Kenneth Zink v. The State of Texas--Appeal from 54th District Court of McLennan County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-07-00026-CR

Case Date: 12/05/2007

Plaintiff: Kenneth Zink

Defendant: The State of Texas--Appeal from 54th District Court of McLennan County

Preview:Osvaldo Lopez, Jr. v. The State of Texas--Appeal from
259th District Court of Jones County
Opinion filed May 24, 2007
The court on this day, July 19, 2007, has withdrawn the opinion and judgment dated May 24, 2007, and substituted the
opinion and judgment dated July 19, 2007.
Opinion filed May 24, 2007
In The
Eleventh Court of Appeals
Nos. 11-05-00312-CR & 11-05-00313-CR
OSVALDO LOPEZ, JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause Nos. 9004 & 9005
O P I N I O N
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. Pen. Code Ann. ' 12.45 (Vernon 2003) by an earlier court that had considered them in the
punishment of appellant for an earlier felony conviction. We modify and affirm.
Background Facts
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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 AJunior@ 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 AJunior,@ 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
AJunior@ 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 AJunior@ 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 AJunior@ 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 AJunior,@ 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. AJunior@ 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 AJunior.@
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 AJunior@ to Sergeant Garcia who then realized that the
AJunior@ 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 AOsvaldo Lopez@ instead of ARobert Aguirres
[sic] Jr.@
Sergeant Rhodes positively identified appellant at trial, stating that he remembered the tear-drop tattoo by appellant=s
left eye as Aclear as a bell@ even though he had omitted that detail in his reports. Sergeant Rhodes was certain B
A100% sure@ B 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
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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 (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. Staffordv. 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 (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) (Aa 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) that the suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). The
second element directly implicates appellant=s due process rights. Simmons v. United States, 390 U.S. 377, 384
(1968). If appellant makes this showing, the in-court identification was inadmissible unless the State proved by clear
and convincing evidence that the identification was of Aindependent origin.@ United States v. Wade, 388 U.S. 218,
240 (1967). Reliability is the linchpin in determining the admissibility of identification testimony. Manson v.
Brathwaite, 432 U.S. 98, 114 (1977).
Appellant has satisfied his burden as to the first element. The use of a lone photograph, without any of the traditional
safeguards of a lineup or a photographic array, is inherently suspect and has been uniformly condemned by courts.
Stovall v. Denno, 388 U.S. 293, 302 (1967); Loserth v. State, 985 S.W.2d 536, 543 (Tex. App.CSan Antonio 1998, pet.
ref=d). Having determined that Sergeant Rhodes=s viewing of a single photograph was an impermissibly suggestive
procedure, we next consider whether appellant has established that the procedure gave rise to a very substantial
likelihood of irreparable misidentification. Photographic identification of an accused prior to trial does not
automatically taint an in-court identification. Ward v. State, 474 S.W.2d 471, 475 (Tex. Crim. App. 1971). Unless it is
shown by clear and convincing evidence that the witness=s identification was irreparably tainted, a conviction will not
be reversed on that ground. Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984).
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The United States Supreme Court in Brathwaite and in Neil v. Biggers, 409 U.S. 188, 199 (1972), held that, even if an
identification procedure is suggestive and unnecessary, the admission of identification testimony does not violate due
process so long as the identification possesses sufficient aspects of reliability. Emphasizing that the totality of the
circumstances must be reviewed, the Court set forth five nonexclusive factors to be considered: (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.
The facts in this case are similar to those in Brathwaite. In Brathwaite, a trained undercover state police officer
purchased heroin from a seller through the open doorway of an apartment while standing for several minutes within
two feet of the seller in a hallway illuminated by natural light. The undercover officer described the seller to another
police officer who, suspecting from the description that the defendant might be the seller, left a police photograph of
the defendant at the office of the undercover officer. Two days later, the undercover officer identified the picture as the
defendant. The Court held that, under the totality of the circumstances, there did not exist a very substantial likelihood
of irreparable misidentification. The observer was a trained police officer who had a sufficient opportunity to view the
suspect, accurately described him, positively identified the defendant=s photograph, and made the photograph
identification only two days after the crime.
Sergeant Rhodes had two opportunities to view appellant from two or three feet away. Sergeant Rhodes was a trained
undercover officer who could be expected to pay scrupulous attention to detail, for he knew that subsequently he
would have to find and arrest his seller. Sergeant Rhodes=s description of appellant prior to seeing the photograph was
sufficient to enable Sergeant Garcia to have appellant stopped a few days later. Sergeant Rhodes was adamant in his
testimony during trial that appellant was the person who sold cocaine to him on two occasions. Finally, the
photographic identification took place only a few days after the cocaine purchases. As in Brathwaite, we do not have a
passage of weeks or months between the crime and the viewing of the photograph. See Brathwaite, 432 U.S. at 116.
The State in this case demonstrated by clear and convincing evidence that the identification of appellant was of
independent origin (Sergeant Rhodes=s observation of defendant during the two sales). See Spencer v. State, 466
S.W.2d 749, 753 (Tex. Crim. App. 1971). Although appellant has relied heavily in his argument that Sergeant Rhodes
failed to mention appellant=s teardrop tattoo in his reports, that omission went to the weight of Sergeant Rhodes=s
testimony, not its admissibility. Garza v. State, 633 S.W.2d 508, 513 (Tex. Crim. App. 1981). The impermissible
procedure did not give rise to a very substantial likelihood of irreparable misidentification. Appellant=s second issue is
overruled. Appellant=s trial counsel was not ineffective for not objecting to the stop or the method by which Sergeant
Rhodes identified appellant.
