NO. 07-09-00344-CR; 07-09-00345-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL B 

FEBRUARY 24, 2011 

ROBERT TIJERINA, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 64TH DISTRICT COURT OF HALE COUNTY; 

NO. A17408-0710; A17409-0710; HONORABLE ROBERT W. KINKAID JR., JUDGE 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

OPINION 

Appellant, Robert Tijerina, was convicted of felony driving while intoxicated1

 and 

leaving the scene of an accident involving injury.2

 A jury assessed punishment, 

enhanced by prior felony convictions, at 55 and 60 years, respectively, to run 

concurrently. We will affirm. 

 1 See TEX. PENAL CODE ANN. § 49.04(a) (West 2003), § 49.09(b)(2) (West Supp. 

2010).

2 See TEX. TRANSP. CODE ANN. § 550.021(c) (West Supp. 2010).
2 

Factual and Procedural History 

 State trooper Guadalupe DeLuna responded to a report of an accident involving 

two vehicles, a Focus and a Cavalier. The Focus was driven by Martina Beltran, who 

was taken from the scene by ambulance. The driver of the Cavalier was not present 

when DeLuna arrived, but the Cavalier was. Also present at the scene was Jonathan 

Rogers, a witness to the accident. The missing driver had clipped Rogers’s motorcycle 

just before colliding with Beltran. 

 Rogers had spoken to the missing driver after the accident for five to seven 

minutes. Rogers explained that, despite his efforts to direct the driver to stay at the 

scene, the driver had left on foot in a northwesterly direction. Rogers described to 

DeLuna the driver’s physical features and clothing and observed that the driver 

appeared very intoxicated. DeLuna testified that, upon entering the unoccupied 

Cavalier, he could smell the lingering odor of alcohol. DeLuna ran the license plate 

number, and it came back that the Cavalier was registered to appellant’s father, Pablo 

Tijerina, whom DeLuna knew. From information gathered at the scene and from the 

description of the missing driver, DeLuna thought he knew who the driver was. 

DeLuna’s brother was acquaintances with a man who met witness Rogers’s description 

and regularly drove a Cavalier similar in style and color to the one at the scene. 

DeLuna broadcast the information he had gathered to area law enforcement. 

 DeLuna got Rogers’s contact information, and Rogers left. Shortly thereafter, 

sheriff’s deputies called DeLuna to say that they had located a man meeting the 

description provided at his residence. That man was appellant. Appellant refused to 
3 

leave his house and directed the officers to leave his property. DeLuna joined the 

deputies at appellant’s residence. DeLuna called Rogers to come over to the 

residence, and Rogers looked into the residence from about ten to fifteen feet.3

 Looking 

through a window from a vantage point in the yard, apparently somewhere between the 

circular drive and the residence in question, Rogers unequivocally identified appellant 

as the missing driver. 

 Prior to trial, in January, June, and October 2008, appellant filed three separate 

sets of motions to suppress, inter alia, evidence of Rogers’s pretrial identification 

resulting from the search of appellant’s residence. The trial court overruled the January 

motions by written order. New counsel was appointed and filed the second and third 

sets of motions, each being more specific than the previous motions. At the hearing on 

the later motions, the trial court noted the evidentiary hearing on the first motions and 

summarily denied the later motions to suppress. 

 At trial, appellant admitted that he had been drinking that day. He denied, 

however, having used his father’s car that day although he admitted to having driven it 

in the past. The jury found him guilty of driving while intoxicated and leaving the scene 

of an accident involving injury and assessed punishment at 55 and 60 years, 

respectively, to be served concurrently. 

 3 The record is not clear on how far away Rogers was from the window when he 

identified appellant as the driver. Rogers testified that he was about ten to fifteen feet 

away from the residence. An officer testified that Rogers was probably twenty feet 

away from the window. Yet another officer present at the residence testified that 

Rogers was as close as one to three feet away from the window when he identified 

appellant.
4 

 Appellant appeals, bringing two issues for the Court’s consideration. First, he 

contends that the trial court violated appellant’s rights under the Fourth Amendment and 

article 38.234

 by denying his motion to suppress the identification when the search 

related to the identification was an unjustified warrantless search of a dwelling. 

