Background

• Guardado was indicted for aggravated assault with a deadly weapon and pleaded guilty after the trial court denied suppression of photo arrays identifying him.
• The trial court sentenced Guardado to five years’ imprisonment in accordance with the plea agreement.
• Guardado challenged the photo arrays as impermissibly suggestive because the lineups were not administered blind as required by Article 38.20 and the El Paso Police Department policy.
• Detective Ontiveros admitted violating the blind-administrator policy by compiling and presenting the lineups to witnesses while knowing Guardado’s identity.
• The lineups were shown to the witnesses approximately eight months after the shooting, with no prior descriptions from either witness, and Partridge’s identification was only about ninety percent certain.
• The trial court denied suppression, the court of appeals affirmed, and Guardado’s conviction stands; Article 38.20 does not require exclusion for noncompliance with model policies, and there was no clear and convincing evidence of impermissible suggestiveness.

Issues

Key Cases Cited

• Barley v. State, 906 S.W.2d 27 (Tex.Crim.App. 1995) (clear and convincing evidence required for impermissive suggestiveness; content of arrays not at issue here)
• Ward v. State, 474 S.W.2d 471 (Tex.Crim.App. 1971) (suggestiveness determined by identification procedure itself)
• Luna v. State, 268 S.W.3d 594 (Tex.Crim.App. 2008) (reliability factors considered but do not render non-blind procedures impermissibly suggestive by themselves)
• Johnson v. State, 901 S.W.2d 525 (Tex.App.--El Paso 1995) (witness expectations about arrays; disclosure of suspect not per se impermissible)
• Tillman v. State, 354 S.W.3d 425 (Tex.Crim.App. 2011) (Article 38.20 compliance issues; policy framework supporting reliability of identifications)