Aviles-Barroso v. State (477 S.W.3d 363, 2015)

OPINION

William J. Boyce, Justice

A jury convicted appellant Rogelio Aviles-Barroso of capital murder and the trial court assessed his punishment at life imprisonment. Appellant contends on appeal that (1) the trial court reversibly erred by allowing witness testimony about a “pre-trial voice identification” and allowing an “in-trial identification” because the pre-trial voice identification was unduly suggestive and led to a substantial likelihood of misidentification; (2) his conviction is not supported by legally sufficient evidence because the identification testimony was inadmissible and the accomplice witness testimony was not sufficiently corroborated; and (3) his bill of costs,should be modified to delete several assessed costs because they constitute “a penalty as applied to” appellant and were not “orally pronounced as part of his sentence.” We affirm the trial court’s judgment as modified.

BACKGROUND

A. Overview

Diana Garcia, her six-year old son Angelo Garcia, and her boyfriend Jose Arturo Rodriguez lived in a small two-bedroom apartment in Houston, Texas in 1992. Diana and Arturo had been selling drugs out of their apartment. Obel Cruz-Garcia was their drug supplier. Cruz-Garcia and his wife’s cousin, Carmelo Martinez Santana, regularly came to Diana’s and Arturo’s apartment to deliver drugs until Cruz-Garcia and Arturo “got into a little misunderstanding” sometime in 1992; after-wards, Diana and Arturo decided to stop selling drugs.

On the evening of September 30, 1992, Diana and Arturo were awakened by a loud noise coming from their living room. Their front door had been kicked in. Arturo got out of bed, walked toward the front door, and was met by a tall, husky, masked man holding a gun. The man ordered Arturo to go back into the bedroom, kneel down, and put his face on the bed; he tied up Arturo with a cord and started beating Arturo. The man also ordered Diana to lay face-down on the bed.

A second masked man then entered the bedroom holding a gun. Diana was covered with a sheet and sexually assaulted by the second man who had entered the bedroom. The second man never spoke a word.. Only the first man spoke to Diana and Arturo in English and Spanish; according to Diana, the first man “did all the talking.” While Diana was being sexually assaulted, she could hear Angelo crying and Arturo being beaten. After the sexual assault, the men ransacked the bedroom and left. Diana managed to untie herself and Arturo. She realized that Angelo had been kidnapped and contacted the police.

Police believed the crimes were drug-related and ■ the perpetrators kidnapped Angelo to use him as a “bargaining chip.” The FBI suspected that Cruz-Garcia was the second man who had sexually assaulted Diana; he had not entered the apartment until Diana’s and Arturo’s eyes were covered because Diana and Arturo would have been able to recognize Cruz-Garcia, “his voice, his stature.” Very early on in the investigation, law enforcement learned that CruzrGarcia fled Houston for Puerto Rico or the Dominican Republic. Police interviewed Cruz-Gareia’s wife, Santana, and several other individuals and collected DISTA samples. The investigation continued.

On November, 5, 1992, “skeletal] remains with a rock next to the body or on the body and clothing” were found on the bank near Goose Creek in Baytown. - Dental records confirmed that the remains were Angelo’s. However, many years passed and the crimes committed on September 30,1992, went unresolved.

The Houston Police Department created a cold case squad within the homicide division to work on unsolved crimes in November 2004. Sergeant Mehl joined the squad and started working -on solving Angelo’s murder. In May 2008, Sergeant Mehl found Cruz-Garcia, whom he knew had been a primary suspect in the case, in custody in Puerto Rico and obtained a DNA sample from him. Cruz-Garcia’s DNA profile matched the DNA profile developed irom Diana’s rape kit. Later, Cruz-Garcia was charged with the capital murder of Angelo.

Police continued investigating to find the man who had first entered Diana and Arturo’s apartment and beaten Arturo. During the investigation, police played voice recordings for Diana of Cruz-Garcia, Santana, and án individuar named Leonardo German because Diana told the police in 1992 that she could , identify the first man by his voice. After hearing the three individuals’ voice recordings, Diana did not identify -any of them as the first man.