Secondly, he contends that the trial court violated appellant’s due process rights by 

admitting in-court identification when such evidence was the product of an 

impermissibly suggestive show-up procedure. 

Search Leading to Pretrial Identification 

 In his first issue, appellant argues that “[t]he identification by Rogers used to 

convict appellant was obtained by an impermissible warrantless search of a dwelling, in 

the absence of exigent circumstances or any other legal means of justifying the search.” 

Appellant’s first point is premised on Rogers’s act of peering through the window to 

identify appellant constituting a search for Fourth Amendment purposes. Appellant 

points out that he requested that the officers leave the premises before the search 

occurred and contends that, therefore, Rogers was trespassing when the identification 

occurred. 

Standard and Scope of Review

 We review the trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 

2007). We give almost total deference to the trial court’s rulings on questions of 

historical fact and application-of-law-to-fact questions that turn on an evaluation of 

 4 See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
5 

credibility and demeanor, but we review de novo application-of-law-to-fact questions 

that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. 

State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). When the trial court does not make 

a finding on a relevant fact, we view the evidence in the light most favorable to the trial 

court’s ruling and assume the trial court made implicit findings of fact supported by the 

record. Herrera v. State, 241 S.W.3d 520, 527 (Tex.Crim.App. 2007). 

 In determining whether a trial court’s ruling on a motion to suppress is supported 

by the record, we generally only consider evidence adduced at the suppression hearing 

because the trial court’s ruling was based on that evidence rather than evidence 

presented later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). 

However, when the suppression issue has been consensually re-litigated by the parties 

during the trial on the merits, we may also consider relevant trial evidence in our review. 

See id. Because it appears that the issues raised in the motions to suppress were 

raised again during trial and were again overruled by the trial court, we will consider the 

evidence adduced at the suppression hearing and relevant trial evidence. 

Search By Private Citizen Issue

 As a preliminary matter raised by appellant, we address the issues concerning 

the application of the Fourth Amendment in light of the fact that it was Rogers, a private 

citizen, who performed the conduct at issue. The Fourth Amendment protects the “right 

of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures.” U.S. CONST. amend. IV. For purposes of the 

Fourth Amendment, a “search” occurs when the government violates a subjective 
6 

expectation of privacy that society considers objectively reasonable. See Kyllo v. 

United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). The Fourth 

Amendment applies only to governmental action, not to action by a private individual 

who is not acting as an agent of the government or with the knowledge and participation 

of a government official. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 

1652, 80 L.Ed.2d 85 (1984). Even a wrongful search or seizure by a private citizen 

does not deprive the government of the right to use evidence obtained from the 

wrongful search. See Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 65 

L.Ed.2d 410 (1980). 

 The government may not encourage conduct by private persons that the 

government itself cannot do, and if the government encourages a search, or the private 

citizen searches solely for the purpose of aiding in law enforcement, the search is 

illegal. See Coolidge v. New Hampshire, 403 U.S. 443, 487–88, 91 S.Ct. 2022, 29 

L.Ed.2d 564 (1971). To determine whether a person is acting as an instrument or agent 

of the government, we determine (1) whether the government knew of, and acquiesced 

in, the intrusive conduct; and (2) whether the party performing the search intended to 

assist law enforcement efforts or, instead, to further his own ends. Dawson v. State, 

106 S.W.3d 388, 392 (Tex.App.—Houston [1st Dist.] 2003, no pet.). 

 From the record, it would appear that Rogers was acting as an instrument of the 

State, and the State makes no contention to the contrary. Although it is unclear whether 

DeLuna drove Rogers to the residence or whether Rogers drove himself, the record is 

clear that DeLuna called Rogers and asked him to come to that certain address to see if 
7 

the person at the residence was the driver of the vehicle he witnessed at the scene of 

the accident.5

 There is no indication that Rogers came to the residence and looked in 

the window on his own accord or to further his own ends.6

 That said, we agree with 

appellant and analyze the identification procedure in terms of the Fourth Amendment. 

