Mario Alberto Gonzalez v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Opinion issued December 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00575-CR

MARIO ALBERTO GONZALEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 42,643

MEMORANDUM OPINION

A jury convicted appellant, Mario Alberto Gonzalez, of aggravated assault, and the court assessed punishment at five years in prison. See Tex. Penal Code Ann. 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2007). In three issues, appellant challenges the trial court's denial of his motions to suppress evidence (a) obtained after his detention and (b) of the complainant's initial identification of him, and the legal and factual sufficiency of the evidence.

We affirm.

Around 5:30 a.m. on July 18, 2005, Aurora Pina answered a knock on her door. Her three children, aged two to nine, were in the living room watching television just behind the front door. When Pina opened the door, a man she had never seen before grabbed her right wrist, held a knife to her stomach, and tried to force his way in. Pina testified that he took a step inside her apartment, but she managed to push him outside and close and lock the door. Pina testified that she saw his face "directly in front of my face, about nine inches to twelve inches away from mine" and that she had enough lighting inside and outside her apartment to see him clearly. She testified at trial that she specifically remembered his eyes, saying, "There was just something about his eyes . . . that was the first thing I saw was his eyes, and I can remember for some reason." In addition, she testified that he had short hair, that she smelled alcohol on him, and that she could not understand him because he spoke in Spanish. She said that he was inside her apartment for about fifteen seconds, but she felt threatened and afraid, especially after she saw the knife. Pina testified that she immediately called 9-1-1. She described her attacker as a Hispanic man with short hair, between 5'3" and 5'5", wearing denim jeans, a dark tee shirt with lettering on the front and back, and a baseball cap. She testified that she was attacked with a knife with a silver, three or four inch blade, but she did not see the handle because it was covered by her attacker's hand.

Within about five minutes of her 9-1-1 call, Officer Hooper, with the Rosenberg Police Department, arrived at Pina's apartment, ascertained that she did not need medical attention, and initiated his investigation.

Meanwhile, Sergeant Jose Nieto was patrolling downtown Rosenberg at the time of Pina's attack. He was about 400 yards from her apartment, near the post office, a funeral home, and a discount store. He spotted appellant walking alone, and, because he was aware of prior crimes in the area, Sgt. Nieto stopped to speak with appellant. Appellant, a Hispanic man with short hair, between 5'3" and 5'5" tall, was wearing dark pants, a dark tee shirt with lettering on the front and back, and a dark baseball cap when Sgt. Nieto stopped him. Sgt. Nieto asked appellant for his name, birth date, and address, and Sgt. Nieto testified later that appellant cooperated and answered his questions. Sgt. Nieto spoke to appellant in both English and Spanish.

Within seconds of stopping to speak to appellant, Sgt. Nieto heard dispatchers relay the information about Pina's attack, including her description of her attacker and the fact that he was armed with a knife. Sgt. Nieto noticed that appellant closely matched the suspect's description. In addition, Sgt. Nieto had noticed that appellant appeared to be grasping with his right hand something tucked inside his pants, near the waistband. Sgt. Nieto testified that such behavior aroused his suspicion and that, given the description of the suspect he heard on the radio, he then had reason to detain appellant. He also testified that there were no other Hispanic men wearing similar clothing in the area when he stopped Gonzalez.

Sgt. Nieto grabbed Gonzalez's wrist and a silver, one-piece knife fell from his pant leg. Sgt. Nieto pushed appellant back, picked up the knife, handcuffed appellant, and called Officer Hooper to let him know he had stopped a man meeting the description of the suspect. Sgt. Nieto then drove appellant to a location across the street from Pina's apartment. They arrived approximately ten or fifteen minutes after Pina's 9-1-1 call for a "show-up" identification.

Officer Hooper led Pina outside where she stood across the street and looked at appellant. Appellant was standing beside the patrol car, illuminated by the patrol car's headlights and spotlight. Although appellant was still handcuffed, both Officer Hooper and Pina testified that they did not remember seeing him handcuffed or did not see handcuffs. Pina immediately identified appellant, gasping, "That's him." She confirmed her identification while appellant slowly turned in a circle as she and Officer Hooper watched from about 25 feet away.

After the show-up identification, Officer Guerrero arrived, and he took appellant to the Rosenberg City Jail, where he was booked and later moved to the Fort Bend County jail.