Law enforcement decided to interview Santana again to see if he could help identify the first man who was involved in Angelo’s abduction. Santana was located in a prison in Pennsylvania where he was serving a sentence for a drug-related offense. During his interview with two FBI agents, Santana at first denied knowing anything about Angelo’s kidnapping and murder but then acknowledged being with Cruz-Garcia and appellant the night Angelo was killed in 1992. Santana revealed he had gone with Cruz-Garcia and appellant to Diana’s and Arturo’s apartment. He described in detail his, Cruz-Garcia’s, and appellant’s involvement in the kidnapping and murder of Angelo.

After learning of appellant’s involvement in the crimes, law enforcement worked on locating appellant. It took Investigator Kerry Gillie several months to find appellant; it seemed appellant “moved around a lot.” Investigator Gillie- went to appellant’s house -in Georgia and introduced himself as a police officer from the Harris Coünty District Attorney’s Office in Houston. Appellant agreed to be interviewed by Investigator Gillie. After the interview, appellant called his wife on his cell phone. Appellant’s interview and phone call both Were recorded. Following the interview and phone call, Investigator Gillie arrested appellant and charged him with capital murder on October 16, 2012.

While appellant was in custody in Houston, Diana called assistant district attorney Natalie Tise to stop by for a visit, Diana would visit with Tise and Investigator Gillie regularly to discuss “what was going on with the case;” on this occasion, they discussed travel plans for Cruz-Garcia’s trial, which had been reset. During Diana’s visit, Investigator Gillie asked Diana to listen to a voice recording to “see if she recognized the voice as being a person that was involved that night that Angelo Garcia, Jr. was taken, if she recalled that voice.” Investigator Gillie' then played the recording of appellant’s phone call to his wife. Diana immediately recognized appellant’s voice as the voice of the man who first entered her apartment in 1992.

B. Hearing on Motion to Suppress

Appellant’s trial for capital murder was held from January 27, 2014 to February 4, 2014. After voir dire, the trial court held a hearing outside the jury’s presence on appellant’s motion to suppress the identification of appellant’s voice.“based on an improper and suggestive audio review.”

At the hearing, the trial court ■ heard testimony from several experts who opined oh identification procedures; voice identification and memory decay; and how memo ries of traumatic events are stored in the human brain. The trial court also heard testimony from Investigator Gillie, who described how the voice identification of appellant occurred; he also described how Diana immediately and positively identified appellant’s voice as being the voice of the first man. Officer U.P. Hernandez, who had been involved in the investigation of the case since October 1, 1992, and had interviewed Diana at the time,, testified that Diana described the first -man’s appearance. He described Diana’s statements that the man spoke with a foreign Spanish accent and that she could recognize the man’s voice. Investigator Micah Webb,, who also had been involved in the investigation, testified that Diana had listened to voice recordings of Cruz-Garcia, Santana, and Leonardo German during the investigation but did not identify any of the voices as being the voice of the first man.

Appellant argued at the hearing that Diana’s voice identification was inadmissible for two reasons. ■ First, he contended the “method used in this case was improperly suggestive” because (1) Diana did not state that she could recognize the first man’s voice until later in the investigation;. (2) appellant is “20 years older, his voice has changed,” and Diana did not point to anything specific in his voice except to say the man spoke in a different Spanish dialect; (3) the State did not present Diana with a voice line-up of two or three individuals from Puerto Rico speaking with the same dialect as appellant; and (4) the other three voice recordings played for Diana were of men she had known, and they were not played the same day as appellant’s voice recording. Second, he contended that a 20-year gap between Diana first hearing. appellant’s voice and her identification of appellant’s voice was too long for an identification to. be accurate.

The trial court denied appellant’s motion to suppress and stated:

And the Court is prepared to"make a ruling on the'record regarding the defendant’s motion to suppress the in-court identification of the defendant, having heard testimony concerning this motion. And this morning I do want to make the following findings on the record.

