PD-1258-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________

ROGELIO AVILES-BARROSO,

Petitioner

v.

STATE OF TEXAS

_______________________________

Petition in Cause No. 1364839 from the

337th District Court of Harris County, Texas and

The Court of Appeals for the Fourteenth

Judicial District of Texas

No. 14-14-00142-CR 

_________________________________

PETITION FOR DISCRETIONARY REVIEW

_________________________________

GERALD E. BOURQUE

 24 Waterway Avenue, Ste 660

 The Woodlands, Texas 77380

 (713) 862-7766

 Bar Card No. 02716500

 Gerald@geraldebourque.com

 Attorney for Petitioner

 Rogelio Aviles-Barroso

 October 28, 2015

 

PD-1258-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/28/2015 8:11:42 AM

Accepted 11/2/2015 10:53:56 AM

ABEL ACOSTA

CLERK
i

Identity of Judge, Parties, and Counsel

Trial Judge: Judge Renee Magee

Appellant: Rogelio Aviles-Barroso

Trial Counsel: Charlie Brown, 708 Main Street, Ste 790, Houston, TX, 

77002

Appellate Counsel: Gerald E. Bourque, 24 Waterway Ave., Ste 660, The 

Woodlands, TX, 77380

Appellee: State of Texas

Trial Counsel: Natalie Tise, Harris Cty Dist. Atty, 1201 Franklin Ave., 

Houston, TX 77002

Appellate Counsel: Appellate Division, Harris Cty Dist. Atty, 1201 Franklin 

Ave., Houston, TX 77002
ii

Table of Contents

Identity of Judge, Parties, and Counsel........................................................i

Table of Contents......................................................................................ii

Index of Authorities..................................................................................iii

Statement Regarding Oral Argument..........................................................v

Statement of the Case................................................................................v

Statement of Procedural History.................................................................v

Grounds for Granting Review...................................................................vi

Argument..................................................................................................1

Background........................................................................................... 1

Mr. Barroso’s argument to the Fourteenth Court of Appeals regarding the 

question for this Court’s review....................................................................... 3

Fourteenth Court Response.................................................................... 4

An impermissibly suggestive pre-trial voice identification procedure 

violates a defendant’s Federal and State constitutional right to due process of 

law................................................................................................................. 5
iii

The use of a single, Puerto Rican voice played twenty years after the 

offense unduly suggested to Garcia that Mr. Barroso’s voice belonged to the 

unknown perpetrator....................................................................................... 6

“Showup” identification corrupts reliability........................................... 9

Erroneous reliability finding and factors that lack a scientific basis........ 9

The failure of the Biggers factors as applied to Mr. Barroso’s case ....... 10

Prayer for Relief......................................................................................18

Certificate of Compliance ........................................................................19

Certificate of Service...............................................................................20

Index of Authorities

Page(s)

Cases

Barley v. State,

906 S.W.2d 27 (Tex. Crim. App. 1995)...........................................................6

Brodes v. State,

614 S.E.2d 766 (Ga. 2005) ........................................................................... 10

Delk v. State,

855 S.W.2d 700 (Tex. Crim. App. 1993).........................................................6

Ibarra v. State,

11 S.W.3d 189 (Tex. Crim. App. 1999)...........................................................9

Madden v. State,

799 S.W.2d 683 (Tex. Crim. App. 1990).........................................................6
iv

Neil v. Biggers,

409 U.S. 188 (1972)....................................................... 6, 9, 10, 11, 14, 16, 17

Simmons v. United States,

390 U.S. 377 (1968).......................................................................................6

State v. Henderson,

208 N.J . 208 (2011)............................................................................... 10, 13

State v. Hunt,

69 P.3d 571 (Kan. 2003)............................................................................... 10

State v. Ramirez,

817 P.2d 774 (Utah 1991)............................................................................. 10

Stovall v. Denno,

388 U.S. 293 (1967)................................................................................... 5, 6

Other Authorities

Cindy E. Laub et al., Can the Courts Tell an Ear From an Eye? Legal 

Approaches to Voice Identification Evidence, 37 Law & Psychol. 

Rev. 119, 123 (2013).................................................................................... 12

Daniel Read & Fergus I.M. Craik, Earwitness Identification: Some 

Influences on Voice Recognition ................................................................... 14

Jose H. Kerstholt, Earwitnesses: Effects of Accent, Retention, and 

Telephone............................................................................................... 13-15

Joseph Dunsmoor, Vishnu Murty, Lila Davachi, & Elizabeth Phelps, 

Emotional Learning Selectively and Retroactively Strengthens 

Memories for Related Events........................................................................ 16

Kenneth A. Deffenbacher et al., A Meta–Analytic Review of the 

Effects of High Stress on Eyewitness Memory, 28 Law & Hum. 

Behav. 687, 687, 699 (2004)......................................................................... 13

Kenneth Deffenbacher, Relevance of Voice Identification Research to 

Criteria for Evaluating Reliability of an Identification...................................12
v

Maria Konnikova, You Have No Idea What Happened, NEW YORKER

Feb. 4, 2015, available at

http://www.newyorker.com/science/maria-konnikova/ideahappened-memory-recollection..................................................................... 16

Statement Regarding Oral Argument

Petitioner does not believe that oral argument would significantly assist this 

Court in resolving the issues set forth herein.

Statement of the Case

Rogelio Aviles-Barroso was charged by indictment on January 11, 2013 with 

Capital Murder. (CR at 22). The indictment alleged that the offense occurred over 

twenty years prior on September 29, 1992. (CR at 22). Mr. Barroso filed a Motion 

to Suppress the In-Court Identification on August 29, 2013. (CR at 83, 147). The 

court denied this on January 27, 2014. (CR at 149). On February 4, 2014, a jury 

found Mr. Barroso guilty of the charged offense at which time Judge Renee Magee 

sentenced him to life without parole in prison. (CR at 211-213).

The trial court certified Mr. Barroso’s right to appeal on February 4, 2014. 

(CR at 217). His trial counsel was allowed to withdraw and undersigned counsel was 

appointed to represent him on appeal. (CR at 218).

Statement of Procedural History

The Fourteenth Court of Appeals affirmed Mr. Barroso’s conviction on 

August 27, 2015. Aviles-Barroso v. State, No. 14-14-00142-CR, 2015 WL 5157472 
vi

(Tex. App.—Houston [14th Dist.] 2015). Mr. Barroso did not file a motion for 

rehearing.

Grounds for Granting Review

1. The appellate court erred in finding suggestive, but not unduly so, a voice 

identification “show up” made in violation of Delk v. State, 855 S.W.2d 

700, 706 (Tex. Crim. App. 1993) and Stovall v. Denno, 388 U.S. 293, 302 

(1967). (C.R. at pg. 147; Vol. 4, pgs. 193, 199; Vol. 6, pg. 123).

2. The Neil v. Biggers factors applied by this Court fail to protect a 

defendant’s due process rights in the context of a voice identification made 

twenty years after the offense. Applying the Biggers factors to assess 

reliability fails to account for the reality that scientific studies demonstrate 

that (1) the continued application of some of these factors and (2) the 

failure to account for other relevant factors will result in misidentification 

and wrongful convictions. (C.R. at pg. 147; Vol. 4, pgs. 193, 199; Vol. 6, 

pg. 123). Neil v. Biggers, 409 U.S. 188, 198 (1972).

3. The appellate court erroneously found that the record included evidence of 

identification reliability which outweighed the corruption of the caused by 

any unduly suggestive procedure. (C.R. at pg. 147; Vol. 4, pgs. 193, 199; 

Vol. 6, pg. 123).
1

Argument

Background

In 1992, two masked men broke into the apartment that Diana Garcia shared 

with her boyfriend, Arturo, and son, Angelo. (Vol. 4, pgs. 172-173). Both men 

entered her bedroom apartment. (Vol. 4, pgs. 173, 176). One man beat Arturo while 

the other man sexually assaulted Garcia. (Vol. 4, pgs. 180-182). After the men left, 

Garcia and Arturo realized that the two men had taken Angelo. (Vol. 4, pgs. 183-

184). When officers arrived, Garcia described the man who had beaten Arturo as 

having a “foreign,” non-Mexican accent. (Vol. 3, pg. 85, Vol. 4, pgs. 57, 219). The 

perpetrator was masked so that Garcia’s physical description of him was limited to 

his dark-complected wrist area, his tall height, the whites of his eyes, and his lip size 

and lip color. (Vol. 4, pgs. 186-188). Authorities later found Angelo’s remains in a 

Baytown creek.

The case remained unsolved until 2008 when Obel Cruz-Garcia was arrested 

for capital murder through DNA evidence connecting him to the sexual assault of 

Garcia. (Vol. 5, pg. 154). At some point after Cruz-Garcia’s arrest in 2008, law 

enforcement played three voices familiar to Garcia on separate occasions. (Vol. 5, 

p. 189) Garcia identified the voices of each of these men, Obel Cruz-Garcia 

(“Chico”), Carmelo Santana (“Rudy”) and Leonardo Germane, as individuals she 
2

had spoken with in the past. (Vol. 3, pgs. 67-71, 92-93, Vol. 5, pgs. 186-187). Each 

of these men spoke with accents from their home country of the Dominican 

Republic. (Vol. 3, pgs. 72-75, 96). 

While serving time in federal prison, in 2012, Carmelo Santana told 

authorities that he drove Cruz-Garcia, Mr. Barroso, and Angelo from Diana Garcia’s 

apartment on that night in 1992. Santana said that Cruz-Garcia ordered Mr. Barroso 

to kill Angelo. (Vol. 5, p. 116, 121, 123).

To confront this accusation, Mr. Barroso agreed to speak with Harris County 

Investigator Gillie. Gillie recorded Mr. Barroso speaking with his wife after the 

interview. This conversation included discussion of why officers were arresting Mr. 

Barroso. (Vol. 6, p. 143). Mr. Barroso speaks with a Puerto Rican accent. (Vol. 6, p. 

11)

A short time after the interview, Diana Garcia visited ADA Tise at the district 

attorney’s office to discuss the upcoming trial of Cruz-Garcia. While seated in the 

district attorney’s office in the presence of ADA Tise and Investigator Gillie, Gillie

played the recent recording of Mr. Barroso’s voice. (Vol. 3, pgs. 64, 75, 78; Vol. 6, 

pgs. 125-126). No other voices were played for Garcia on this date, twenty years 

after the offense date. (Vol. 6, pg. 139). ADA Tise acknowledged that at this time

she and Garcia were focused on uncovering the identity of the only remaining 

unknown—the tall man. (Vol. 4, pgs. 196-197). Without a lineup for comparison, 
3

Garcia understandably latched onto the voice of the first Puerto Rican man that law 

enforcement played for her.

Upon hearing the voice, Garcia began to cry, and she then positively identified 

Mr. Barroso's voice as that of the tall man she had heard in her apartment twenty 

years before. (Vol. 4, pgs. 200, 202, Vol. 6, pg. 129).

At trial, when questioned about why Gillie and Tise failed to expose Garcia 

to other male Puerto Rican voices, Gillie simply responded: “We did not do it that 

way.” (Vol. 6, pg. 139).

Over objection, the court allowed testimony about the pre-trial voice 

identification. The State then covered all but the eyes and lips in a photograph of Mr. 

Barroso taken about a week after the offense. (Vol. 4, pgs. 193-194). Garcia 

identified the man in the photograph as the man whose voice she identified and then 

pointed to Mr. Barroso in court as an older version of the man in the photograph who 

she had just identified. (State’s Exhibit 101; Vol. 4, pgs. 193-194). Aside from the

identification procedure, the state’s case depended on the accomplice-witness 

testimony of Carlos Santana.

Mr. Barroso’s argument to the Fourteenth Court of Appeals regarding the 

question for this Court’s review

Mr. Barroso argued that the failure to protect him from misidentification with 

a voice lineup caused Garcia to identify the perpetrator's voice under incredibly 
4

suggestive circumstances leading to a substantial likelihood of irreparable 

misidentification such that the trial court erred in admitting evidence of the pretrial 

identification. (Appellant’s Brief, pgs. 6-19).

Fourteenth Court Response

The appellate court affirmed the trial court’s decision to admit the testimony 

regarding the pretrial voice identification finding that the identification procedure 

“was suggestive but not impermissibly so” on the following basis: (opinion, p. 29)

• The recordings of three other men were played for Garcia after the state 

charged Cruz-Garcia with capital murder. (opinion, p. 24)

• Garcia was not familiar with all three of the voices played for her on 

various occasions before the day that she heard Mr. Barroso’s voice.

(opinion, p. 28)

• Garcia’s visit to the district attorney’s office was not planned. (opinion, 

p. 25)

The Fourteenth Court then concluded, that even assuming an unduly 

suggestive lineup procedure, the identification was nonetheless reliable applying the

factors set forth in Neil v. Biggersin the following way:

• Witness’s opportunity to hear the criminal at the time of the crime

o Garcia paid enough attention to describe the perpetrator’s “voice, 

the dialect, or a language peculiarity” near the time of the offense

o Garcia heard the perpetrator speak while being sexually assaulted

o “no evidence that Diana was not attentive or that her attention was 

distracted”
5

o “no evidence that Diana heard only ‘a few phrases’ spoken to her 

husband that night”

o “no evidence that Diana did not have an adequate opportunity to 

hear appellant’s voice during the time she was being raped by 

Cruz-Garcia and her son abducted” (opinion, p. 37)

• Witness’s degree of attention

o Relied heavily on state expert Dr. Lisak’s testimony regarding 

trauma and memory housed in the amygdala (opinion, p. 33-34)

• Accuracy of witness’s prior description of criminal

o The morning after the incident, Garcia said she could identify the 

man’s voice again if she heard it 

o Garcia described the voice as non-Mexican with a foreign accent 

(opinion, p. 34)

• Level of certainty demonstrated by the witness at the confrontation

o Garcia started crying when hearing the recording and “said she was 

absolutely positive that the voice belonged to the man who did all 

the talking on the night that her son was taken” (opinion, p. 35)

• Length of time between crime and confrontation

o Dr. Lisak’s testimony “regarding the durability of memories 

created by traumatic events” is sufficient to demonstrate reliability. 

(opinion, p. 39).

An impermissibly suggestive pre-trial voice identification procedure violates 

a defendant’s Federal and State constitutional right to due process of law

When a pre-trial identification procedure is unnecessarily suggestive and 

therefore conducive to misidentification, use of that identification at trial constitutes 

a denial of the defendant’s constitutional right to due process of law. Stovall v. 

Denno, 388 U.S. 293, 301–302 (1967).
6

To challenge an identification on due process grounds, a defendant must show 

through clear and convincing evidence (1) that the pretrial identification procedure 

was impermissibly suggestive and (2) that the suggestive pretrial identification gave 

rise to a substantial likelihood of irreparable misidentification. Simmons v. United 

States, 390 U.S. 377, 384 (1968); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. 

App. 1995). The totality of the circumstances determines the reliability of the 

identification. Barley, 906 S.W.2d at 33. 

The use of a single, Puerto Rican voice played twenty years after the offense 

unduly suggested to Garcia that Mr. Barroso’s voice belonged to the unknown 

perpetrator

Suggestiveness may arise from the manner in which a pretrial identification 

procedure is conducted. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). 

Given the potential for misidentification, if suggestive procedures are employed, 

courts have recognized that “[t]he practice of showing suspects singly to persons for 

the purpose of identification, and not as part of a lineup, has been widely 

condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967); Manson v. Braithwaite; 

432 U.S. 98, 109 (1977); Neil v. Biggers, 409 U.S. 188, 198 (1972). 

While very few Texas cases deal with auditory identification procedures in 

which an officer plays only one voice for a witness, this Court has long held that a 

similar single photograph “line up” is improperly suggestive. Delk v. State, 855 
7

S.W.2d 700, 706 (Tex. Crim. App. 1993); Madden v. State, 799 S.W.2d 683, 695-

95 (Tex. Crim. App. 1990).

Only one voice played for Garcia 

When asked why a voice lineup or array was not administered, Gillie simply 

said: because “we did not do it that way.” (Vol. 6, pg. 139). On cross examination, 

Gillie admitted that “due to circumstances,” they did not take the time to gather other 

voices with Puerto Rican dialects so that Garcia would have to compare Mr. 

Barroso’s voice against other speakers with a similar dialect. (Vol. 5, p. 141). 

Nothing in the record demonstrates that any exigency excused the state’s deprivation 

of Mr. Barroso’s due process protection. 

