Jimmy Ray Gayten v. State

GAYTEN

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-93-241-CR

JIMMY RAY GAYTEN,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0911572, HONORABLE JON N. WISSER, JUDGE PRESIDING

On June 14, 1991, appellant Jimmy Ray Gayten was convicted of the murder of

Alonso Resendes Hinojosa and sentenced to forty-five years in prison. See Penal Code, 63d Leg.,

R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883 , 913, amended by Act of May 28,

1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122 , 1123 ( Tex. Penal Code

Ann. § 19.02 , since amended). Appellant filed notice of appeal alleging four points of error

relating to the introduction of evidence identifying him as Hinojosa's murderer. Appellant

contends in his first three points that the trial court erred in admitting the pretrial and in-court

identification testimony of three witnesses who were shown a photographic line-up. Appellant

asserts in his final point that the trial court erred in admitting evidence that he possessed drug

paraphernalia when arrested on the night of the murder. We will affirm.

BACKGROUND

Alonso Resendes Hinojosa was stabbed to death near the intersection of Seventh

Street and Webberville Road in Austin on the evening of July 9, 1990. Hinojosa had spent the

afternoon of July 9 drinking beer with Abigail Acosta, a known prostitute, in an east Austin park.

When Acosta began talking to some other friends, Hinojosa became angry and left the park.

Some time later, Acosta went home and took a nap. In the early evening, Acosta left the house

and met a black man she had never seen before who introduced himself as "Jimmy." Jimmy asked

Acosta if she wanted to use some drugs. Acosta said she did, and the pair bought cocaine, which

they used intravenously.

Acosta and Jimmy talked with Kenneth Carr, who was standing in the front yard

of his mother's home with friends. Carr knew Acosta from the neighborhood, but did not know

or recognize Jimmy. Carr warned Acosta not to go into the backyard of the house because dogs

were loose and it was dangerous. Jimmy said something to the effect of "It's dangerous out here,"

which Carr perceived as a threat. After about fifteen minutes, Jimmy and Acosta walked off,

holding hands.

In the interim, Hinojosa had returned to the neighborhood and had begun to follow

Jimmy and Acosta as they walked down Webberville Road. Hinojosa cursed at Acosta, and they

had a brief argument about money. Acosta continued walking, but Jimmy turned around, walked

back toward Hinojosa, and confronted him. Acosta saw Jimmy reach under his shirt and

presumed he was drawing a knife. Frightened, Acosta ran down Webberville Road and stopped

in front of a convenience store on Seventh Street. About five minutes later, Jimmy ran up to

Acosta on the street. When Acosta asked him what had happened, Jimmy said, "He's dead."

John Lee Hodges was standing on Webberville Road, and witnessed the events

before, during, and after Hinojosa's murder. Hodges saw Acosta with a black male and saw

Hinojosa following them and cursing at Acosta. The man he saw with Acosta confronted and

stabbed Hinojosa in the neck several times, and then searched Hinojosa's pockets. The man then

ran past Hodges and approached Acosta. Hodges testified that the man had some money in his

hand and told Acosta to leave the area quickly.

Police found Hinojosa lying face-down on the sidewalk across from the H & H

Tavern on Webberville Road between 10:00 and 10:30 p.m. He had been stabbed eighteen times

in the neck and back, his pockets were turned out, and his wallet was missing. Hinojosa died

from his wounds shortly after EMS arrived.

In an apparently unrelated event, Officers Chris Lamb and Ralph DelaFuenta had

stopped a man at around 3:15 a.m. on July 10 who identified himself as Jimmy Ray Gates. The

officers questioned the man about the robbery of a gas station in the area of Eleventh Street and

IH-35. The officers then frisked the man and found a syringe and a pipe used for smoking crack

cocaine. When the gas station attendant could not identify the man as the robber, the officers

released him.

