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### MEMORANDUM OPI NIO N Nos. 04-09-00717- CV & 04- 09-00718-CV IN THE MATTE R OF N.K .M. , a Juvenile Fr om the 289th J udicial District Court, Be x ar County , Texas Trial Court Nos. 2009-JUV-01790 & 2009-JUV-01693 Honora ble Carmen K elsey , J udg e Presiding Opinion by : Phy lis J . Speedlin, J ustice Sitt ing: Kar en Ang elini, J ustice

Phy lis J . Speedlin, J ustice Rebec ca Simmons, J ustice Deliver ed and F iled: September 1, 2010 AFF I RMED I n two case s tried toge ther, N.K.M. was adjudicate d as having eng ag ed in delinquent conduct by committing ag g rava ted assault with a deadly wea pon, and ag g rava

ted robber

y along wi th ag g rava ted ki dnapping
. He was co m mitted to the Tex as Youth Commi ssion (TYC) for a 20-y ear deter minate sentenc e on each ca s e, to be serve d concur rently
. On appea l, N.K.M. arg ues the complainant’s in-court identification was tainted by a sug g estive pretria l identification proce dure in
one case , and that the evidenc e of identity was fac tually insufficient in the other case . We aff irm the trial court’ s judgme nt in both cases.0 4

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F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D These two case s arise out of two incidents that occur red on the s am e n i gh t in the same Converse, Texas neig hborhood. On April 22, 2009, at approximately 11:00 p.m., Osca r Ba rella was sitti ng in his g ara g e working on a hobby when he noticed a y oung man standing there pointing a g un at him. Ba

rella confr onted the y oung man, demanding , “wha t are g oing to do, are y ou g oing to shoot
me for what, over what?
. . . So y ou can g et caug ht, g o to jail and be somebody ’s bitch, take it up the a**? ” The y oung man’s demeanor chang ed and he backed off. Ba rella stood up, rea liz ed he was quite a bit taller than the y oung man, and ag ain demande d, “ar e y ou g oing to shoot me, g o ahea d, g o ahea d.” The y oung man t urned and fled. Ba rella chased him o n fo o t , an d saw him jump into the open passeng er door of a Dodg e Mag nu m which sped off. Ba rella wrote down the license plate number and called 911
. W h en office rs arrived, Bare lla descr ibed t he y oung man as having “lig ht
s k i n , ” about 5 fee t 6 inches tall, 150 pounds, and wearing a dark colore d light jacket and dark s k i mask. Ba rella told the office rs that he had focuse d on the y oung man’s ey es the entire time, and he
was sure he could pick out the y oung man if he ever saw his ey es ag ain. Ba rella stated the encounte r lasted about two minutes. At approximately 11:30 p.m., while the office rs wer e still at Ba rella’ s house, a call came in that some other office rs had spotted the Dodg e Mag num about one-ha lf mile awa y and wer e g iving chase
. The two suspects cra shed the car , bailed out, and ran into a wooded are a wher e they esca ped. When the Dodg e Mag num was proce ssed, office rs deter mined it had been stolen fr o m T i m o thy Downey on April 15, 2009. Downey testified that he was car jacke d at g unpoint in his drivewa y by
one person, but there was at least one more person involved beca use a v eh i cl e wa s b l o cking his drivewa y at the time.

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L ater that same night of April 22, 2009, at approximately 12:00 or 12:30 a.m., Ethel Carter
was sitti ng inside her parke d car rea ding a newspa per and waiting for her daug hter to arr ive with a key to the front door. Carter ’s house is at the other end of the same street wher e Ba rella lives. Two y oung men wea

ring g loves and masks approa ched Carter ’s Merc edes Be nz which was parke d in the drivewa y . Carter could see their ey es, nose, and mouth unde r the masks; she descr ibed one y oung man as “dark- complecte d” and the other a s “lig ht-complec ted.” The dark- complecte d y oung man pointed a gun at Carter ’s head and asked whether she had a safe o r an y jewelr y or guns i nside the house. The light-c omplected y oung man held a g un on Carter while the dark- complecte d y oung man kicked the front door in; they took Carter inside wher e she was instructed to lie down on the floor. The light-c omplected y oung man pointed the g un at Carter ’s head while the dark- complecte d y oung
man ransa cked the house. Carter was told to fac e the floor and not look at them. They assure d her they wer e not g oing to hur