Despite efforts to describe the scene as one where Gillie surprised Garcia 

when he played the recording in the midst of casual conversation, (“And, so, 

basically we were just talking and I clicked on the computer and played 

something?”) the record demonstrates Garcia was expecting to hear the voice of the 

tall man. (Vol. 4, pgs. 200, 243). Garcia testified that she knew that when she heard 

a voice at the DA’s office, it belonged to a suspect. (Vol. 4, pg. 231). Testimony that 

Garcia merely dropped by the office on that date to discuss the case does not 

diminish the known expectation of everyone in the room that the voice played would 

belong to the only remaining unknown suspect. (Vol. 3, pg. 75). 
8

Only one voice played for Garcia in a recording thatreferenced Mr. 

Barroso’s arrest

Investigator Gillie acknowledged that the portion of the recording played for 

Garcia included Mr. Barroso, a man from Puerto Rico, speaking in Spanish to his 

wife about why he was arrested in the case. (Vol. 6, p. 143). 

Only one voice played for Garcia after Mr. Barroso was charged with 

capital murder

At the time Gillie and Tise played the recording for Garcia, the state had 

already charged Mr. Barroso with capital murder. (Vol. 6, pgs. 146-147).

Other voices played for Garcia years before and on separate occasions

belonged to men that Garcia had heard before and speaking in dialects different 

from Mr. Barroso’s Puerto Rican voice

The appellate court found that because at some point three other voices were 

played for Garcia that the voice “showup” was not unduly suggestive. 

Although the former investigator on the case, Investigator Webb, had played 

other voices (each on separate occasions) long before Garcia’s exposure to Mr. 

Barroso’s Puerto Rican voice, Garcia recognized each of the non-Puerto Rican 

speakers on those recordings as men with whom she had spoken before (Carmelo 

“Rudy” Martinez Santana, Obel Cruz-Garcia, and Leonardo German) (Vol. 3, pgs. 

67-72, 92-93, Vol. 4, pgs. 199-200,Vol. 5, pgs. 186-187). Mr. Barroso’s was the first 

and only unfamiliar voice that Garcia heard with a non-Mexican Spanish accent.
9

Without a lineup for comparison, she understandably latched onto the first unknown 

voice with a different dialect as belonging to the only remaining unknown suspect. 

(Vol. 4, pgs. 196-197).

“Showup” identification corrupts reliability

Once the defendant has established that the identification procedure was 

impermissibly suggestive, the court must then weigh the following factors “against 

the corrupting effect of any suggestive identification procedure in assessing 

reliability under the totality of the circumstances": (1) the witness’s opportunity to 

view and hear the perpetrator at the time the crime is committed; (2) the witness’s 

degree of attention; (3) the accuracy of the witness’s prior description of the 

criminal; (4) the level of certainty that the witness demonstrated upon confrontation; 

and (5) the length of time between the crime and confrontation. See Biggers, 409 

U.S. at 199; Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).

Erroneous reliability finding and factors that lack a scientific basis

The undue suggestiveness of the identification procedure and the twenty-year 

gap between offense and identification dilutes any potential reliability argument 

made under the Biggersfactors.

Further, due process requires a court to consider factors rooted in science to 

determine the reliability of an identification procedure. As Justice Frost observed in 

her concurrence: “The gaps in science and law, known and unknown, tell us that the 
10

Biggerstest may be falling short as a measure of reliability for voice identification. 

Now is the time to consider what steps can be taken to improve reliability testing in 

voice-identification cases.” (Concurring opinion, p. 6).

Other supreme courts have acknowledged the progression of science since 

1977 and adapted their reliability analysis accordingly. “We recognize that scientific 

research relating to the reliability of eyewitness evidence is dynamic; the field is 

very different today than it was in 1977. . . [courts and police] must rely on reliable 

scientific evidence that is generally accepted by experts in the community.” State v. 

Henderson, 208 N.J. 208, 292, (2011); see also State v. Ramirez, 817 P.2d 774, 780 

(Utah 1991) (expanding reliability factors to consider where “several of the criteria 

listed by the [Supreme] Court are based on assumptions that are flatly contradicted 

by well-respected and essentially unchallenged empirical studies”); State v. Hunt, 

69 P.3d 571, 576-77 (Kan. 2003) (expanding Biggers factors because of the great 

weight jurors attach to eyewitness identification and the studies documenting its 

unreliability); Brodes v. State, 614 S.E.2d 766, 770 (Ga. 2005) (noting that in “the 

32 years since the decision in Neil v. Biggers, the idea that a witness's certainty in 

his or her identification of a person as a perpetrator reflected the witness's accuracy 

has been “flatly contradicted by well-respected and essentially unchallenged 

empirical studies”).

The failure of the Biggers factors as applied to Mr. Barroso’s case
11

• Witness’s opportunity to hear the criminal at the time of the crime

• Witness’s degree of attention

The appellate court found that these factors weighed toward reliability 

because Garcia said from the beginning that she could identify the voice of one man 

who “did all the talking” and described that voice. (Majority opinion, p. 37). 

According to Garcia, the tall man gave six commands, five of which were 

spoken to her boyfriend, before (1) the other man with a gun placed a pillow and 

sheet over her head and sexually assaulted her and (2) while her young son called 

out to her. (Vol. 4, pgs. 174-186, 224-225, 246). These facts demonstrate that

Garcia’s attention and concentration upon the perpetrator’s voice through his limited 

speech was divided between her son, her boyfriend, and the other gunned man in the 

room. 

Further, applying this factor to voice identification raises serious 

constitutional concerns as the Biggers factors do not account for the following:

1. The human brain processes a person’s face differently than a person’s 

voice

2. Studies show “adequate opportunity to hear” weighs in favor of 

reliability only in terms of the witness’s exposure to a voice on separate 

occasions
12

3. When an observation is made under stressful circumstances, the risk of 

misidentification increases.

Brain processing of faces v. voices

The application of the Biggersfactors to voice identification is questionable 

as the brain processes a face differently from a voice. “The fundamental differences 

between the way the human brain processes a face and the way the human brain 

processes speech may mean there are differences between the factors that indicate a 

reliable visual identification and those that indicate a reliable vocal identification.” 

Cindy E. Laub et al., Can the Courts Tell an Ear From an Eye? Legal Approaches 

to Voice Identification Evidence, 37 Law & Psychol. Rev. 119, 123 (2013).

The relevant inquiry: voice distribution over time

Studies show that the length of time or quantity of words has little impact on 

whether a witness will correctly identify an unfamiliar speaker later on. In one study, 

listeners heard a 162-word utterance from an unfamiliar speaker. Two weeks later, 

the correct identification rate was only 29%. For listeners who heard the same speech 

sample over three consecutive days, they correctly identified the voice two weeks 

later at a rate of 100%. In another study, listeners were limited to an 11-word speech 

sample which “produced chance-level guessing behavior.” See Kenneth 

Deffenbacher, Relevance of Voice Identification Research to Criteria for Evaluating 

Reliability of an Identification, J. of Psych, at 112 (1988).
13

Garcia heard six commands on one stress-induced occasion twenty years ago. 

According to the above study, her identification was a product of “chance-level 

guessing behavior.”

Observations made under extreme stress dilute significance of opportunity to 

hear or view factor

“[S]tudies have shown consistently that high degrees of stress actually impair 

the ability to remember.” See, e.g., Kenneth A. Deffenbacher et al., A Meta–Analytic 

Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav.

687, 687, 699 (2004); see also State v. Henderson, 208 N.J. 208 (2011) (relying on 

Deffenbacher study in modifying factors for court’s reliability determination for 

admissibility purposes).

• Accuracy of witness’s prior description of criminal

Justice Frost’s concurrence highlighted the scientific doubt in the validity of 

this factor to assess an identification’s reliability. (concurring opinion, p. 3 citing

Laub, supra, at 124.). As explained below, studies support this concern.

Voices change over twenty years

In Mr. Barroso’s case, change in the tone or pitch of his voice over the twentyyear period weighs against the relevance of this factor. Recognition of a previously 

heard unfamiliar voice will be less accurate if “the tone or pitch of the voice has been 

altered, if the exposure time or speech duration is short, or if there is a delay between 

original exposure and subsequent identification.” Gary Edmond, et. al., Issues with 
14

(‘Expert’) Voice Comparison Evidence, 35 Melb. U. L. Rev. 52, 88-89 (2011).

“Speech is variable across time, making it hard to identify a person on the basis of 

one speech sample.” See Jose H. Kerstholt, Earwitnesses: Effects of Accent, 

Retention, and Telephone, Appl. Cognit. Psychol. 20: 187-197, at 196 (2006). 

“Accuracy of auditory identification depends on other similarities between the initial 

encounter and when the voice is identified.” See Laub, supra, at 6 (citing Daniel 

Read & Fergus I.M. Craik, Earwitness Identification: Some Influences on Voice 

Recognition, 1 J. Experimental Psychol.: Applied 6, 15-17 (1995). 

Greater scrutiny required for identification of an unfamiliar voice with a 

foreign accent

Mr. Barroso’s case highlights another deficiency in the Biggersfactors. As 

noted in the concurrence, the factors fail to account for the consistent inability of 

witnesses to identify unfamiliar, foreign voices.

The unfamiliar voice

A recent study shows a 51% rate of incorrect voice identification when a 

person is asked to identify a voice heard once before. This rate declines to 8% after 

three weeks. See Gary Edmond, et. al., Unsound Law: Issues with (‘Expert’) Voice 

Comparison Evidence, 35 Melb. U.L. Rev. 52 at 88-89 (2011) 

The unfamiliar, foreign dialect

People “recognize native voices with greater accuracy than foreign voices.”

Jose H. Kerstholt, et al., Earwitnesses: Effects of Accent, Retention, and Telephone, 
15

Appl. Cognit. Psychol. 20, at 196 (2006). A person native to a particular country will 

recognize subtler differences in voices from the same country. Id. For example, a 

person from the United States will recognize a southern accent, and perhaps even 

hear the subtle dialectal differences between particular southern states or cities. 

However, “with no such knowledge of the more subtle differences in the voices of a 

foreign country, foreign recognition accuracy was essentially no better than random 

chance (13% overall accuracy versus 10% random chance).” Id.

In Mr. Barroso’s case, defense expert Dr. Lyons testified about the same 

concept: “[T]here are studies that do show that when a listener is hearing someone 

who speaks the same language with the same accent as the listener does, it’s easier 

for that listener to identify that person subsequently than it is to identify somebody 

who speaks with a different dialect.” (Vol. 6, pgs. 18-19).

Garcia spoke Mexican Spanish. She described the tall man as having a foreign, 

non-Mexican accent. She noticed what any person would notice immediately—an 

accent different from her own. Garcia failed to note anything beyond a foreign accent 

that would assist her in distinguishing the perpetrator’s voice from another 

unfamiliar foreign accent. The State’s effort to accentuate some distinction in 

Garcia’s description of the voice is made apparent in the prosecutor’s direct 

examination of Agent Johnson who can agree only with the statements that people 
16

“with a foreign accent [speak] different from what people in Mexico talk.” (Vol. 5, 

p. 34)

Level of certainty that the witness demonstrated upon confrontation

Upon hearing Mr. Barroso’s voice, Garcia cried and positively identified his 

voice. Although this Biggers factor lacks scientific relevance, the appellate court 

placed great weight on Garcia’s certainty of identification made 20 years later. 

Scientists have found that confidence in memory far exceeds consistency in 

memory when it comes to traumatic events. See Maria Konnikova, You Have No 

Idea What Happened NEW YORKER Feb. 4, 2015, available at

http://www.newyorker.com/science/maria-konnikova/idea-happened-memoryrecollection:

[M]emories of emotional events do indeed differ substantially 

from regular memories. When it comes to the central details of the 

event, like that the Challenger exploded, they are clearer and more 

accurate. But when it comes to the peripheral details, they are worse. 

And our confidence in them, while almost always strong, is often 

misplaced.

See Konnikova, supra (citing Joseph Dunsmoor, Vishnu Murty, Lila 

Davachi, & Elizabeth Phelps, Emotional Learning Selectively and Retroactively 

Strengthens Memories for Related Events, Nature 520, 345-348 (16 April 2015), 

available at 

http://www.nature.com/nature/journal/v520/n7547/full/nature14106.html.
17

While the memory of a traumatic event is durable, memories of the peripheral 

details (e.g. color, sound, and location) are not. Garcia will never forget the horrific 

events of that day twenty years ago, but studies show her confidence in the memory 

of the horrific event itself does not translate to her memory of the unknown 

perpetrator’s voice—a peripheral detail. “The strength of the central memory seems 

to make us confident of all the details when we should only be confident in a few.” 

See Konnikova, supra. Dr. Yonovitz testified that a traumatic memory “is not as 

impaired [by time] but the peripheral details are not stored, the peripheral details of 

the event. And certainly the nuances of the voice, a voice that can actually change 

over a 20 year period, too, is a peripheral detail, the feature of the voice.” (Vol. 7, 

pgs. 105-106).

Despite the lack of correlation between reliable identification and stated 

confidence, courts and jurors tend to place great weight on this factor as did the court 

in Mr. Barroso’s case. See Laub, supra at p. 124, 141. (“Confidence-accuracy 

correlations for unfamiliar speakers are non-significant or relatively low, and can 

even be negative. . . mean[ing] that more confident listeners are actually less accurate 

in their voice identifications.”).

Length of Time Between Offense and Identification

Nothing in the record demonstrates that a voice heard or face seen, even if 

during a traumatic experience, can withstand twenty years in one’s memory without 
18

decay or dilution. After 20 years, for Garcia, any unknown, male foreign accent 

sounding similar to the perpetrator’s would fit the bill. In Neil v. Biggers, the U.S. 

Supreme Court explained that a lapse of seven months between the crime and 

identification was in most cases a seriously negative factor. Neil v. Biggers, 409 U.S. 

188, 201 (1972). 

The ability to accurately identify a stranger’s voice heard once before declines 

from 49% to 8 % after three weeks. Gary Edmond et. al., Issues with (‘Expert’) Voice 

Comparison Evidence, 35 Melb. U. L. Rev. 52, 88-89 (2011). The defense expert 

testified about the inevitable decay of memory as it relates to witness identification. 

However, the appellate court placed great weight on expert testimony on the 

durability of witness memory to traumatic events. (Majority opinion, pgs. 32-33). 

Prayer for Relief

Mr. Barroso’s sentence of life without parole rests in large part on the voice 

identification evidence admitted in violation of his constitutional right to due process 

of law. The appellate court erred in (1) affirming the trial court’s finding that the 

pre-trial identification was suggestive – but not unduly so; (2) affirming the trial 

court’s finding that the identification was reliable; and (3) applying factors to 

determine reliability that lack scientific validity. Because this is harmful error, Mr. 

Barroso asks this court to reverse his conviction and remand for a new trial. Tex. R. 

App. P. 44.2 (West 2015). Affirmation of law enforcement conduct in direct 

violation of a defendant’s due process rights encourages police and prosecutors to 
19

continue suggestive procedures that pose a serious risk of misidentification and 

wrongful conviction.

/s/ Gerald E. Bourque/s/

GERALD E. BOURQUE

24 Waterway Avenue, Ste 660

The Woodlands, Texas 77380

(713) 862-7766

Bar Card No. 02716500

Gerald@geraldebourque.com

Attorney for Petitioner

Rogelio Aviles-Barroso

Certificate of Compliance

Counsel certifies that Appellant’s brief includes 4,112 words from the 

Statement of Facts through the Prayer. Tex. R. App. Proc. 9.4(i)

/s/ Gerald E. Bourque/s/

GERALD E. BOURQUE

24 Waterway Avenue, Ste 660

The Woodlands, Texas 77380

(713) 862-7766

Bar Card No. 02716500

Gerald@geraldebourque.com

Attorney for Petitioner

Rogelio Aviles-Barroso
20

Certificate of Service

Counsel certifies that Appellant’s brief was emailed to the Appellate Division 

of the Harris County District Attorney’s Office on the 28th day of October, 2015.

/s/Gerald E. Bourque/s/

GERALD E. BOURQUE

24 Waterway Avenue, Ste 660

The Woodlands, Texas 77380

(713) 862-7766

Bar Card No. 02716500

Gerald@geraldebourque.com

Attorney for Petitioner

Rogelio Aviles-Barroso
 PD-1258-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________

ROGELIO AVILES-BARROSO,

Petitioner

v.

STATE OF TEXAS

_______________________________

APPENDIX
Affirmed as Modified and Majority and Concurring Opinions filed August 27, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00142-CR

ROGELIO AVILES-BARROSO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1364839

M A J O R I T Y O P I N I O N

A jury convicted appellant Rogelio Aviles-Barroso of capital murder1and the trial 

court assessed his punishment at life imprisonment. Appellant contends on appeal that 

(1) the trial court reversibly erred by allowing witness testimony about a “pre-trial voice 

identification” and allowing an “in-trial identification” because the pre-trial voice 

identification was unduly suggestive and led to a substantial likelihood of 

misidentification; (2) his conviction is not supported by legally sufficient evidence 

because the identification testimony was inadmissible and the accomplice witness 

 

1

See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).
2

testimony was not sufficiently corroborated; and (3) his bill of costs should be modified 

to delete several assessed costs because they constitute “a penalty as applied to” 

appellant and were not “orally pronounced as part of his sentence.” We affirm the trial 

court’s judgment as modified.