In the early morning hours of July 10, 1990, Austin Police Department homicide

detectives developed a suspect in Hinojosa's murder named Jimmy Ray Gayten or Jimmy Ray

Gates and created a photo line-up that included his picture. Acting on information from

bystanders at the scene, officers brought Acosta into the police station around 3:30 a.m. on July

10 and showed her a photo line-up consisting of six photographs of similar looking black males

of approximately the same age and build. Acosta identified photo number two as the "Jimmy"

she had spent the evening with and had seen confronting Hinojosa. Photo number two was a

photograph of the appellant, Jimmy Ray Gayten. Later that morning, Kenneth Carr viewed the

same photo line-up and identified appellant's photo as that of the man whom he had seen with

Acosta. John Lee Hodges was arrested for burglary and drug possession on July 10, and, while

in custody, picked appellant out of the photo line-up as the man who had been with Acosta,

stabbed Hinojosa, and fled the scene. Based on these identifications, homicide officers arrested

appellant for the murder of Hinojosa. When arrested, appellant was in possession of a pipe and

syringe as well as a duffel bag containing some damp clothing but no knife, wallet, or money.

DISCUSSION

I. THE ADMISSIBILITY OF THE WITNESS IDENTIFICATIONS

In his first three points of error, appellant argues that the trial court erred in

admitting the identification testimony of three witnesses because officers of the Austin Police

Department were improperly suggestive in showing the witnesses a photo line-up that included

appellant's picture. We use a two-step analysis to determine the admissibility of an in-court

identification following a pretrial identification by photograph. First, the photographic display

must not be improperly suggestive. Second, if the display is deemed to have been suggestive

based on the individual facts and circumstances of the case, the suggestive line-up must not give

rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States ,

390 U.S. 377, 384 (1968); Cantu v. State , 738 S.W.2d 249 (Tex. Crim. App. 1987).

A. Kenneth Carr's Identification

Appellant argues in his first point of error that the trial court erred in admitting

Kenneth Carr's pretrial and in-court identifications of appellant because the photo line-up that Carr

viewed was improperly suggestive, and because the State failed to show by clear and convincing

evidence that Carr's in-court identification of appellant had an origin independent of the tainted

photo line-up. Appellant concedes that the "Jimmy" seen with Abigail Acosta on the night of

Hinojosa's murder is the man who committed the murder. The State elicited Carr's testimony in

order to identify appellant as the man in the company of Acosta when Hinojosa began to follow

the pair.

The photo line-up shown to all three of the witnesses in question consisted of six

photographs of similar looking men, with appellant's photograph labeled as number two. The

police showed Carr the line-up and asked him to identify the man he had seen with Acosta earlier

that evening. Carr viewed the line-up and told police that he personally knew three of the

individuals and that they were not with Acosta that night. Carr also stated that two of the

individuals looked nothing like the man he had seen with Acosta. Appellant does not contend that

the officer who showed the line-up to Carr was improperly suggestive. At trial, Carr testified that

appellant's photograph looked "closest" to the man he had seen with Acosta. When asked in court

to point out the man he had seen with Acosta that night, Carr identified appellant. Under direct

and cross-examination, Carr made it clear that his identification was based on seeing appellant the

night of the murder, and that he was absolutely certain in his identification because he

remembered appellant's threats.

Under the Simmons rule, identification procedures have been found not to be

suggestive where a defendant's photograph is presented to a witness with several others and is not

distinctive. See Rivera v. State , 808 S.W.2d 80 (Tex. Crim. App.), cert. denied , 112 S.Ct 279

(1991) (holding photo line-up procedure not improperly suggestive where witness was shown five

photographs of similarly posed Hispanic males of approximately the same age and appearance).

In Texas, photo line-ups have been found to fail the first step of the Simmons analysis where a

witness was shown a single photograph and told that the person was in custody and under

indictment. Delk v. State , 855 S.W.2d 700 (Tex. Crim. App. 1993). Other photo line-ups that

have failed the first step of the analysis include instances where witnesses were shown a

photograph of the defendant wearing the uniform of the store that had been robbed, Perry v. State ,

669 S.W.2d 794 (Tex. App.--Houston [1st Dist.] 1984), rev'd on other grounds , 703 S.W.2d 668

(Tex. Crim. App. 1986), and where a witness was shown several photo displays on different

occasions, each containing the photograph of the suspect. Cantu , 738 S.W.2d at 251-52 .

We hold that, under the circumstances, the photo array Carr viewed was not

improperly suggestive. Although the line-up effectively consisted of three, rather than six

photographs because Carr personally knew three of the men, this fact does not render the line-up

improperly suggestive. Three photographs remained of similar looking men whom Carr had never

seen. Appellant argues that the remaining three-man line-up was improperly suggestive because

Carr stated that two of the men did not look like appellant and therefore had no choice but to pick

appellant as the man he had seen with Acosta. This does not render the line-up improperly

suggestive. Carr told the officer that appellant's photograph looked most like the man he had seen

with Acosta that evening, and the officer did not tell Carr that he had picked the correct person.

