### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 101 -CR

M anue l Ba r r ie nt e s , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT NO. D-1- DC-05 -20 1674 , HO NORAB LE MI CHAEL LY NCH , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant Manuel B arr ientes g uilty of the a g g ravated sexual assault of a child, and the court a ssessed a twe nty -four y ear prison term. See Tex. Penal Code Ann. § 22.021 (West Supp. 2008). Appellant bring s forwa rd four issues urg ing that hi s s t atement to the police should have been suppressed, a pre trial photog raphic identification wa s impermissibly sug g estive, and a photog raph of

the complainant and a rec ording of a telephone call we re e rrone ously admitted. We overrule these c ontentions and aff irm the conviction. On April 1, 2005, the thirtee n-y ear -old complainant wa s sexually ass aulted in the back se at of a

n automobile by t wo m en who c alled themselve s “Manny B” and “B ig C.” The complainant had m et the men ea rlier that a fternoon at a conve nience store. The complainant wa s taken home by

the men following the assaults. She immediately told he r mother what had happe ned, and her mother ca lled the police.Ano th er o ff ic e r t e sti fi e d th a t th e wa

rr ants we re fo r a

pr ob a tio n v iol a tio n a

nd so me tr a ff

ic 1 tic ke ts. 2

This incident rec eived a

larg e amount of me di a co v era g e, which in turn g ener ated
nume ro us c a lls to Cri me Sto pp e rs . F ro m in fo rm a tio n r e c e ive d in the se c a lls , th e po lic e we re a ble to identify

“Manny B” as appe llant and “B ig C” as Dura n Souz a. On April 6, the complaina nt was interviewe d by

a victim’s servic es counse lor and shown two sets of six photogr aphs, one of which contained a

photogr aph of a

ppellant. The c omplainant identified appellant’s photo as “Ma nny B.” Also on April 6, appellant c alled Crime Stoppers, identified himself, and w as conne cted to Of fice r An tho ny Ne lso n. Ap pe lla

nt t old Ne lso n tha t he an d Souza wa nte d to me e t w ithhim

and te ll the ir side of the story . Nelson ag ree d to meet appe llant and Souza in a parking lot near the p o l ice d ep ar t m en t ’s child abuse of fice . Nelson testified that be fore meeting appellant, he ran a war rant
c he c k a nd le arn e d th a t th e re we re ou tst and ingwa rr ants fo r a

pp e lla nt’ s a rr e st. 1 The mee ting took plac e as a rra ng ed. Ne lson frisked both m en for wea pons, noticed the odor of ma

rihuana , and advise d them not to bring drug s to the interview. N elson then instructed appellant, who w as driving his own car , to follow Nels o n ’s v eh i cl e to the police of fice . Nelson te s ti f ie d th a t a s h e w a it e d

a t a r e d li g h t, h e n o ti c e d

in h is r e ar - v ie w mi r

r o r th at a p p e ll an t a n d So u za had “a littl e panic in their fac es.” When the lig ht turned g ree n, appellant did not follow Ne lson but instead turned “ and beg an to evade .” Ne lson pursued appe llant and ca lled for ba ckup. Appe llant was stopped, a n d b oth he and Souza wer e handc uffe d and tra nsported to the child abuse office
. There , appellant g ave a writt en st atement in which he admitted having sexual int erc ourse with the
c omp la ina

nt b ut c la ime d th a t it

wa s c on se ns ua l.I n a sing le sentenc e in his brief, a ppellant asser

ts that “the fa cts of this arr est do not meet the 2 fac ts of Article 14.03 of

the Code of Criminal Proce dure.” See Tex
. Co de Crim. Pr oc . A nn . a rt
. 1 4
. 0 3 (W es tS u

p p . 2 0 0 8 ). T h e t ri al co u rt d i d n o tci t e a rt i cl e 1 4
. 0 3 as a b as i s fo r i t s ru l i n g. 3 STATE MENT Appellant objec ted to the admission of his written st atement on the ground that it was the produc t of an unlaw ful war rantless a rre st. The t rial cour

t overrule d this contention after finding that there wer e outstanding war rants to arr est appellant, albeit not for this offe nse. The c ourt furthe r
ru le d th a t the po lic e we re a uth or ize d to arr e st a

pp e lla nt w ith ou t a

wa rr ant b e c a us e the y ha d p ro ba

ble
cause to believe that he had sex ually assaulted the complainant and there wer e exige nt circumstanc es that ju sti fi e d t hem in th e be lie f t hat th e re wa s n o ti me to p ro c ur e a wa rr a nt. See Tex. Code Crim. P roc. A nn. art. 14.04 (West 2005).