Legal and Factual Sufficiency of the Evidence
In appellant=s third and fourth issues, appellant asserts that the evidence was legally and factually insufficient to
support the convictions. Although appellant=s sufficiency arguments are primarily based on his contention that the in-
court identification of appellant by the undercover officer was due to an impermissible pretrial procedure, with which
we have disagreed, we nevertheless will address the third and fourth issues.
In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State,17 S.W.3d 664 (Tex.
Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in
a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144
S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958
S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the
reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and
manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.
Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
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Sergeant Rhodes was firm in his in-court identification of appellant as the one who sold him cocaine on two occasions.
There are other factors pointing to appellant as the one who drove the Ford F150 on September 4 and the white
Chevrolet pickup on September 6. Both pickups were known by Sergeant Garcia to belong to the Aguirres, and there
was testimony that the Chevrolet pickup was registered in the name of Larry Aguirre. Appellant admitted, and the
evidence showed, that he was driving the Chevrolet pickup on October 23 when appellant was the subject of a traffic
violation. Appellant obviously was driving an Aguirre pickup when he was stopped in September and Trooper
Brewster obtained his driver=s license. Appellant did not own a vehicle and freely admitted that he drove the Aguirre
pickups when he needed a vehicle. The fact that an Aguirre pickup was involved in both cocaine buys is indicative that
either an Aguirre or someone closely associated with the Aguirres was driving the pickups. Appellant was married to a
sister of an Aguirre, and his own sister was married to Larry Aguirre, the owner of the Chevrolet pickup.
The evidence was legally and factually sufficient to support the conviction of appellant for both offenses. We overrule
appellant=s third and fourth issues.
Prior Offenses Dismissed Under Section 12.45
In his first issue, appellant argues that the trial court erred in admitting impeachment evidence of prior offenses that
appellant had pleaded guilty to under Section 12.45 of the Penal Code. The offenses had been considered by another
court in connection with the punishment of appellant for an earlier felony conviction. In this case, appellant does not
object to the use of the earlier felony conviction for illegal investment under Tex. Health & Safety Code Ann. ' 481.126
(Vernon Supp. 2006). Appellant=s objection is that the dismissed offenses under Section 12.45 B possession of 400
grams or more of cocaine and possession of five pounds or less but more than four ounces of marihuana B should not
have been used to impeach him because they were not final convictions as required by Tex. R. Evid. 609.
The State argues that appellant failed to object timely, that the two dismissed offenses were part of the felony
conviction judgment, and that the two dismissed offenses could be considered for impeachment purposes, citing Perea
v. State, 870 S.W.2d 314, 318 (Tex. App.CTyler 1994, no pet.). We agree that appellant failed to timely object to the
evidence relating to the two offenses that were taken into consideration under Section 12.45 and then dismissed.
To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex.
R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996). A complaining party must object
at the earliest possible moment and obtain an adverse ruling. Dixonv. State, 2 S.W.3d 263, 265 (Tex. Crim. App.
1998). The sequence is to object when it is possible, to request an instruction to disregard if the prejudicial event has
occurred, and to move for a mistrial if a party thinks an instruction to disregard is not sufficient. The essential
requirement to preserve complaints for appellate review is a timely, specific request that the trial court refuses. Young
v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992).
Prior to the jury returning and appellant taking the stand to testify, the trial court held a hearing to determine the
admissibility for impeachment purposes of the two prior offenses that had been considered in the punishment for
appellant=s prior felony offense. The record reflects that the State was presenting to the trial court several documents B
a certified copy of the judgment and sentence in the earlier illegal investment case, the State=s motion to dismiss the
two counts charging possession of cocaine and possession of marihuana, and the order B that were related to
appellant=s illegal investment offense.[1] The State urged that the two possession offenses were admissible as part of
the earlier judgment and that, in any event, they were admissible for impeachment under Perea. Appellant argued that
the two offenses were not convictions as required by Rule 609. The trial court overruled appellant=s objection and held
that the Adocuments@ were admissible.
After appellant completed his direct testimony, the prosecutor began his cross-examination by confirming that
appellant had pleaded guilty to the offense of illegal investment in 1997. He then asked appellant about the second
count in that indictment, possession of cocaine, and the third count, possession of marihuana. Appellant acknowledged
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that he had admitted his guilt to those two charges and that they were taken into account by the trial court in sentencing
him for the offense of illegal investment. It was not until the prosecutor offered the earlier judgment into evidence that
appellant=s attorney objected to the documents Afor the reasons previously stated.@ The trial court overruled his
objection.
The objection came too late. Appellant waived any objection to his testimony about the illegal investment conviction
and the earlier court=s consideration of the other two counts and, thus, waived any objection to the documents. Where
the same evidence or argument is presented elsewhere during a trial without objection, no reversible error exists.
McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992). Appellant=s first issue is overruled.
This Court=s Ruling
In Cause No. 11-05-00312-CR, the judgment of the trial court is modified to reflect that the offense is a state jail
felony. In Cause No. 11-05-00313-CR, the judgment of the trial court is modified to reflect that appellant entered a
plea of true to the enhancement allegation and that the trial court found the enhancement allegation to be true. As
modified, the judgments of the trial court are affirmed.
TERRY McCALL
JUSTICE
May 24, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Only the certified copy of the judgment was later introduced into evidence. The record does not contain the State=s
motion to dismiss the two possession counts or the order dismissing them.
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