BACKGROUND

A. Overview

Diana Garcia, her six-year old son Angelo Garcia, and her boyfriend Jose Arturo 

Rodriguez lived in a small two-bedroom apartment in Houston, Texas in 1992. Diana 

and Arturo had been selling drugs out of their apartment. Obel Cruz-Garcia was their 

drug supplier. Cruz-Garcia and his wife’s cousin, Carmelo Martinez Santana, regularly 

came to Diana’s and Arturo’s apartment to deliver drugs until Cruz-Garcia and Arturo 

“got into a little misunderstanding” sometime in 1992; afterwards, Diana and Arturo 

decided to stop selling drugs.

On the evening of September 30, 1992, Diana and Arturo were awakened by a 

loud noise coming from their living room. Their front door had been kicked in. Arturo 

got out of bed, walked toward the front door, and was met by a tall, husky, masked man 

holding a gun. The man ordered Arturo to go back into the bedroom, kneel down, and 

put his face on the bed; he tied up Arturo with a cord and started beating Arturo. The 

man also ordered Diana to lay face-down on the bed. 

A second masked man then entered the bedroom holding a gun. Diana was 

covered with a sheet and sexually assaulted by the second man who had entered the 

bedroom. The second man never spoke a word. Only the first man spoke to Diana and 

Arturo in English and Spanish; according to Diana, the first man “did all the talking.” 

While Diana was being sexually assaulted, she could hear Angelo crying and Arturo 

being beaten. After the sexual assault, the men ransacked the bedroom and left. Diana 

managed to untie herself and Arturo. She realized that Angelo had been kidnapped and 
3

contacted the police.

Police believed the crimes were drug-related and the perpetrators kidnapped 

Angelo to use him as a “bargaining chip.” The FBI suspected that Cruz-Garcia was the 

second man who had sexually assaulted Diana; he had not entered the apartment until 

Diana’s and Arturo’s eyes were covered because Diana and Arturo would have been 

able to recognize Cruz-Garcia, “his voice, his stature.” Very early on in the 

investigation, law enforcement learned that Cruz-Garcia fled Houston for Puerto Rico or 

the Dominican Republic. Police interviewed Cruz-Garcia’s wife, Santana, and several 

other individuals and collected DNA samples. The investigation continued.

On November, 5, 1992, “skelet[al] remains with a rock next to the body or on the 

body and clothing” were found on the bank near Goose Creek in Baytown. Dental 

records confirmed that the remains were Angelo’s. However, many years passed and 

the crimes committed on September 30, 1992, went unresolved.

The Houston Police Department created a cold case squad within the homicide 

division to work on unsolved crimes in November 2004. Sergeant Mehl joined the 

squad and started working on solving Angelo’s murder. In May 2008, Sergeant Mehl

found Cruz-Garcia, whom he knew had been a primary suspect in the case, in custody in 

Puerto Rico and obtained a DNA sample from him. Cruz-Garcia’s DNA profile

matched the DNA profile developed from Diana’s rape kit. Later, Cruz-Garcia was 

charged with the capital murder of Angelo.

Police continued investigating to find the man who had first entered Diana and 

Arturo’s apartment and beaten Arturo. During the investigation, police played voice 

recordings for Diana of Cruz-Garcia, Santana, and an individual named Leonardo 

German because Diana told the police in 1992 that she could identify the first man by 

his voice. After hearing the three individuals’ voice recordings, Diana did not identify 

any of them as the first man. 
4

Law enforcement decided to interview Santana again to see if he could help 

identify the first man who was involved in Angelo’s abduction. Santana was located in 

a prison in Pennsylvania where he was serving a sentence for a drug-related offense. 

During his interview with two FBI agents, Santana at first denied knowing anything 

about Angelo’s kidnapping and murder but then acknowledged being with Cruz-Garcia 

and appellant the night Angelo was killed in 1992. Santana revealed he had gone with 

Cruz-Garcia and appellant to Diana’s and Arturo’s apartment. He described in detail

his, Cruz-Garcia’s, and appellant’s involvement in the kidnapping and murder of

Angelo.

After learning of appellant’s involvement in the crimes, law enforcement worked 

on locating appellant. It took Investigator Kerry Gillie several months to find appellant; 

it seemed appellant “moved around a lot.” Investigator Gillie went to appellant’s house

in Georgia and introduced himself as a police officer from the Harris County District 

Attorney’s Office in Houston. Appellant agreed to be interviewed by Investigator 

Gillie. After the interview, appellant called his wife on his cell phone. Appellant’s 

interview and phone call both were recorded. Following the interview and phone call, 

Investigator Gillie arrested appellant and charged him with capital murder on October 

16, 2012. 

While appellant was in custody in Houston, Diana called assistant district 

attorney Natalie Tise to stop by for a visit. Diana would visit with Tise and Investigator 

Gillie regularly to discuss “what was going on with the case;” on this occasion, they 

discussed travel plans for Cruz-Garcia’s trial, which had been reset. During Diana’s 

visit, Investigator Gillie asked Diana to listen to a voice recording to “see if she 

recognized the voice as being a person that was involved that night that Angelo Garcia,

Jr. was taken, if she recalled that voice.” Investigator Gillie then played the recording 

of appellant’s phone call to his wife. Diana immediately recognized appellant’s voice 
5

as the voice of the man who first entered her apartment in 1992.

B. Hearing on Motion to Suppress

Appellant’s trial for capital murder was held from January 27, 2014 to February 

4, 2014. After voir dire, the trial court held a hearing outside the jury’s presence on 

appellant’s motion to suppress the identification of appellant’s voice “based on an 

improper and suggestive audio review.” 

At the hearing, the trial court heard testimony from several experts who opined on 

identification procedures; voice identification and memory decay; and how memories of 

traumatic events are stored in the human brain. The trial court also heard testimony 

from Investigator Gillie, who described how the voice identification of appellant

occurred; he also described how Diana immediately and positively identified appellant’s 

voice as being the voice of the first man. Officer U.P. Hernandez, who had been 

involved in the investigation of the case since October 1, 1992, and had interviewed 

Diana at the time, testified that Diana described the first man’s appearance. He 

described Diana’s statements that the man spoke with a foreign Spanish accent and that 

she could recognize the man’s voice. Investigator Micah Webb, who also had been 

involved in the investigation, testified that Diana had listened to voice recordings of 

Cruz-Garcia, Santana, and Leonardo German during the investigation but did not 

identify any of the voices as being the voice of the first man.

Appellant argued at the hearing that Diana’s voice identification was inadmissible 

for two reasons. First, he contended the “method used in this case was improperly 

suggestive” because (1) Diana did not state that she could recognize the first man’s 

voice until later in the investigation; (2) appellant is “20 years older, his voice has 

changed,” and Diana did not point to anything specific in his voice except to say the 

man spoke in a different Spanish dialect; (3) the State did not present Diana with a voice 

line-up of two or three individuals from Puerto Rico speaking with the same dialect as 
6

appellant; and (4) the other three voice recordings played for Diana were of men she had 

known, and they were not played the same day as appellant’s voice recording. Second,

he contended that a 20-year gap between Diana first hearing appellant’s voice and her 

identification of appellant’s voice was too long for an identification to be accurate.

The trial court denied appellant’s motion to suppress and stated:

And the Court is prepared to make a ruling on the record regarding 

the defendant’s motion to suppress the in-court identification of the 

defendant, having heard testimony concerning this motion . . . . And this 

morning I do want to make the following findings on the record.

I do find that according to the testimony of the two investigators, 

Investigator Gillie and also Investigator -- let me make sure I’ve got that 

name -- U.P. Hernandez. According to Investigators Kerry Gillie and U.P. 

Hernandez, who had an opportunity to review the offense reports and who 

did investigation throughout the investigation on this case, testified that 

Diana Garcia was a witness to the original offense of alleged capital

murder in this case, and that she did have an adequate opportunity to listen 

to the assailant at the time of the offense, that according to Officers Gillie 

and U.P. Hernandez, that Diana had been blindfolded, her home broken 

into, her son was kidnapped, and she was allegedly sexually assaulted 

during the time she heard one assailant speak to at least one other assailant

present and did not ever see this individual -- this individual’s face.

I also make the finding that according to the detectives, Diana 

Garcia, the witness, said she could identify the assailant’s voice at an 

interview close in time to the alleged offense and that she had paid enough 

attention to describe the assailant’s voice, the dialect, or a language 

peculiarity at an interview that was made close in time to the alleged 

commission of the offense.

I do make a finding that Diana Garcia’s reaction, described by 

Investigator Gillie, to the voice showup or the voice exemplar that was 

played to her, the voice being that of the defendant, Rogelio AvilesBarroso, was described by Officer -- excuse me -- Investigator Gillie as 

being very emotional at the time she heard the voice of the assailant, that 

she cried, and her I.D. was positive that that voice was the voice of her 

assailant. I do make a finding that that exemplar was played to her some 

20-plus years after the offense allegedly occurred.
7

I do make a finding that Investigator Gillie never suggested to Diana 

Garcia, the witness, whose voice that was or suggest that that voice was 

that of her assailant, and that the pretrial identification procedure was not 

impermissibly suggestive on its face, that other voice samples had been 

played for Diana Garcia previously and she was not able to identify those

other exemplars as being that of her assailant.

I do make a finding that since it was such an extended time between 

the crime and the playing of the voice exemplar to Diana Garcia that that is 

a concern to the Court and that it could be unreliable. However, that’s 

diminished due to the testimony of the expert that was put on by the State, 

explaining that, giving a reasonable explanation, and that the totality of the 

circumstances reveals that there was no substantial likelihood of 

misidentification and that the pretrial procedure was not impermissibly 

suggestive.

So, I am going to let it go to the jury. The defendant’s motion to 

suppress the in-court identification of the defendant, the voice

identification, is denied. So, we’ll let that go to the jury. 

I also will allow the jury to hear all three experts that testified in this 

hearing regarding the different aspects of voice identification and their

expertise, this being a very unique identification. And the different aspects 

that they address will each be able to be thoroughly presented before the 

jury.

Trial resumed after the trial court’s ruling on appellant’s motion to suppress.

C. Trial Testimony

Diana testified at trial in detail about the events that occurred on September 30, 

1992. 

Diana recalled that she and Angelo went to bed around 10:00 p.m. on September 

30, 1992, and that Arturo went to bed shortly thereafter. Just a short time after she had 

fallen asleep, Diana woke up because of a loud bang coming from the front door leading 

into the living room. Arturo got up to see what was going on. Diana then saw Arturo 

walking backwards into the bedroom because a tall, husky, masked man pointed a gun 

at Arturo and ordered him to “Go back, go back.” The man told Arturo, “Walk back, 

lay down, lay down on the side of the bed.” The man also instructed Arturo to kneel 
8

down by the bed, put a pillow in his mouth, and “open [his] hands to the back;” he tied 

Arturo with the alarm clock cord and immediately started beating Arturo. Diana asked 

the man in English and Spanish, “Why are you doing this?” The man told Diana to 

“turn face-down” and to “turn around and lie on [her] stomach, right, lie flat on the 

bed.” At that time, she saw a second masked, armed man by the apartment door but she 

could not get a good look at him. 

Diana testified that she could hear the first man’s voice in the small bedroom and 

“very much” focused on his voice. She testified that, after she laid face-down on the 

bed, a pillow and a sheet were put over her head. The second man then tied her hands 

on her back, turned her around and sexually assaulted her; “[t]he pillow and the sheet 

were still on [her] face.” The second man never said a word, and Diana never saw his 

face. During this time, Diana could hear the first man beating Arturo and her son 

Angelo crying. After the sexual assault, the men left and she managed to untie herself 

and Arturo. Diana realized that the men had kidnapped Angelo and called the police.

Diana was interviewed at the police station in the early morning on October 1, 

1992, by Officer U.P. Hernandez after her sexual assault exam at the hospital and signed 

her statement around 6:30 a.m. that morning. Diana testified that she described the first 

masked man who entered the apartment to Officer Hernandez as being a “6-foot or a 

little bit higher,” “husky, well built,” “dark complected” Hispanic man with “big, 

bulging, very white” eyes and “big, bubbly,” “purple-ish” lips. Diana told Officer 

Hernandez “from the very beginning, October 1st” that she could “recognize the voice 

of the person, the first man who did all of the talking,” and she could “remember his 

eyes and his mouth or how he looked in a mask.”

Diana testified that the first man spoke English and Spanish with a “very, very 

different accent.” His accent was “entirely different” from “an accent from a person 

from Mexico.” Diana testified that she had never seen the first man before or heard his 
9

voice. According to Diana, the first man could not have been Santana because Santana 

was skinny, shorter, and “white complected.” She also testified that she would have 

been able to recognize Cruz-Garcia’s and Santana’s voices.

The State showed Diana a photo of appellant’s face from 1992 marked as State 

exhibit 101; as instructed by the State, Diana covered up the face, except for appellant’s

lips and eyes. Diana then stated stated that she recognized “his eyes” and “his lips.” 

She testified that “those eyes and lips look like the eyes and lips of the man that was the 

first man in the room that night.” Diana also identified appellant in the courtroom as the 

person “who looks like” the man in State exhibit 101. The State offered State exhibit 

101 into evidence but the trial court did not allow its admission at that time.

Diana testified that Sergeant Mehl called her years after the sexual assault and 

Angelo’s abduction to tell her that police had located and arrested Cruz-Garcia in Puerto 

Rico. DNA evidence showed that Cruz-Garcia was the man who had sexually assaulted 

her in 1992. It took some time to bring Cruz-Garcia from Puerto Rico to Houston for 

trial. Diana testified that she and Assistant District Attorney Tise met many times to 

prepare for Cruz-Garcia’s trial, at which Diana testified in the summer of 2013. While 

preparing for Cruz-Garcia’s trial, Diana came to Tise’s office to listen to voice 

recordings of Cruz-Garcia, Santana, and German because police were still investigating 

the identity of the first man who entered Diana’s apartment in 1992.

Diana testified that she heard the three men’s voice recordings, but she did not 

identify any of the played voices as being the voice of the first man. Diana stated that 

the three recordings were not played on the same day one after another; rather, the 

different voice recordings were played for her “over a period of time.” Diana 

acknowledged knowing Cruz-Garcia and Santana but testified that she “really, really

didn’t know” German. Diana testified that she would regularly visit Tise when she 

would come to Houston and Tise would give her an update on the case. Diana 
10

remembered coming to Tise’s office one day in 2012 as Tise was preparing for CruzGarcia’s trial. Diana testified that a voice recording was played for her, and she 

identified the voice she heard on the recording as the voice of the first man who came 

into her apartment. With regard to how the voice identification occurred, Diana testified 

as follows:

[DIANA:] Normally when I come to Houston, I call you [Tise] and I tell 

you I’m in Houston. And you said: Good. If you have time, you want to 

come by? And I asked you what time. And you say: Whenever is 

convenient. I said: Fine, I will come tomorrow morning.

[THE STATE:] Okay. And on that particular occasion, you happened to 

be in town and came by my office?

[DIANA:] Yes.

[THE STATE:] And usually when that would happen, I would update you 

on the case, that kind of thing?

[DIANA:] Yes, ma’am.

[THE STATE:] On that day, did I ask you to listen to a [sic] another voice 

on a tape?

[DIANA:] It was more like we were talking about the case. You were on 

this side of the table and you played something on the computer and I heard 

his voice.

* * *

[THE STATE:] And, so, basically we were just talking and I clicked on 

the computer and played something?

[DIANA:] Yes. You clicked on the computer.

[THE STATE:] And do you remember that Investigator Gillie was also 

there?

[DIANA:] It was Officer Gillie, you, Ms. Tise, me, and my oldest sister, 

Bennie.

[THE STATE:] Okay. And before that tape was played, did anybody say 

to you: Diana, we want you to listen to this and this is a suspect in the 

case?

[DIANA:] No, nobody didn’t -- you didn’t tell me that.
11

[THE STATE:] Did you -- were you sitting there thinking, I’m fixing to 

hear the voice of a suspect in the case?

[DIANA:] I was just sitting there listening to you and asking what was 

going on with the case and it clicked and I heard it.

[THE STATE:] Okay.

[DIANA:] And I started crying and I said: That’s the voice of the man 

who came into my house, into my bedroom.

[THE STATE:] And was that the voice of the tall man?

[DIANA:] The tall, dark complected man, yes.

[THE STATE:] The one who came first.

[DIANA:] The one that came in first.

[THE STATE:] And the one that was --

[DIANA:] The only one that I saw that night.

[THE STATE:] And the only one that was doing the talking?