Ap pe lla nt u rg e s th a t th e tr ia l c ourt

e rr e d b y re lyingon

the ou tst and ingwa

rr a nts to justify his arr est. He points out that Nelson t estified that he had no prior intention to arre st appellant that da y and argue s tha t “th e de te rm inatio n to arr e st [a pp e lla nt] h a d e ve ry

thi ngto d o w ith[ap pe lla

nt] decidingnot to voluntarily make a statement to the police, a nd not any

po t en t i al l y

outstanding
war rants.” A ppellant did not make this “pre text arr est” a rg ument to the trial court. More over, the validity of an a rre st is n o t d etermined by the subjective motivations of the off icer who makes the
arr est but by

the objective f

acts surr ounding the arr est. G a r c i a v . Stat e , 827 S.W .2d 937, 943-44 (T e x. Cr im. Ap p. 19 92 ). Th e ob je c tiv e fa c t is that Ne lso n kne w that the re we re ou tst and ingwa rr a nts for a ppellant’s ar

rest. F inally , ap p ell ant does not cha lleng e the tria l court’s a lternative r uling that the ar rest wa s lawful under

ar t i cl e 1 4 .04. For

all of these r easons, we overr ule appe llant’s 24

contention that his written statement was tainted by an unlawf

ul arre st and that the trial cour t erre d by overr uling his objec tion to it s admission on that ground. Appellant also objec ted to the admis sion of hi s statement on the g round that he w as
n o t shown to have voluntarily waived his rig hts under Miranda an d arti c le 38.22. See M iranda v. Arizona , 384 U.S. 436 (19 66); Tex. Code Crim. P roc. A nn. art. 38.22, § 2 (West 2 0 0 5 ). Appellant does not deny that he wa s advised of his rights, but he complains that he
was ne ver a sked if he w ished to waive his rig ht to remain silent.

Appellant’s state ment was take n by Offic er A nth o ny Big ong iari. The of

fice r testified that he advise d appellant of his rights be fore questioning him, that appe llant appea red to unde rstand those right s , an d t h at appe llant told him that he wa nted to make a

statement. B igong iari acknow ledg ed that after advising appellant of hi s rig hts, he never specifica lly asked a ppellant if he wished to waive those rig hts. The trial court rule d that no “mag ic words” wer e re quired a nd that the totality of the c ircumstance s demonstrated that appellant made a knowing and volunt ary waiver of his right to re main silent.

The Supreme Court has held that a waiver of the rig ht to r emain silent may be infe rre d fr om t he a c tio ns and wo rd s o f t

he su sp e c t, a

nd that “ an e xplic it s ta te me nt o f w a ive r i s n ot i nv a ri a bly
nece ssary .” North Carolina v . Butler , 441 U.S. 369, 373-76 (1979). The “blue car d” fr om which Big ong iari rea d appellant his r ights was introduced in e vidence
. On the back of t h e c ar d i s t he prepr inted statement, “I

have r ece ived and unde rstand the wa rning on the other side of this card. I
a g re e to w a ive t hes e Rig hts and to m a ke a

State me nt. ” Ap pe lla

nt s ig ne d th e c ard

be low thi s statement af

ter be ing a dvised of his r ights. Be low appellant’ s signature are the date, the time, a nd5

Big ong iari’s sig nature as witness. T he wr itten statement itself also beg ins with a listi ng of
a p p e l l an t ’ s r i g h t s , e a c h i n i t i a l e d b y a p p e l l an t
. B e l o w t h i s i s t h e s t a t e m e n t , “ I d o h e r e b y kn o w i n g l y, int e nti on a lly

and vo lun tari ly

wa ive my

ri g ht t o b e sil e nt a

nd my ri g ht t o h a ve a

lawy e r p re se nt t o advise me. I make the following statement in w riting without any threats or promises of any kind having been ma de to me.” We a g ree with the trial court that the rec ord demonstrates that appe llant knowing ly

and voluntarily

waived h i s ri g hts under Miranda and ar ticle 38.22, including the rig ht to remain silent.

No er ror in the admission of appellant’s written state ment to the police is prese nted. I ssue one is over

ruled.
ID EN TIF IC AT ION By his fourth issue, appe llant challeng es the propr iety o f t he Apr il 6, 2005, ph oto g ra ph ic lin e up in w hic h h e wa s id e nti fi e d b y the c omp la ina

nt. He c ontends that th is p ho to lineup was unduly

sug g estive, and that the trial court e rre d by admitting both the e vidence of the pretria l photogr aphic identific ation and the c omplainant’s in-cour t identification. The re cord r efle cts that appe llant objected to the testimony of the victim’s ser

vices
cou n s e lo r who conduc ted the photog raphic lineup, but he did not object to the complainant’ s in-court identification. B eca

use appe llant d i d not present to the tria l court his contention that the in-c ourt identif i ca t i o n was tainted by

the ea rlier photog raphic lineup proce dure, this contention wa s not prese rved f