Standing

 Proof of “a reasonable expectation of privacy” is at the forefront of all Fourth 

Amendment claims. Kothe v. State, 152 S.W.3d 54, 59 (Tex.Crim.App. 2004). Any 

defendant seeking to suppress evidence obtained in violation of the Fourth Amendment 

must first show that he personally had a reasonable expectation of privacy that the 

government invaded. Id. (citing Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 

L.Ed.2d 387 (1978)). A defendant must prove that he or she was a “victim” of the 

unlawful search or seizure and has no standing to complain about the invasion of 

someone else’s personal rights. Id. Only after a defendant has established standing to 

complain may a court consider whether he or she has suffered a substantive Fourth 

Amendment violation. Id. Although we defer to the trial court’s factual findings and view 

them in the light most favorable to the ruling, we review de novo the legal issue of 

standing. Id.

 5 DeLuna could not recall if he or any other officer escorted Rogers closer to the 

house. If an officer did accompany Rogers, the record does not clearly identify who that 

officer was.

6 The record shows that Rogers did not complete an accident report in connection 

with superficial damage to his motorcycle as a result of the minor collision with the 

Cavalier immediately before the collision between Beltran and the Cavalier. Such 

evidence would suggest that he had no personal interest in locating the driver.
8 

 The record suggests that the officers at the residence recognized appellant’s 

possessory right to exclude others from the property when, as appellant directed, the 

officers left the property for some time to await Rogers’s arrival. Further, it would 

appear that the State recognized appellant’s possessory interest in the house, having 

referred to the residence several times during trial as appellant’s house. 

 Consistent with the apparent recognition that appellant had, at a minimum, a 

possessory interest in the residence, it appears the State never challenged standing in 

the trial court. That being the case, we are presented with options: (1) we may address 

standing as part of appellant’s Fourth Amendment claim, without regard to preservation 

concerns, or (2) we may conclude that the State has forfeited that argument because it 

failed to raise it in the trial court. See Coleman v. State, 246 S.W.3d 76, 84 n.30 

(Tex.Crim.App. 2008); Kothe, 152 S.W.3d at 60, 60 n.15.7 Based on the facts 

presented in this case, we conclude that, by tacitly recognizing appellant’s possessory 

interest in the property at issue and by failing to raise the issue of standing in the trial 

court, the State forfeited its contention that appellant lacked standing to challenge the 

search. 

 7 Both Coleman and Kothe quote United States v. Price, 54 F.3d 342, 346 (7th 

Cir. 1995), for the proposition that, “because Rakas’ principle of ‘standing’ is rooted in 

the substantive law of the Fourth Amendment and not Article III [jurisdiction of courts], 

the government may waive these types of standing objections.”
9 

Fourth Amendment Concerns

 Next, we are called on to determine whether there was a search on these facts. 

In other words, we must determine whether the actions taken by Rogers, as an 

instrument of the state, invoked the protections of the Fourth Amendment. 

 The Fourth Amendment protects one’s home. Oliver v. United States, 466 U.S. 

170, 176, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Washington v. State, 152 

S.W.3d 209, 214 (Tex.App.—Amarillo 2004, no pet.). The curtilage, which is the land 

immediately surrounding and associated with the home, warrants the same Fourth 

Amendment protections that attach to the house. Oliver, 466 U.S. at 182 n.12. The 

protection afforded a home’s curtilage is not unlimited though. See Washington, 152 

S.W.3d at 214. In other words, an officer’s entry onto the curtilage or approach to the 

entrances of a residence does not necessarily rise to the level of a search as 

contemplated by the Fourth Amendment. Rodgers v. State, 162 S.W.3d 698, 709 

(Tex.App.—Texarkana 2005), aff’d, 205 S.W.3d 525 (Tex.Crim.App. 2006). 

