HICKS v. STATE (2025)

OPINION

A jury found appellant guilty of the aggravated sexual assault of a child under the age of fourteen, his daughter J.H. The court assessed an agreed sentence of fifteen years’ confinement. In two issues, appellant contends that the trial court erred by (1) admitting J.H.’s in-court identification of appellant and (2) denying his right to confront an extraneous-offense witness. We affirm.

I. Identification

In his first issue, appellant contends that the trial court erred and violated his due process rights by admitting J.H.’s in-court identification of him.¹ Though the in-court identification was impermissibly suggestive, it was nonetheless reliable under the totality of circumstances.

A. Background

J.H. was nineteen years old at the time of trial. She lived with her father from the age of six to thirteen. She testified that one day when she was eleven years old, they were laying in his bed together. He touched her chest and front private part, removed both their clothes, and moved her on top of him. She was facing him. His private part touched and went inside her private part “a little bit” before she backed off.

She testified that her father's name was Sean Hicks. On direct examination, the State's attorney, Alyson Almaguer, asked, “Do you see him in the room today? Let's come back to that. Okay?” After a break in the proceeding, on redirect, J.H. identified appellant as her father. She testified that it had been a long time since she had seen him, and he looked different.

On the following day, appellant moved to suppress the in-court identification after learning that Almaguer had a conversation with J.H. during the break in her testimony. The State's investigator testified for the court that he was present during J.H.’s testimony on direct when J.H. had not been able to identify appellant. He testified that the court took a brief recess between J.H.’s direct examination and cross-examination. During the break, the investigator observed a discussion that occurred between J.H. and Almaguer: “While we were outside, it was mentioned to the complainant about her father being in the courtroom.” He testified that Almaguer said, “[W]hen I asked you about identifying the defendant, did you not see him in the courtroom?” The investigator continued: “And then [J.H.] responded by saying, the person that I believed to be him looked much different, that he looked much older. And that she also was not familiar with him wearing the clothing that he was wearing that day, which was a suit.” After discussing case law regarding the admissibility of an in-court identification followed by a suggestive pre-trial identification, the court ruled that J.H.’s identification was admissible. Appellant then continued cross-examining J.H. in front of the jury.

B. Legal Principles

“Generally, the Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting its introduction, but by affording the defendant the means to persuade the jury that the evidence should be discounted as unworthy of credit.” Balderas v. State, 517 S.W.3d 756, 791 (Tex. Crim. App. 2016) (citing Perry v. New Hampshire, 565 U.S. 228, 237, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012)). “The Due Process Clause bars the admission of identification evidence only when the introduction of such evidence ‘is so extremely unfair that its admission violates fundamental conceptions of justice.’ ” Id. (quoting Perry, 565 U.S. at 237, 132 S.Ct. 716).

As appellant notes in his brief, cases addressing the admissibility of an in-court identification most frequently arise following an unduly, impermissibly, or unnecessarily suggestive pretrial identification.² In that context, the defendant bears the burden to establish by clear and convincing evidence that a pretrial procedure was impermissibly suggestive. Id. at 792. But “an unnecessarily suggestive pretrial identification procedure does not, by itself, intrude upon a constitutionally protected interest.” Id. If a court determines that a pretrial identification procedure was impermissibly suggestive, it then assesses the reliability of the identification under the totality of circumstances. Id. Due Process requires suppression of an in-court identification only if an impermissibly suggestive procedure “gave rise to a very substantial likelihood of irreparable misidentification.” Id. at 796.

The court weighs several nonexclusive factors against the “corrupting effect” of any suggestive identification procedure. Id. at 792. These factors are:

(1) the opportunity of the witness to view the suspect 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.

Id.

These factors are issues of historical fact, which we review deferentially in a light favorable to the trial court's ruling while weighing them de novo against any corrupting effect of the suggestive identification procedure. Id.

C. Impermissibly Suggestive Procedure

Appellant contends that “the improper procedure occurred in real time during the trial” because the State “coached” J.H. during the break about “who should be identified in the courtroom.” We disagree with appellant's assertion that Almaguer told J.H. “who should be identified.” At most, the investigator's testimony showed that Almaguer informed J.H. that “her father [was] in the courtroom.”

The Court of Criminal Appeals has held, in the context of a pretrial identification, that informing an eyewitness that the suspect was included in a lineup does not make the pretrial identification unnecessarily suggestive: “A lineup is not rendered unnecessarily suggestive simply because the complainant is told that it contains a suspect, because a complainant would normally assume that to be the case.” Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992); accord Rojas v. State, 171 S.W.3d 442, 448 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd).

