Aviles-Barroso v. State

• Court: Texas Court of Appeals
• Writing for the Court: William J. Boyce, Justice
• Citation: Aviles-Barroso v. State, 477 S.W.3d 363 (Tex. App. 2015)
• Decision Date: 27 August 2015
• Docket Number: NO. 14–14–00142–CR,14–14–00142–CR
• Parties: Rogelio Aviles–Barroso, Appellant v. The State of Texas, Appellee

477 S.W.3d 363

Rogelio Aviles–Barroso, Appellant

v.The State of Texas, Appellee

NO. 14–14–00142–CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 27, 2015

Discretionary Review Refused March 23, 2016

Gerald E. Bourque, The Woodlands, TX, for Appellant.

Jessica Akins, Houston, TX, for State.

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

OPINION

William J. Boyce, Justice

A jury convicted appellant Rogelio Aviles–Barroso of capital murder¹ and 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 evidencebecause the identification testimony was inadmissible and the accomplice witness 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 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.

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 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 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

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