[DIANA:] Yes, ma’am.

[THE STATE:] When you heard the man, the little tape of the man’s 

voice, was he being interrogated or was he on the phone?

[DIANA:] I just heard his voice, but at the time I didn’t know he was 

interrogated until -- when I heard his voice, he was talking to a lady.

[THE STATE:] Was he on the phone?

[DIANA:] He was on his cell phone.

[THE STATE:] Okay. Talking on the phone. He wasn’t being questioned 

by police officers. Did you hear a police officer?

[DIANA:] I didn’t see no police officers. The man was on the phone.

[THE STATE:] Talking to a lady?

[DIANA:] To a lady on the phone.

[THE STATE:] Okay. Did anybody, prior to putting that tape on, tell you: 

We are going to play you the voice of the tall man to pick out?

[DIANA:] No.

[THE STATE:] Did anybody prepare you for -- or tell you or suggest to 

you that you needed to pick this person?

* * *
12

[DIANA:] No, nobody told me.

[THE STATE:] Why did you identify that voice?

[DIANA:] I can still identify the voice if I hear the man. It’s still in me.

The voice is still inside me just the same as when I feel somebody hug me 

from my back. I still feel my son hugging me from my back. It’s still 

inside my heart, inside my feelings. The voice is still in my head.

[THE STATE:] Will you ever forget that voice?

[DIANA:] I don’t think so.

During cross-examination, Diana stated that, when she listened to the voice recording,

she was not “listening for a suspect” but that “[i]t was an ‘oops’ when the voice came on 

the computer.” She stated: “I recognized the voice. I recognized his voice.” She 

acknowledged that, at the time of the identification, she was not played “anybody else’s 

voice that had that same dialect . . . to compare it to.” Diana testified that she was 

shown “a group of pictures of all the suspects involved in this case” in 1992. 

Appellant’s trial counsel then introduced State exhibit 101 into evidence and the trial 

court admitted the exhibit. Appellant’s trial counsel inquired whether Diana had seen 

State exhibit 101 in 1992, and she replied that she had not seen the picture in 1992.

Diana testified that the man pictured in State exhibit 101 “looks like the man that 

went into [her] bedroom.” The State published State exhibit 101 to the jury. Looking at

exhibit 101, Diana testified that the man pictured is a “dark-complected” man; his skin 

looks “very dark;” his eyes appear to be “very, very white;” and his “lips look dark 

purple.” Diana denied ever telling the police that two black men came into her 

apartment in 1992; she claimed that she “said a dark man, dark complected.”

Investigator Webb testified at trial that he was assigned to assist Tise in preparing

for Cruz-Garcia’s trial as well as identifying the other man involved in the crimes that 

occurred in 1992. In an effort to find the man who was with Cruz-Garcia in 1992, 

Investigator Webb played voice recordings of Cruz-Garcia, Santana, and German for 

Diana. Investigator Webb testified that Diana did not identify any of the voices 
13

belonging to the first man “who did all the talking that night” as the man law 

enforcement was looking for.

He testified that Cruz-Garcia and Santana were from the Dominican Republic and 

German appeared to be from St. Croix, Virgin Islands. Investigator Webb identified 

photos of Cruz-Garcia, Santana, and German admitted as State exhibits 34, 34-C, and 

34-H respectively. He also identified appellant on State exhibit 34-B. He testified that 

Cruz-Garcia and Santana were not “bulky-built” but that appellant was. Investigator 

Webb also testified that investigation revealed that appellant used the names: Roger, 

Bori, and Candido Lebron. 

The jury also heard from Investigator Gillie, who took over Investigator Webb’s 

duties assisting in the investigation of the case. Investigator Gillie testified that he 

worked on finding the other man “involved in this crime back in 1992.” After Santana 

revealed during a FBI interview that appellant was the man involved in the crimes

together with Cruz-Garcia, Investigator Gillie worked on locating appellant. 

Investigator Gillie testified that he located appellant in Georgia after several months of 

searching. He went to appellant’s house and introduced himself but appellant did not 

“appear shocked” to see him; appellant told Investigator Gillie that he knew “what this 

is about. It’s about that little boy a long time ago in Houston.” Appellant agreed to be 

interviewed by Investigator Gillie. After the interview, appellant called his wife on his 

cell phone. Appellant’s interview and phone call both were recorded. Investigator 

Gillie testified that appellant was then charged with capital murder and brought to 

Houston to stand trial.

Investigator Gillie testified that, while appellant’s case was pending, Diana called 

to visit with him and Tise. According to Investigator Gillie, Diana would call whenever 

she was in Houston “to stop by and see how the case is going and say ‘hi,’ see if she 

needed to do anything,” and he and Tise would accommodate her visit. During one visit 
14

in 2012, Investigator Gillie decided to let Diana listen to the tape recording of the phone 

call appellant had made to his wife after his interview in Georgia because it was the first 

time law enforcement had a recording of appellant’s voice. Investigator Gillie testified 

regarding how the tape recording was played for Diana and her reaction upon hearing 

the voice recording:

[THE STATE:] Before she listened to it, did you give her any information 

at all about who she was going to hear?

[GILLIE:] No, nothing like that at all.

[THE STATE:] What were you trying to be careful of?

[GILLIE:] We didn’t want to be suggestive in any way. You know, I just 

told her I wanted her to listen to the voice and see if she recognized the 

voice as being a person that was involved that night that Angelo Garcia, Jr. 

was taken, if she recalled that voice. And I told her would she listen, to 

just listen to the voice, not really the content.

[THE STATE:] Okay. Do you think she was expecting for the voice to all 

of sudden come on that moment on the computer?

[GILLIE:] No. I don’t think she was expecting it at all because of the way 

the conversation was going about the other case and we had asked her and 

then hit ‘play’ on the computer and she started -- as soon as he started

talking --

* * *

[THE STATE:] But prior to playing the tape for Diana, did you say to her:

We arrested this guy in Georgia and we want you to listen to his voice and 

see if this is the guy?

[GILLIE:] No, not at all.

[THE STATE:] You wouldn’t have ever done that, would you?

[GILLIE:] No.

[THE STATE:] Okay. You just told her: We want you to listen to 

something, didn’t tell her what it was going to be, and that you wanted to 

see if she recognized the voice?

[GILLIE:] Yes, that’s true.

[THE STATE:] So, how did it happen that the tape was played or the CD 
15

was played on the computer?

[GILLIE:] The CD was in, I just asked her to listen just a minute ago, she 

said she would. And getting it organized or getting ready to hit ‘play’ and 

hit ‘play’ and --

[THE STATE:] Do you think it took her off guard at first? Was she --

[GILLIE:] No, I don’t think she was ready. Because she wasn’t even 

looking that way at that time. She wasn’t even looking, like she was 

looking to hear something. She was -- her sister was sitting there and I was

sitting there. It wasn’t like it was something she was ready for at all.

[THE STATE:] Okay. So, when you hit ‘play,’ what happened?

[GILLIE:] It was dramatic. She broke down and just went down and 

started crying. And she said: That’s him, that’s him.

[THE STATE:] After that happened, did it take a little while for her to 

calm down?

[GILLIE:] Yes. She was shaking. And it took a pretty good while to get 

her to calm down just so that we could talk to her. Because I had -- I 

needed to ask her some more stuff, but she was really upset.

[THE STATE:] And after she identified that voice, did you clarify with her 

which individual -- where she recognized that voice from?

[GILLIE:] Yes. As soon as she calmed down, I asked her, I said: When 

you say that’s him, what do you mean that’s him? And she said: That’s 

him, the other guy that night, the tall guy that was in the room when

Angelo was taken. And she was adamant about it.

[GILLIE:] Did she tell you she was sure?

[THE STATE:] She said she was absolutely positive.

During cross-examination, Investigator Gillie testified that Arturo never made “a 

positive identification for [appellant].” He also testified that no other voice recordings 

were played for Diana besides the three previously played during the investigation. 

Investigator Gillie testified that he listened to the voices and dialect of appellant as well 

as of Cruz-Garcia, Santana, and German; there were differences in the voices “in certain 

things” and “[n]one of them sounded like Tex-Mex.”

Investigator Gillie also testified that he was careful not to play any recording of 
16

appellant’s interrogation for Diana; he played only the recording of appellant’s phone 

call to his wife. He stated that the call started with greetings between appellant and his 

wife, and Diana “almost immediately” identified the voice. Investigator Gillie further 

testified that, when Arturo heard the recording of appellant’s voice, Arturo “just 

couldn’t remember” the voice and reminded Investigator Gillie that he “was being 

assaulted when that was happening” and then proceeded to show scars on his head from 

the beating.

Several law enforcement officers who were involved in the investigation of the 

case early on testified that Diana had described the first man who entered the apartment 

as a tall, dark-skinned man speaking with a foreign accent.

 Sergeant James Devereaux, who was called to the apartment the night of 

September 30, 1992, testified that Diana had told him that night that “she got a good 

look at the first suspect, the tall masked man, but didn’t get a chance to really see the 

second person.” Diana also “described a foreign accent being spoken by that first man” 

who entered the apartment.

Sergeant C.E. Elliott, who was also called to the apartment the night of the 

crimes, testified that he only briefly spoke to Diana and that Diana described the 

suspects as dark-skinned Hispanics with a foreign accent. Sergeant Elliot understood 

that Diana was not describing “an African-American individual from the United States” 

but the suspects were “probably from South America, Cuba, Dominica [sic], Puerto 

Rico, that are not black Americans.”

FBI Special Agent Eric L. Johnson, who was involved in the investigation of 

Angelo’s kidnapping from its inception, testified that the “focus of [the] investigation 

was pretty much Hispanics [sic] males from other countries, Central America, with 

foreign accents.” Agent Johnson agreed with appellant’s trial counsel that Diana 

“state[d] very specific things about the person wearing the mask that comes in first.” In 
17

particular, Agent Johnson agreed that she stated the first person who entered her 

apartment “had purple lips, that the person had white -- their eyes were very, very white 

around the white part, it bulged out, and I can remember this person even though that 

person had a mask on.”

Sergeant Swaim testified that, on October 6, 1992, he visited the apartment CruzGarcia and his wife had lived in before Cruz-Garcia fled Houston. Sergeant Swaim 

learned that a tall Hispanic male was staying at the apartment. At the apartment, a tall 

Hispanic male answered the door and introduced himself as Candido Lebron. The man 

said he was from St. Croix and gave Sergeant Swaim a St. Croix birth certificate with 

the name Candido Lebron. When the man could not answer questions about his birth 

certificate and could not state his parents’ names listed on the birth certificate, Sergeant 

Swaim asked the man to accompany him to the police station to be interviewed by a 

Spanish-speaking officer. The man went with Sergeant Swaim to the police station; he

was interviewed and photographed there at that time. 

At trial, Investigator Swaim identified State exhibit 84 as being a photo of the 

Hispanic male whom he encountered at Cruz-Garcia’s apartment and who identified 

himself as Candido Lebron. Investigator Swaim testified that the photo was taken on 

October 6, 1992, six days after Angelo was abducted. He identified appellant in court 

as “an older version of the individual that [he] interviewed on that day.”

FBI Special Agent Michael Hochrein testified that he and another agent visited 

Santana in a Pennsylvania prison in May 2011 to conduct an interview and determine if 

Santana knew anything about Angelo’s abduction. At first, Santana denied knowing

about Angelo’s kidnapping and murder but then he admitted being with Cruz-Garcia 

and appellant the night Angelo was taken from his home and killed in 1992. Agent 

Hochrein testified that Santana revealed he had gone with Cruz-Garcia and appellant to 

Diana and Arturo’s apartment. Santana described in detail how he, Cruz-Garcia, and 
18

appellant were involved in the kidnapping and murder of Angelo that night.

The jury also heard Santana’s testimony at trial. Santana testified that he was 

born in the Dominican Republic but left the country to go to Puerto Rico when he was 

about 18 years old because it is easier to immigrate to the United States from there. He 

testified that he and Cruz-Garcia came to the United States to sell drugs. At first, the 

two were partners but then Cruz-Garcia took control of the business; he also had a lot of 

control over Santana. 

According to Santana, he became friends with appellant in early 1992. He knew 

appellant as Rogelio or Bory. Santana explained that “Bory” means “from Puerto Rico” 

and Santana believed appellant to be from Puerto Rico. Santana identified appellant in 

court as the man he knew as Bory or Rogelio but stated that appellant was “big and tall 

and much more muscular” back in 1992. Santana also identified appellant in a 

photograph admitted as State exhibit 34-B and agreed that “that is the way Bory or 

Roger looked back in 1992.” Santana testified that appellant was “certainly bigger and 

taller” than he and Cruz-Garcia were.

Cruz-Garcia also became friends with appellant, and the three men “started going 

everywhere” together. Santana testified that he, Cruz-Garcia, and appellant drove to 

Diana’s and Arturo’s apartment on September 30, 1992, because Cruz-Garcia wanted to 

“look for his drugs and his money.” Cruz-Garcia parked his car in “the back dark part 

of the apartments, a small street that was behind the apartments with not much traffic.” 

Cruz-Garcia instructed Santana to wait in the car while he and appellant went to Diana’s 

and Arturo’s apartment, which was not visible from where Cruz-Garcia had parked his 

car. Cruz-Garcia was armed with a pistol and appellant carried a pocket knife when 

they went to the apartment; both men wore masks.

Santana sat in the car and waited while appellant and Cruz-Garcia were in Diana 

and Arturo’s apartment for about 20 to 30 minutes. When Cruz-Garcia returned to the 
19

car, Santana saw him carrying Diana’s son Angelo in his arms. Santana asked him why 

he brought Angelo with him. He responded that Angelo saw his face and recognized 

him; he then handed Santana the child. Cruz-Garcia also told Santana that he had 

sexually assaulted Angelo’s mother. Appellant came back to the car, and Cruz-Garcia 

drove Santana, appellant, and Angelo to a wooded area in Baytown.

Cruz-Garcia stopped the car and told appellant: “Bory, you already know what 

you have to do.” Santana saw appellant take Angelo out of the car; Santana walked 

away from the car feeling ill. Cruz-Garcia stayed at the front of the car holding his 

pistol. Appellant took Angelo to the back of the car; Santana could not see appellant 

and Angelo but he heard Angelo moan. Santana walked to the back of the car and saw 

Angelo laying face-up on the ground “full of blood.” Cruz-Garcia ordered Santana and 

appellant to put the child’s body in the car, and they complied. Cruz-Garcia then drove 

back toward the city. On the way, Cruz-Garcia stopped by a river and ordered appellant 

and Santana to throw Angelo’s body in the water. Cruz-Garcia also ordered appellant 

and Santana to sink Angelo’s body in the water, so they looked for rocks and placed 

them on Angelo’s body until it sank. 

As they continued driving toward Houston, Cruz-Garcia handed Santana the 

“knife that was used to kill the little boy” and told Santana to “dump it out to the 

freeway.” Thereafter, two of the car’s tires blew up. The three men managed to get to a 

hotel in Pasadena where Cruz-Garcia called Bienviendo Melo because Cruz-Garcia kept 

a second car at Melo’s home. After picking up Cruz-Garcia’s car from Melo’s home, 

appellant stayed at a hotel and Cruz-Garcia and Santana drove to Cruz-Garcia’s 

apartment. The next day, Cruz-Garcia and Santana asked a friend to repair the car with 

the blown-out tires; they then washed the car and sold it. Santana testified that CruzGarcia sold the car for cash and bought a ticket to leave the country. Santana drove 

Cruz-Garcia to the airport, and he left the country. Santana never told police about 
20

Angelo’s kidnapping and murder until 2011 when two FBI agents interviewed him in a 

Pennsylvania prison.

Linda Hernandez, who was Melo’s girlfriend at the time of the murder, testified at 

trial that Cruz-Garcia called her home at about 1:30 a.m. on October 1, 1992, to speak to 

Melo. Hernandez testified that Cruz-Garcia asked Melo to pick him up in the car CruzGarcia had lent Melo but Melo refused and told Cruz-Garcia to pick up the car himself. 

According to Hernandez, Cruz-Garcia and Santana arrived at her home around 2:30 a.m. 

by taxi. Santana appeared very nervous but Cruz-Garcia was calm. The two men drove 

off in the car. Hernandez testified that Santana returned the car to Melo a few days 

later; the car was dirty “[l]ike it’s been to the beach.”

The jury also heard testimony from three experts, Dr. David Lisak, Prof. Phillip 

Lyons, and Dr. Al Yonovitz, who opined regarding identification procedures, voice 

identification and memory decay, and how memories of traumatic events are stored.

After deliberation, the jury found appellant guilty of the capital murder of 

Angelo, and the trial court assessed appellant’s punishment at life imprisonment. 

Appellant timely filed an appeal.