This rationale is even greater when applied to in-court identifications because a witness would normally expect the defendant to be in the courtroom. As the United States Supreme Court has acknowledged, “Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do.” Perry, 565 U.S. at 244, 132 S.Ct. 716. “[T]here is always the question how far in-court identification is affected by the witness’ observing the defendant at the counsel table.” United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir. 1970). “Any witness, especially one who has watched trials on television, can determine which of the individuals in the courtroom is the defendant, which is the defense lawyer, and which is the prosecutor.” United States v. Archibald, 734 F.2d 938, 941 (2d Cir. 1984).³

What differentiates this case from the ones described above, however, is that (1) the witness was initially unable to make an in-court identification; (2) the State's attorney instigated a discussion with the witness during a break between direct and cross-examination; and (3) the State's attorney course-corrected the witness's in-court identification.

The essential guarantee of due process is fair procedures. See Harris v. State, 475 S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Long v. State, 742 S.W.2d 302, 320 (Tex. Crim. App. 1987)). But it is a violation of “basic fairness” to allow an attorney to influence a witness's in-court identification by consulting with the witness between direct and cross-examination. Cf. Perry v. Leeke, 488 U.S. 272, 283, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (holding that a trial court may prohibit a defendant from speaking with counsel between direct and cross-examination). The general rule that most trial courts enforce—prohibiting witnesses from discussing their testimony with others until the trial is completed—serves the “truth-seeking function of the trial.” Id. at 281–82, 109 S.Ct. 594. As our Court of Criminal Appeals recently held while upholding a prohibition on counsel conferring with a defendant during a break in his testimony, an attorney “may not coach the testimony to course-correct a disastrous direct examination.” Villarreal v. State, ––– S.W.3d ––––, ––––, 2024 WL 4446740, at *5 (Tex. Crim. App. Oct. 9, 2024).

Although all in-court identifications are somewhat suggestive, appellant has shown by clear and convincing evidence that the one here was unduly, unnecessarily, and impermissibly suggestive due to Almaguer's conduct of consulting with the complaining witness during a break in testimony about her inability to identify appellant and informing the witness that appellant was in the courtroom.

D. Reliable Identification

We now evaluate the reliability of the identification under the totality of the circumstances, including the factors discussed in Balderas, 517 S.W.3d at 792. Arguably, the factors are “not a perfect fit for a situation like this one” because the perpetrator was well-known to J.H. See id. at 796 (considering factors among the totality of the circumstances when the eyewitness initially stated she did not recognize the gunman, but upon viewing a lineup, she recognized an acquaintance and identified him as the gunman). The perpetrator was J.H.’s father with whom she lived from the age of six until thirteen. At the time of trial, she was nineteen years old and had not seen him in “a long time.” She testified that appellant looked “much older now than he did then.” But J.H. repeatedly testified that the person who sexually assaulted her was her father. During the assault, she was laying on top of him and facing him.

The first three factors favor admission because J.H. had ample opportunity to view her father at the time of the offense; she was paying attention to what he did to her such that she was able to recount the events in detail at trial eight years later; and she consistently described the suspect as her father, Sean Hicks, with whom she was well-acquainted.

The “corrupting influence” of the impermissibly suggestive procedure was relatively weak. Almaguer informed J.H. that her father was in the courtroom, a fact which any witness would normally assume. See, e.g., Archibald, 734 F.2d at 941; cf. Harris, 827 S.W.2d at 959 (complainant would normally assume lineup includes suspect).

Considering the totality of the circumstances, we agree with the trial court that the impermissibly suggestive procedure did not give rise to a very substantial likelihood of irreparable misidentification. See Balderas, 517 S.W.3d at 796. The in-court identification was not so extremely unfair that its admission violated fundamental conceptions of justice. See Perry, 565 U.S. at 237, 244, 132 S.Ct. 716. The jury was able to observe J.H.’s initial inability to identify appellant as her father and her later identification and explanation. Consistent with due process, appellant had a full and fair opportunity to confront and cross-examine J.H. about her identification and Almaguer's improper influence to persuade the jury that the identification should be discounted as unworthy of credit. See id.

Under these circumstances, the trial court did not err by denying appellant's motion to suppress J.H.’s in-court identification. Appellant's first issue is overruled.

II. Confrontation

In his second issue, appellant contends that he was “denied his constitutional right to confront the witnesses against him when the trial court violated an expunction order and permitted [C.H.] to testify about an alleged previous incident of sexual abuse.” He also contends that the court violated the expunction statute. We hold that appellant failed to preserve the error alleged on appeal, and regardless, the trial court did not deny appellant his right to confront C.H.

