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Pena v. State

Court of Appeals of Texas, Eighth District, El Paso

June 30, 2009

NICKY PENA, Appellant,
v.
THE STATE OF TEXAS, Appellee.

          Appeal from the 399th District Court of Bexar County, Texas (TC# 2006-CR-0486C)

          Before Chew, C.J., McClure, and Carr, JJ.

          OPINION

          DAVID WELLINGTON CHEW, CHIEF JUSTICE

         In the 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 police.

         Officer 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.

         Officer 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 Mr. Diaz.

         During 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 apprehended him?
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 ...

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