ANALYSIS

I. Identification

In his first issue, appellant argues that the “trial court reversibly erred by allowing 

(1) testimony about [Diana]’s pre-trial voice identification of” appellant because Diana

identified appellant’s voice “under suggestive circumstances that unquestionably 

encouraged [Diana] to identify the voice she heard as that of the only remaining 

unknown suspect from a twenty-year-old offense;” and (2) Diana’s “in-trial 

identification of [appellant] in photograph and in person” because Diana identified 

appellant at trial “for the first time only after knowing that the voice she identified under 
21

unduly suggestive circumstances belonged to” appellant, and “this identification is 

inseparable from the unduly suggestive pre-trial voice identification.”

A. Pre-Trial Identification

We begin by addressing appellant’s contention that the trial court should not have

admitted any testimony regarding Diana’s pre-trial voice identification of appellant

because Diana identified appellant’s voice “under suggestive circumstances that 

unquestionably encouraged” her to identify the voice she was played while visiting with 

Tise and Investigator Gillie as the voice of the first man who came into her apartment 

on September 30, 1992. Appellant correctly contends that he preserved his argument 

for appeal. Based on the arguments presented at the hearing on appellant’s motion to 

suppress, the trial court was asked to suppress Diana’s pre-trial and in-court 

identification of appellant’s voice; and the trial court denied appellant’s motion to 

suppress. See Livingston v. State, 739 S.W.2d 311, 334 (Tex. Crim. App. 1987) (“It is 

settled that when a pre-trial motion to suppress evidence is overruled, the accused need 

not subsequently object to the admission of the same evidence at trial in order to 

preserve error.”).

We thus consider whether the trial court should have suppressed testimony 

regarding Diana’s pre-trial identification of appellant’s voice because it resulted from an 

unduly suggestive identification procedure.

We review a trial court’s ruling on a motion to suppress evidence for abuse of 

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Mendoza v. 

State, 443 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We afford 

almost total deference to a trial court’s determination of historical facts. Valtierra v. 

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is the sole trier of 

fact and judge of the credibility of the witnesses and the weight to be given their 

testimony. Id.; Adams v. State, 397 S.W.3d 760, 763 (Tex. App.—Houston [14th Dist.] 
22

2013, no pet.). The trial court is entitled to believe or disbelieve all or part of a 

witness’s testimony, even if that testimony is uncontroverted, because it has the 

opportunity to observe the witness’s demeanor and appearance. Valtierra, 310 S.W.3d 

at 447.

If the trial court makes express findings of fact, we view the evidence in the light 

most favorable to its ruling and determine whether the evidence supports these factual 

findings. Id.; State v. Smith, 335 S.W.3d 706, 714 (Tex. App.—Houston [14th Dist.] 

2011, pet. ref’d).

We review a trial court’s application of the law to the facts de novo. Mendoza, 

443 S.W.3d at 362; Adams, 397 S.W.3d at 763; see Valtierra, 310 S.W.3d at 447. We 

will sustain the trial court’s ruling if that ruling is reasonably supported by the record 

and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-

48; Mendoza, 443 S.W.3d at 362; Adams, 397 S.W.3d at 763.

“[A] pretrial identification procedure may be so suggestive and conducive to 

mistaken identification that subsequent use of that identification at trial would deny the 

accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 

2001). To determine the admissibility of a pretrial identification, we use a two-step 

analysis asking (1) whether the pretrial procedure was impermissibly suggestive; and (2) 

if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood 

of irreparable misidentification. Santos v. State, 116 S.W.3d 447, 455 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d); see also Neil v. Biggers, 409 U.S. 188, 198 

(1972). An analysis under these steps requires an examination of the totality of the 

circumstances surrounding the particular case and a determination of the reliability of 

the identification. Conner, 67 S.W.3d at 200; Barley v. State, 906 S.W.2d 27, 33 (Tex. 

Crim. App. 1995). A defendant must prove the pre-trial identification is unreliable by 

proving both elements by clear and convincing evidence. See Santos, 116 S.W.3d at 
23

451.

If the indicia of reliability outweigh the influence of an impermissibly suggestive 

pretrial identification, then the identification testimony is admissible. Santos, 116 

S.W.3d at 451, 455-56; see Neil, 409 U.S. at 199. Therefore, even if the pretrial 

procedure is found to be impermissibly suggestive, identification testimony nevertheless 

is admissible if the totality of the circumstances shows no substantial likelihood of 

irreparable misidentification. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 

1999); Adams, 397 S.W.3d at 764. If the totality of the circumstances indicates that a 

substantial likelihood of misidentification exists, then admission of the identification of 

the defendant amounts to a denial of due process. See Neil, 409 U.S. at 198-99; Adams, 

397 S.W.3d at 764.

The analysis of an identification of a voice differs somewhat from that of an 

identification by sight, but the standards used to validate a visual identification are 

equally applicable. See Davis v. State, 180 S.W.3d 277, 283 (Tex. App.—Texarkana 

2005, no pet.) (analyzing admissibility of voice identification); see also Williams v. 

State, 116 S.W.3d 788, 792 (Tex. Crim. App. 2003) (“‘while one’s voice and 

handwriting are, of course, means of communication,’ a voice or handwriting exemplar 

‘is an identifying physical characteristic’”) (quoting United States v. Dionisio, 410 U.S. 

1, 6-7 (1973)). Because the sole purpose of the use of the tape recording of appellant’s 

voice was the same as the use of a photo of appellant would have been had Diana been 

asked to attempt an identification from appearance, we will apply the same types of 

strictures as are used in the more typical situation involving visual identification. See

Davis, 180 S.W.3d at 282.

We first will determine whether the pretrial voice identification procedure in this 

case was impermissibly suggestive. Suggestiveness may arise from the manner in 

which a pretrial identification procedure was conducted. Barley, 906 S.W.2d at 33. For 
24

example, a police officer may point out the suspect or suggest that a suspect is included 

in the line-up or photo spread. Id. An identification may be suggestive based on a 

single procedure or the cumulative effect of multiple procedures. Id. 

Even if a pretrial identification procedure may have been suggestive, a defendant 

must establish by clear and convincing evidence that the procedure was impermissibly 

suggestive. See Santos, 116 S.W.3d at 451, 455-56. To be impermissibly suggestive, 

“the identification procedure utilized must in some way be so defective as to indicate or 

suggest the [individual whom] the witness is to identify.” See Ward v. State, 474 

S.W.2d 471, 475 (Tex. Crim. App. 1972). “Suggestiveness must be determined by the 

circumstances of each case.” Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 

1987) (holding that showing a witness several photo spreads containing the same photo 

of defendant on different occasions was impermissibly suggestive).

At the suppression hearing, Investigator Webb testified that he played recordings 

of Cruz-Garcia’s, Santana’s, and German’s voices for Diana at Tise’s office after CruzGarcia had been charged with capital murder. At the time, law enforcement knew that 

Cruz-Garcia was the man who had sexually assaulted Diana and were looking for the 

other, yet unidentified, man “who did all the talking.” Investigator Webb testified that 

he and Tise decided to play the three men’s voice recordings for Diana to determine 

whether one of the three men “might be our unidentified person.” Diana knew some of 

the men whose voices Investigator Webb had played; and evidence showed that Diana 

knew Cruz-Garcia “for a period of time.” According to Investigator Webb, Diana did 

not identify any of the three voices he played for her as being the voice of the “man who 

did all the talking.”

Investigator Gillie also testified at the suppression hearing, describing how the 

voice identification of appellant occurred and that Diana immediately and positively 

identified appellant’s voice as being the voice of the first, “tall man that came into her 
25

room that night” and who “was doing all the talking.” Investigator Gillie testified that 

Diana came to Tise’s office to talk about Cruz-Garcia’s trial reset and discuss travel; 

Diana’s visit was not “planned and she did not come down in order to hear a voice and 

I.D. it” nor was Diana “told that that was going to happen.” According to Investigator 

Gillie, he and Tise decided during their visit with Diana to play a portion of appellant’s 

recorded phone call to appellant’s wife for Diana. Investigator Gillie testified regarding 

the instructions he gave Diana before playing the taped phone call for her and her 

immediate reaction upon hearing the recording as follows:

[THE STATE:] Prior to playing the statement, did you give [Diana] some 

instructions?

[GILLIE:] Yes.

[THE STATE:] And what were those?

[GILLIE:] To listen to the voice on the tape and not the contents and try 

and see if she recognized the sound of the voice and how it sounded and 

see if she recalled that.

[THE STATE:] And did you tell her that the voice may or may not have 

anything to do with the crime that she w[a]s the victim of all of those years 

ago?

[GILLIE:] Several times.

[THE STATE:] And did you explain to her she was under no obligation to 

pick anyone?

[GILLIE:] Absolutely.

[THE STATE:] Just if she recognized someone to let us know?

[GILLIE:] That, and if she didn’t recognize someone to let us know.

[THE STATE:] And if she recognized someone from the events that 

happened all those years ago?

[GILLIE:] Yes.

[THE STATE:] Okay. And then you played the audio of . . . the phone 

call, correct?

[GILLIE:] Yes, ma’am.

[THE STATE:] And you said that she reacted. How strong a reaction was 
26

it?

[GILLIE:] It was hard for her. She was noticeably heartbroken. You 

know, it looked like there for a minute she almost stopped breathing.

[THE STATE:] It was very emotional?

[GILLIE:] It was very emotional. I mean . . .

[THE STATE:] She started crying?

[GILLIE:] Yes.

[THE STATE:] And she immediately said that was the voice of the tall 

man that came into her room that night?

[GILLIE:] Yes.

[THE STATE:] And did she express to you how certain she was?

[GILLIE:] She said she was absolutely positive he was the one that was 

doing all the talking.

[THE STATE:] When he came in the room?

[GILLIE:] He was the one that did all the talking.

[THE STATE:] And is your understanding of the offense that -- from 

reviewing the report of the offense that one of the individuals that came 

into her room that night did all the talking and the other was silent?

[GILLIE:] Yes.

Investigator Gillie also testified that, although recordings of Cruz-Garcia’s, Santana’s, 

and German’s voices were played for Diana during the investigation in the same way 

appellant’s voice recording was played for her, Diana did not identify any of the three 

men’s voices as belonging to the first man who entered her apartment and “who did all 

the talking.” 

Appellant presented testimony from criminal justice professor Dr. Phillip Lyons. 

Dr. Lyons testified as an “expert on identification procedures, and specifically 

photographic lineups and eyewitness identification.” Dr. Lyons testified that he has

been “involved in assisting law enforcement agencies identify appropriate identification

procedures.” He has worked with the Law Enforcement Management Institute of Texas
27

on developing a proposed model identification policy that law enforcement could 

employ, but the legislature did not adopt the policy. The model identification policy 

strongly discourages showups and “recommend[s] photographic arrays as preferential to 

live lineups.” To minimize suggestibility, the model policy proposes that an 

independent officer should present sequential photos to a witness for identification 

instead of a photo array.

Dr. Lyons testified that he has not been “involved with voice recognition 

identification of any means” and that everything he learned about voice identification 

was based on his study of a few published articles and studies on voice recognition. He 

opined that concerns of suggestibility are equally present in eyewitness and voice 

identifications. He agreed that “just like trying your best to get to sequential [photo]

identification with an unbiased officer, the same thing would be apparently applicable to 

voice recognition.” Dr. Lyons also agreed that “when a person has been given an 

opportunity to hear multiple voices that would be a less suggestive technique;” it would 

be the “encouraged” approach which “would be less likely to lead to misidentification.”

Dr. Lyons was asked by appellant if “the time between the exposure to the voices 

[has] any effect? For example, if you came in and you were asked to hear three or four 

or five voices on one day right after each other, versus one day you hear one voice, three 

or four days later you hear another voice, would that change the factors regarding 

suggestibility, that method?” Dr. Lyons responded he was “not aware of any studies 

that have compared those two different approaches.” He stated: “What you just 

described to me doesn’t really sound like a lineup, though. It sounds like a number of 

sequential individual presentations.”

In denying appellant’s motion to suppress, the trial court rejected appellant’s 

argument that the pre-trial identification procedure was impermissibly suggestive 

because (1) Investigator Gillie never suggested to Diana that the voice played was that 
28

of her assailant; (2) other voice samples had been previously played for Diana; and (3) 

Diana did not identify any of the previously played voices as being the voice of her 

assailant. 

Appellant argues that the “use of a single voice for identification played twenty 

years after the offense suggested to [Diana] that the voice belonged to the only 

remaining unknown suspect in case.” Appellant argues that playing a single voice is as 

suggestive as showing a single photo because there is no ability to compare the played 

voice with other similar voices. According to appellant, neither Tise nor Investigator 

Gillie “successfully diminished the suggestive context in which [Diana] heard only 

[appellant]’s voice as a suspect for identification purposes twenty years after the 

offense” because they did not play a voice lineup for Diana. Appellant also argues that, 

although Diana was played voice recordings of Cruz-Garcia, Santana, and German 

before being played appellant’s voice, Diana knew the three men, and appellant’s voice 

was the only unfamiliar voice that was played for Diana.

Contrary to appellant’s assertion, the evidence presented at the suppression 

hearing does not show that Diana “personally knew” all three men whose voices she did 

not identify as being the voice of the “man who did all the talking.” The evidence 

presented at the hearing shows that Diana knew Cruz-Garcia “for a period of time.” 

The evidence does not support appellant’s contention that his voice was the only 

“unfamiliar voice” played for Diana.

Appellant cites Davis v. State as authority that playing a witness a single voice 

recording constitutes an impermissibly suggestive identification procedure. See Davis, 

180 S.W.3d at 281-83. Davis is distinguishable. In Davis, the police played only one 

voice recording for the complainant during the entire investigation. Id. at 281. Here, 

Diana was played voice recordings of three different men during the investigation, albeit 

not on the same day as she was played the recording of appellant’s voice.
29

Further, no one suggested to Diana that appellant’s voice recording was that of a

suspect; nor was she told or encouraged to identify or “pick anyone” after listening to 

appellant’s voice recording. Contrary to appellant’s assertion, the evidence does not 

establish that Diana “was expecting to hear the voice of the tall man.” Instead, evidence 

establishes that Diana did not expect to hear any voice recording during her visit with 

Tise and Investigator Gillie; Diana was at Tise’s office to discuss the fact that CruzGarcia’s trial had been reset, “discuss travel,” and get an update on Cruz-Garcia’s case 

in general. 

Playing appellant’s voice recording for Diana would no more have suggested that 

the “voice belonged to the only remaining unknown suspect in the case” than when she 

was played recordings of Cruz-Garcia’s, Santana’s, and German’s voices. Appellant’s 

argument that, “[w]ithout a [voice] lineup for comparison, [Diana] understandably 

latched onto this voice as belonging to the only remaining unknown suspect,” is not 

persuasive. This is so because Diana knew Cruz-Garcia had been charged with capital 

murder, and that law enforcement was trying to find the “only remaining unknown 

suspect” when she heard recordings of Cruz-Garcia’s, Santana’s, and German’s voices;

yet, Diana did not identify any of the three voices as being the voice of the man “who 

did all the talking.”

Based on the record before us and considering the totality of the circumstances, 

we conclude that the pre-trial identification procedure was suggestive but not 

impermissibly so. Even if appellant had proven by clear and convincing evidence that 

the pre-trial voice identification procedure used by law enforcement was unduly 

suggestive, we cannot conclude that it gave rise to a substantial likelihood of irreparable 

misidentification so as to make the identification testimony inadmissible.

In determining whether an impermissibly suggestive identification procedure 

gave rise to a substantial likelihood of irreparable misidentification, we weigh the 
30

following factors: (1) the witness’s opportunity to hear 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’s voice; (4) the level of certainty demonstrated by the 

witness at the confrontation; and (5) the length of time between the crime and the 

confrontation. See Neil, 409 U.S. at 199; Santos, 116 S.W.3d at 453, 455-56. Because

these factors are issues of historical fact, we weigh them deferentially in a light 

favorable to the trial court’s ruling. See Ibarra, 11 S.W.3d at 195-96; Adams, 397 

S.W.3d at 764. We then weigh the factors, viewed in this light, de novo against the 

“corrupting effect” of the suggestive pretrial identification procedure. See Ibarra, 11 

S.W.3d at 195-96; Adams, 397 S.W.3d at 764.

At the suppression hearing, the trial court heard testimony from several experts 

and police investigators relevant to the reliability of Diana’s pre-trial identification of 

appellant’s voice. Appellant asked his expert on eyewitness identification procedures, 

Dr. Lyons, to opine on a person’s ability to “recognize voices over a period of time 

where there has been any time lapse.” Dr. Lyons stated that “there is a decay effect.

And as more time goes by, people do accurately identify at lower rates than if the 

attempted identification is sooner after the -- sooner after the voice is heard.” 

Appellant’s counsel asked: “Where a person is speaking Spanish, but a person comes 

from a different location, is there any difficulty in recognizing the voices where the 

accent is different?” Dr. Lyons answered that he was “not aware of any studies that

have been done that have looked at regional accent or dialects, only at different 

languages.” 

On cross-examination, Dr. Lyons stated that he has no direct experience in the 

area of voice identification, and what he has learned about voice identifications was the 

“result of doing research and studying scholarly articles in preparation for [his]

testimony.” Dr. Lyons also stated that, at most, three articles were relevant to this case 
31

and the issue of the effect of a time lapse on a voice identification. None of the articles 

was based on studies that “involved a situation where an individual actually went 

through a real-life traumatic event, something that would stick with you for a long time, 

and test their memory as to that voice and their ability to I.D. it after a long period of 

time.”

Dr. Lyons stated that in the past 20 years there has been a “tremendous amount of 

research” conducted in the area of “trauma and the impact it has on attention and 

processing and encoding” as well as how the brain stores memories of traumatic events.

Dr. Lyons testified that research has shown that memories of traumatic events “can be 

extremely durable over time.” He testified that he was “familiar with the line of 

research that talks about how during a traumatic event sometimes sensory memories, 

like the things that you hear, the things that you feel, are the things that are most likely 

to revisit you over a period of years as you relive that trauma.” He admitted that it is a 

different scenario to ask someone to remember a voice after hearing “something that’s 

meaningless to them, doesn’t have a big impact on their life” versus “the memory of a 

traumatic event that you might relive over and over in your mind for years.”

Further, Dr. Lyons agreed that “if a person hears someone who speaks Spanish 

and English and they understand both Spanish and English but there is a dialect that’s a 

little different, there are no studies talking about the accuracy of that kind of 

identification.” Dr. Lyons testified that he is not aware of any studies that “address the 

issue of regional dialect.” Finally, Dr. Lyons testified that studies show that a person 

who is blindfolded or whose face is covered is “much more likely to remember that 

voice . . . because [the] primary focus is on that voice rather than the visual.”

Appellant also called Dr. Al Yonovitz, a professor of hearing and speech, to 

testify as an expert on voice identification. Dr. Yonovitz testified that “on voice 

identification specifically for memory, there is a smaller set of research papers and they 
32

all tend to agree with each other.” He testified that memory decay is a concern in voice 

identifications and “all of the studies after three months will show that a person is just 

guessing and their chances of being correct are below chance level, after only three 

months.” According to Dr. Yonovitz, “there have been studies that suggest that when a 

person hears a voice and then there’s a lapse of time before they’re asked to identify that 

voice, that there is a large percentage of misidentification in those types of cases.”

On cross-examination, Dr. Yonovitz stated that he has testified many times 

regarding decay of memory for voices rather than voice identification. He agreed that 

the “body of research that has been done in the area of memory and auditory 

identification is very limited.” He testified that the studies he relied on to support his 

testimony regarding memory decay for voices were conducted with random volunteers 

and students in a non-traumatic, sterile research environment, in which the volunteers 

were read a random passage and later asked to identify the voice of the speaker. Dr. 

Yonovitz testified that there is no research regarding whether hearing a voice under 

distressing circumstances has any effect on a listener’s memory.

Dr. Yonovitz testified that there is no research involving individuals who have 

experienced a traumatic event and made voice identifications. He stated that he is “not 

at all familiar with the research that’s been done in the area of how the human mind 

stores sensory memories from a traumatic event [in] another area of the brain.” He also 

stated that he has “never testified or been qualified as an expert on the issue of memory 

when it comes to auditory identification;” he “never testified on issues in memory for

witnesses, only on matching of voices from an unknown to a known.”

The State called its own expert, Dr. Phillip Lisak. Dr. Lisak is a clinical

psychologist who specializes in the area of trauma and violence and who “interviewed, 

evaluated, and treated hundreds of individuals who have been traumatized,” including 

sexual assault victims. He opined that “[m]emory is dramatically affected by traumatic 
33

experience. And that is something that we have known from clinical work over 

decades, but we now understand much more thoroughly because of the advances in 

neuroscience in the last 15 to 20 years. We understand how the brain encodes those 

experiences and also then how people either recall them or the experience[s] sometimes 

actually recall themselves.”

Clarifying that he is not an expert in auditory recall or voice recognition

specifically, Dr. Lisak testified that based on knowledge of how “the brain encodes 

traumatic experiences very differently, that the recall of those experiences is very 

different, actually involves different parts of the brain. So, I would say as a researcher 

that anybody who is studying anything having to do with recall, if it involves a 

traumatic experience, must take that into consideration because it is very, very -- it’s 

going to be very different from recall of ordinary events.” 

Dr. Lisak explained in detail how traumatic events affect a person’s memory of 

those events. He provided “examples of memories that have been triggered many, many 

years after the initial event that caused the trauma in the first place.” He also discussed 

examples of individuals he treated who had a triggering response from a memory dating 

back 20 to 30 years. This occurs “because the memories that we have of sensory 

experiences after a traumatic event or during the course of a traumatic event are stored 

differently than other types of memories.”

On cross-examination, Dr. Lisak stated that he has no opinion regarding whether 

the “decayative memory process affects the ability of a person to make an accurate 

identification.” During re-direct examination, Dr. Lisak explained that “what we have 

extensive clinical evidence for is the durability of these fragmented sensory memories 

that trauma survivors are almost universally left with. There is -- there is not research 

that I know of that has studied . . . how long do these memories endure, is there a decay 

process. I’m not aware of any research that’s been done on those types of traumatic, 
34

fragmented sensory memories.” Dr. Lisak also testified that, in his clinical experience, 

he has seen examples of auditory memories lasting “well beyond 20 years.”

The trial court also heard testimony from Officer U.P. Hernandez, who had been 

involved in the investigation of the case since October 1, 1992, and had interviewed 

Diana at the time. Officer Hernandez testified that Diana described the man “she heard 

that night in the bedroom, who was doing all the talking” as being tall, about 6-foot, and 

muscular with almost purple lips. He also testified that Diana claimed from the 

beginning — the morning after the incident — that she could identify the man’s voice if 

she heard it again. 

She told Officer Hernandez that the man spoke English and Spanish with a 

foreign accent — not “the normal Spanish that you hear from individuals who have 

immigrated here from Mexico.” She meant that the man did not speak “the kind of 

Spanish” that Texans like Diana or Officer Hernandez speak, which is “more plain, 

there is no accent to it.” Officer Hernandez testified that he knew what Diana meant 

when she said the man was speaking with a foreign accent; “[s]he was talking about 

someone that could either be from the Dominican Republic, could have been a 

Colombian, or a Puerto Rican.” Officer Hernandez stated that, in his experience, 

individuals from “central American countries, especially the Islands, speak Spanish in a 

very different way than” he speaks Spanish.

Investigator Webb testified that he and Tise played voice recordings of CruzGarcia, Santana, and Leonardo German for Diana during the investigation. According 

to Investigator Webb, Diana did not identify any of the three men’s voices played for 

her as being the voice of the “man who did all the talking.”

Investigator Gillie confirmed that Diana was played recordings of Cruz-Garcia’s, 

Santana’s, and German’s voices but did not identify any of the voices as being the voice 

of the attacker. Investigator Gillie recalled that Cruz-Garcia and Santana were from the 
35

Dominican Republic; and German was from St. Croix and spoke Spanish with a “little 

dialect.” Investigator Gillie testified that Diana had provided a description of the voice 

of the “man who did all the talking” before she was played appellant’s voice and 

identified it. He testified that Diana had stated the voice “was distinct. Not like our -- I 

can just say it like this, Tex Mex. It’s not like that kind of Spanish. It was like from the

Islands, Honduras, or Puerto Rico or something like that kind of Spanish. . . . It’s just

different than Tex Mex . . . .”

According to Investigator Gillie, Diana was played a recording of a phone call 

appellant had made to his wife and almost immediately identified appellant’s voice as 

that of the man “who did all the talking.” Investigator Gillie testified that, “[a]fter 

playing a very short amount of the” recording, Diana “just put her hands in her face”

and said: “That’s him, that’s him.” Diana started crying; she was “noticeably 

heartbroken;” “it looked like there for a minute she almost stopped breathing;” and “she 

was very emotional.” Investigator Gillie testified that Diana “said she was absolutely 

positive he was the one that was doing all the talking.”

At the suppression hearing, appellant began his argument to the trial court by 

stating: “[W]hat we’re actually trying to do today is determine a two-prong process. 

I’m asking this Court to be the gatekeeper as to whether or not the method that was used

in this particular identification was suggestive and that it was too long in duration to be 

accurate.” After spending a considerable amount of time arguing that Diana’s 

identification of appellant’s voice is inadmissible because the pre-trial identification 

procedure used by law enforcement was impermissibly suggestive, appellant only

briefly addressed the second prong — whether the allegedly impermissibly suggestive 

identification procedure gave rise to a substantial likelihood of misidentification —

stating: 

The second part of the case, Judge, in all of the cases, including 
36

Davis,[

2

] time becomes a relevant factor on whether or not that court 

should allow the identification to come in. All of them -- some of them say 

eight months, some of them say one year, some of them -- but they all say 

the same -- there is no court that under the circumstances like it is today, 20 

years later, that that’s going to come in.

In fact, they all say it’s the [sic] suspect after a shorter period of 

time. The longest that I can come up with, I think, was a year-and-a-half. 

Except for the time factor, appellant’s argument did not address any of the other four 

factors the court has to consider in determining whether a pre-trial procedure used by 

law enforcement gave rise to a very substantial likelihood of misidentification.

In denying appellant’s motion to suppress, the trial court concluded that the 

“totality of circumstances reveals that there was no substantial likelihood of 

misidentification” because (1) Diana had an “adequate opportunity to listen to the 

assailant at the time of the offense;” (2) Diana’s “home [was] broken into, her son was 

kidnapped, and she was allegedly sexually assaulted during the time she heard one 

assailant speak;” (3) Diana said that “she could identify the assailant’s voice at an 

interview close in time to the alleged offense and that she had paid enough attention to 

describe the assailant’s voice, the dialect, or a language peculiarity;” (4) when Diana 

was played a recording of appellant’s voice, she was “very emotional at the time she 

heard the voice of the assailant, that she cried, and her I.D. was positive that that voice 

was the voice of her assailant;” and (5) any concern that the “extended time between the 

crime and the playing of the voice exemplar to Diana” would render Diana’s 

identification unreliable is “diminished due to the testimony of the expert that was put 

on by the State, explaining that, giving a reasonable explanation.”

Appellant contends that the first two factors addressing likelihood of irreparable 

misidentification — the witness’s opportunity to hear the criminal at the time of the 

crime and the witness’s degree of attention — weigh against admitting evidence of 

 

2

See Davis v. State, 180 S.W.3d 277 (Tex. App.—Texarkana 2005, no pet.).
37

Diana’s identification of appellant’s voice because her “identification is based on a few 

phrases that she heard spoken to her husband twenty years ago.” We disagree. 

The evidence presented at the motion to suppress hearing supports the trial 

court’s finding that Diana had (1) “an adequate opportunity to listen to the assailant at 

the time of the offense, that according to Officers, . . . her home [was] broken into, her 

son was kidnapped, and she was allegedly sexually assaulted during the time she heard

one assailant speak;” and (2) “paid enough attention to describe the assailant’s voice,

the dialect, or a language peculiarity at an interview that was made close in time to the 

alleged commission of the offense.”

Investigator Gillie testified that (1) Diana was “the victim of a rape on the same 

night as her child being abducted;” (2) based on his review of the offense report, “one of 

the individuals that came into her room that night did all the talking and the other was 

silent;” and (3) Diana described the voice of the man who “did all the talking.” Officer 

Hernandez testified that Diana made “clear to [him] during [his] conversations with her” 

that one of the men who came into her bedroom the night her son was abducted “did all 

the talking.” She gave a description of his voice and stated from the beginning of the 

investigation that she could identify the man’s voice. Investigator Webb testified that 

Diana “had always said” that two men were involved in the crime, one was the “rapist” 

and the other man “who was in the room and did all the talking during the incident.” 

There is no evidence that Diana was not attentive or that her attention was distracted. 

There is no evidence that Diana heard only “a few phrases” spoken to her husband that 

night; nor is there any evidence that Diana did not have an adequate opportunity to hear 

appellant’s voice during the time she was being raped by Cruz-Garcia and her son 

abducted.

Regarding the third factor — the accuracy of the witness’s prior description of the 

criminal’s voice — appellant contends that Diana’s “vague description does not provide 
38

sufficient detail to justify allowing any testimony about” Diana’s pre-trial identification. 

Appellant contends that Diana “g[a]ve officers a general description of the tall man’s 

accent as ‘some sort of a [non-Mexican] foreign accent.’” 

The evidence supports the trial court’s determination that Diana “describe[d] the 

assailant’s voice, the dialect, or a language particularity.” Officer Hernandez testified 

Diana told him that the man “who did all the talking” spoke English and Spanish with a 

foreign accent and not “the normal Spanish that you hear from individuals who have 

immigrated here from Mexico.” Officer Hernandez stated Diana meant that the man did 

not speak “the kind of Spanish” that Texans speak, which is “more plain, there is no 

accent to it.” He stated that he knew what Diana meant when she said the man was 

speaking with a foreign accent; “[s]he was talking about someone that could either be 

from the Dominican Republic, could have been a Colombian, or a Puerto Rican.” 

Investigator Gillie confirmed that Diana had described the voice as “distinct. Not 

like . . . Tex Mex. . . . It was like from the Islands, Honduras, or Puerto Rico or 

something like that kind of Spanish. . . . different than Tex Mex.” Further, the evidence 

shows that Diana never gave an inaccurate description of appellant’s voice, even if it 

was not very precise and detailed.

With regard to the fourth factor — the level of certainty demonstrated by the 

witness at the confrontation — the evidence supports the trial court’s determination that 

Diana’s reaction was “very emotional at the time she heard the voice of the assailant, 

that she cried, and her I.D. was positive that the voice was the voice of her assailant.” 

And appellant acknowledges in his brief that Diana positively identified appellant’s 

voice.

Investigator Gillie testified that Diana almost immediately upon hearing 

appellant’s voice identified it as that of the man “who did all the talking.” Investigator 

Gillie testified that, when Diana heard appellant’s voice, she started crying; was 
39

“noticeably heartbroken;” “almost stopped breathing;” “was very emotional;” and stated 

that “she was absolutely positive he was the one that was doing all the talking.” The 

evidence establishes that a high degree of certainty surrounded Diana’s identification of 

appellant’s voice at the time she was confronted with his voice. We also note that Diana 

never identified anyone else as the man “who did all the talking.”

With regard to the fifth factor — the length of time between the crime and the 

confrontation — appellant argues that, “[s]tanding alone, the 20 years time lapse 

between the offense and [Diana]’s hearing of the lone voice is sufficient to demonstrate 

the substantial likelihood of irreparable misidentification.” We decline appellant’s 

invitation, unsupported by authority, to create a bright-line length of time at which all of 

the other factors are rendered immaterial as a matter of law. Moreover, appellant’s 

urging that the passage of time is dispositive ignores expert witness testimony about 

memory created by traumatic events that the trial court was entitled to credit.

The State presented testimony from Dr. Lisak regarding the durability of 

memories created by traumatic events. Dr. Lisak explained that “[m]emory is 

dramatically affected by traumatic experience.” He also explained how “the brain

encodes traumatic experiences very differently” from ordinary events and that the recall 

of traumatic experiences is very different and involves different parts of the brain, so 

that it is “very different from recall of ordinary events.” Dr. Lisak explained in detail 

how traumatic events affect a person’s memory of those events. He provided “examples 

of memories that have been triggered many, many years after the initial event that

caused the trauma.” He testified that there is extensive clinical evidence about the 

durability of sensory memories, including “auditory experiences coming from sounds”

that “trauma survivors are almost universally left with.” Dr. Lisak also testified that he 

has seen in his clinical experience examples of auditory memories durable “well beyond 

20 years.”
40

Additionally, appellant’s expert, Dr. Lyons, acknowledged that research has 

shown that memories of traumatic events “can be extremely durable over time.” 

Further, appellant’s expert, Dr. Yonovitz, admitted that the studies he relied on to 

support his testimony that memory of voices decays over time were conducted with 

volunteers in a non-traumatic, sterile research environment.

In light of the experts’ testimony at the suppression hearing, we cannot agree with 

appellant that the passage of 20 years between the crime and Diana’s identification, 

although a significantly long period of time, “is sufficient to demonstrate the substantial 

likelihood of irreparable misidentification” or weighs against admitting evidence of 

Diana’s identification of appellant’s voice.

The evidence supports the trial court’s determination that concern about the 

“extended time between the crime and the playing of the voice exemplar to Diana” is 

“diminished due to the testimony of the expert that was put on by the State, explaining 

that, giving a reasonable explanation.” 

