In the Matter of J.V.M.--Appeal from 386th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00714-CV
IN THE MATTER OF J.V.M.
From the 386th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-JUV-02589
Honorable Laura Parker, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 7, 2004

AFFIRMED

J.V.M. was adjudicated as having engaged in delinquent conduct when a jury found that he committed the offenses of theft of a vehicle and unauthorized use of a vehicle. On appeal, J.V.M. raises eight issues, challenging: (1) the legality of two detentions; (2) the admissibility of a witness's in-court identification; (3) the police officer's failure to comply with section 52.02(b) of the Texas Family Code; and (4) the trial court's failure to give a jury instruction pursuant to article 38.23(a) of the Texas Code of Criminal Procedure. We affirm the trial court's judgment.

Background

J.V.M. was charged with theft and unauthorized use of a motor vehicle. The first witness to testify at trial was John Ojeda. Ojeda testified that he was living with his girlfriend, Melissa Sandoval, and had her permission to use her red Mustang convertible. On April 5, 2003, Ojeda drove the car to a pay phone to call his brother regarding a videogame Ojeda wanted to sell his brother. The videogame was at Ojeda's apartment. While speaking to his brother, Ojeda observed J.V.M. using the other phone. When Ojeda finished his conversation and was returning to his car, J.V.M. asked Ojeda about the game he was selling. J.V.M. told Ojeda he would like to look at the game, and Ojeda gave J.V.M. his address. Sometime that evening, J.V.M. arrived at Ojeda's apartment. Ojeda and his friend, Andrew Torres, were playing the game when J.V.M. arrived. Ojeda let J.V.M. enter the apartment and showed him the game. After an hour, J.V.M. told Ojeda that he was going to use the pay phone, which was located by the apartment complex's swimming pool. Ojeda went to use the restroom. The keys to Sandoval's car were on the counter of the apartment, and the registration was in the car. Torres called out to Ojeda that J.V.M. was leaving in Sandoval's car. Ojeda saw J.V.M. driving the car out of the complex. Ojeda called Sandoval at work and then called the police. Sometime later, the police called Ojeda to look at a photo lineup. Ojeda testified that the lineup contained two rows of pictures with three pictures in each row. Ojeda picked J.V.M.'s picture from the photo lineup. Ojeda testified that when the car was recovered, the convertible top was damaged and the back window was shattered.

On cross-examination, Ojeda stated that the police took a statement from him on the night the car was stolen. Although Ojeda testified that he gave the police a description of J.V.M., the description is not contained in the statement. Ojeda admitted that he was selling the game to make money to pay rent. Ojeda corrected his earlier testimony that Torres was in the apartment playing the game with Ojeda when J.V.M. initially arrived, instead stating Ojeda called him over after J.V.M. arrived. With regard to the photo lineup, Ojeda stated that J.V.M. had the darkest complexion of the individuals in the photo lineup, but all of the photos were the same size.

On re-direct examination, Ojeda testified that Torres also identified J.V.M. in the photo lineup. At that time, J.V.M.'s attorney objected, stating that he had "a motion to suppress that's carried over until this particular officer is involved in this particular case. Also, that's the basis. I think - We believe that the photographs were unduly suggestive. We would ask that the Court reserve any ruling - any ruling on introduction until after we have -." The trial court responded that it would reserve its ruling; however, the trial court noted, "he's already testified all about it."

Melissa Sandoval testified that she never gave J.V.M. permission to drive her car. Sandoval further testified that the value of the car was about $18,000.00.

Officer Tony Garcia testified that on April 6, 2003, he and Officer Caviness were working patrol targeting a high-crime area. Officer Garcia saw J.V.M. and another boy walking down the street. Officer Garcia stopped them because they put their heads down when they saw him. J.V.M. told Officer Garcia that he was thirteen, and he appeared nervous. After verifying J.V.M.'s age, Officer Garcia let him go. Officer Caviness questioned the other boy. After Officer Caviness let the other boy go, he told Officer Garcia that the other boy had a registration form for a red Mustang. Thirty minutes later, the officers were responding to another call when they saw a tow truck drive by with a vehicle. Officer Caviness recognized the vehicle as the one described in the registration papers the boy had in his possession. The officers discovered that the vehicle was stolen; however, they were unable to locate J.V.M. or the other boy.