t her unless she called the pol ice, at which point they would come ba ck to kill her. At one point during the incident, the light-c omplected y oung man had his mask pulled up and Carter saw some of his fac e; she rea liz ed, “he’ s just a kid.” The y oung men took the key s to Carter ’s Merc edes Be nz and tied her up befor e they left in her car . When the police arr ived, Carter descr ibed the y oung men to Be x ar County Sheriff’ s Detec tive Kenne th Murra y , stating the darkcomplecte d one was wea

ring dark pants or j eans, 1 and the lig ht-complec ted one wa s wea ring blue shorts and blue a

nd white tennis shoes. Detec tive Murra

y had a “per son of interest” in mind who he believed was connec ted with another series of robber ies in the are a. Murra y went to Wag ner Hig h School the next morning and

1 ... D e t e c t i v e M u r r a y t e s t i f i e d t h a t C a r t e r d e s c r i b e d t h e d a r k

- c o m p l e c t e d y o u n g m a n a s w e a r i n g “ d a r k s h o r t s , d a r k s o c k s a n d t e n n i s s h o e s . ”

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asked for a picture o f t h e y o ung man of interest. Murra y obtained the photo, and then asked the principal to call the y oung man up to the main office so he could compar e his clothing with Carter ’s descr iption. The y oung man arr ived wea ring dark shorts and black socks. He was acc ompanied by another y oung man wea

ring blue basketba ll shorts, blue and white tennis shoes, and a g love on his left hand. A came ra took a photo as eac h y oung man enter ed the school office
. A few day s afte r the robber y , Detec tive Murra

y went to Ms. Carter ’s hom e and showed her a series of phot o line-ups. Carter was unable to pick out any one fr om the full-fa ce photo display s. Carter did, how ever , pick out N.K.M. from a

six -per son “ey es-only ” photo lineup–althoug h she was “not qui te sure.” After she picked out N.K.M’s photo from the lineup, Detec tive Murra y showed Carter the photo of N.K.M. taken at Wagne r High S chool t he morning after the robber y when he was we aring blue basketball shorts, blue and white tennis shoes, and a g love on one hand. Carter confirme d that the blue tennis shoes and blue shor

ts matched wha t the light-c omplected y oung man was wea ring the night of

the robber y . When De t ective Murra y later showed the same “ey es-only ” photo lineup to Ba rella, he picked out N.K.M. with no hesitation. Ba rella “had no doubt whatsoeve r” about the identification. The S t ate char g ed N.K.M. in two separ ate case s with eng ag ing in delinquent conduct by committing ag g rava ted assault with a deadly we ap on ag ainst Osca r Ba rella and ag g rava ted kidnapping /ag g rava ted robber y ag ainst Ethel Carter
. N.K.M. pled “not true” in both case s, and they
wer e tried jointly befor e a jury
. N.K.M. filed a motion to suppress the photo identification evidenc e, which was denied. After hear ing the tr ial evidenc e, the jury found that N.K.M. eng ag ed in delinquent conduct by committing ag g rava ted assault with a deadly wea pon ag ainst Osca

r Ba rella, and by committing ag g rava ted kidnapping and ag g rava ted robber y with a deadly wea

pon against Ethel Carter
. The State soug ht de terminate sentenc es in e ach case . The court adjudicate d N.K.M.

