Cruz Joel Garcia, Jr. v. State ( 2007 )

Affirmed; Opinion of August 30, 2007 Withdrawn; Corrected Memorandum Opinion filed December 6, 2007

Affirmed; Opinion of August 30, 2007 Withdrawn; Corrected Memorandum Opinion filed December 6, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00570-CR

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CRUZ JOEL GARCIA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1005198

C O R R E C T E D   M E M O R A N D U M   O P I N I O N

The Court withdraws its opinion issued August 30, 2007, because of a typographical error and issues this corrected opinion in its place.

Appellant, Cruz Joel Garcia, Jr., was indicted with the felony offense of capital murder.  He pleaded not guilty, and his case was tried to a jury.  The jury found appellant guilty of capital murder and the court assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  Appellant raises three issues on appeal: 1) the court erred in denying his motion to suppress identification testimony; 2) the court erred in not allowing the testimony of a defense expert on eyewitness identification; and 3) the trial court erred in denying appellant=s request for inclusion of an instruction on the lesser included offense of felony murder. Because we find that the court did not err in any of these instances, we affirm the judgment of the trial court.

Factual Background

On the night of May 19, 2001, a group of friends stood outside of an apartment complex where one or two of them lived, drinking beer and talking to one another.  As they stood outside, three young Hispanic males approached, one with a shotgun, and the two unarmed individuals began robbing the men.  The complainant, Juan Ledesma, did not immediately give up his wallet.  The man with the shotgun, appellant, fired into the air and said, AThis is serious.@  When complainant still would not give up his wallet, the two other robbers told appellant, AShoot him.@  Appellant then lined the men up against the fence in front of the apartments and said, AI=m going to kill >em all.@  Then appellant pointed the shotgun at complainant=s face and fired a single shot.  The three robbers, including appellant,  ran from the scene. Complainant died from the wound inflicted by appellant.

Police were called and began an investigation.  Based on a tip, police put together a photographic lineup and showed pictures to the men who had been robbed and had witnessed the shooting.  Of the men who were there, two men, Rafael Pedroza and Alberto Ledesma, tentatively identified appellant from the lineup.  Ledesma testified at the pretrial hearing that he had been 80 to 90 percent sure of his identification the first time he picked appellant from the lineup.  A third witness, Antonio Ramos, positively identified appellant from the photo array.  No other witness recognized any person in the lineup.  From there, the case was set aside and no progress was made for two years, at which point the investigation resumed.  The original lineup could not be found, so a new lineup was made, using the same photos from the original. The lineup was again shown to the witnesses and the same witnesses once again identified appellant.  Ledesma again tentatively identified appellant, stating at the pretrial hearing that he was 80 to 90 percent sure of his identification at the second lineup as well.  Ramos again made a positive identification of appellant, and Pedroza could not identify anyone from the second photo lineup. At trial, the State called both Ramos and Ledesma, and both made in-court identifications of appellant as the shooter on the night complainant was killed. 

Analysis

I.        No Error in Denying Appellant=s Motion to Suppress

Appellant argues, in his first issue, that Ledesma=s second out-of-court identification and his in-court identification were both tainted by the fact that following the first and second photo lineups, Ledesma would have seen evidence on the signature page that other witnesses had also identified appellant.  Appellant contends that because these identifications were tainted, the trial court erred in denying his motion to suppress all subsequent identifications by Ledesma.

A.      Standard of Review and Applicable Law

A conviction based on an out-of-court identification will be set aside on the basis of an impermissibly suggestive pretrial identification procedure only where the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.^[1] See Neil v. Biggers, 409 U.S. 188, 198 (1972).  AIf the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed >reliable,= >reliability [being] the linchpin in determining the admissibility of identification testimony.=@ Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (quoting Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). 

Five factors should be Aweighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances@: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness=s degree of attention; (3) the accuracy of the witness=s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.  Biggers, 409 U.S. at 199B200.  We consider these factors, issues of historical fact, deferentially, in a light favorable to the trial court=s ruling.  Ibarra, 11 S.W.3d at 195.  The factors, viewed in this light, are then weighed de novo against the corrupting effect of the suggestive pretrial identification procedure.  Id. at 195B96. 

A defendant challenging the admissibility of identification testimony on Due Process suggestiveness grounds has the burden to prove by clear and convincing evidence that a witness=s identification is unreliable.  Santos v. State, 116 S.W.3d 447, 451 (Tex. App.CHouston [14th Dist.] 2003 pet. ref=d) (citing Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993)).