 Absent express orders from a person in possession of property not to trespass, a 

law enforcement officer, like any other member of the public, has the right to enter on 

residential property and knock on the front door for the purpose of contacting the 

occupants. Cornealius v. State, 900 S.W.2d 731, 733–34 (Tex.Crim.App. 1995); 

Washington, 152 S.W.3d at 214. Because entry is impliedly authorized, there is no 

reasonable expectation of privacy with regard to things observed by those on the 

pathway to the front door. Washington, 152 S.W.3d at 214 (citing Bower v. State, 769 

S.W.2d 887, 897 (Tex. Crim. App. 1989)). While a law enforcement officer may enter 
10 

upon the curtilage of a house in an effort to contact its occupants, the authorization may 

not exist if the occupant has manifested his intent to restrict access to the area. See id.

at 215; Buchanan v. State, 129 S.W.3d 767, 773 (Tex.App.—Amarillo 2004, pet. ref’d). 

 In the instant case, the implied authority to approach the house to contact the 

occupant had been revoked by appellant’s directions for the officers to leave the 

property. Here, the record shows that appellant instructed the officers at his residence 

to leave his property, and the record further shows that, upon such instruction, at least 

some of the officers complied. We take appellant’s instructions as a manifestation of his 

intent to restrict access to the residence. See Washington, 152 S.W.3d at 215. With 

that, as Rogers approached the residence and stood somewhere in or near the yard of 

the back residence8 after appellant had directed the officers to leave his property, they 

no longer enjoyed the implied authority to approach appellant’s residence, and neither 

did Rogers, acting at their behest. So, we will treat the conduct as a search for the 

purposes of the Fourth Amendment. Even assuming that Rogers was standing on a 

pathway to which implied authority to approach would apply, once appellant made clear 

his intent to restrict access to the property, continued or further presence on that 

property was not authorized.9

 8 The record suggests that Rogers’s position lay within the curtilage of that 

residence. Whether his position was on the pathway to approach the residence is less 

clear and complicated by the fact that there were two houses in the immediate area. 

The front residence, a portable structure of some variety, was located on a circular drive 

and the residence in which appellant was located was behind the front residence.

9 The State does not advance any other justification for the warrantless search. It 

relies, instead, on the implied authorization for Rogers to approach the residence. The 

State does not contend that the search was justified by exigent circumstances or was 
11 

 If evidence is obtained by an officer or other person in violation of any provision 

of the Constitution or laws of the State of Texas or of the Constitution or laws of the 

United States, it is not admissible. TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Because 

appellant expressed his intent to restrict access to the residence and, despite that 

intent, the officers, through their instrument, approached his residence, they lacked the 

authority to remain on the property, and their presence on the property violated 

appellant’s constitutional right to be free of unreasonable searches.10 See U.S. CONST. 

amends. IV, XIV. 

 After having reviewed the relevant evidence both from the pretrial suppression 

hearing and the trial and having concluded that Rogers, acting as an instrument of the 

state, lacked authority to be in the position from which he identified appellant, we 

conclude that the trial court erred when it denied appellant’s motion to suppress 

evidence of the pretrial identification. 

 

otherwise a legally justified warrantless search. It instead maintains that there was no 

search because Rogers stood on the circle drive leading to appellant’s residence and 

that they were authorized to be there by implication.

10 Further, appellant contends, the conduct violated state law. If evidence is 

obtained by officers as a result of a criminal trespass, that evidence must be 

suppressed. See Martin v. State, 67 S.W.3d 340, 344 (Tex.App.—Texarkana 2001, pet. 

ref’d). Criminal trespass occurs when a person enters or remains on property after 

being notified that entry is forbidden or received notice to depart but failed to do so. TEX.