A. Background

Appellant introduced into evidence an Indiana court order awarding custody to appellant in part due to J.H.’s mother's “serious problems” such as her “active and aggressive steps to damage and destroy [appellant]’s relationship with his children,” in which she “succeeded, and is without remorse.” According to the court, J.H.’s mother made “child sex abuse allegations and a resulting criminal case against him in Texas.”

The court ruled that the admission of this document opened the door for the complainant from the earlier criminal case, J.H.’s half-sister C.H., to testify about a prior incident of sexual assault. The court first heard C.H. testify outside the jury's presence, during which C.H. testified that her criminal case against appellant had been dismissed because she had been deemed “too mentally unstable” to testify and “not fit enough to actually give testimony without having a psychotic mental breakdown in the middle of the courtroom.”

Appellant objected to C.H. testifying about why the case had been dismissed because the prior arrest had been expunged, which included the destruction of records of the arrest. See Tex. Code Crim. Proc. arts. 55.02, 55.03(1). He argued that allowing C.H. to testify violated his Sixth Amendment right to confront a witness:

The problem that is going to happen if it allows what it just heard is I have no way to effectively confront this witness. She just got up and told this court all the reason she believes the case has been dismissed and I don't have a file. So I think allowing her to testify to those things beyond the fact that it's [C.H.] from 2010—and, again, I don't know that that document says one way or the other․

But when it comes to allowing her to testify to a different sexual assault in front of this jury and then for her to testify about the reasons why it didn't go forward when there is no case file, I think it infringes upon my client's Constitutional rights of confrontation under both the Sixth Amendment of the United States, Fourteenth Amendment in Article 1, Section 10 of the Texas Constitution. I cannot effectively confront her without having the underlying documents because she can get up there and say all day, well, it was because I was unstable. I don't know that's why it was the reason for it to be dismissed. We don't know because the State's file is gone.

After additional discussion concerning admissibility under Rule 404 of the Texas Rules of Evidence, the court ruled, “So under 404(b) point, I think that it's admissible[ ]. Anything else?” Appellant then asked the court to “limit the scope of the testimony” because C.H. could not testify “about what other people said happened to her case.” The court began, “You don't want her to say what she [is] saying about why she didn't—” and appellant responded, “Well, the problem is how can I rebut that without the State's file?” The court ruled that C.H. could testify but agreed to “limit[ ] the testimony with regards to her belief as to why she wasn't called to testify.” The court ruled that it was proper to limit C.H.’s testimony to “what happened and when.”

Accordingly, C.H. testified that when she was nine years old, appellant undressed her and brought her to a bedroom where he put a pillow over her head and rubbed lotion all over her body—including her vaginal area—and she felt pain in her vaginal area. She did not testify about why the criminal case was dismissed. Appellant was then allowed to cross-examine C.H., but he declined.

B. Preservation of Error

As a prerequisite to presenting a complaint for appellate review, the record must show that the specific complaint was made to the trial court and the court ruled on the complaint. See Tex. R. App. P. 33.1(a). To preserve error, an appellant must “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him.” Wood v. State, 693 S.W.3d 308, 323 (Tex. Crim. App. 2024) (quotation omitted). An appellant must have conveyed to the trial court “the precise and proper application of law as well as the underlying rationale.” Bleimeyer v. State, 616 S.W.3d 234, 250 (Tex. App.—Houston [14th Dist.] 2021, no pet.). The trial court must make an adverse ruling; “that is, it must be clear from the record the trial judge in fact overruled the defendant's objection or otherwise error is waived.” Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991).

Furthermore, the complaint at trial must match the complaint raised on appeal. Wood, 693 S.W.3d at 323. A party may not enlarge or expand their complaint on appeal beyond the objection lodged at trial. See Rodriquez v. State, 552 S.W.2d 451, 455–56 (Tex. Crim. App. 1977) (noting that the appellant “has expanded his complaint beyond the objections that he made at the time of trial” but addressing it as “if this matter had been preserved for review”); see also Perez v. Baker Packers, a Div. of Baker Int'l Corp., 694 S.W.2d 138, 141–42 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) (“It is well settled that a party is confined to the grounds of objection stated in the trial court and that he will not be allowed to enlarge his complaint on appeal.”).

In deciding whether a party's particular complaint on appeal comports with the complaint made at trial, we consider the context in which the complaint was made and the parties’ shared understanding at the time. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

1. No Complaint for Violation of the Expunction Order or Statute

Appellant did not argue to the trial court that C.H.’s testimony violated an expunction order or statute. Any complaints on appeal based on these alleged violations were not preserved. Cf. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (objections based on hearsay and statutory requirement for outcry witness did not preserve Confrontation Clause complaint).