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as having eng ag ed in delinquent conduct as alleg ed in both case s, found a need for dispositi on, and committed N.K.M. to TYC for concur rent deter minate sentenc es of 20 y ear s in eac h case , with a possible transfe r to the Texas Depa rtment of Criminal J ustice. N.K.M. now a ppeals. A N A L Y S I S I n two issues, N.K.M challeng es the trial court’s judgme nt asser t i n g that: (1) it err ed in deny ing his motion to suppress Osca r Ba rella’ s in-court identification beca use it was tainted by a sug g estive pre- trial identification proce dure; and (2) the evidenc e of identity in the Ethel Carter case is factua lly

insufficient. Oscar Barella Case — Im perm issibly Su

ggestive Pre trial Ident

ification Procedure N.K.M. arg ues that the pretria l photo lineup that Detec tive Murra y showed Ba

rella was impermissibly sug g estive beca use Murra

y told Ba rella the photo arr ay contained a “per son of in te r e s t; ” th e r e f

o r e , N
. K
. M. asser

ts it tainted Ba

rella’ s in-court identification which should have b e e n suppressed. The State points out that Ba rella denied that Murra

y made such a statement, and asser ts that, even if he did, it did not rende r the proce dure impermissibly su gges t i v e an d did not cre ate a substantial likelihood of misi dentifica tion. Stan dard of Review. We revie w a ruling on a motion to suppress in a juvenile case under the same standard used in a criminal case . T E X . F A M . C O D E AN N . § 51.17(c) (Ve rnon Supp. 2009); In the Matter of S.J. , 977 S.W .2d 147, 15 1 (T ex . App.—San Antonio 1998, no pet.). We aff ord almost total defer ence to the trial court’ s deter mination of historical fac ts tha t the rec ord supports, espec ially when the fa ct fi n d i n g s are based on an evalua tion of the witnesses’ cre dibilit y and demea nor, but revie w the cour

t’s application of the l aw to the fa cts de novo
. Carmouche v . State , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State , 955 S.W .2d 85, 88-89 (Tex. Crim.

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App. 1997). Whether a pre- trial photo identification proce du r e was so impermissibly sug g estive that it may have tainted an in-court identification is revie wed de novo . Gamboa v. State , 296 S.W .3d 574, 581 (Tex. Crim. App. 2009); Loserth v. State , 963 S.W .2d 770, 771-72 (Tex. Crim. App. 1998). When the trial court does not make express finding s of fac t and conclusions of law, we assume the court m ade implicit finding s of fact i n support of i ts ruling as l ong as such finding s are supported by the rec ord. Torres v. State , 182 S.W .3d 899, 902 (Tex. Crim. App. 2005). We will sus tain the trial court’s ruling if it is rea sonably supported by the rec ord and is corr ec t o n an y t h eo ry of law applicable to the case
. Villarreal v. State , 935 S.W .2d 134, 138 (Tex. Crim. App. 1996). Anal ysis. An in-court identification is inadmissible when it has been tainted by an impermissibly s u gg estive pre- trial photo identification proce dure. Gamboa , 296 S.W .3d at 581; L o s er t h , 9 6 3 S .W.2d at 772. The appellant bear s the burden to show by clea r and convincing evidenc e that the in-court identification is unreliable
. Madden v. State , 799 S.W .2d 683, 695 (Tex. Crim. App. 1990). T h e test is whether , considering the totality of the circ umstances, “the photogr aphic identification proce dure was so impermissibly sug g es t i v e as to g ive rise to a very substantial likelihood o f i rrepara ble misidentification.” Gamboa , 296 S.W .3d at 582 (quoting Simmons v. United S t a t es , 3 90 U.S. 377, 384 (1968)) ; Loserth , 963 S.W .2d at 772. I n assessing reliability under the totality of the circ umstances, the court considers the following fac tors de novo : (1) the witness’s opportunity to view the appellant at the time of the offe nse; (2) the witness’s deg ree of attention; (3) the acc urac y of the witness’s prior d es cr iption of the appellant; (4) the witness’s level of cer

tainty at the time of the confr ontation; and (5) the leng th of time betwee n the offe nse and the confr ontation. Gamboa , 296 S.W .3d at 582 (citing Neil v. Biggers , 409 U.S. 188, 199 (1972)) ; Loserth , 963 S.W .2d at 772.

