S.W.3d 49, 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 924–28 (Tex. Crim. App. 2010)). Pursuant to this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

Analysis

          Appellant contends the evidence is insufficient because Rosales was not able to identify him during either the pretrial show-up or at trial, and Kingston, the tow-truck driver, was not able to identify him at trial.  However, a courtroom identification is not required when other evidence is presented establishing the culpability of the defendant. Conyers v. State, 864 S.W.2d 739, 740 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d).  Identity may be proven by direct or circumstantial evidence, and through inferences.  See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).        Proof of the accused’s identity through circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence, since both are equally probative.  McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989).

          Here, there was other evidence, both direct and circumstantial, establishing appellant’s culpability.  Kingston identified appellant at the show-up procedure as one of the three men he saw in the car.[2]  The Impala used in the robbery was parked in the driveway of appellant’s home—it was still warm to the touch and had bullets in the back seat.  Appellant was discovered in a bedroom at the Zuniga house; he was pretending to be asleep, but was fully dressed, wearing shoes, and sweating.  When arrested, appellant was wearing clothes that matched those described to police by the witnesses.  A codefendant, Robert Garcia, also testified that when he signed his plea papers, he stipulated that he committed the crime, along with Ivey and appellant.  From this evidence, a rational jury could have concluded beyond a reasonable doubt that appellant was identified as one of the perpetrators of the offense. 

          We overrule appellant’s second point of error.

HEARSAY

          In point of error three, appellant contends the trial court erred by admitting hearsay, i.e., his codefendant’s plea stipulation, in which he implicated appellant in the crime.

Background

          After the defense rested, the State, out of the presence of the jury, proposed to offer into evidence a plea stipulation executed by appellant’s codefendant, Robert Garcia, in which Garcia stipulated that he had committed the aggravated robbery along with Jessie Ivey and appellant.  The State argued that the plea stipulation was admissible as a statement against interest under Rule of Evidence 803(24).[3]  The trial court voiced some concern that admitting Garcia’s plea stipulation might violate the Sixth Amendment’s Confrontation Clause.  Thereafter, to alleviate the trial court’s concerns about the Confrontation Clause, the State called Garcia to the witness stand.  He identified his plea stipulation and the State offered it into evidence as State’s exhibit 24.  Garcia also testified about the contents of the plea stipulation.  Specifically, Garcia testified that when he pleaded guilty, he stipulated that he committed the crime with appellant and Jessie Ivey.  On cross-examination, Garcia testified that he actually committed the crime with Emilio Zuniga and Giovanni Arce and that appellant had nothing to do with it.

Analysis

          Appellant contends that the trial court erred in admitting State’s exhibit 24, Garcia’s plea stipulation.  However, State’s exhibit 24 was merely cumulative of Garcia’s testimony at trial, in which he acknowledged that he signed a plea stipulation implicating appellant. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (providing that admission of inadmissible evidence becomes harmless error if other evidence proving same fact is admitted elsewhere without objection); Smith v. State, 236 S.W.3d 282, 300 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (stating that “improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial”). Furthermore, admitting Garcia’s plea stipulation, through Garcia’s testimony, actually benefitted appellant because appellant was able to cross-examine Garcia, who on cross-examination claimed that appellant had nothing to do with the crime.

Accordingly, we hold that any error in the admission of this evidence did not affect appellant’s substantial rights. See Tex. R. App. P. 44.2; Smith, 236 S.W.3d at 300 (noting that “admission of inadmissible hearsay is nonconstitutional error and will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not affect appellant's substantial rights—i.e., did not have a substantial and injurious effect or influence in determining the jury's verdict”).

We overrule point of error three.[4]

CONCLUSION

          We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]           Ivey was also convicted, and his punishment was assessed at 10 years’ confinement.  His conviction was subsequently affirmed by the Fourteenth Court of appeals in Ivey v. State, No. 14-09-00698-CR, 2011 WL 303893 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.)

[2]           There is some conflict in the record about whether Kingston identified appellant as the driver of the car or the man he saw shooting out of the window of the car.  However, there is no dispute that Kingston picked out appellant at the show-up as one of the three men he saw in the car. 

[3]       A statement against interest is an exception to the hearsay rule and is:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Tex. R. Evid. 803(24).

[4]           We express no opinion as to whether admission of the plea stipulation would have been admissible without Garcia’s accompanying testimony. Several federal circuit courts of appeals have concluded that a non-testifying co-defendant’s guilty plea is admissible under the federal statement against interest exception to the hearsay rule contained in Fed. R. Evid. 804(b)(3). See, e.g., United States v. Aguilar, 295 F.3d 1018, 1020–23 (9th Cir.), cert. denied, 537 U.S. 966, 123 S. Ct. 404 (2002); United States v. Centracchio, 265 F.3d 518, 524–30 (7th Cir. 2001); United States v. Moskowitz, 215 F.3d 265, 268-70 (2d Cir.), cert. denied, 531 U.S. 1014, 121 S. Ct. 571 (2000). These decisions have been severely criticized. See Mary Cecilia Sweeney-Kwok, Note, An Argument Against the Arbitrary Acceptance of Guilty Pleas as Statements Against Interest, 71 Fordham L. Rev. 215, 231-38 (2002).