On April 27, 2003, Officer Garcia saw J.V.M. while working another assignment. Officer Garcia believed that J.V.M. had an outstanding warrant because Officer Garcia saw his name on a warrant list. Officer Garcia wanted to obtain a positive identification on J.V.M., so he took him to the youth crime services to run fingerprints. The fingerprints confirmed that J.V.M. had an outstanding warrant for possession of marijuana. Officer Garcia then contacted vehicle crimes and gave a detective information regarding J.V.M.

On cross-examination, Officer Garcia stated that when J.V.M. was stopped on April 6, 2003, he was free to leave. Officer Garcia admitted that J.V.M. was not violating any laws. Officer Garcia stated that J.V.M. seemed nervous, and Officer Garcia did not believe J.V.M. when J.V.M. told him he was thirteen. After Officer Garcia ran J.V.M.'s identification through the computer in his vehicle and verified that he was thirteen, J.V.M. was released. Officer Garcia testified that he detained J.V.M. on April 27, 2003, for a few minutes to obtain his fingerprints. Officer Garcia stated that when he detained J.V.M., he knew J.V.M. had an outstanding warrant.

Officer James Caviness testified that on April 6, 2003, he arrived as back up after Officer Garcia had stopped two individuals. The officers conducted a pat-down search to make sure the two individuals were not carrying any weapons. When Officer Caviness asked one of the individuals to empty his pockets, he removed a registration form to a vehicle. Officer Caviness read the license plate, vehicle description and the registered owner information. Officer Caviness testified that the vehicle was a Mustang, and the owner was Sandoval. Officer Caviness identified J.V.M. as one of the boys who was stopped that morning. Later that day, Officer Caviness saw a red Mustang that resembled the vehicle identified on the registration form being towed away. Officer Caviness testified that the first three letters of the license plate were the same as on the registration form. The officers looked for the two boys, but they were unable to find them. Officer Caviness testified that the Mustang had been recovered near the location where the boys were stopped.

Detective Lazaro Duarte testified that he was working with the vehicle crimes unit. Detective Duarte began working the case involving Sandoval's car on April 28, 2003, when Officer Garcia gave Detective Duarte the name of a suspect. Detective Duarte called Ojeda and asked if he could identify the person who stole the car in a photo lineup. Detective Duarte stated that he had a copy of the lineup in his briefcase.

At that point, the jury was excused, and a hearing was conducted regarding the admissibility of the photo array. Detective Duarte testified that he compiled the line-up with photographs of similarly looking individuals. Detective Duarte stated that Ojeda did not hesitate or appear uncertain in making the selection. On cross-examination, Detective Duarte stated that the head shot size in three of the pictures may have been smaller and that J.V.M.'s complexion appears to be darker than the others. After reviewing the lineup, the trial court denied the motion to suppress the photo array. Within the presence of the jury, Detective Duarte stated that both Ojeda and Torres identified J.V.M. from the photo array.

On re-direct examination, Detective Duarte also testified regarding an incident involving license plates being switched on cars. On April 6, 2003, David Longoria reported that a person had stolen the license plates to his red Mustang. Longoria's neighbor called him and told him someone was around his Mustang. Longoria exited his house and saw the suspects getting into another red Mustang. He told them to stop and told them he had their license plate number. Longoria then noticed that his front license plate was on the back of the Mustang that was driving away, and some other license plate had been placed on the back of Longoria's car. Longoria later encountered the suspects a second time, and one of the suspects complied with Longoria's demand that he return his license plate. Longoria identified J.V.M. as the person who returned the license plate. Longoria also identified J.V.M. from a photo array.