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As the State points out, there was con fl icting testimony at the suppression hear ing as to whether Detec tive Murra

y informed Ba

rella there was a “per son of interest” in the six -per son photo lineup. Murra

y testified at the hear ing that befor e he showed Ba rella the photo lineup, he stated, “[t] hat I had a series of six photogr aphs I wanted him to look at. T hat I wasn’t sure i f any body in the six photogr aphs wer e [si c] the actor involved, but at least one of them was a person of interest.” Murra y stated he did not sug g est who Ba rella should pick out. Ba rella testi fi ed that befor e he showed him the photo arr ay , Murra y told him, “Well, I ’ll show y ou a lineup. All it is is [si c] just a focus on their ey es. You take a look at it and pick out the person y ou thi n k i t m ay b e. ” Ba rella stated that Murra

y did not indicate who he thought it wa s, but a lso did not te ll him the person may not be in the l ine-up. M u rr ay just asked him, “is he in this lineup? ” On cross-examination at t he hear ing, Ba

rella was asked whether he rec alled the detec tive telling him a “per son of interest” was in the photo spread, a

nd Ba rella a nswere d “No.” At a suppre ssion hearing , the t rial cour t is the sole judge of the c redibility of the witnesse s and the weig ht to be g iven their testimony
. Romero v. State , 800 S.W .2d 539, 543 (Tex. Crim. App. 1990). We m ust view the evidenc e in the rec ord, and all rea sonable infere nces, in the light most favor able to the trial court’s ruling , and must sust ain the ruling if it is reasonably supported by

the
rec ord and is corr ect on any applicable theory of law. Villarreal , 935 S.W .2d at 138. Apply ing that standard of revie w, we must assume the trial court made implicit fac t finding s in support of its denial of the mo t i o n t o suppress, and that it chose to believe Ba rella’ s testimony that Murra y did not mention a “pe rson of intere st” being in the photo lineup. Even as s u m i n g that Murra y did tell Ba

rella that a “per son of interest” was in the photo lineup, and that Murra

y ’s statement was “imperm is s ib ly s u g g e s ti v e , ” we conclude that N.K.M. failed

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to c arr y his burden to prove the identification proce dure g ave rise to a “ver y substantial likelihood of irrepa rable misidentification.” Madden , 799 S.W .2d at 695 (appe llant has burden to show by clea r and convincing evidence that in-court identific ation is unreliable due to impermissibly sug g estive pre- trial proce dure)
. Assessing reliability under the Biggers ’ fac tors, the rec ord shows that Ba rella viewed his assailant for approximately two minutes, and paid close attention to the y oung man’s ey es during the entire encounte r. Ba rella testified t h at h e co uld not see the y oung man’s whole fac e beca use of the ski mask, but he “f ocused on his ey es” throug hout the whole two-minute scena rio. Ba rella explained that it was just his rea ction–“I looked him in the ey es, and that’s all I could see.” Whil e B are lla’s opportunity to obse rve the y oung man was somew hat limited by the ski mask, his deg ree of attention to a particula r fac ial fea ture, the ey es, was very high; moreove r, that high deg ree of attention was sustained for a two-minute period. When the office rs arr ived, Ba rella told them he could identify the y oung man if he saw his ey es ag ain. Murra y showed Ba

rella the “ey es only ” six

person photo lineup only a few day s afte r the incident. Ba rella studied eac h of the six photos for a few seconds, and “foc used rig ht on” Number 6, which was N.K.M. Ba rella testified he was cer

tain that Number 6 was the y oung man in his g ara g e. As to the acc urac y of Ba rella’ s descr iption of his assailant, there was v ery limit ed evidenc e prese nted at the suppression hear ing from which the
acc urac y of his descr iption could be deter mined. W ei gh i n g the Biggers ’ fac tors ag ainst the “cor rupting eff

ect” of the presumably sug g estive pre- trial identification, we conclude that Ba rella’ s high deg ree of attention to his assailant’s ey es for the entire encounte r, his absolute cer tainty of his identification of N.K.M. from the photo arr ay , and the short time period between the incident and t h e pre- trial identification all weig h heavily in favor of his in-court identification being reliable
.