B.      Identifications Reliable Under Totality of Circumstances

Initially, we must determine if the procedures used were impermissibly suggestive.  It appears that no test has been conceived to aid courts in analyzing this issue.   Providing an opportunity for a witness to discover if other witnesses have identified anyone in the same lineup appears to be an impermissibly suggestive lineup procedure.  See, e.g., United States v. Woolery, 735 F.2d 818, 820B21 (5th Cir. 1984) (witness=s hearing his son, another witness, identify appellant at the same lineup was one factor making lineup impermissibly suggestive); Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir. 1978) (fact that witnesses had the opportunity to discuss the lineup between their first and second viewings contributed to making lineup impermissibly suggestive).  Impermissibly suggestive procedures that confirm a witness=s choice are disfavored for their tendency to reduce trustworthiness of subsequent identifications.  See United States v. Moskowitz, 581 F.2d 14, 20 (2d Cir. 1978); see also Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (holding that an officer=s indication to a witness that she had a good memory after identifying the suspect was sufficiently suggestive to continue to the second part of the due process analysis).  Therefore, we hold that the procedures used in this case were impermissibly suggestive.  

We now must analyze the Biggers factors to determine whether the identification can be considered reliable under the totality of the circumstances.  First, we examine the opportunity to view the appellant at the time of the crime.  Ledesma testified that it was around 11:00 p.m. when the robbery occurred, but when asked if there were lights so that the friends could see each other and other people who might be around, he responded, AYes.@  The whole ordeal lasted only two to three minutes.  He testified that the gunman came to within five feet of him, and that when the gunman was standing where Ledesma could see his face, the distance between them was no more than seven feet.  Ledesma said he was able to see appellant=s face, although only briefly.  He testified that when he saw the gunman=s face, the gunman was standing directly in front of him, giving him a direct view of the front of the gunman=s face.  Viewing this factor in the light most favorable to the trial court=s ruling, we find Ledesma had sufficient opportunity to view the gunman=s face at the time of the crime.  See Ibarra, 11 S.W.3d at 195; Brown v. State, 29 S.W.3d 251, 255B57 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (holding opportunity to view burglar sufficient where witness clearly saw burglar=s face during a sixty-second encounter).

The second Biggers factor examines the witness=s degree of attention.  A witness who is also a victim pays closer attention to events than would a casual bystander.  See Barley v. State, 906 S.W.2d 27, 35 (Tex. Crim. App. 1995); Cantu v. State, 738 S.W.2d 249, 253 (Tex. Crim. App. 1987).  Ledesma was one of several men who were being held at gunpoint and robbed together.  He was in as much danger as his cousin, the complainant in this case.  We, therefore, believe that Ledesma had a great deal of incentive to pay attention. 

The next factor, and one that is also indicative of attentiveness, is the accuracy of any prior description.  See Delk v. State, 855 S.W.2d 700, 707 (Tex. Crim. App. 1993) (stating that the amount of detail given by the witness revealed her attentiveness).  Although Ledesma himself did not remember giving a description to the police, Officer Riojas testified that Ledesma described the gunman as being between 18 and 20 years of age, approximately five feet six inches in height, with a thin build, medium brown skin, and short black hair.  He was also perceptive enough to notice the type of gun used by the gunman.  Appellant=s mother testified at trial that he is actually five feet three inches tall,  has a light complexion, and at the time of the robbery weighed between 128 and 135 pounds.  Photos in the record show that appellant=s hair is dark, possibly black.  The differences in testimonyCnamely height and complexionCare not significant, and show that Ledesma=s description was fairly accurate.  See Ibarra, 11 S.W.3d at 196 (a description  matching appellant=s Ageneral appearance@ indicated reliability, despite describing suspect as having mustache instead of full beard);  Williams v. State, 985 S.W.2d 240, 242B43 (Tex. App.CBeaumont 1999, no pet.) (holding that witness=s description of 6' or 6'2" and 200 pounds did not differ significantly from officer=s description of appellant as 5'10" and 180 pounds). 

The fourth Biggers factor is the level of certainty demonstrated by the witness at the confrontation.  As to his out-of-court identification, Ledesma testified that he was 80 to 90 percent sure when he chose appellant from the photo array.  Though not a positive identification, this is a high degree of certainty.  Notably, this is the same degree of certainty with which he identified appellant in the first lineup, before any allegedly suggestive procedures.^[2] As to his in-court identification, he testified that appellant was the gunman without equivocation.  He also testified that he did not remember seeing Ramos=s signature on the second photo array=s signature page, which indicates that his certainty at the in-court identification was not based on the suggestive procedures.  More important than his testimony that he did not remember Ramos=s signature is Ledesma=s testimony that he made both his out-of-court identification and his in-court identifications because he remembered appellant, not because of seeing him in pictures or for any other reason.  See Ibarra, 11 S.W.3d at 196 (identification based on own observations rather than photos viewed as evidence of reliability);  Harris v. State, 827 S.W.2d 949, 960 (Tex. Crim. App. 1992) (same); see also Rojas v. State, 171 S.W.3d 442, 449 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding that witness=s statement that he could identify appellant based on recollection, independent from photo lineup, made in-court identification admissible). 