David Longoria testified that on April 6, 2003, his neighbor alerted him to someone trying to break into his car. Longoria ran to the parking lot and saw an individual crouched at the back of the car. When Longoria arrived, the individual jumped into another car that was similar to Longoria's car. Longoria identified J.V.M. as the person who was crouched behind his car. Longoria told J.V.M. that he had the other car's license plate and said he was going to call the police. J.V.M. told him "okay." Longoria later encountered the occupants of the car and demanded that they return the license plate. At the driver's instruction, J.V.M. returned the license plate.

After hearing the testimony, the jury found that J.V.M. engaged in delinquent conduct.

Photo Array

In his eighth point of error, J.V.M. complains that Ojeda's in-court identification of J.V.M. was inadmissible because the photo array was impermissibly suggestive and led to an irreparable misidentification. Specially, J.V.M. contends that the placement of J.V.M.'s photo in the bottom middle position was highly suggestive, the head shots in three of the photos were smaller, and J.V.M had the darkest complexion.

"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. Crim. App. 1998). A defendant has the burden of proving, by clear and convincing evidence, that an in-court identification is inadmissible based on a two-prong test. Loserth v. State, 985 S.W.2d 536, 543 (Tex. App.--San Antonio 1998, pet. ref'd). First, the defendant must show that the pretrial identification procedure was impermissibly suggestive. Id. Second, if the procedure was impermissibly suggestive, the defendant must show that the procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. In considering the second element, the following five non-exclusive 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's 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 crime and the confrontation. Loserth, 963 S.W.2d at 771-72. We consider each of these factors, which are all issues of historical fact, deferentially in a light favorable to the trial court's ruling; however, after reviewing the factors in that light, we weigh the factors de novo against the corrupting effect of the suggestive pretrial identification procedure. Id. at 773-74.

With regard to the first element,"[w]hile the better practice may be to get as many individuals as possible who fit the defendant's description, it is not essential that all the individuals be identical; neither due process nor common sense requires such exactitude." Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). In Buxton, the Texas Court of Criminal Appeals found that there was no suggestive procedure even though the men in the lineup ranged in height from five feet nine inches to six feet two inches, in weight from 175 pounds to 210 pounds, had various skin tones, and wore different types of clothing. Id. In addition, a lineup that consists of five persons, two of whom have beards and who are not physically close to the defendant in size and hair color, was held not to be impermissibly suggestive. Turner v. State, 600 S.W.2d 927, 932 (Tex. Crim. App. 1980). Finally, a line-up was held not to be impermissibly suggestive even though the suspect was several inches taller than the other participants in the line-up, only three participants had mustaches, and only four participants, including the appellant, had tattoos on their arms. Garcia v. State, 563 S.W.2d 925, 929 (Tex. Crim. App. 1978).

In this case, J.V.M. points to the different size of the head shots in three of the photographs; however, this means that the head shots in the other three photographs are similar. Additionally, J.V.M. relies on Detective Duarte's testimony that J.V.M.'s complexion appears to be the darkest; however, the trial court made its ruling after reviewing the photo array. We also have reviewed the photo array and do not find the skin tones to be overly suggestive. Finally, we reject J.V.M.'s contention that the placement of the suspect's picture in the middle of the bottom row of the array is impermissibly suggestive. Detective Duarte's testimony supports the trial court's implied finding that Detective Duarte did not point out any particular photograph or row to Ojeda. Without such a suggestion, placing a suspect's photo in the middle of the bottom row would not result in the photo array being impermissibly suggestive.

Even if we assume that J.V.M. met his burden of establishing by clear and convincing evidence that the photo array was impermissibly suggestive, we would not conclude that J.V.M. met the required showing that the procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. Ojeda observed J.V.M. for over an hour at close range while the three men alternated playing a video game. Although Ojeda's statement does not contain his prior description of J.V.M., Ojeda testified that he described J.V.M. to the investigating officer, stating that he was dark complected and commenting on his nose. Detective Duarte testified that Ojeda did not hesitate in selecting J.V.M.'s photo from the array. Although there was a delay of over a month between the date of the offense and the photo array, this factor alone would not show a very substantial likelihood of irreparable misidentification, particularly given the length of time during which Ojeda had to observe J.V.M.

