THE STATE OF TEXAS v. GLENN DAVID PEREZ ROMERO--Appeal from 275th District Court of Hidalgo County

   NUMBER 13-04-489-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

GLENN DAVID PEREZ ROMERO, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Ya ez

In this interlocutory appeal, the State appeals from the trial court=s grant of appellee Glenn David Romero=s motion to suppress in-court witness identification testimony.[1] In a single issue, the State contends the trial court erred in excluding the in-court identification testimony. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.[2]

Background

On October 19, 2002, while driving on South Tenth Street in McAllen, Texas, Ann Hohmann saw a white Suburban slam into one car, which, in turn, struck a third car. The Suburban that caused the accident left the scene, and Hohmann followed it into the rear parking lot of a nearby Holiday Inn. At the suppression hearing, Hohmann testified she told the driver the police were looking for him, and that he responded, Awell, let them come find me.@ Hohmann=s two sons, who were with her in the car, were scared that something violent might occur. Hohmann drove back to the scene of the accident and reported the Suburban=s location to the police. When she drove back to the parking lot, she saw the driver of the Suburban walking toward the mall. On October 21, 2002, appellee filed an auto theft report.

Hohmann was shown an initial photo line-up, which included a picture of appellee. The first line-up contained only driver=s license photos. Hohmann was unable to identify appellee from the line-up. She identified another individual, and was told by a police officer that she had identified the wrong person. Hohmann=s son, Joseph, was also shown the first photo line-up and he was unable to identify appellee. The first photo line-up was not introduced as evidence at the suppression hearing.

Several days later, Hohmann and her son were shown a second photo line-up. She identified appellee as the driver of the Suburban. The second photo line-up consisted of six photos; appellee was the only person in the line-up wearing a suit and tie. Joseph was shown the second line-up at the same time his mother reviewed it. He also identified appellee.

In January of 2004, appellee was indicted for Aaccident involving injury.@ He filed a motion to suppress any witness identification testimony on grounds that the photo identification procedure was impermissibly suggestive.

At the suppression hearing on September 3, 2004 (almost two years after the accident), both Hohmann and her son, Joseph, identified appellee in court as the driver of the Suburban. Both testified that they were able to independently identify appellee regardless of whether they had seen the photo line-up.

At the conclusion of the hearing, the trial court granted appellee=s motion. This appeal ensued.

Standard of Review and Applicable Law

When reviewing a trial court's ruling on the admissibility of an identification which has been attacked as having been the product of an impermissibly suggestive pre trial identification procedure, "the test is whether, considering the totality of the circumstances, 'the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"[3] The goal of the review is to determine the reliability of the identification procedure.[4] The court of criminal appeals has held that:

[T]he 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' 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.[5]

Each of the individual Biggers factors are historical facts, and should be viewed deferentially, in the light most favorable to the trial court's ruling.[6] The five factors are then reviewed de novo against "the corrupting effect" of the suggestive pretrial identification procedure.[7] Although generally applied in reference to line-ups, as opposed to photographic arrays, courts may also consider the following additional factors:

(1) any identification prior to the lineup of another person;

(2) the identification by photograph of the defendant prior to the lineup; and

(3) any failure to identify the defendant on a prior occasion.[8]

When a trial court does not make express findings of historical facts, the facts are viewed in a light favorable to the court's ruling.[9]

Here, the trial court made no express findings of historical fact, except to state, in announcing its ruling, that

The first photo line-up is not here. Nobody was able to identifyBthe witnesses were not able to identify from the first photo line-up. It was only after a secondBand in myBin this Court=s opinion, faulty and tainted line-up was exhibited to them were they able to identify the Defendant. . . . I will always be in doubt as to whether they=re identifying in court because of the suggestive photo in this second line-up or was it really, truthfully and in fact as a result of the first.

Analysis

At the suppression hearing, the State conceded that the second photo line-up was suggestive; it argued, however, that it was not so impermissibly suggestive, under the totality of the circumstances, as to give rise to a substantial likelihood of misidentification.[10]

We turn to a review of the non-exclusive factors and our task of weighing them Aagainst the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances.@[11]

Hohmann testified that when she confronted the driver of the Suburban, she was approximately five feet away from him. Her exchange with him lasted only a few brief moments. She testified that the incident occurred about 8:30 p.m. and that it was dark.

The evidence supports a conclusion that Hohmann=s attention level was high. She was able to provide a physical description of the suspect and describe what he wearing. She described the suspect as clean-shaven, with gray wavy hair that was combed back.

Both Hohmann and Joseph testified that they were able to independently identify appellee, regardless of whether they had seen the second photo line-up. However, their in-court identification of appellee occurred almost two years after the incident. Moreover, the trial court was entitled to consider that neither Hohmann nor Joseph were able to identify appellee in the first photo line-up, and that Hohmann, in fact, mistakenly identified someone else. The State concedes that the second photo line-up was impermissibly suggestive. The procedures used with regard to the second line-up were also questionable in that the police allowed Joseph to be present when his mother identified appellee from the line-up.

Considering the factors and the totality of the circumstances, we hold that the trial court did not err in concluding that the photo line-up was so suggestive as to present a very substantial likelihood for irreparable in-court misidentification.[12] Accordingly, we overrule the State=s sole issue and AFFIRM the trial court=s ruling.

_______________________

LINDA REYNA YA EZ,

Justice

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and

filed this the 28th day of July, 2005.

[1] See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2004-05); State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002) (holding State may appeal any questionable ruling that excludes evidence that may be legally admissible, regardless of title of motion seeking exclusion, or the wording of order excluding evidence).

[2] See Tex. R. App. P. 47.4.

[3] Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); Palma v. State, 76 S.W.3d 638, 643 (Tex. App.BCorpus Christi 2002, pet. ref=d).

[4] Palma, 76 S.W.3d at 643.

[5] Id. (quoting Loserth, 963 S.W.2d at 772); see Neil v. Biggers, 409 U.S. 188, 199 (1972).

[6] Palma, 76 S.W.3d at 643; see Ibarra v. State, 11 S.W.3d 189, 195 96 (Tex. Crim. App. 1999).

[7] Ibarra, 11 S.W.3d at 195 96; Loserth, 963 S.W.2d at 773 74.

[8] Santos v. State, 116 S.W.3d 447, 453 (Tex. App.BHouston [14th Dist.] 2003, pet. ref=d) (citing Barley v. State, 906 S.W.2d 27, 35 n.8 (Tex. Crim. App. 1995)).

[9] Loserth, 963 S.W.2d at 774.

[10] See id. at 772.

[11] Palma, 76 S.W.3d at 643 (quoting Loserth, 963 S.W.2d at 772).

[12] See Loserth, 963 S.W.2d at 772.