Despite his contention to the contrary, appellant bears the burden to show by clear

and convincing evidence that Carr's in-court identification was unreliable because it was the fruit

of an improperly suggestive photo line-up. Harris v. State , 827 S.W.2d 949, 959 (Tex. Crim.

App. 1990), cert. denied , 113 S.Ct. 381 (1991). Appellant has not met this burden. Carr

testified that his in-court identification was based solely on his memory from the night of the

murder. He saw appellant in daylight, at close range for a period of up to fifteen minutes, and

testified that he vividly remembered appellant because of being threatened. Carr also testified that

he did not discuss the photo line-up with anyone between the time of the line-up and his

identification of appellant in court.

Because the trial court did not err in admitting Kenneth Carr's pretrial and in-court

identifications, we overrule appellant's first point of error.

B. Abigail Acosta's Identification

Appellant argues in his second point of error that the trial court erred in admitting

Abigail Acosta's pretrial and in-court identification because the police officer who showed her the

photo line-up was improperly suggestive. Under vigorous cross-examination by appellant's

counsel, Acosta stated that the officer who showed her the photo line-up told her that a suspect

in Hinojosa's murder was in custody, that the police believed the suspect had killed in self-defense, and that he had confessed. Sergeant Michael Huckaby, who showed Acosta the line-up,

denied making these statements to Acosta.

Even assuming, arguendo, that Sergeant Huckaby told Acosta that a suspect was

in custody and that he had confessed, appellant still does not show how such communication was

improperly suggestive. Appellant argues that because Acosta was told that a suspect had already

confessed, she was given the impression that her identification did not matter. Logically, that may

be true, but appellant does not show how the officer's relaying this information to Acosta led her

to pick appellant's photograph out of the array. A line-up is not rendered improperly suggestive

simply because a witness is told that it contains a suspect's photograph. Harris , 827 S.W.2d at

959 . A witness would normally assume that to be the case. Id.

As with Carr's identification, appellant has not met his burden of showing by clear

and convincing evidence that the in-court identification had no basis independent of an allegedly

improper pretrial photo array. Acosta was certain in her in-court identification of appellant.

Though she had used drugs on the night of the murder, Acosta and corroborating witnesses

testified that she was not intoxicated. She spent approximately two hours with appellant in

daylight hours. See id. at 959-60 (holding that in-court identification was reliable and admissible

notwithstanding any suggestive pretrial identification where victims saw attacker in close contact

for an extended period of time).

The officer who showed Acosta the photo line-up was not improperly suggestive,

and the trial court did not err in admitting her pretrial and in-court identification of appellant. We

overrule appellant's second point of error.

C. John Lee Hodges's Identification

Appellant asserts as his third point of error that the trial court erred in admitting

John Lee Hodges's pretrial identification of appellant. When shown the same photo line-up the

morning after the murder, Hodges identified appellant as the man he had seen stab Hinojosa.

Appellant argues that the police were improperly suggestive in showing Hodges the photo line-up

that included appellant's picture.

Hodges refused or was unable to identify appellant at trial, but the court allowed

the State to question Hodges about his pretrial identification and a statement he made to police in

which he identified appellant's photograph as that of the man he had seen stab Hinojosa. (1) Hodges

testified he believed that the officer who showed him the array told him that Hinojosa's killer was

in the array but did not suggest which photo was appellant. The officer who conducted the line-up

testified that he neither told Hodges that the guilty man was in the array nor suggested which

photo to choose.

Simmons does not neatly apply to this witness's testimony. In Simmons and the

cases in which it is applied, a witness identified the defendant in court after viewing a photo line-up. Simmons serves to guard against the harm that a defendant may be convicted based on a

faulty in-court identification itself based on an improperly suggestive line-up. The potential harm

here is of a different character. Hodges steadfastly maintained that his pretrial identification of

appellant was tentative and that he could not identify appellant in court. The State did not use

Hodges's statement for purposes of identifying appellant, but instead used the tentative pretrial

identification to counter Hodges's contention that he could not identify appellant in court. Thus,

the admission of the pretrial identification served as an impeachment by a prior inconsistent

statement. Tex. R. Crim. Evid. 612(a). Hodges was told the contents of his statement to police,

the time, place, to whom it was made, and given an opportunity to explain the statement as

required by Rule 612(a).