Because J.V.M. failed to meet his burden of showing that Ojeda's in-court identification was tainted by an impermissibly suggestive pretrial photographic identification, J.V.M.'s eighth issue is overruled.

Legality Of Detentions and Failure to Notify J.V.M.'s Parent

In his first five issues, J.V.M. complains about the legality of his two detentions and their effect on his subsequent identification. The State responds that J.V.M.'s complaint was not properly preserved for review or, if it was, Ojeda's identification of J.V.M. has an independent basis that is not suppressible because of any illegality in regard to J.V.M.'s detention. In his sixth issue, J.V.M. complains about the failure to notify J.V.M.'s parents that he had been taken into custody.

We agree with the State that J.V.M. has failed to preserve his complaint regarding the effect of the legality of his detentions on Ojeda's identification for our review. No objection was raised with regard to Ojeda's identification of J.V.M. until Ojeda was questioned on re-direct examination, and the only complaint made was with regard to the photo array not with regard to J.V.M.'s detention. See Tex. R. App. P. 33.1(a)(1)(A) (appellant must make a specific, timely objection to preserve complaint for appellate review); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (point of error on appeal must comport with the objection made); Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995) (error waived if objection made after objectionable question is asked and answered); Henderson v. State, 82 S.W.3d 750, 752 (Tex. App.--Corpus Christi 2002, pet. ref'd) (failure to object to identification procedures prior to testimony regarding identification resulted in waiver).

Even if we assumed for purposes of argument that J.V.M.'s complaint had been preserved, we agree with the State that the trial court did not err in admitting Ojeda's testimony. In this case, the police did not obtain any evidence from J.V.M.'s detention other than J.V.M. himself, and a defendant cannot be considered a fruit of an illegal detention or arrest. See Pichon v. State, 683 S.W.2d 422, 426 (Tex. Crim. App. 1984). Ojeda identified J.V.M. in court based on his observation of him for an hour while they played the videogame at Ojeda's apartment. Because Ojeda's in-court identification occurred after, and independent of, the alleged illegal arrest or detention, the trial court properly permitted the jury to consider Ojeda's testimony identifying J.V.M. as the person who had stolen Sandoval's car. See Henderson v. State, 82 S.W.3d at 754. Because Ojeda's testimony was properly admitted and supported the jury's finding that J.V.M. engaged in delinquent conduct, we need not decide whether J.V.M. was illegally detained; accordingly, J.V.M.'s first through fifth points of error are overruled. Similarly, because there is no causal connection between the failure to notify J.V.M.'s parent of his custody under section 52.02(b) and Ojeda's identification of J.V.M. as the person who had stolen Sandoval's car, we overrule J.V.M.'s sixth issue. See Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 2002) (requiring causal connection between the illegal conduct and the acquisition of the evidence in order for evidence to be excluded).

Jury Instruction

In his seventh issue, J.V.M. contends that the trial court erred in failing to instruct the jury as required by article 38.23(a) of the Texas Code of Criminal Procedure. Even assuming that the trial court erred in failing to include an instruction as to whether evidence had been obtained as a result of an illegal detention, we have determined that Ojeda's in-court identification was properly admitted and supported the jury's finding that J.V.M. engaged in delinquent conduct. Allen v. State, 511 S.W.2d 53, 54 (Tex. Crim. App. 1974) (holding article 38.23 does not apply to in-court identifications); McAllister v. State, 28 S.W.3d 72, 78-79 (Tex. App.--Texarkana 2000, no pet.) (noting article 38.23 instruction in regard to in-court identification would be an impermissible comment on weight of the evidence). Accordingly, any error in failing to include the jury instruction was harmless. See Tex. R. App. P. 44.2(b).

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice