Court of Appeals of Texas, Eighth District, El Paso
from the 399th District Court of Bexar County, Texas (TC#
Chew, C.J., McClure, and Carr, JJ.
WELLINGTON CHEW, CHIEF JUSTICE
early morn of November 13, 2005, David Diaz was awakened by
his wife's alarm that someone was outside calling for
him. Mr. Diaz went outside and was asked about his
brother-in-law. As he was talking, two other men appeared;
one had a pistol. At trial, Mr.Diaz identified the man who
was outside calling him as Jesse Aguirre. He also identified
the man with the pistol as the defendant, Nicky Pena, whom he
had not known. Mr. Pena aimed the pistol at Mr. Diaz, and
they began going through his pockets taking his wallet,
money, birth certificate, and social security card. The men
hit Mr. Diaz, and asked where his brother-in-law lived. Then
they forced Mr. Diaz inside his home. The men looked around
the house, and began taking things from the home including
two televisions. They put everything in a truck and left.
Mr.Diaz's sister, who lived there, told a neighbor who
was walking by what had happened and asked him to call the
James Ybarra was one of two police officers who responded to
the call. They met with Mr. Diaz who told them some people
had just robbed him at gunpoint, and identified one of the
robbers by a nickname, said the robber lived down the street
in some apartments, and they had left in a maroon vehicle
with a white driver's side door. Officer Ybarra went to
go look for the suspects. He looked through the apartment
complex, but did not see the vehicle, and headed back to Mr.
Diaz's home. As he was leaving, he ran into Sergeant
Martinez who had come down to look for the vehicle as well.
While headed towards the home, they saw a maroon truck with a
white driver's side door headed in the opposite
direction. They both turned around and flipped on their
overhead lights. The truck occupants fled in response to the
lights. The officers chased after the truck, and it
ultimately crashed into a pole. The driver of the truck
attempted to flee on foot, but Officer Ybarra caught him.
Sergeant Martinez dealt with the passengers of the truck.
There were four people including the driver in the truck.
Neither the gun nor the stolen property was found on the
suspects or in the truck.
Trigo testified that he took Mr. Diaz to where the suspects
were located to conduct a one-on-one lineup. The suspects
were separated in different patrol cars, and brought out one
at a time for identification by Mr. Diaz. The suspect was
illuminated by the patrol cars' overhead lights, high
beams, and spotlights. Mr. Diaz identified the first suspect
as Mr. Aguirre who was "the main one" in the
robbery. Appellant was the second suspect brought out for a
one-on-one, and Mr. Diaz identified him as the one with the
pistol who hit him and took his money. The third suspect
brought out was also identified as one of the participants in
the robbery by Mr.Diaz, but the fourth individual apprehended
from the truck was not involved in the robbery according to
the examination of Officer Ybarra, the State asked if he had
read the suspects their rights. Officer Ybarra responded that
he had, including the right to remain silent. The State then
asked if he had gotten any verbal information from the
individuals after reading them the rights, and again the
answer was no. The State later asked about the suspects'
silence in the following exchange with Officer Ybarra:
The State: Was the driver cooperative once you actually
The Officer: What do you mean by cooperative?
The State: Did he comply with being arrested or did you have
to use force?
The State: Defense counsel asked you a question did you go
search Aguirre's apartment. Did you attempt to get
information from the suspects at the scene?
The Officer: Yes.
The State: With regard to the items that ...