Soto v. State

• Decision Date: 30 September 1993
• Docket Number: No. A14-92-00133-CR,A14-92-00133-CR
• Citation: 864 S.W.2d 687
• Parties: Ruben Castaneda SOTO, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 687

864 S.W.2d 687

Ruben Castaneda SOTO, Appellant, v. The STATE of Texas, Appellee.

No. A14-92-00133-CR.

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

Sept. 30, 1993.

Discretionary Review Refused Jan. 26, 1994.

J.C. Carroll, Houston, for appellant.

Rikke Graber, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and ELLIS and LEE, JJ.

OPINION

ELLIS, Justice.

Appellant, Ruben Castaneda Soto, appeals his judgment of conviction for aggravated sexual assault. TEX.PENAL CODE ANN. § 22.021 (Vernon 1989). The jury rejected his not guilty plea and, after finding the enhancement paragraph of the indictment to be true, assessed punishment at fifteen (15) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

On January 27, 1990, the complainant met some friends at Charlie's Lounge on Laura Koppe Road at about 10:00 p.m. When the lounge closed at 2:00 a.m., her friends had left without her so she began walking the eight blocks to her home. As she walked down Laura Koppe Road, appellant, along with a passenger, approached her in a green automobile. When they asked her if she wanted a ride, she told them that she did not, so they drove off. Soon thereafter, appellant and his passenger approached the complainant a second time and again asked her if she wanted a ride. When she said that she did not, appellant drove the car in front of her to block her path. The passenger got out of the car, grabbed the complainant and put her in the front seat between himself and appellant. The complainant testified that she was able to see the faces of the two men because of the street lights on Laura Koppe Road.

They drove down Laura Koppe Road and turned on Comden. At the end of Comden, they turned down a sidestreet that also had street lights. They stopped there and appellant told the complainant to take off her clothes. When she pleaded with him, he pulled out a switchblade knife and told her that he would kill her. Appellant cut off the complainant's skirt, climbed on top of her and hit her with his fists until she complied. Appellant proceeded to force the complainant to have intercourse with him.

After appellant sexually assaulted the complainant, his passenger did the same. While the passenger was having forceful intercourse with the complainant, appellant put his penis in her mouth. When the passenger was through, appellant had sexual intercourse with the complainant a second time. The complainant testified that throughout the experience, appellant held the switchblade knife to her neck.

After the assault, appellant told the complainant that he was going to kill her. The passenger, however, talked appellant into letting her go. The passenger shoved the complainant out of the car and as they drove away, she saw the license plate number and memorized it. A police investigation of the license plate number led to appellant. His picture was placed in a photospread and the complainant identified him. She also identified him in court at trial.

Appellant asserts five points of error. First, that the trial court erred when it denied his motion to suppress the photographic identification array. Second, that the trial court erred in denying his objection to the photographic array which appellant asserts is suggestive. Third, that the trial court erred in overruling his motion for instructed verdict, contending that the State failed to prove that appellant was the individual who committed the acts alleged with a weapon. Fourth, that the evidence was insufficient to sustain a conviction based on the charge given to the jury. Finally, that the trial court erred in not granting a mistrial when the prosecutor asserted his personal opinion about the case.

Appellant's first two points of error involve the photospread used by the complainant to identify appellant. He contends first, that it should have been suppressed and second, that it should not have been introduced into evidence because it was suggestive. Appellant asserts that the suggestiveness of the photospread led to an in-court misidentification. We will discuss these two points simultaneously.

The admissibility of an in-court identification is determined by a two-pronged test:

1. The photographic display procedure must be impermissibly suggestive; and

2. The suggestive procedure must give rise to a very substantial likelihood of irreparable misidentification.

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Cantu v. State, 738 S.W.2d 249, 251 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 154 (1987). These steps require a "totality of the circumstances" analysis in which five factors are considered: (1) opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' 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. Cantu, 738 S.W.2d at 252 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).

Appellant asserts that the photospread was impermissibly suggestive because he was the only person pictured who had a mole on his face. He analogizes Rawlings v. State, 720 S.W.2d 561 (Tex.App.--Austin 1986, pet. ref'd) wherein the court held that the photographic identification of a tattoo was impermissibly suggestive. Id. at 577. However, in Rawlings, the court analysized the five factors and found, from the totality of the circumstances, that that the identification was not reliable. Id. at 576. The victim in Rawlings had only seen two inadequate photographs of the tattoo and had described the tattoo differently than the one that appeared on the defendant's hand. Id. The present case is not analogous to Rawlings because all indicia of reliability are more than sufficient here.

First, the complainant had ample opportunity to view appellant at the time of the crime. She testified that she sat shoulder-to-shoulder with appellant and his passenger in the front seat of the car while they drove to the place where the assault occurred. She stated that she could see his face because of the street light illumination. She further testified that throughout the assault she could see his face and that he was close enough for her to feel and smell his breath.

Second, it is evident from the complainant's testimony that she was paying particular attention to appellant's face. She testified repeatedly that she "was only watching his face" and that she was "trying to see" his face during the assault. Furthermore, the facts that she memorized the license plate number and was able to describe both of the assailants and the car are indicative of the high degree of attention she was paying during the crime.

Third, the evidence indicates that the complainant gave an accurate description of appellant. The investigating officer assigned to the case, Sergeant M.J. Vasser, took the complainant's descriptions of her assailants and the license plate number she had memorized. His investigation of the license plate number led to appellant. He then did a criminal history check on appellant and was able to obtain a mug shot of him. Sergeant Vasser testified that the description given by the complainant matched the picture of appellant, which indicates that her description was accurate.

Fourth, the complainant demonstrated a high level of certainty in her identification of appellant. Sergeant Vasser testified that the complainant only looked at the photospread for a few seconds before she made a positive identification. Prior to showing her the photospread, Sergeant Vasser warned the complainant that he did not know whether the man who assaulted her was in the array and that she was not obligated to identify anyone. Despite the warnings, she made an immediate positive identification of the man Sergeant Vasser had tracked the license plate number to.

Finally, there was a very short time period between the assault and the complainant's identification of appellant. The assault occurred on January 28th and the complainant identified appellant in the photo array on February 6, just nine days later. After reviewing the totality of the circumstances, we hold that the photographic display was not impermissibly suggestive and that there was no likelihood of irreparable misidentification. Appellant's first and second points of error are overruled.

In appellant's third and fourth points of error, he argues that the State failed to prove he exhibited a deadly weapon during the commission of the crime. First, he asserts that the court erred in overruling his motion for an instructed verdict because the State did not prove that he was the individual who committed the acts with a weapon. Second, he contends that the evidence was insufficient to sustain a conviction based on the charge given to the jury. These points of error will be discussed together.

The jury charge read, in pertinent part:

"Deadly weapon" means anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of January, 1990, in Harris County Texas, the defendant, Ruben Castaneda Soto, did then and there unlawfully intentionally or knowingly by the use of physical force or violence or by threatening the present use of force or violence against [complainant] not the spouse of the defendant, cause the penetration of the female sexual organ of [complainant] by placing his sexual organ in the female sexual organ of [complainant] wihtout [sic] the consent of [complainant] and in...