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Loserth , 963 S.W .2d at 773-74. Acc ording ly , the trial court did not err in deny ing N.K.M.’s motion to suppress the identifica tion evidence
. Eth el Carter Case — Factual S ufficiency of Evidence

of Identity I n the second case , N.K.M. asser ts the evidenc e is fac tually insufficient to support the jury ’s finding that he is one of the persons who committed the ag g rava ted kidnapping and ag g rava ted robber y ag ainst Ethel Carter
. N.K.M. contends that Carter ’s identification of him as the perpe trator was “‘so wea

k’ as to re nder the evidenc e factually insufficient.” The S tate concede s that Carter ’s identification wa s less than pos itive but contends there is other c orrobor ating evidenc e that, whe n combined with Carter ’s identifica tion, is sufficient to support the jury ’s ver dict. Stan dard of

Review. I n revie wing the sufficie ncy of the evidenc e in a juvenile adjudication proce eding , we apply the sufficie n cy s t an d ar d s of revie w used in criminal case s. In re T.K.E. , 5 S.W .3d 782, 784-85 (Tex
. App.—San Antonio 1999, no pet.). When conducting a fac tual sufficie ncy revie w, we consider all the evidenc e in a neutra l light, and will set aside the verdic t only if it is so contra

ry to the overwhelming weig ht of t he evidence as to b e cl early wrong and unjus t. Lancon v. State , 253 S.W .3d 699, 705 (Tex. Crim. App. 2008); In re K.T. , 107 S.W .3d 65, 71 (Tex. App.—San Antonio 2003, no pet.). An appellate court may reve rse for fac tual insufficienc y in only two instances: if the e vidence in support of the ver dict, althoug h leg ally sufficie nt, is so weak that the verdic t is clea

rly wrong and manifestly unjust; or if, considering conflicting evidenc e, the verdic t is outweig hed by the g rea t weig ht and preponde ranc e of the evidenc e. Lancon , 253 S.W .3d at 705. Finally , our revie w must be appropr iately defe rential so as to avoid mere ly substitut ing our judgme nt for that of the jury
. Id. ; Clewis v. State , 922 S.W .2d 126, 133 (Tex. Crim. App. 1996).

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Anal ysis. N.K.M. as s er t s the i n-cour t identification t estimony by Carter was “so weak” that it is fac tually insufficient to support the jury ’s finding that he was a perpe trator of the ag g rava ted kidnapping and ag g rava ted robbe ry ag ainst Carter. I t is well established that the State must prove bey ond a rea sonable doubt that the acc used is the pers on who committed the alleg ed offe nse. Johnson v. State , 673 S.W .2d 190, 196 (Tex. Crim. App. 1984); Roberson v. State , 16 S.W .3d 156, 167 (Tex. App.—Austin 2000, pet. ref ’d). The identity of the acc used as the perpe trator may be proved by direc t or circ umstantial evidenc e, or by infere nces draw n from such evidenc e. Roberson , 16 S.W .3d at 167. We apply the same sufficie ncy standards to both direc t and circ umstantial evidenc e. Id. ; McG ee v. State , 774 S.W .2d 229, 238 (Tex Crim. App. 1989). A witness’s less than positive identification of the defe ndant g oes to the weig ht of the evidenc e. Valenciano v. State , 511 S.W .2d 297, 299 (Tex. Crim. App. 1974). N.K.M. as s er ts that Carter ’s i dentifica tion of hi m was too uncer tain to constitute fac tually sufficie nt evidence
. During trial, when Car ter wa s asked if she saw e ither the da rk-c omplected or the light-c omplected y oung man in the courtroom, she replied, “I t ’s h i m . ” W h en asked to say it louder, Carter stated, “I think that’s him over there ,” and descr ibed the clothing N.K.M. was wea ring in court. When the prosec utor asked Carter if she was sure that was one of the boy s inside her house, she replied, “I ’m not positively sure, but I think so.” She testified he was the light-c omplected one whose mask had been pul led up. Carter also testified about her pre-tria l identifica t i o n o f N.K.M. from an “eyes-only ” photo lineup. Carter stated she picked out N.K.M.’s photo, but wrote a note on the back stating, “I think this is the person, but I ’m not quite sure.” Detec tive Murra y testified that when Carter picked out N.K.M.’s photo, she initially said, “this is him, this is the one,” but then she wrote on the back of the photo that she was “not quite sure.” Murra y explained that he then showed