We nonetheless recognize that there was a potential for harm in admitting Hodges's

pretrial identification if it was a product of improper suggestion. Because of the substance of the

prior inconsistent statement, the impeachment could have had the effect not only of damaging

Hodges's credibility generally, but also of leaving the jury with the impression that Hodges had,

in fact, previously identified appellant. The officer who showed Hodges the line-up denies having

told him that it included the appellant's picture. Hodges, when asked if the officer said any such

thing, answered, "I believe he said something like that, yeah." Regardless, a line-up is not

rendered unnecessarily suggestive simply because a witness is told that it contains a photograph

of the suspect. Harris , 827 S.W.2d at 959 .

Analyzing the trial court's actions in light of these facts, we hold that it did not err

in admitting Hodges's pretrial identification of appellant. We overrule appellant's third point of

error.

II. ADMISSIBILITY OF EVIDENCE OF THE EXTRANEOUS OFFENSE

In his fourth point of error, appellant contends that the trial court erred in admitting

evidence that he possessed drug paraphernalia at the time of his arrest. Appellant argues that

possession of drug paraphernalia was an inadmissible extraneous offense.

Appellant initially questioned Sergeant Ralph DelaFuenta of the Austin Police

Department outside the presence of the jury about what appellant had in his possession when

arrested. Appellant asked if DelaFuenta had found a knife, a knife sheath, or any money in

appellant's possession; DelaFuenta responded that he did not. However, DelaFuenta further

testified that he did find a crack pipe and a syringe on appellant. In the presence of the jury,

appellant recalled DelaFuenta and again elicited the testimony that he found no knife or money

on appellant. Over appellant's objection, the State elicited on cross-examination of DelaFuenta

the testimony that the pipe and syringe had been found.

A crack pipe and syringe are both drug paraphernalia as defined in the Texas

Controlled Substances Act. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1,

§ 481.002(17), 1989 Tex. Gen. Laws 2230 , 2905-06 ( Tex. Health & Safety Code Ann.

§ 481.002 (17), since amended). Possession of drug paraphernalia is illegal under section

481.125(a) of the Controlled Substances Act. Under Texas Rule of Criminal Evidence 404(b),

evidence of other crimes, wrongs or acts is not admissible to prove the character of a defendant,

but is admissible for other purposes, including proof of motive, opportunity, intent, plan, and

identity. Tex R. Crim. Evid. 404(b). The exceptions listed in Rule 404(b) are not exclusive or

exhaustive, but merely representative. Robinson v. State , 844 S.W.2d 925, 929 (Tex.

App.--Houston [1st Dist.] 1992, no pet.).

The Court of Criminal Appeals has recognized that the question of whether to admit

evidence under Rule 404(b) is essentially one of relevancy. Montgomery v. State , 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (opinion on rehearing). Texas Rule of Criminal Evidence 401

defines "relevant" evidence as being that which has "any tendency to make the existence of any

fact of consequence to the determination of the action more probable or less probable than it

would be without the evidence." Tex. R. Crim. Evid. 401. Reasonable persons may disagree

whether any particular piece of evidence is relevant. Montgomery , 810 S.W.2d at 391 . The court

has held that questions of relevancy are institutionally assigned to the trial court, which has the

best vantage to decide such questions. Id. Thus, whether objected-to evidence of extraneous

offenses has relevance apart from character conformity is a question for the trial court, and we

will uphold a trial court's ruling absent an abuse of discretion. As long as the trial court's ruling

is within the zone of reasonable disagreement, we will not interfere. Id.

Appellant argues that when extraneous offenses are offered to prove a defendant's

identity, the extraneous offense must be substantially similar to the charged offense to be

admissible. See Castillo v. State , 739 S.W.2d 280 (Tex. Crim. App. 1987), cert. denied , 487

U.S. 1228 (1988). However, Castillo is distinguishable from the present case because it involved

a signature crime where the identity of the defendant was based solely on circumstantial evidence.