Finally, we consider the length of time between the crime and the confrontation.  The length of time between the crime and the second out-of-court photo lineup was approximately two years and three months.  The time between the in-court identification and the crime was approximately five years.  However, the first photo lineup, which was not the product of any suggestive procedure, and at which Ledesma identified appellant with the same 80 to 90 percent certainty as he did at the second photo lineup, occurred only eighteen days after the offense.  Furthermore, we note that the passage of a long period of time does not necessarily Adetract from the identification@ given the persuasiveness of other factors.  See Delk, 855 S.W.2d at 707. 

Balancing the nature of the suggestive procedure against Ledesma=s opportunity to observe the gunman, his attention to detail, his largely accurate description of appellant, high degree of certainty at all confrontations, and his testimony that he chose appellant at the second photo lineup and in court because he remembered him from 2001, not for any other reason, we hold that appellant did not meet his high burden of showing by clear and convincing evidence a very substantial likelihood of misidentification.  See Santos, 116 S.W.3d at 451.  We overrule appellant=s first issue.

II.       No Abuse of Discretion in Refusing to Allow Expert to Testify

In his second issue, appellant contends that the trial court abused its discretion in not allowing an expert witness for the defense to testify as to eyewitness identification.  Dr. Steve Rubenzer, a forensic psychologist, was prepared to testify as to the variables that affect the reliability and accuracy of eyewitness identification.  The trial court ruled that Dr. Rubenzer was insufficiently experienced or skilled to testify before the jury.

Appellant argues that the court=s holding flies in the face of the evidence because 1) Dr. Rubenzer had attended four seminars, two-and-a-half days each, on eyewitness- identification, 2) he had read over fifty recent studies and articles on the subject, and 3) his entire practice is devoted to forensic psychology, which is a broad field encompassing eyewitness identification.  Dr. Rubenzer also testified that he had previously been qualified as an expert on eyewitness identification in two other trial courts. He has also written a single article published in two separate criminal defense lawyer periodicals. 

However,  Dr. Rubenzer=s testimony also shows that while he has read some fifty articles on eyewitness identification, there are over 2,000 such published articles on the specific topic of eyewitness identification.  Dr. Rubenzer has never done any research of any kind in the field of eyewitness identification.  In fact, Dr. Rubenzer only began to learn about eyewitness identification in 2001.  He earned his doctorate in clinical psychology in 1990, and then worked as a forensic psychologist for Harris County for fourteen years, during which time his main job responsibilities were determining the competency and sanity of defendants as well as general psychological assessment, neither of which relate to eyewitness identification.  Dr. Rubenzer is an associate editor of a journal called AAssessment,@ which is unrelated to eyewitness identification.  Since 2004, Dr. Rubenzer has been in private practice and lists a range of topics as his areas of expertise: competency, insanity and criminal responsibility, detection of malingering of mental illness, clinical assessment of personality, psychopathology and intelligence, D.W.I. standardized field sobriety testing, assessment of risk and dangerousness, eyewitness expert testimony, and false confessions.  Dr. Rubenzer has published two books and several articles, and of his publications, only a single article, published in a non-peer-reviewed journal, is related to eyewitness identification. 

A.      Standard of Review and Applicable Law

Under Rule 702, the trial court, before admitting expert testimony, must be satisfied that the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education.  See Alvarado v. State, 912 S.W.2d 199, 215B16 (Tex. Crim. App. 1995).  The witness sought to be qualified must have a background tailored to the specific area of expertise in which the expert desires to testify.  Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006).

Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case.  Rodgers v. State, 205 S.W.3d 525, 527B28 (Tex. Crim. App. 2006).  Absent a clear abuse of that discretion, the trial court=s decision to admit or exclude expert testimony will not be disturbed.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).  In considering whether a trial court clearly abused its discretion in ruling on an expert=s qualifications, appellate courts should consider three factors: (1) the degree of complexity of the field of expertise (greater complexity requires better credentials); (2) the degree of conclusiveness of the expert=s opinion (the more conclusive, the more important his degree of expertise); and (3) the centrality of the area of expertise to the resolution of the lawsuit (the more dispositive the opinion is, the more important the expert=s qualifications).  See Rodgers, 205 S.W.3d at 528.^[3]

B.      No Abuse of Discretion 

Clearly, the evidence adduced at the hearing shows that Dr. Rubenzer has some specific knowledge of eyewitness identification issues gleaned from reading some articles and attending conferences.  However, the evidence also shows that his background may not be sufficiently tailored to the area of eyewitness identification.  Eyewitness identification is a small part of Dr. Rubenzer=s wide-ranging practice, and he has not performed any research or published on the topic in a peer-reviewed publication.  He has read only approximately .0025% of all published articles on eyewitness identification, and in his sixteen year career has received only ten days of seminar education on the topic.  See Vela, 209 S.W.3d at 133.