PENAL CODE ANN. § 30.05(a) (West Supp. 2010). Written or oral notice, fencing, signs 

forbidding entry, purple paint marks on trees or posts, and crop cultivation all effectively 

place a person on notice that entry is forbidden. See id. § 30.05(b)(2).
12 

Harm analysis

 Having concluded that the trial court erred when it overruled appellant’s motions 

to suppress and keeping in mind that it was evidence of Rogers’s pretrial identification 

that should have been suppressed, we turn to a harm analysis. 

 We review the harm resulting from a trial court’s erroneous denial of a motion to 

suppress and subsequent admission of evidence obtained in violation of the Fourth 

Amendment under the constitutional standard of Texas Rule of Appellate Procedure 

44.2(a). See Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). Under 

Rule 44.2(a), we evaluate the entire record in a neutral, impartial, and even-handed 

manner, not in the light most favorable to the prosecution. Harris v. State, 790 S.W.2d 

568, 586 (Tex.Crim.App. 1989). We must reverse a judgment of conviction and remand 

for a new trial unless we determine beyond a reasonable doubt that the error did not 

contribute to appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a); Hernandez, 

60 S.W.3d at 108. Constitutional error may, however, be held harmless if there is 

“overwhelming” untainted evidence to support the conviction. Harrington v. California, 

395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In our analysis, we must 

consider the source and nature of the error and its probable collateral implications, as 

well as whether declaring it harmless would be likely to encourage the State to repeat it 

with impunity. Harris, 790 S.W.2d at 587. We do not focus on the propriety of the 

outcome, but calculate, to the degree possible, the probable impact of the error on the 

conviction in light of the existence of other evidence. See Wesbrook v. State, 29 

S.W.3d 103, 119 (Tex.Crim.App. 2000). We are called on to examine the likelihood that 
13 

the constitutional error was actually a contributing factor in the jury’s deliberations in 

arriving at its verdict, that is, whether the error adversely affected “the integrity of the 

process leading to the conviction.” Scott v. State, 227 S.W.3d 670, 690 (Tex.Crim.App. 

2007) (citing Harris, 790 S.W.2d at 587). Our primary concern is whether there is a 

“reasonable possibility” that the error might have contributed to the conviction. Mosley v. 

State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). 

 Appellant contends that he was harmed by the admission of evidence of 

Rogers’s identification because Rogers was the sole identification witness available to 

the State that would show appellant was driving the vehicle at the time of the accident. 

Rogers did identify appellant in court. Rogers’s identification was consistent throughout 

the investigation and trial, and he testified that his in-court identification was based on 

his interaction and observation of appellant at the scene of the accident, independent of 

any visit to appellant’s residence the day of the accident. That Rogers also identified 

appellant through a window at appellant’s house is cumulative of his in-court 

identification. 

 Further, we have testimony from DeLuna regarding his familiarity with appellant 

through appellant’s relationship with DeLuna’s brother. He testified that he recognized 

the green Cavalier as the vehicle he had seen appellant drive on previous occasions. 

The record also shows that DeLuna learned at the scene that the abandoned vehicle 

was registered to appellant’s father. With respect to the identification element, there 

was a great deal of other evidence pointing to appellant as the missing driver. Based 

on the volume and probative value of this other evidence, we conclude there is no 
14 

“reasonable possibility” that the error might have contributed to appellant’s conviction, 

and we hold the trial court’s erroneous denial of appellant’s motion to suppress to be 

harmless. See Mosley, 983 S.W.2d at 259. 

In-Court Identification 

 In addition to his direct challenge to the procedure leading to Rogers’s pretrial 

identification, appellant relies on the impropriety of that procedure to challenge Rogers’s 

in-court identification. Appellant also attacks Rogers’s pretrial identification of appellant 

as an impermissibly suggestive show-up procedure. He maintains that the pretrial 

identification was tainted by law enforcement’s impermissibly suggestive show-up 

procedure and was the product of only a partial view at some distance and extensive 

priming by law enforcement that strongly suggested to Rogers that the man he was 

about to see was, in fact, the missing driver. The taint of this procedure, appellant 

seems to contend, extended to Rogers’s in-court identification of appellant, making it 

inadmissible as well. 