Appellant was charged with burglary of a habitation with intent to commit an aggravated assault. At trial, he testified that he lived near downtown Rosenberg, and because he did not have a car, he walked everywhere. He said that he worked as a laborer for a cement company and that someone (a coworker or his boss) would pick him up every morning that it did not rain to go to work at various locations. He testified that he was picked up for work at 5:00 a.m., but he also testified that he had no regular schedule. He said that he was near the post office that morning because he had just called his family in Mexico from a pay phone and was going home to change his clothes for work. He testified that he used a calling card, but because no time remained on the card, he left it at the pay phone. He said that he had a knife with him because he used it for work and also because it was the custom in his hometown of Guanajuato, Mexico to carry a knife. He said he normally carried it in a leather pocket while at work, but he insisted it was safe to carry it without the pocket that morning. Although he admitted a prior theft conviction, he denied attacking Pina, and he testified he had never been to her apartment.

However, at trial, Pina identified appellant as her attacker, and she identified the clothes he was wearing when he was arrested as the same clothes worn by the man who attacked her.

After the jury convicted him of the lesser-included offense of aggravated assault, appellant changed his election to have the jury assess punishment. The trial court sentenced him to five years' imprisonment, and appellant appealed. On appeal,

appellant argues that: (1) his arrest was unconstitutional because he was detained without reasonable suspicion or probable cause; (2) the show-up identification was impermissibly suggestive and should have been suppressed; and (3) without evidence of his arrest and the show-up identification, the evidence was legally and factually insufficient.

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We will afford almost total deference to a trial court's determination of historical facts. Id. If the trial court did not make explicit findings of historical facts, we will review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact as supported by the record. Id. We review a trial court's application of search and seizure law de novo. Id.

Stop and Detention

In his first issue, appellant challenges the trial court's denial of his motion to suppress evidence of his stop and detention by Sgt. Nieto. A police officer may approach an individual in public and ask questions without any specific justification. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.--Houston [1st Dist.] 2003, no writ). During such an encounter, the individual is free to leave or to refuse to answer the officer's questions. Pennywell, 127 S.W.3d at 152. However, an encounter may become a detention when the officer's actions would communicate to a reasonable person that he was not free to refuse the officer's requests or otherwise terminate the interaction. Id. An officer may conduct such a brief investigative detention, or "Terry stop," when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine, 71 S.W.3d at 768 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1881 (1968)). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Id.; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).

At the pretrial hearing on appellant's motions to suppress, Sgt. Nieto testified that he initially stopped appellant to ask him why he was walking in that area at that time in the morning because several crimes had been committed there in the prior two years. Sgt. Nieto testified that appellant was not under arrest and was free to decline to answer his questions and continue walking. While talking to appellant, Sgt. Nieto heard over his police radio the description of a suspect who had attempted to enter an apartment and was possibly armed with a knife. Sgt. Nieto testified that he believed appellant matched the description, and, furthermore, he had noticed that appellant appeared to be grasping something beneath his clothes, at waist level. Sgt. Nieto testified that appellant did not respond when asked what he was holding, so Sgt. Nieto reached for appellant's wrist and a knife fell out from the bottom of appellant's pant leg.

By the time Sgt. Nieto reached for appellant's wrist, he had specific articulable facts that supported his belief that appellant had engaged in criminal activity: appellant matched the description of the suspect broadcast over the police radio, appellant appeared to be grasping something hidden beneath his clothes, and appellant was near the apartment where the crime had been committed just minutes earlier.

Appellant argues, in part, that his detention was illegal because, although he immediately identified himself, Sgt. Nieto did not let him leave immediately. In Pennywell, we held that there was no evidence, nor any inference from any evidence, to suggest that the defendant was not free to decline to answer an officer's questions and, therefore, the interaction was no more than an encounter. Pennywell, 127 S.W.3d at 152. The defendant sought to suppress evidence of stolen property, found after a police officer stopped to ask him questions as he left the apartment complex where he had committed the crime. Id. The police officer asked the defendant if he lived in the apartment complex and whom he was visiting. Id. Here, the record shows that appellant cooperated with Sgt. Nieto in answering questions and that Sgt. Nieto almost immediately developed reasonable suspicion to detain appellant. As in Pennywell, there is no evidence, nor any inference from any evidence, to suggest that appellant was not free to decline to answer Sgt. Nieto's questions about his name and birthdate. Accordingly, this interaction was no more than an encounter. See id. We hold that the trial court did not err in denying his motion to suppress evidence obtained as a result of Sgt. Nieto's stop and detention of appellant. We overrule appellant's first issue. (1)