While eyewitness identification variables may not be very complex, and Dr. Rubenzer=s testimony may not have been very conclusive, we note that the issue of the accuracy of the eyewitness identifications in this case, as with most eyewitness cases, is the central and dispositive issue in the case.  Therefore, we do not think the trial court clearly abused its discretion in holding that Dr. Rubenzer was not qualified to testify at trial.  See Rodgers, 205 S.W.3d at 528.  We overrule appellant=s second issue.

III.      No Error Refusing Request for Instruction on Lesser Included Offense of Felony Murder

In his third and final issue, appellant contends that the court erred in denying a request for a jury instruction on the lesser included offense of felony murder.  The jury charge in this case provided two instructions on murder.  The first allowed conviction if the defendant intentionally or knowingly caused the death of an individual.  See Tex. Pen. Code ' 19.02(b)(1).  The second allowed conviction if the defendant, intending to cause serious bodily injury, intentionally or knowingly committed an act clearly dangerous to human life that caused the death of an individual.  See id. ' 19.02(b)(2). Appellant=s trial counsel requested an instruction on felony murder, which the trial court denied based on the court=s belief the language was the same as the capital murder instruction.       

A.      Law of Lesser Included Offenses

Texas courts use a two-pronged test to determine whether an instruction on a lesser included offense must be given.  Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003).  First, the court determines whether the lesser offense is a lesser‑included offense of the offense charged as set forth in article 37.09 of the Texas Code of Criminal Procedure.^[4] Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  Second, the court determines whether there is any evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.  Rousseau v. State, 855 S.W.2d  666, 673 (Tex. Crim. App. 1993).        

B.      Second Prong of Test Is Not Met

Felony murder is a lesser included offense of capital murder.  Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005).^[5] The only difference between the two is the culpable mental state required.  Id. ACapital murder requires the existence of an >intentional cause of death,= ... while in felony murder, >the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying ... felony....=@  Rousseau, 855 S.W.2d at 673 (quoting Rodriquez v. State, 548 S.W.2d 26, 29 (Tex. Crim. App.1977)). Thus, the first prong of the test is met.

The second prong is not met, however, because a rational jury could not find that if appellant is guilty, he is guilty only of felony murderCin this case, commission of a robbery, during which or while fleeing, he committed an act clearly dangerous to human life that caused complainant=s death.  The facts clearly show that appellant was prompted by his co-conspirators to shoot complainant, that he lined the men up against the fence, as though he were about to execute them, that he said, AI=m going to kill them all,@ and that he stood a mere few feet away from complainant and fired his shotgun directly at complainant=s head.  On these facts, no rational juror could find that if appellant was guilty, he was guilty only of felony murder (i.e., that he did not kill intentionally).  We overrule appellant=s third issue.

Conclusion

Having overruled each of appellant=s three issues, we affirm the judgment of the trial court. 

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Corrected Memorandum Opinion filed December 6, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  If the State offers an in-court identification, the question is whether the identification presents a very substantial risk of irreparable misidentification.  See Simmons v. United States, 390 U.S. 377, 384 (1968).  Here, the State offered both an in-court identification and an out-of-court identification; therefore, different standards technically apply. However, because we find that appellant does not meet the lower standard of showing mere Asubstantial likelihood of misidentification@ as to either identification, we will not separately analyze the reliability of the in-court and out-of-court identifications. 

^[2]  We note that several cases from at least one other jurisdiction suggest that where suggestive procedures had no effect on the certitude of an identification, this is dispositive of the reliability inquiry.  See, e.g., Jarrett v. Headley, 802 F.2d 34, 41B42 (2d Cir. 1986) (stating police suggestiveness does not require the suppression of an identification if the witness was not thereby influenced); United States v. Wong, 40 F.3d 1347, 1362 (2d Cir. 1994) (same). 

^[3]  We note that the State chose to brief this issue as a determination of reliability.  See Vela, 209 S.W.3d at 131 (referring to the three inquiries to be met before admitting expert testimony as 1) qualification, 2) reliability, and 3) relevance).  Because both appellant and the State confine their arguments to whether Dr. Rubenzer had sufficient credentials to be allowed to testify, we analyze the issue as one of qualification.  To the extent this issue could be analyzed under the reliability inquiry, the outcome would be the same.  

^[4]  Article 37.09 provides that an offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. art. 37.09.

^[5]  The definition of felony murder is under Texas Penal Code section 19.02(b)(3).  It provides:

(b)  A person commits an offense if he:                                        

****

(3)  commits or attempts to commit a felony, other than

manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission

or attempt, he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.

Tex. Penal Code ' 19.02(b)(3).