2. No Complaint About All of C.H.’s Testimony

At trial, appellant lodged a complaint based on the Confrontation Clause because he could not confront C.H. with the “underlying documents” from the State's case file following their destruction under the expunction statute: “I don't have a file”; “there is no case file”; “the State's file is gone.” Appellant specifically complained that he could not effectively challenge C.H.’s testimony concerning “the reason [C.H.] believes the case has been dismissed”; “the reasons why it didn't go forward”; and “the reason for it to be dismissed.” Consistent with these complaints, appellant asked for C.H.’s testimony to be limited so she could not testify about “what other people said happened to her case.” Appellant did not make any other specific complaint about why the lack of a case file infringed on his right to confront C.H.

On appeal, however, appellant appears to contend that C.H. should not have been allowed to testify at all about the sexual assault because the expunction resulted in the destruction of the State's case file. Appellant's arguments to the trial court about the Confrontation Clause were limited to C.H.’s testimony about why the case was dismissed. To the extent appellant intended to object to all of C.H.’s testimony on this basis, his arguments were not clear enough for the trial court to understand that he was objecting to the entirety of C.H.’s testimony under the Confrontation Clause. Appellant's complaint on appeal is broader than, and does not comport with, his complaint made at trial. See Wood, 693 S.W.3d at 323; Rodriquez, 552 S.W.2d at 455–56. His expanded complaint on appeal was not preserved.

3. No Adverse Ruling

Regarding the specific complaint appellant lodged below, he did not secure an adverse ruling. Indeed, he received a favorable ruling because the trial court prevented C.H. from testifying about the reason her case was dismissed. This alleged error was not preserved. See Ramirez, 815 S.W.2d at 643.

C. No Error

Even assuming that appellant's specific complaint at trial encompassed an objection to the entirety of C.H.’s testimony, appellant does not cite any authority to suggest that the expunction of his arrest and destruction of records amounts to a denial of the right of confrontation when the witness testifies in person and is available for cross-examination.

The elements of confrontation include “physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.” Maryland v. Craig, 497 U.S. 836, 846, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The right to confrontation is “generally satisfied when the defense is given a full and fair opportunity to probe and expose [a witness's] infirmities through cross-examination.” Delaware v. Fensterer, 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (upholding admission of expert witness's opinion testimony despite the witness's inability to recall the basis for the opinion). Unlike appellant's cited authority, Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the trial court did not prohibit appellant from cross-examining C.H. about any topic.

Appellant was not denied the right to confront a witness concerning an extraneous offense merely because the records pertaining to his arrest had been destroyed pursuant to an expunction.

Appellant's second issue is overruled.

III. Conclusion

Having overruled both of appellant's issues, we affirm the trial court's judgment.

FOOTNOTES

1.   In part of his brief, appellant complains that the identification “denied Mr. Hicks his constitutional right to confront the witness.” But his argument contains no reference to the Confrontation Clause. Any complaint about the in-court identification related to the Confrontation Clause is waived due to inadequate briefing. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003); Lewis v. State, 911 S.W.2d 1, 5 n.8 (Tex. Crim. App. 1995).

2.   See Balderas, 517 S.W.3d at 792 (referring to “impermissibly suggestive” and “unnecessarily suggestive” pretrial identification procedures); see also United States v. Ruiz, 116 F.4th 1246, 1253 (10th Cir. 2024) (Rossman, J., concurring) (“Courts—including the Supreme Court—refer to ‘impermissibly,’ ‘unnecessarily,’ and ‘unduly’ suggestive [identifications] interchangeably.”); United States v. Correa-Osorio, 784 F.3d 11, 21 (1st Cir. 2015) (“What matters is whether there was undue suggestion (words like ‘unnecessary’ and ‘impermissible’ can substitute for ‘undue,’ by the way).”).

3.   Indeed, some jurisdictions—not ours—require first-time, in-court identifications to be prescreened by the trial court for reliability before being admissible because of the inherent suggestibility of in-court identifications. See State v. Dickson, 322 Conn. 410, 141 A.3d 810, 822 (2016) (“[W]e are hard-pressed to imagine how there could be a more suggestive identification procedure than placing a witness on the stand in open court, confronting the witness with the person who the state has accused of committing the crime, and then asking the witness if he can identify the person who committed the crime. If this procedure is not suggestive, then no procedure is suggestive.”).

Ken Wise, Justice