Weighing the evidence of reliability against the pre-trial identification procedure 

used in this case, the procedure did not give rise to a very substantial likelihood of 

irreparable misidentification so as to deny appellant due process, even if it was unduly 

suggestive. Appellant did not establish by clear and convincing evidence that Diana’s 

pre-trial identification of appellant’s voice was inadmissible. Accordingly, the trial 

court did not abuse its discretion in allowing testimony about Diana’s pre-trial 

identification. See Davis, 180 S.W.3d at 283-85 (trial court did not abuse its discretion 

by denying appellant’s motion to suppress witness’s identification of appellant’s voice 

even though only his voice was played for witness during the investigation).

B. In-Trial Identification

We now turn to appellant’s argument that the trial court reversibly erred by 

allowing Diana to make an in-court identification of appellant “in photograph and in 
41

person” because the in-court identification was “tainted by the unduly suggestive pretrial identification of [appellant].” Appellant contends that his argument is preserved for 

review on appeal because he filed a motion to suppress and objected at trial. We 

disagree.

Appellant did not ask the trial court to suppress Diana’s in-court identification of 

him by photograph or in person, nor did appellant object at trial to the in-court 

identification arguing that it is inadmissible because it is “tainted by an unduly 

suggestive pre-trial identification [procedure]” as he now argues on appeal.

At the suppression hearing, all the arguments focused exclusively on Diana’s 

identification of appellant’s voice. Appellant never mentioned any identification other 

than by voice, and the trial court ruled only on the admissibility of the voice 

identification: “The defendant’s motion to suppress the in-court identification of the 

defendant, the voice identification, is denied.”

During trial and before the State called Diana to the stand, the following 

exchange occurred. This exchange confirms that appellant previously had complained

about only the admission of a voice identification. Appellant agreed to the State asking 

Diana whether she could identify appellant in-court based on a 20-year-old photograph 

of appellant:

(Open court, defendant present, no jury)

THE COURT: I’m listening.

[TRIAL COUNSEL]: Judge, I’ve just been shown an exhibit that the State 

wants to use in an identification process by Diana. Of course, we have the 

main issue of in-court identification from the voice recognition I.D. Now 

she’s cut out a mask --

* * *

[TRIAL COUNSEL]: She’s shown me this picture. She wants to take the 

picture of my client that was taken near the time of this incident and put a 

mask over it and see if she can identify that. I’d object that it’s been 20-
42

something years and it would be suggestive and --

[THE STATE]: Well, I mean, in an ordinary case, 20 years or 5 years, 

whatever, however long it would be, the witness could be on the witness 

stand and be asked to point the defendant out in the courtroom. And that 

happens in every trial, in every case.

THE COURT: You want him to try on the mask? I don’t think it’s 

appropriate to necessarily to put a mask over a picture.

[THE STATE]: Well, defense counsel has brought up in his opening 

statement that she said she could identify him wearing a mask. She could -

- if she had seen his entire face, I would be asking her in court: Can you 

identify the person, and that would not be suggestive. And it is not 

suggestive in any trial, even though he’s sitting over there at counsel table

and -- I mean, that’s what we do.

THE COURT: Do we have the mask that was worn?

[THE STATE]: We don’t have a mask, but it’s a cut-out of a mask that 

would be over his face that shows his eyes and part of his mouth that would 

be exposed. As part of her description of him, she describes the eyes and 

she describes the mouth.

THE COURT: Why can’t she -- I’m inclined to agree with defense 

counsel, that --

[THE STATE]: Well --

THE COURT: It’s almost like a reenactment. I mean, you don’t have the 

actual mask. And if you had the actual mask, I’d probably allow you to 

require him to stand there and put on the actual mask, but if we don’t have 

the actual mask --

[THE STATE]: We know it was a ski mask where his eyes and his mouth 

were exposed. And this is a cut-out that exposes the eyes and mouth.

THE COURT: Well, can you ask her if she recognizes his eyes and his 

mouth? Have you already done this in front of her?

[THE STATE]: No. I didn’t do it in front of her because I didn’t want 

defense counsel to say that I had suggested --

THE COURT: I just think that it’s like a reenactment. If she can identify 

his eyes and his mouth and she can look at them individually without 

looking at the whole face and say those look like the same person, that’s 

fine, but I don’t see how putting a drawn or imagined ski mask over a 

picture is going to be a valid -- I mean the way it falls on the face and
43

everything might be completely different. I’m not going to allow that.

[THE STATE]: Okay.

THE COURT: But I will allow the question -- if she wants to look at his 

face and say: Looking at his eyes, are those the eyes? Looking at his

mouth, is that the mouth?

* * *

THE COURT: . . . I’m talking about while she is on the stand here, I 

would allow you to ask the question, if looking at him she recognizes his 

eyes and his mouth.

[THE STATE]: Oh, I can’t do it even from -- this is a picture of him back 

then. That’s critical in this case. Because I can show you the picture of him

back then and he does not look the same. So, it’s very important that the 

picture she’s looking at is one from 20 years ago.

THE COURT: That’s fair. You can show her a picture and ask her from 

the picture of him back then if she recognizes the eyes or recognizes the 

mouth as being the same person. I don’t know what she would say, but I’m 

not going to let you superimpose a mask over that and then say: Do you 

recognize this person. Okay. I was misunderstanding a little bit what you 

were wanting to do versus --

[TRIAL COUNSEL]: That’s exactly what she was going to do.

[THE STATE]: Yeah, that’s what I was going to do.

[TRIAL COUNSEL]: You weren’t misunderstanding.

* * *

THE COURT: Let’s make sure that my ruling is clear. I’m not going to let 

you --

[THE STATE]: No. I understand.

THE COURT: -- superimpose the mask over, but if you have the picture of 

what he looked like from back then and you want to ask her, based on that

picture, if she can identify the defendant’s eyes as being the eyes of the 

individual that is -- that was the assailant that night and the nose, she can 

do that, but I’m not going to let you superimpose a mask over that picture 

to do the same thing. Does that make sense?

[THE STATE]: I understand your ruling perfectly.

THE COURT: Okay. Do you still have any objection, Mr. Brown, on 

that?
44

[TRIAL COUNSEL]: That was my objection, Judge, and you’ve made the 

ruling.

THE COURT: I know. Do you still have any objection to the picture itself 

and asking that? I didn’t think you did.

[TRIAL COUNSEL]: No.

THE COURT: Okay. Very good. Let’s proceed.

During Diana’s testimony, as the State showed Diana a 20-year-old photo of appellant, 

the following exchange occurred:

[THE STATE:] I’m going to show you a photo marked State’s Exhibit 

101. And I want you to cover up what parts of the face that you need to 

cover up to look at the eyes and the mouth. And first, tell me if you

recognize the eyes of this man.

[TRIAL COUNSEL]: Let the record reflect we object to this in-court 

identification, Your Honor.

THE COURT: The record will so reflect.

[DIANA:] I do recognize his eyes. I do recognize his lips.

[THE STATE:] Do those eyes and lips look like the eyes and lips of the 

man that was the first man in the room that night?

[DIANA:] Yes, ma’am. Yes.

[THE STATE:] Have you ever been shown this photo before?

[DIANA:] No, ma’am.

[THE STATE]: Your Honor, at this time, I’m going to offer State’s 

Exhibit 101.

[TRIAL COUNSEL]: Again, we’d object. The reason being, the photo was 

available in 1992 and this is the first time that --

[THE STATE]: I’ll object to the speaking objection.

THE COURT: Well, I’m going to sustain it as to relevance at this time, 

unless somebody can identify who that person is in that photo.

[THE STATE]: Okay. . . . Having seen that photo, do you see an 

individual in the room who looks like that?

[DIANA:] Yes.

[THE STATE:] And can you point him out for us, please?
45

[DIANA:] Him (indicating).

[THE STATE:] And can you describe him by an article of clothing?

[DIANA:] What he’s wearing right now?

[THE STATE:] Yes.

[DIANA:] He is wearing a light blue, grayish shirt, with a gray tie with 

lines in it.

[THE STATE:] Your Honor, may the record reflect the witness has 

identified the defendant?

THE COURT: The record will so reflect.

[THE STATE]: At this time, I will offer State’s Exhibit 101.

[TRIAL COUNSEL]: We’ll renew our objection.

THE COURT: I’m still going to sustain his objection just as to relevance 

until we have someone that can testify who that is and when that 

photograph was taken.

[THE STATE]: Yes, Your Honor.

THE COURT: Thank you. Please proceed.

Appellant failed to object to Diana’s in-court identification of appellant “in photograph 

and in person” on the basis that the in-court identification was “tainted by the unduly 

suggestive pre-trial identification [procedure].” Appellant’s only stated reason at trial 

for objecting was that “the photo was available in 1992 and this is the first time that” it 

was shown to Diana. We also note that, during his cross-examination of Diana, 

appellant himself introduced the 20-year-old photograph — State’s exhibit 101 — into 

evidence without objection.

“The failure to complain or object in the trial court to in-court identifications 

waives any complaint regarding the in-court identifications on appeal.” Mason v. State, 

416 S.W.3d 720, 738 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), cert. denied,

Mason v. Texas, 135 S. Ct. 1181 (2015); see Perry v. State, 703 S.W.2d 668, 670-71,

673 (Tex. Crim. App. 1986). Because appellant failed to raise this appellate contention

in the trial court, his argument that the trial court erroneously allowed Diana to identify 
46

him in-court by photograph and in person presents nothing for our review. Accordingly, 

we overrule appellant’s first issue.

II. Sufficiency of the Evidence

In his second issue, appellant argues that his conviction is not supported by 

legally sufficient evidence because, aside from Diana’s identification testimony, “the 

only remaining evidence to connect [appellant] to this offense is accomplice-witness 

testimony.” According to appellant, “[t]he record carries no corroboration of Santana’s 

accomplice-witness testimony beyond the identification testimony which the trial court 

reversibly erred in admitting.” 

A. Standard of Review and Applicable Law

A conviction cannot be secured upon the testimony of an accomplice unless that 

testimony is corroborated by other evidence tending to connect the defendant to the 

offense. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). Article 38.14 of 

the Code of Criminal Procedure provides as follows: “A conviction cannot be had upon 

the testimony of an accomplice unless corroborated by other evidence tending to 

connect the defendant with the offense committed; and the corroboration is not 

sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. 

Ann. art. 38.14 (Vernon 2005); Cerna v. State, 441 S.W.3d 860, 864 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d). In analyzing a challenge to the sufficiency of 

corroborative evidence, we view the evidence in the light most favorable to the jury’s 

verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).

To evaluate the sufficiency of corroboration evidence, we must eliminate all 

accomplice testimony from consideration and examine the remaining portions of the 

record to see if any evidence tends to connect the accused with the commission of the 

crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The 

corroborating evidence need not be sufficient by itself to establish guilt; there need only 
47

be other evidence tending to connect the defendant to the offense. Id. Testimony of an 

accomplice need be corroborated only as to facts “‘tending to connect the defendant 

with the offense committed and not as to the corpus delicti itself.’” Id. (quoting Gribble 

v. State, 808 S.W.2d 65, 71 n.13 (Tex. Crim. App. 1990)).

The non-accomplice evidence need not link appellant directly to the crime or 

establish guilt beyond a reasonable doubt. Id.; McDuff v. State, 939 S.W.2d 607, 613 

(Tex. Crim. App. 1997). And the accomplice testimony need not be corroborated on 

every element of the offense. Griffin v. State, 936 S.W.2d 353, 357 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d). “There must simply be some non-accomplice 

evidence which tends to connect appellant to the commission of the offense alleged in 

the indictment.” Castillo, 221 S.W.3d at 691 (emphasis in original).

When there are two permissible views of the evidence, one tending to connect the 

defendant to the offense and the other not tending to connect the defendant to the 

offense, appellate courts should defer to that view of the evidence chosen by the 

factfinder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The issue 

is not how an appellate court independently would assess the non-accomplice evidence, 

but whether a rational factfinder could conclude that the non-accomplice evidence tends 

to connect the accused to the offense. Id. at 509. Direct or circumstantial nonaccomplice evidence is sufficient corroboration if it shows that rational jurors could 

have found that it sufficiently tended to connect the accused to the offense. Smith v. 

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).

Each case must be judged on its own facts, and there is no set amount of nonaccomplice corroboration evidence that is required. Malone v. State, 253 S.W.3d 253, 

257 (Tex. Crim. App. 2008). Proof that the accused was at or near the scene of the 

crime at or about the time of its commission, when coupled with other suspicious 

circumstances, may tend to connect the accused to the crime so as to furnish sufficient 
48

corroboration to support a conviction. Id. But the presence of a defendant at the scene 

of a crime, by itself, is insufficient to corroborate accomplice testimony. Id. Therefore, 

we “consider the combined force of all of the non-accomplice evidence that tends to 

connect the accused to the offense.” Smith, 332 S.W.3d at 442.

Appellant was charged by indictment with the offense of capital murder. The 

jury was instructed to determine whether appellant, while in the course of committing or 

attempting to commit the (1) kidnapping of Angelo Garcia, Jr.; or (2) burglary of a 

building owned by Diana, intentionally caused the death of Angelo Garcia, Jr.

A person commits the offense of murder if he intentionally or knowingly causes 

the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2011). A 

person commits the offense of capital murder if the person commits murder as defined 

in Texas Penal Code section 19.02(b)(1) and the person intentionally commits the 

murder in the course of committing or attempting to commit kidnapping or burglary. 

Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).

B. Sufficiency of Corroborating Evidence

On appeal, appellant contends that there is legally insufficient evidence to support 

his conviction because Santana’s accomplice witness testimony was not sufficiently 

corroborated. Appellant argues that, “aside from [Diana]’s [inadmissible] pre-trial 

identification and in-court identification of [appellant] and aside from the accomplicewitness testimony of” Santana, the record shows nothing more than appellant’s general 

association with Cruz-Garcia and Santana, and appellant’s presence at Cruz-Garcia’s 

apartment a few days after Angelo’s murder.

Contrary to appellant’s assertion, the record contains sufficient evidence to 

corroborate Santana’s accomplice testimony.

3

 In fact, Diana’s identifications of 

 

3

The State does not dispute that Santana is an accomplice witness. The jury charge includes an 

instruction regarding accomplice witness testimony; it states that Santana is an accomplice witness.
49

appellant alone constitute sufficient corroborative evidence. 

We note that appellant incorrectly asserts that Diana’s identifications of appellant 

do not constitute corroborative evidence because they were inadmissible. First, we have 

already determined that the trial court properly allowed testimony regarding Diana’s 

pre-trial identification of appellant’s voice and Diana’s in-court identification of 

appellant at trial. Second, appellant ignores the mandate that we consider “all evidence 

in the record of the trial, whether it was admissible or inadmissible” in conducting a 

sufficiency review. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013)

(citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).

The testimony of a single eyewitness alone can be sufficient to support a 

conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lee v. 

State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 

620 (Tex. Crim. App. 2006). Voice identification of a defendant may constitute a 

sufficient basis for a conviction. See McInturf v. State, 544 S.W.2d 417, 418-19 (Tex. 

Crim. App. 1976) (holding that voice identification based upon statements made during 

the commission of the offense was direct evidence identifying the defendant as the 

person who committed the crime); see also Terrell v. State, 766 S.W.2d 561, 564 (Tex. 

App.—Beaumont 1989, no pet.) (holding that “[v]oice identification is sufficient in and 

of itself to prove identity”); Williams v. State, 747 S.W.2d 812, 813 (Tex. App.—Dallas

1986, no pet.) (recognizing that voice identification based on statements made during a

crime is sufficient to identify a defendant).

Here, Diana testified in detail about the events that occurred the night of 

September 30, 1992. She stated that a tall, husky, masked man broke into her small 

apartment and instructed Arturo to lie down on the side of the bed in their small 

bedroom while pointing a gun at Arturo. The man continued talking to Arturo and also 

told Diana to turn around and “lie flat on the bed.” Diana testified that, after she laid 
50

face-down on the bed, a pillow and a sheet were placed over her head. She testified that 

she could hear the man’s voice in her small bedroom and she “very much” focused on 

the man’s voice. The first man was the only one who spoke to her and Arturo that 

night; the second man who later entered the apartment and sexually assaulted her never 

spoke. Diana testified that she had described the first man’s voice to Officer Hernandez 

in the early morning of October 1, 1992. She also testified that she had described the 

man as being a “6-foot or a little bit higher,” “husky, well built,” “dark complected” 

Hispanic man with “big, bulging, very white” eyes and “big, bubbly,” “purple-ish” lips. 