Show-Up Identification

In his second issue, appellant challenges the trial court's denial of his motion to suppress evidence of the show-up identification. 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). One man "show-up" identifications are generally considered suggestive; however, 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 33-4. The Texas Court of Criminal Appeals has held that five nonexclusive Biggers factors should be "weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances." Loserth, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citingBiggers, 409 U.S. at 199, 93 S. Ct. at 382-83). These factors include: (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 the confrontation; and (5) the length of time between the crime and the confrontation. Id.

Each of the individual Biggers factors involves historical facts, and we review the facts deferentially, in a light most favorable to the trial court's ruling. Id. at 773. The application of these factors is a mixed question of law and fact that does not turn on the credibility of the witnesses. Id. We thus review the trial court's application of the factors de novo. Id. at 773-74.

Assuming, without deciding, that the show-up identification was impermissibly suggestive, after applying the Biggers factors, we conclude that the show-up identification in this case was not conducive to a very substantial likelihood of irreparable misidentification. First, the evidence showed that, at the time of the assault, Pina viewed appellant from about nine to twelve inches away, face to face, for thirty seconds in adequate light. Given the nature of the assault, Pina's attention was focused directly on appellant during the crime. In addition, Pina provided an accurate description of her attacker as a 5'3" to 5'5" tall Hispanic man, with short hair, wearing dark pants, a dark tee shirt with lettering on both sides, and a baseball cap, who spoke Spanish, smelled of alcohol, and was armed with a knife with a three-to-four inch long silver blade. When apprehended, appellant, a 5'3" to 5'5" tall Hispanic man with short hair, was wearing dark pants, a dark tee shirt with lettering on both sides, and a baseball cap. He spoke to Sgt. Nieto in Spanish, and he smelled of alcohol. Sgt. Nieto found a knife with a three-to-four inch silver blade on appellant. Pina was certain of her identification at the time, gasping, "That's him," when she got her first glance of him from the breezeway of her apartment, as Officer Hooper led her outside to see appellant. She reiterated her certainty as she watched appellant turn in a circle, illuminated by the police car's lights. Finally, the identification occurred no more than fifteen minutes after the assault.

We further conclude that the show-up identification was not so "corruptive" as to outweigh the factors supporting the identification. Nothing in the record shows that the detaining officers encouraged Pina by word or action to identify appellant as her attacker. Thus, we hold that, under the totality of the circumstances in the instant case, appellant has not shown by clear and convincing evidence that there was a very substantial likelihood of irreparable misidentification. Accordingly, we hold further that the trial court did not abuse its discretion in denying appellant's motion to suppress evidence of the complainant's initial identification of appellant.

We overrule appellant's second issue.

Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). When evaluating the legal sufficiency of the evidence we look at all the evidence, whether properly or improperly admitted. Bobo v. State, 843 S.W.2d 572, 575-76 (Tex. Crim. App. 1992). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

Here, appellant was convicted of aggravated assault. A person commits aggravated assault if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. 22.01(a)(2), 22.02(a)(2). Pina testified that appellant grabbed her wrist and held a knife to her stomach. Sgt. Nieto testified that he had seen serious bodily injuries and fatalities from similar knives. Pina identified appellant within fifteen minutes of the crime, and she again identified him in open court. We conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky, 158 S.W.3d at 509.

We overrule appellant's legal sufficiency issue.

Factual Sufficiency

When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.

As noted, Pina positively identified appellant in open court, as well as on the day of the crime. Appellant argues, however, that the evidence was factually insufficient because he testified that: (1) he lived in the neighborhood, (2) he was returning home after making a telephone call, (3) he carried a knife for work, and (4) he did not attack Pina. Here, the jury alone determined what weight to give appellant's testimony and whether or not to believe it at all. We conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11.

We overrule appellant's factual sufficiency issue.

CONCLUSION

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

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

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