Applicable Law

 Appellant relies on the reasoning in Webb v. State, 760 S.W.2d 263, 269 

(Tex.Crim.App. 1988), to support his position. In Webb, the Texas Court of Criminal 

Appeals observed that “[a] pretrial identification procedure may be so unnecessarily 

suggestive and conducive to mistaken identification that to use that identification at trial 

would deny the accused due process of law.” Id. (citing Stovall v. Denno, 388 U.S. 293, 

87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)). That is to say, an in-court identification is 

inadmissible if it has been tainted by an impermissibly suggestive pretrial identification 
15 

procedure. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). However, it 

is the “substantial likelihood of misidentification” that may be engendered by such 

suggestive procedure that works the deprivation of due process. Webb, 760 S.W.2d at 

269. Therefore, if the totality of the circumstances reveals no substantial likelihood of 

misidentification, despite a suggestive pretrial procedure, subsequent identification 

testimony will be deemed “reliable.” Id. And “reliability is the linchpin in determining the 

admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 

S.Ct. 2243, 53 L.Ed.2d 140 (1977); Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 

1995); Webb, 760 S.W.2d at 269. 

 A defendant who claims that an in-court identification is inadmissible due to 

improper out-of-court identification procedures must show that (1) the procedures used 

were impermissibly suggestive and (2) the procedures gave rise to a substantial 

likelihood of irreparable misidentification. Webb, 760 S.W.2d at 269; Williams v. State, 

243 S.W.3d 787, 789 (Tex.App.—Amarillo 2007, pet. ref’d). A defendant bears the 

burden of establishing by clear and convincing evidence that the pretrial identification 

procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33–34; Harris v. State, 

827 S.W.2d 949, 959 (Tex.Crim.App. 1992). In making a determination as to whether a 

very substantial likelihood for irreparable misidentification has been created, we 

consider several non-exclusive factors: (1) the witness’s opportunity to view the criminal 

act, (2) the witness’s degree of attention, (3) the accuracy of the description of the 

suspect, (4) the level of certainty at the time of confrontation, and (5) the time between 

the crime and confrontation. Barley, 906 S.W.2d at 34–35 (citing Neil v. Biggers, 409 

U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). 
16 

Standard of Review

 Whether the trial court erred in admitting into evidence a witness’s identification 

of the accused involves a mixed question of law and fact. Loserth v. State, 963 S.W.2d 

770, 772 (Tex.Crim.App. 1998); Williams, 243 S.W.3d at 789. The factors used to 

determine whether an impermissibly suggestive identification procedure gives rise to a 

substantial likelihood of irreparable misidentification are treated as historical issues of 

fact and are viewed in the light most favorable to the trial court’s ruling. Loserth, 963 

S.W.2d at 773. We, therefore, afford great deference to the trial court’s resolution of the 

historical facts pertinent to the case; however, whether the historical facts render the 

identification unreliable is reviewed de novo. See id. at 773–74; Williams, 243 S.W.3d 

at 789. 

Impermissibly suggestive

 An in-field show-up procedure is generally considered to be suggestive, to some 

degree. See Wilson v. State, 267 S.W.3d 215, 217 (Tex.App.—Waco 2008, pet. ref’d) 

(“generally considered to be impermissibly suggestive”); Stewart v. State, 198 S.W.3d 

60, 63 (Tex.App.—Fort Worth 2006, no pet.) (carries “a degree of suggestiveness”); 

Pace v. State, 986 S.W.2d 740, 744 (Tex.App.—El Paso 1999, pet. ref’d) (“dubious 

because of its suggestiveness”); see also Williams, 243 S.W.3d at 789–90 (reviewing 

an in-field show-up procedure and observing that, under Delk v. State, 855 S.W.2d 700, 