Id.; see also Bevers v. State , 811 S.W.2d 657, 661 (Tex. App.--Fort Worth 1991, pet. ref'd)

(holding that, to be admissible, extraneous offense and charged offense must bear unique signature

of one offender where victim did not identify attacker, and identity was established only through

circumstantial evidence). In this case, by contrast, the evidence that appellant possessed drug

paraphernalia was not introduced to identify him as Hinojosa's murderer. The State had direct

eye-witness testimony to identify appellant as the murderer, not merely circumstantial evidence.

Appellant has conceded that the "Jimmy" seen with Acosta on the night of the

murder is the man who committed the murder. However, appellant implicitly argued at trial that

the State had nothing to connect him with the events of that evening, save the witnesses'

testimony. The evidence of the syringe was introduced merely to corroborate the other testimony

that appellant was the "Jimmy" who had accompanied Acosta and used drugs with her on the night

of the murder. The defense elicited from DelaFuenta that no knife or money was found on

appellant's person. The State obtained the testimony on the syringe in order to correct the false

impression that appellant's examination of DelaFuenta left with the jury: that appellant possessed

nothing which would connect him with the events of the previous evening. The State did not

prompt such testimony or obtain it by maneuvering, and in fact did not seek to introduce evidence

that appellant possessed a syringe until appellant recalled DelaFuenta with the purpose of re-emphasizing the fact that he had no knife or money when arrested. Because the evidence of the

drug paraphernalia was introduced to identify appellant as the man who had accompanied Acosta

the evening of the murder, it is relevant to the offense because it serves to make more probable

an evidentiary fact--that appellant was the man with Acosta--which inferentially leads to an

elemental fact: the identity of the murderer. See Murdock v. State , 840 S.W.2d 558, 566 (Tex.

App.--Texarkana 1992), vacated in part, on other grounds , 845 S.W.2d 915 (Tex. Crim. App.

1993); see also Couret v. State , 792 S.W.2d 106, 107-08 (Tex. Crim. App. 1990) (holding that

extraneous matters pertaining to appellant's arrest that established the context of the offense,

including appellant's acts and possessions, contribute to the jury's comprehension of the whole

criminal transaction, and are thus admissible if relevant to the offense). Acosta testified that she

and "Jimmy" had used cocaine intravenously the night of the murder. The trial court could

reasonably conclude that evidence that appellant possessed a syringe at the time of his arrest made

it more probable that he was the "Jimmy" who accompanied Acosta the evening of Hinojosa's

murder.

Moreover, any error committed in admitting evidence on the paraphernalia was

negligible. Acosta had previously testified without appellant's objection that she and appellant

had used cocaine intravenously shortly before the murder. Any prejudicial effect created by the

admission of the evidence of the syringe was thus substantially outweighed by the probative value

of the highly relevant evidence. See Tex. R. Crim. Evid. 403. In fact, admitting evidence of the

extraneous offense of drug paraphernalia possession was at most harmless error in light of

appellant's failure to object to Acosta's testimony that she and appellant had used drugs

intravenously on the evening of the murder. Acosta's testimony proved the extraneous offense

independently of the items about which appellant complains. See Bermen v. State , 798 S.W.2d

8, 13 (Tex. App.--Houston [1st Dist.] 1990), pet. dism'd, improvidently granted , sub nom.

Hendricks v. State , 817 S.W.2d 86 (Tex. Crim. App. 1991).

We hold that the trial court did not err in admitting evidence that appellant

possessed drug paraphernalia when arrested, or, alternatively, that any error was harmless. We

overrule appellant's fourth point of error.

CONCLUSION

Because we conclude that the trial court did not err in admitting the identification

testimony of Kenneth Carr, Abigail Acosta, and John Lee Hodges or in admitting evidence that

appellant possessed drug paraphernalia at the time of his arrest, we affirm the trial court's

judgment.

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Powers and Aboussie

Affirmed

Filed: February 1, 1995

Do Not Publish

1. The State had the opportunity to develop a reason for Hodges's refusal or inability to

identify appellant at trial. Hodges was arrested for burglary and narcotics possession the day

after Hinojosa's murder. Hodges tried to have these charges dropped by offering to identify

Hinojosa's killer. Whatever bargain there may have been between Hodges and the police

apparently fell through, and Hodges was prosecuted.