Lopez v. State

• Decision Date: 19 July 2007
• Docket Number: No. 11-05-00313-CR.,No. 11-05-00312-CR.,11-05-00312-CR.,11-05-00313-CR.
• Parties: Osvaldo LOPEZ, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

230 S.W.3d 875

Osvaldo LOPEZ, Jr., Appellant, v. STATE of Texas, Appellee.

No. 11-05-00312-CR.

No. 11-05-00313-CR.

Court of Appeals of Texas, Eastland.

July 19, 2007.

Rick Dunbar, Abilene, for appellant.

Billy John Edwards, Dist. Atty., Anson, for appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

TERRY McCALL, Justice.

The jury convicted Osvaldo Lopez, Jr. of two deliveries of cocaine: (1) a second degree felony offense enhanced to a first degree felony offense of more than one gram but less than four grams that occurred on September 4, 2001 (Cause No. 11-05-00313-CR) and (2) a state jail felony offense of less than one gram that occurred on September 6, 2001 (Cause No. 11-05-00312-CR). The trial court assessed punishment at forty years confinement in Cause No. 11-05-00313-CR and at two years confinement in Cause No. 11-05-00312-CR, both sentences to run concurrently.

Appellant asserts that he was provided with ineffective assistance of counsel because his trial counsel failed (1) to object to the traffic stop of appellant for narcotics officers to obtain his driver's license information and (2) to object to the unduly suggestive procedure of the undercover officer in identifying appellant from his driver's license photograph. Appellant also asserts that, without the in-court identification of appellant by the undercover officer, which was a result of the impermissible pretrial procedure, the evidence was legally and factually insufficient to support the convictions. Lastly, appellant contends that the trial court erred in admitting impeachment evidence of prior offenses dismissed under TEX. PENAL CODE ANN. § 12.45 (Vernon 2003) by an earlier court that had considered them in the punishment of appellant for an earlier felony conviction.

Although we remand the cases because the trial court erred in admitting the impeachment evidence, we first address appellant's assertion that the evidence was insufficient to support the convictions.

Background Facts

Sergeant Teofilo Garcia Jr. of the Texas Department of Public Safety (DPS) was a narcotics officer based in Anson. On September 4, 2001, a cooperating individual told him that a man named "Junior" would sell cocaine if Sergeant Garcia wanted to set up a buy. Born in Anson, Sergeant Garcia had lived there most of his life and knew many of the people who were involved with drugs, and they knew him. Sergeant Garcia had received information that the Aguirre family had been trafficking in drugs. The cooperating individual's reference to "Junior," his mentioning of the names of members of the Aguirre family, and his description of where the named persons lived led Sergeant Garcia to wrongly assume that the cooperating individual was talking about Robert Aguirre Jr. as the potential seller of cocaine. Sergeant Garcia's assumption had the additional support of the cooperating individual's description of the pickup that "Junior" would be driving: a white Ford F150 with a buyer's tag. Sergeant Garcia had seen Larry Aguirre, Robert Aguirre Jr.'s brother, driving that pickup, and he had seen the pickup at the Aguirre residence.

Because Sergeant Garcia was well known in Anson, Sergeant James Rhodes was the undercover officer to purchase the cocaine. Sergeant Rhodes told the cooperating individual to contact "Junior" to set up a purchase of two grams of cocaine for $100 per gram later in the afternoon of September 4. Sergeant Rhodes testified that, after appellant drove up in the white Ford F150 pickup, the cooperating individual simply introduced appellant as "Junior" and then left. Sergeant Rhodes then purchased 1.65 grams of cocaine from appellant for $200. Sergeant Garcia testified that he was conducting surveillance for Sergeant Rhodes but that he did not see "Junior," only the white Ford F150 pickup with buyer's tags.

Two days later, on September 6, Sergeant Rhodes was preparing to make an undercover buy of methamphetamine from an individual named Wilcox. "Junior" was driving a white Chevrolet pickup, spotted Sergeant Rhodes, and stopped and asked Sergeant Rhodes if he would like to purchase $20 worth of cocaine. Sergeant Rhodes made a second buy of .26 grams from "Junior."