Diana positively identified appellant at trial as the first man who entered her 

apartment. She also testified that she positively identified appellant’s voice pre-trial

during a visit with Tise and Investigator Gillie. She testified that, when she heard a 

recording of appellant’s voice, she started crying and said, “That’s the voice of the man 

who came into my house, into my bedroom . . . . The only one that I saw that night . . . 

and the only one that was doing the talking.” When Diana was asked why she identified 

appellant’s voice, she stated: “I can still identify the voice if I hear the man. It’s still in 

me. The voice is still inside me just the same as when I feel somebody hug me from my 

back. I still feel my son hugging me from my back. It’s still inside my heart, inside my 

feelings. The voice is still in my head.”

We conclude that Diana’s testimony constitutes sufficient evidence to corroborate 

Santana’s accomplice testimony. See McInturf, 544 S.W.2d at 418-19; Aguilar, 468 

S.W.2d at 77; Lee, 176 S.W.3d at 458; Terrell, 766 S.W.2d at 564. Additionally, there is 

other non-accomplice evidence which tends to connect appellant to the commission of 

the capital murder of Angelo in this case.

At trial, Sergeant Swaim testified that, on October 6, 1992, he visited the 

apartment Cruz-Garcia and his wife had lived in before Cruz-Garcia fled Houston 

because Sergeant Swaim learned that a tall Hispanic male was staying at the apartment. 
51

At the apartment, Sergeant Swaim was greeted by a tall Hispanic male who introduced 

himself as Candido Lebron. Sergeant Swaim testified that the man stated he was from 

St. Croix and gave Sergeant Swaim a St. Croix birth certificate with the name Candido 

Lebron. Investigator Swaim identified at trial State exhibit 84 as being a photo of the 

Hispanic male whom he encountered at Cruz-Garcia’s apartment and who identified 

himself as Candido Lebron. Investigator Swaim testified that the photo was taken six 

days after Angelo was abducted. He also identified appellant in court as “an older 

version of the individual that [he] interviewed on that day.”

Further, Investigator Gillie testified at trial that he traveled to Georgia to locate 

appellant after finding out appellant was involved in Angelo’s murder. Investigator 

Gillie testified that he went to appellant’s house and introduced himself but appellant 

did not “appear shocked” to see him. Appellant told Investigator Gillie that he knew 

“what this is about. It’s about that little boy a long time ago in Houston.”

After eliminating Santana’s accomplice testimony from consideration and then 

examining the remaining portions of the record, we conclude that the record contains 

ample evidence that tends to connect appellant to the commission of the capital murder 

of Angelo. Accordingly, we overrule appellant’s second issue.

III. Court Costs

In his third issue, appellant contends that the judgment and bill of costs should be 

modified to delete several assessed costs because they constitute “a penalty as applied 

to” appellant and were not “orally pronounced as part of his sentence.” Appellant 

contends that the Crime Stoppers Fee, Criminal Justice Planning Fee, Officer Education 

Fee, Crime Victims Compensation Fee, Judicial Training Fee, Jury Reimbursement Fee, 

Support of Indigent Defense Fee, and Court Technology Fee assessed against him are 

not compensatory costs but are punitive in nature because they do “not directly 

reimburse” or “compensate anyone associated with this case” and, thus, should have 
52

been orally pronounced in court as part of his sentence to be valid. Appellant also 

argues that the Crime Stoppers Fee, Criminal Justice Planning Fee, Officer Education 

Fee, Crime Victims Compensation Fee, and Judicial Training Fee should not have been 

assessed because there is “no statutory authority for the court to assess this fee.”

We begin by addressing appellant’s contention that the Crime Stoppers Fee, 

Criminal Justice Planning Fee, Officer Education Fee, Crime Victims Compensation 

Fee, and Judicial Training Fee should be deleted as court costs because there is “no 

statutory authority for the court to assess this fee.”

The bill of costs reflects court costs assessed in the amount of $417.50, including, 

as relevant to appellant’s argument, a $20 Crime Stoppers Fee, a $2.00 Criminal Justice 

Planning Fee, a $3.50 Officer Education Fee, a $45 Crime Victims Compensation Fee, 

and $1 Judicial Training Fee. The trial court included $417.50 in court costs in its 

written judgment. 

We have not found a statute that authorizes the individual assessment of these 

particular fees and amounts nor has the State pointed us to any statute authorizing the 

individual assessment. In fact, Texas Local Government Code section 133.102 

indicates that the fees for crime stoppers, criminal justice planning, officer education, 

compensation to victims of crime, and judicial training are not to be individually 

assessed but are, instead, part of the mandatory $133 consolidated fee to be assessed “as 

a court cost” upon a felony conviction; and this consolidated court cost is to be remitted 

to the comptroller who is required to distribute it as mandated by section 103.102. See

Tex. Loc. Gov’t Code Ann. § 133.102 (Vernon Supp. 2014); see also Owen v. State, 

352 S.W.3d 542, 548 (Tex. App.—Amarillo 2011, no pet.). 

Therefore, we agree with appellant that there is “no statutory authority for the 

court to assess” an individual Crime Stoppers Fee, Criminal Justice Planning Fee, 

Officer Education Fee, Crime Victims Compensation Fee, and Judicial Training Fee as 
53

set out in the bill of costs. Because these fees cannot individually be charged against 

appellant, the court costs assessed in the judgment thus have to be reduced by $71.50. 

Accordingly, we sustain appellant’s third issue in this regard.4

We now turn to appellant’s assertion that the Jury Reimbursement Fee, Support of 

Indigent Defense Fee, and Court Technology Fee assessed against him are not 

compensatory costs but are punitive in nature because they do “not directly reimburse” 

or “compensate anyone associated with this case” and, thus, should have been orally 

pronounced in court as part of his sentence to be valid.

The Court of Criminal Appeals has explained that “[c]ourt costs, as reflected in a 

certified bill of costs, need neither be orally pronounced nor incorporated by reference 

in the judgment to be effective.” Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. 

App. 2011); see Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). “This is 

because court costs do not ‘alter the range of punishment to which the defendant is 

subject, or the number of years assessed’ and, thus, are not part of the sentence.”

Armstrong, 340 S.W.3d at 767 (quoting Weir, 278 S.W.3d at 367). Court costs are 

compensatory in nature because they are a nonpunitive recoupment of the costs of 

judicial resources expended in connection with the trial of a case. See Armstrong, 340 

S.W.3d at 767; Weir, 278 S.W.3d at 366. “In contrast, fines generally must be orally 

pronounced in the defendant’s presence” because fines are punitive and intended to be 

part of the convicted defendant’s sentence. See Armstrong, 340 S.W.3d at 767. 

Additionally, there is no requirement that there be an individualized connection 

between each statutorily prescribed court cost and a particular case. See Peraza v. State, 

Nos. PD-0100-15 & PD-0101-15, 2015 WL 3988926, at *6-7 (Tex. Crim. App. July 1, 

 

4 We need not address appellant’s additional argument that the assessed Crime Stoppers Fee, 

Criminal Justice Planning Fee, Officer Education Fee, Crime Victims Compensation Fee, and Judicial 

Training Fee also constitute a penalty because they do not reimburse or compensate anyone in this 

case.
54

2015). “[C]ourt costs should be related to the recoupment of costs of judicial 

resources.” Id. at *6. However, statutorily prescribed court cost need not be 

“necessary” or “incidental” to the trial of a criminal case; court costs must only be 

“expended for legitimate criminal justice purposes.” Id. at *7.

In this case, the bill of costs assessed a Jury Reimbursement Fee, Support of 

Indigent Defense Fee, and Court Technology Fee. These fees are all statutorily 

mandated court costs. See Tex. Code Crim. Proc. Ann. art. 102.0045 (Vernon Supp. 

2014) (Jury Reimbursement Fee); Tex. Loc. Gov’t Code Ann. § 133.107 (Vernon Supp. 

2014) (Indigent Defense Fee); Tex. Code Crim. Proc. Ann. art. 102.0169 (Vernon Supp. 

2014) (Court Technology Fee). Because there is no requirement that these three

statutorily imposed fees “directly compensate” or “reimburse anyone associated with 

this case,” we overrule appellant’s third issue in this regard. See Peraza, 2015 WL 

3988926, at *6-7.

CONCLUSION

We modify the trial court’s judgment to delete the amount of $71.50 from the 

total amount of $417.50 in assessed court costs. As modified, we affirm the trial court’s 

judgment.

 

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Frost, C.J., 

concurring).

Publish — Tex. R. App. P. 47.2(b).
Affirmed as Modified and Majority and Concurring Opinions filed August 27,

2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00142-CR

ROGELIO AVILES-BARROSO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1364839

C O N C U R R I N G O P I N I O N

In determining whether a voice identification is reliable, binding precedent 

requires this court to consider the factors articulated in Neil v. Biggers.

1

 These 

 

1

See 409 U.S. 188, 199–200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Williams v. 

State, 850 S.W.2d 784, 786–87 (Tex. App.—Houston [14th Dist.] 1993) (holding that indicia of 

reliability in a voice identification include the witness’s opportunity to hear, the degree of 

attention, the accuracy of the description, the level of certainty, and the time between the event 

and the confrontation), aff’d on other grounds by, 895 S.W.2d 363 (Tex. Crim. App. 1994). 
2

factors are: (1) the witness’s opportunity to hear the speaker at the time of the 

event, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior 

description of the speaker’s voice, (4) the level of certainty demonstrated by the 

witness at the confrontation, and (5) the length of time between the event and the 

confrontation.2 Applying these factors in a Biggers analysis, the majority 

concludes that Diana’s voice identification is reliable. The precedent applying the 

Biggers test supports that result. Because we are bound to apply the Biggers test, I 

concur in the court’s judgment, but I write separately to suggest that it is time for 

courts to reconsider the Biggers factors as applied to voice identification. 

In the forty-three years since the Supreme Court of the United States 

articulated the Biggers factors, scientists have been studying whether these factors 

accurately predict the reliability of a witness’s identification. The findings raise 

concerns. Studies are ongoing, but the research results in hand tend to undercut 

confidence that the Biggers factors are truly indicia of reliability. The scientific 

literature suggests that though some of the Biggers factors relate to the reliability 

of a witness’s identification, others do not. Empirical research seems to be 

revealing that some of the factors may not be good indicators of reliability. 

Not surprisingly, scientists have confirmed that the opportunity to view or 

hear a suspect and the length of time between the event and the confrontation 

affect the reliability of a witness’s identification.

3 But, unexpectedly, some 

research has shown that a witness’s confidence in the identification does not

impact reliability.

4

Likewise, some research seems to show that the relationship 

 

2

See Biggers, 409 U.S. at 199–200, 93 S.Ct. at 382. 

3

See Cindy E. Laub et al., Can the Courts Tell an Ear from an Eye? Legal Approaches 

to Voice Identification Evidence, 37 LAW & PSYCHOL. REV. 119, 123 (2013).

4

Laub, supra note 3, at 124 & 142; Jason A. Cantone, Do you Hear What I Hear?, 17 
3

between the characteristics of the witness’s verbal description of an individual and 

the characteristics of the person identified does not affect reliability.

5

 If the 

research results are valid, the lack of correlation undermines the validity of these 

Biggers factors.

Questions about the efficacy of the Biggers test are more pronounced in the 

context of a voice identification like the identification Diana made in today’s case.

6

 

Research indicates that vocal identifications are less accurate than eyewitness 

identifications, potentially because the human brain processes faces for later 

recognition and speech for meaning.

7

 The fundamental differences between the 

way the human brain processes faces and the way the human brain processes

speech may mean there are differences between the factors that indicate a reliable 

visual identification and those that indicate a reliable vocal identification.

8

 

Researchers have suggested, for example, that while a witness’s opportunity 

to hear the speaker at the time of the event is important to the reliability of a voice 

identification just as the opportunity to view the actor’s face is important to a 

visual identification, the accuracy of a voice identification also depends on 

similarities between the voice at the time of the event and the voice at the time of 

identification.9 Research shows that an earwitness’s accuracy in identifying a 

voice increases when the tone and emotion in the identified voice sample match the 

tone and emotion of the voice during the event.

10

 Similarly, while research 

 

TEX. WESLEYAN L. REV. 123, 130–31 (2011). 

5

See Laub, supra note 4, at 124. 

6

See id. at 120.

7

Id. at 124–25. 

8

See id. at 123.

9

See id.

10 See Cantone, supra note 3, at 128. 
4

suggests the length of time between hearing the voice and identifying it affects a 

witness’s accuracy just as the length of time between the event and a witness’s

visual identification affects accuracy, the effect of the length of the retention 

interval is different in vocal identifications.11 Researchers have suggested that with 

unfamiliar voices, vocal identifications can deteriorate significantly within weeks 

of the event.

12

 In one study, subjects asked to recall a voice had only a nine 

percent accuracy rate after three weeks.13 It seems that the “reliability” window 

with respect to the interval between the event and the confrontation may be much 

narrower for voice identification.

Cross-lingual voice identification triggers additional concerns because this 

species of voice identification implicates additional considerations. Although 

existing studies appear to be somewhat in conflict, some research suggests that 

people are more likely to hear the voices of speakers in a foreign or accented 

language as homogeneous or similar, but are able to perceive diversity or 

distinctive forms of speech among speakers of their own regional area.14

Anecdotally speaking, native Texans might easily distinguish among the voices of 

other native Texans but might have difficulty distinguishing among speakers with a 

Boston accent based on voice alone. Researchers and academicians alike warn of 

the dangers inherent in cross-lingual voice identification.15

Though appellant’s expert witnesses discussed some of these considerations 

 

11 Laub, supra note 3, at 124.

12 See Cantone, supra note 3, at 130; A. Daniel Yarmey, Earwitness Speaker

Identification, 1 PSYCHOL. PUB. POL’Y & L. 792, 805 (1995).

13 Cantone, supra note 3, at 130; Yarmey, supra note 11, at 805.

14 See Yarmey, supra note 11, at 798.

15 See Gary Edmond et al., ‘Mere Guesswork’: Cross-Lingual Voice Comparisons and 

the Jury, 33 SYDNEY L. REV. 395, 405–08 (2011).
5

during the motion-to-suppress hearing, appellant did not fully develop the potential 

problems in Diana’s voice identification. Appellant cross-examined investigator 

Kerry Gillie about the twenty-year gap between the event and the confrontation,

and Dr. Philip Lyons noted that there are difficulties identifying a speaker who 

spoke Spanish with a different dialect. Dr. Lyons testified, however, that he was 

unaware of any studies that looked at dialects rather than identifying speakers of 

foreign languages. In fairness, these are emerging issues in science as well as law. 

The empirical research and scholarship are still developing, and the law may not be 

keeping pace with the science. 

Given the changing landscape, we must continue to ask whether the Biggers 

factors are the best measure of reliability for voice identification. What is clear 

from both scientific research and human experience is that familiarity plays a big 

role in reliable voice identification. So, when the voice being identified is an 

unfamiliar one, greater scrutiny is required for reliable voice identification, and 

greater scrutiny still when an earwitness is not familiar with either the speaker’s

voice or the speaker’s dialect. Given the unfolding research in cross-lingual voice 

identification, we should question whether these elements should be given greater 

weight in a Biggers analysis and whether additional enumerated factors should be 

added to the Biggers test when it is applied to voice identification.

To ensure fair proceedings, courts should take these considerations into 

account in making reliability determinations, especially when the identification is 

based on voice alone, unaccompanied by visual or other forms of identification. 

Though the witness in today’s case did not get a look at the speaker’s entire face

during the criminal episode, the witness was able to recall and identify facial 

features. Diana’s recognition of appellant’s facial features, though not powerful 

visual-identification evidence, strengthens, to some degree, the identification. 
6

The gaps in science and law, known and unknown, tell us that the Biggers

test may be falling short as a measure of reliability for voice identification. Now is 

the time to consider what steps can be taken to improve reliability testing in voiceidentification cases. 

Even though the scientific literature calls into question the validity of the 

Biggers factors, this court is bound to consider them.16 Appellant did present 

limited testimony about a witness’s inability to remember a voice over time. But, 

the record also reveals the witness had an opportunity to hear the speaker’s voice

during the criminal episode and was keenly focused on his voice; the witness 

provided a description of the Spanish dialect she detected in the speaker’s voice;

and she displayed unshakeable confidence in her identification. Under the

precedent applying the Biggers test, these four factors support the trial court’s 

admission of the identification evidence.

17 So, the result the majority reaches 

applying the Biggers test is sustainable under current law as is the majority’s 

conclusion that the trial court did not err in admitting the witness’s voice 

identification into evidence, based on the evidence presented to the trial court. For 

this reason, I respectfully concur in the judgment. 

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Boyce, J., 

Majority).

Publish — TEX. R. APP. P. 47.2(b).

 

16 See Williams, 850 S.W.2d at 786–87.

17 See Davis v. State, 180 S.W.3d 277, 283–85 (Tex. App.—Texarkana 2005, no pet.).