JORGE AYALA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

   NUMBER 13-04-380-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JORGE AYALA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 117th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Jorge Ayala, was convicted of burglary of a habitation with intent to commit aggravated robbery. Tex. Pen. Code Ann. _ 30.02 (Vernon 2003). He was sentenced to sixty years= imprisonment, and the court ordered that the sentence be stacked on a twenty-year sentence appellant had previously received for an unrelated offense. On appeal, appellant contends (1) the trial court erred by admitting into evidence an impermissibly suggestive pretrial photo lineup of appellant, and (2) the sixty-year sentence and the order stacking the sentence on a prior twenty-year sentence is cruel and unusual, and disproportionate to the crime committed, all in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We affirm.

I. Facts

On the day following the incident leading to appellant=s arrest, Mrs. Ward, one of the victims, positively identified appellant in a pretrial photo lineup. The picture showed appellant wearing a red v-neck shirt. No other person in the photo lineup wore a v-neck shirt. Mrs. Ward testified she picked out appellant within seconds and that his bony facial features led her to that conclusion. Appellant was found guilty by a jury and elected to have the court assess punishment. The court considered a variety of factors regarding punishment and sentenced appellant to sixty years with time to commence after a prior twenty-year sentence ceased to operate.

II. Impermissibly Suggestive Photo Line-Up

A. Standard of Review

When reviewing a trial court=s ruling on the admissibility of an identification which has been attacked as the product of an impermissibly suggestive pretrial identification procedure, the test is whether, considering the totality of circumstances, Athe photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.@ Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing 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). The goal of the review is to determine the reliability of the identification procedure. See Loserth, 963 S.W.2d at 772.

The following five non-exclusive factors should be Aweighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of 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=s prior description of the criminal; (4) the level of certainty demonstrated by the witness at confrontation; and (5) the length of time between the crime and the confrontation. Id. (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). 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. Id.

The application of the factors, and thus, the Aultimate conclusions as to whether the facts as found state a constitutional violation, is a mixed question of law and fact.@ Id. at 773. Therefore, we review the trial court=s application of the factors de novo. Id. at 773-74. 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. Id. at 774.

B. Analysis

Here, appellant=s first point of error attacks the trial court=s admission of the pretrial photo lineup into evidence. Appellant contends that the red v-neck shirt he wore in the photo lineup easily distinguished him. Assuming, arguendo, this identification procedure was in fact impermissibly suggestive does not, however, automatically render the victim=s positive identification of appellant inadmissible. Rather, our task is to determine whether, considering the totality of circumstances, the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Taking into consideration the Biggers factors, we are not prepared to say a very substantial likelihood of irreparable misidentification occurred.

The evidence shows that (1) Mrs. Ward was in the presence of her assailant for thirty to forty minutes and had several occasions to see his face, (2) she tried and was determined to memorize her assailant=s facial features, (3) she described her assailant as having bony facial features, (4) she picked appellant out of the photo lineup within seconds, and (5) her identification was just a day after the incident. Thus, even if the shirt worn by appellant in the photo lineup was impermissibly suggestive, consideration of the Biggers factors prevents a very substantial likelihood of irreparable misidentification. See id. at 772. We overrule appellant=s first point of error.

III. Cruel and Unusual Punishment

A. Waiver

In his second point of error, appellant contends the sixty-year sentence and the order to stack the sentence on top of a prior twenty-year sentence he received amounted to cruel and unusual punishment and was disproportionate to the seriousness of the offense, all in violation of the Eighth and Fourteenth Amendments to the United States Constitution. However, appellant failed to preserve this issue for review. It is well-established that almost every right, constitutional or statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Borgen v. State, 672 S.W.2d 456, 460 (Tex. Crim. App. 1984); Quintana v. State, 777 S.W.2d 474, 479 (Tex. App.BCorpus Christi 1989, pet. denied). Neither an obvious unconstitutional statute nor a fundamental error are at issue here; appellant instead only raises well-established issues already considered by the court of criminal appeals and this Court.

B. Solem Test

Nevertheless, even if appellant had properly objected at trial and presented constitutional grounds for appellate review, there is no reversible error. Appellant urges us to perform the three-part test set out in Solem v. Helm, 463 U.S. 277, 290-91 (1983). Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id. at 292. However, the strict application of Solem has been questioned since the Supreme Court=s decision in Harmelin v. Michigan, 501 U.S. 957 (1991). Even if we assume that the Solem test remains viable today, the requirements have not been satisfied.

Burglary of a habitation while committing or attempting to commit a felony, other than felony theft, is a first-degree felony offense, Tex. Pen. Code Ann. _ 30.02(d) (Vernon 2003), and punishable by a term of imprisonment for life or five to ninety-nine years. Tex. Pen. Code Ann. _ 12.32(a) (Vernon 2003). If a sentence falls within the limits prescribed by a valid statute, the punishment is not per se excessive, cruel, or unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Moreover, the trial judge had discretion to order appellant=s sentence to commence when his previous sentence ceased to operate. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004-05).

Continuing the analysis under Solem, there is no evidence in the appellate record reflecting the sentences imposed on criminals in Texas or other jurisdictions who have committed a similar offense. Therefore, we are unable to engage in a comparative analysis. Sullivan v. State, 975 S.W.2d 755, 757-58 (Tex. App.BCorpus Christi 1998, no pet.); Simmons v. State, 944 S.W.2d 11, 14 (Tex. App.BTyler 1996, pet. denied). The sixty-year sentence received by appellant is well below the maximum sentence allowed by law. Taking into consideration the nature of the offense committed, the punishment range available, and appellant=s prior criminal history, we find that the sentence is not grossly disproportionate to the crime. Accordingly, we overrule appellant=s second issue.

VI. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 18th day of August, 2005.