When Sergeant Rhodes delivered the two packets of cocaine to the DPS lab, he listed the suspect as Robert Aguirre Jr. on both initial reports. The first report was dated September 5, a Wednesday, and the second report was dated September 7. After the second buy, Sergeant Rhodes described "Junior" to Sergeant Garcia who then realized that the "Junior" described was not Robert Aguirre Jr. because Robert was a much larger person. A day or so later, Sergeant Garcia saw a person, whom he thought might be the person described by Sergeant Rhodes, driving one of the Aguirres' pickups. Sergeant Garcia asked another DPS trooper to make a traffic stop to identify the driver. The trooper stopped appellant for not signaling and obtained the information on appellant's driver's license. Based on that information, Sergeant Rhodes obtained appellant's driver's license photograph from Austin and identified appellant as the seller of the cocaine. He then corrected the two lab reports to read "Osvaldo Lopez" instead of "Robert Aguirres [sic] Jr."

Sergeant Rhodes positively identified appellant at trial, stating that he remembered the tear-drop tattoo by appellant's left eye as "clear as a bell" even though he had omitted that detail in his reports. Sergeant Rhodes was certain — "100% sure" — that appellant was the person who had sold him cocaine on September 4 and 6. He had stood approximately two to three feet from appellant, who was behind a steering wheel, when he purchased the cocaine. Sergeant Rhodes testified that appellant drove a white Ford F150 on September 4 and a white extended cab Chevrolet pickup on September 6. The Chevrolet pickup was registered in the name of Larry Aguirre, and appellant was also driving that pickup when he was given a traffic ticket on October 23, 2001.

Appellant testified that he was married to an Aguirre sister and that his sister was married to Larry Aguirre. He also admitted driving the various Aguirre pickups because he did not own a vehicle. Appellant testified that, when he was released from prison in April 2001, he came to live with his sister and Larry Aguirre in Anson. He still lived with Aguirre family members at 1832 Avenue H, and he remembered driving an Aguirre pickup when he was stopped on October 23. During his testimony, appellant said that he had never been to 1901 Avenue P even though Sergeant Rhodes had testified that the white Chevrolet pickup was registered in the name of Larry Aguirre at 1901 Avenue P. Sergeant Garcia also testified that he followed the white Ford F150 to 1901 Avenue P on September 4 just before the pickup was driven to Avenue G where Sergeant Rhodes made the first buy.

Ineffective Assistance of Counsel

In appellant's second issue, appellant asserts that he received ineffective assistance of counsel because his trial counsel failed to object to the traffic stop of appellant to obtain his driver's license information and to object to the unduly suggestive identification procedure followed by Sergeant Rhodes.

In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim. App.1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim.App.1991).

Appellant argues that his trial counsel was ineffective because he did not timely object and move to suppress appellant's identification on the basis of an illegal traffic stop. Sergeant Garcia testified that he remembered Trooper Brewster stopping appellant for not signaling. Sergeant Garcia had just seen the person described by Sergeant Rhodes in the Aguirre pickup and asked Trooper Brewster to make a stop. Sergeant Garcia did state that Trooper Brewster, after the stop, called him with the driver's license information. Trooper Brewster was in Iraq at the time of trial.

The traffic stop of appellant for identification was valid. A police officer may stop and briefly detain persons suspected of criminal activity, but the officer must possess a reasonable suspicion to justify the investigative detention. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Davis v. State, 947 S.W.2d 240, 242-44 (Tex.Crim.App.1997). Sergeant Garcia had reasonable suspicion to stop appellant when he spotted appellant in the Aguirre pickup: Sergeant Garcia had received information that the Aguirres were involved in drug trafficking, he recognized the Aguirre pickup that appellant was driving, and he believed that appellant was the person described by Sergeant Rhodes. See also Pichon v. State, 683 S.W.2d 422, 426 (Tex.Crim.App.1984) ("a defendant's face cannot be a suppressible fruit of an illegal arrest"). Appellant's trial counsel did not err by not challenging the stop.

Appellant also argues that his trial counsel was ineffective because he did not object to Sergeant Rhodes's in-court identification of appellant as having been the result of an impermissibly suggestive pretrial procedure. By this challenge to the admissibility of Sergeant Rhodes's in-court identification, appellant has to prove (1) that the out-of-court identification procedure was impermissibly suggestive and (2)...