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Carter the photo from Wagne r Hig h School “just to put her mind at ea s e. ” When Carter saw the school photo, she stated, “those are the shorts, those are the shoes,” and beca me nervous and started shaking and tear ing up. Detec tive Murra y testified that, in his opinion, Carter wrote the note stating she was “not sure” about the identification beca use she had been threa

tened during the robber

y and
was a fra id of reta liation. An uncer tain in-court identification is not, by i t s el f, sufficie nt to support a g uilty verdic t. Anderson v. State , 813 S.W .2d 177, 179 (Tex. App.—Dallas 1991, no pet.) As the State points out, howeve r, the prese nce of corr oborating fac ts or circ umstances connec ting the acc used to the crime, when coupled with a less-than-c erta in ey ewitness id en t i fi cation, may be sufficie nt to support the jury ’s finding of identity
. Id. ; Redwine v. State , 305 S.W .3d 360, 367 (Tex. A pp.—Houston [14t h Dist. ] 2010, pet. filed); Swartz v. State , 61 S.W .3d 781, 788-89 (Tex. App.—Corpus Christi 2001, pet. ref ’d); United States v. Hawkins , 658 F.2d 279, 289 (5 t h C i r. 1 9 8 1 ) (whe n there is other evidenc e of ide ntity , the tentative na ture of the in-court identific ation is not fatal). Her e, there was other evidenc e connec ting N.K.M. to the robber y at Carter ’s home. Ba

rella positively identified N.K.M. with complete cer tainty as the masked assailant who threa tened him at around the same time on the same evening as the robbe ry at Carter ’s house. Bar ella’s house is on the opposite end of the same street as Carter ’s house. This evidenc e shows that N.K.M. was in the
ar ea o f Carter ’s house at the time of the robber y —wea ring a ski mask. I n addition, the photo of N.K.M. taken the next morning at school matched Carter ’s descr iption of the blue clothes and shoes the light- complecte d assailant wor e, and Carter confirme d the matching clothes whe n she saw the school photo. Moreove r, Carter ’s emotional rea ction to the school phot o showing N.K.M.’s full body corr oborate s her unc erta in identification.

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Finally , N.K.M.’s own statements connec ted him to the events of April 22, 2009. When Detec tive Murra

y interviewe d N.K.M. in the prese nce of his fathe r, N.K.M. admitted being a “har dcore ” member of the Crips g ang . Murra y testified that in his e x perie nce the Crips’ colors are light blue. When asked about the photo of him taken at Wagne r Hig h School on April 23, 2009, N.K.M. stated that he reme mbere d that beca use he g ot called in to the principal’s office for wea ring the blue colors at school. N.K.M. exp l ai n ed that he told the principal that he had put those clothes on the night befor e. When his fa t h er objected that he was only a “wa nnabe” g ang member, N.K.M.
corr ecte d him in the prese nce of Detec tive Murra y , stating that he i s “h ar d core, ever y one at the school knows it, that he doesn’t have to wea r blue ever

y day beca

use ever y body knows it, [and] that he only wea rs the blue whe n he intends to g o out and hurt somebody .” Combini ng the pre- trial and in-court identifications by Carter with the corr oborating fac ts and circ umstances in the rec ord, we conclude that the eviden ce o f N.K.M.’s identity as the perpe trator of the ag g rava ted kidnapping /robbery ag ainst Carter is fac tually sufficie nt to support the jury ’s verdict. The identit y evidenc e i s n ot “so weak” as to rende r t he verdict “cle arly wrong and manifestly

unjust.” Lancon , 253 S.W .3d at 705. Ba sed on the for eg oing r easons, we aff irm the trial cour

t’s judgme nt in both cases.
Phy lis J . Speedlin, J ustice

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