706 (Tex.Crim.App. 1993), it is “possible” that such a method was impermissibly 

suggestive). We will assume, without deciding, that the show-up identification 

procedure used in the instant case was impermissibly suggestive and focus on the 
17 

second prong of the Barley test: whether, under the totality of the circumstances, there 

was a very substantial likelihood of irreparable misidentification. See Williams, 243 

S.W.3d at 789 (observing that, even if the procedure used was possibly impermissibly 

suggestive, such a conclusion does not end the inquiry). 

Very Substantial Likelihood of Irreparable Misidentification

 Again, to determine whether the suggestive identification procedure created a 

very substantial likelihood of irreparable misidentification, we consider the nonexhaustive factors outlined in Barley, 906 S.W.2d at 35. We first note that Rogers had a 

good opportunity to view the criminal act. Rogers first came into contact with appellant 

when appellant clipped Rogers’s motorcycle. Then, Rogers watched the more serious 

collision between appellant and Beltran. Rogers came to the accident scene and spoke 

with appellant. He directed appellant to stay at the scene and also refused appellant’s 

requests that Rogers not call the police. Rogers testified that he was in appellant’s 

presence for five to seven minutes before appellant left the scene. He added that he 

was between three and four feet of appellant at one point during that time period and 

that he was about seven feet from appellant when Rogers made the call to 9-1-1. The 

accident occurred midday on what Rogers described as a nice, clear day. 

 With respect to Rogers’s degree of attention, we note that he expressed concern 

about the status of the drivers upon arriving at the scene. His concern would suggest 
18 

that his attention was focused on the individuals involved in the accident, though it 

perhaps became more focused on the nonresponsive Beltran.11

 When DeLuna arrived, Rogers provided him a description of the driver as a 

Hispanic male, 5’6’’ to 5’7’’ in height, with black hair and a medium build, wearing a blue 

shirt and denim jeans. DeLuna confirmed that appellant met Rogers’s description. 

Appellant points out that Rogers failed to note the extensive tattoos on appellant’s arms. 

Nonetheless, it appears that Rogers description was an accurate one, and serves to 

add indicia of reliability to Rogers’s identification. 

 Rogers has never equivocated on his identification of appellant, neither at the 

residence nor at the time of trial. During his trial testimony, Rogers was certain, 

regardless of any observation of appellant at the residence, that appellant was the 

driver. We cannot discount the fact that Rogers testified that his in-court identification 

was based solely on what he had observed at the scene of the collision. See Barley, 

906 S.W.2d at 35. 

 We do note that it appears that trial was held about two years after the accident, 

a relatively long time frame which could weigh in favor of appellant’s position. However, 

considering the detail and certainty of Rogers’s testimony on this matter, it would seem 

that the time elapsed “had no recognizable effect” on Rogers’s in-court identification. 

See id. In light of the other indicia of reliability, we do not consider the time between the 

collision and the confrontation conclusive. 

 11 Further, in response to defense counsel sidebar comment on Rogers’s 

“amazing recall,” Rogers responded with an explanation that his previous experience as 

a certified pharmacy technician demanded that he have good recall. 
19 

 We conclude that, on these facts, the indicia of reliability of the in-court 

identification outweigh the apparent corrupting effect of any unnecessarily suggestive 

pretrial identification procedure. See Harris, 827 S.W.2d at 959. Because appellant 

failed to prove by clear and convincing evidence that the pretrial identification procedure 

was so impermissibly suggestive that it posed a very substantial risk of misidentification, 

the trial court did not err in admitting Rogers’s in-court identification. We overrule 

appellant’s second point of error. 

Conclusion 

 Having overruled appellant’s points of error, we affirm the trial court’s judgments 

of conviction. 

 Mackey K. Hancock 

 Justice 

Publish.