or re view. See Tex. R. App. P . 33.1(a)
. A photog raphic lineup must contain individuals who fit the roug h descr iption of the
su sp e c t, bu t it is no t e sse nti a l tha t e a c h ind iv id ual ph ot ograph be ide nti c a l.Appellant cha lleng es only the set of six phot og raphs that in cl u d ed h i m . The sec ond set of 3 photogr aphs does not appe ar in the r ecor d. 6 Br own v . S

tat e , 64 S.W .3d 94, 100 (Tex. App.—Austin 2001, no pet. ). I n Br own , the def endant contende d that the photo spre ad was impermissibly sug g estive bec ause his photog raph w as
overe x posed, making it dist inguisha ble from the othe rs. Id . We noted, ho we v er , t h at ea ch of the six ph oto g ra

ph s in the sp re a d w a s o f a y ou ng Africa n A me ri c an w ithsh or

t ha ir and c omp a ra ble fac ial features, ea ch man wa s wea ring simil ar c lothing, and the bac kg rounds of a ll the photogr aphs
wer e similar. Id
. We also noted that the complaina nt was not told that a suspect wa s included in the sprea d. Id . at 101. We held that the photog raphic arr ay was not impermissibly

sug g estive. Id
. I n the case now befor e us, the victim’s service s counselor showe d the complainant two sets of six photogr aphs. Appe l l an t ’s photog raph w as in only one of the sets, and his was the only photogr aph identified by the complainant. The c ounselor testified that be fore showing the 3 complainant the photogra phs, “I told her that the suspec ts in the case ma y or may not be included in t he lin e up and

that sh e sh ou ld not fe e l c omp e lle d to ide nti fy so me bo dy .” Th e c ha lle ng e d p ho to sp re a d c on sis ts o f s ix pho tog ra ph s o f youngHi sp ani c males, e a c h o f w ho m ha s sh or t ha ir a nd is
we ar i n g a black shirt. All six photogr aphs appe ar to have bee n taken a g ainst a blank ba ckg round but, for some re as o n , t he bac kg rounds in two of the photog raphs, includingappellant’ s, are
no tic e a bly da rk e r tha n the ba c kg ro un ds in the oth e r fo ur ph oto g ra ph s. Ap pe lla

nt c on te nd s th a t th is differ ence in the backg round dar kness re ndere d the photo sp re ad impermissibly sug g estive. Con sid e ri ngthe tot a lity

of the c ir c ums tances , ho wev e r, we a g re e wi th t he tr ia l c ourt

that th is7

one fa ctor did not unduly single ou t appellant’ s photogr aph so as to re nder the identification proce dure imper

missibl y sug g estive. The trial court did not err by admitting evidenc e of the complainant’ s pretria l identification of a

ppellant. I ssue four is ove rruled.

OTHE R I SSU ES I n issue two, appellant c ontends t h at t he trial c ourt err ed by admitting State’s exhibit one, a r ecor ding of the 911 ca ll made by

the complai n an t ’s mother af ter the complainant tol d her about the assault. Appellant contends that beca use both the complaina

nt and he r mo th e r te s ti f

ie d , th e r e c o r d in g w a s c u mu lati v e an d it s p r o b a ti v e v a lu e w a s o u tw e ig h e d by the dang er of unfair pr ejudice. See Tex. R. App. P . 403. I n issue t h ree, appe llant contends that the trial c ourt err ed by admitting State’s ex hibit two, a photogra ph of the c omplainant. The c omplainant’s mother testified that the photogr aph, which a

ppear s t o be an or dinary

studio portrait, acc urate ly shows the complainant’ s appea ranc e in 2005. Appellant conte nds that beca use the c omplainant’s ag e and a ppear ance wer e not at issue, this ex hibit was also more pre judicial than probative. Appellant objec ted to the admission of the 911 rec ording , but not on the gr ound he now urg es on appe al. See Tex. R. App. P . 33.1(a) . Appellant did not object to the admis sion of the complainant’s photog raph. A p p el l ant ar g ues, howe ver, that the admission of the photog raph w as “plain er ror” under feder al case l aw. Although not cited by appellant, we also note that the rule s of evidenc e allow the c onsideration on appeal of fundame ntal err ors affec ting substantial rights eve n though the y

wer e not broug ht to the attention of the trial cour t. Tex. R . Evid. 103(d).8 Appellant re fer s us to no case a uthority hold in g th a t the admission of simil ar e vidence under similar c ircumstance s was plain or f undamental e rror . We fi n d n o b asi s in the rec ord for
c on c lud ingtha

t th e a dmi ssi on

of e ith e r exhi bit on e or e xhibi t two wa s so ma nif e stl y imp ro pe r a s to constitute fundamenta l error that should be consider ed in the abse nce of a per tinent trial objection. I ssues two and thre e ar e over ruled. The judg ment of convic tion is affirmed.

____________________

_ _ _ _ _ _ _ ________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Mar ch 18, 2009 Do No t Pu

bli sh