I do find that according to the testimony of the two investigators, Investigator Gillie and also Investigator—let me make sure I’ve got that name—U.P. Hernandez. According to Investigators Kerry Gillie and U.P. Hernandez, who had an opportunity to review the offense reports and who did investigation throughout the investigation on this case, testified that Diana Garcia was a ■witness to the original offense of alleged capital murder in this ease, and that she did have an adequate opportunity to listen to the assailant at the. time of the offense, that according to Officers .Gillie and U.P. Hernandez, that, Diana had been blindfolded, her home broken into, her son was .kidnapped, and she was allegedly sexually assaulted during the time she heard one assailant speak to at least one other assailant present and did not ever see this individual—this individual’s face.

I also make the finding that according to the detectives, Diana Garcia, the "witness, said she could identify the assail- , ant’s voice at -an interview close in time to the alleged offense and that she had paid enough attention to describe the assailant’s voice, the dialect, or a language peculiarity at an interview that was made close in time to the alleged commission of the offense. .

I do make a finding that Diana Garcia’s reaction, described by Investigator Gillie, to the voice showup or the voice exemplar that was played to her, the voice being that of the defendant, Rogelio Aviles-Barroso, was described by Officer—excuse me—Investigator Gillie as being very emotional at the time she heard the voice of the assailant, that she cried, and her I.D. was" positive that that voice was the voice of her assailant. I do make a finding that that exemplar was played to her some 20-plus years after the offense allegedly occurred.

I do make a finding that Investigator Gillie never suggested to Diana Garcia, the witness, whose voice that was or suggest that that voice was that of her assailant, and that the pretrial identification procedure was not impermissibly suggestive on its face, that other voice samples had been played for Diana Garcia previously and she was not able to identify those other exemplars as being that of her assailant.

I do make a finding that since it was such an extended time between the crime and the playing of the voice exemplar to Diana Garcia that that is a concern to the Court and that it could be unreliable. However, that’s diminished due to the testimony of the expert that was put on by the State, explaining that, giving a reasonable explanation, and that the totality of the circumstances reveals that there was no substantial likelihood of misidentification and that the pretrial procedure was not imper-missibly suggestive.

So, I am going to let it go to the jury. The defendant’s motion to suppress the in-court identification of the defendant, the voice identification, is denied. So, we’ll let that go to the jury.

I also will allow the jury to hear all three experts that testified in this hearing regarding the different aspects of voice identification and their''expertise, this being a very unique identification. And the different aspects that they address will each be able to be thoroughly presented before the jury.

Trial resumed after the trial court’s ruling on appellant’s motion to suppress.

C. Trial Testimony

Diana testified at trial in detail about the events that occurred on September 30, 1992.

Diana recalled that she and Angelo went to bed around 10:00 p.m. on September 30, 1992, and that Arturo went to bed shortly thereafter. Just a short time after she had fallen asleep, Diana woke up because of a loud bang coming from the front door leading into the living room. Arturo got up to see what was going on. Diana then saw Arturo walking backwards into the bedroom because a tall, husky, masked man pointed a gun at Arturo and ordered him to “Go back, go back.” The man told Arturo, “Walk back, lay down, lay down on the side of the bed.” The man also instructed Arturo to kneel down by the bed, put a pillow in his mouth, and “open [his] hands to the back;” he tied Arturo with the alarm clock cord and immediately started beating Arturo. Diana asked the man in English and Spanish, “Why are you doing this?” The man told Diana to “turn face-down” and to “turn around and lie on [her] stomach, right, lie flat on the bed.” At that timé, she saw a second masked, armed man by the apartment door but she could not get a good look at him.

Diana testified that she could hear the first man’s voice in the small bedroom and “very much” focused on his voice. She testified that, after she laid face-down on the bed, a pillow and a sheet were put over her head. The second man then tied her hands on her back, turned her around and sexually assaulted her; “[t]he pillow and the sheet were still on [her] face.” The second man never said a word, and Diana never saw his face. During this time, Diana could hear the first man beating Arturo and her son Angelo crying. After the sexual assault, the men left and she managed to untie herself and Arturo. Diana realized that the men had kidnapped Angelo and called the police.

Diana was interviewed at the police station in the early morning on October 1, 1992, by Officer U.P. Hernandez after her sexual assault exam at the hospital and signed her statement around 6:30 a.m. that morning. Diana testified that she described the first masked man who entered the apartment to Officer Hernandez as being a “6-foot or a little bit higher,” “husky, well built,” “dark complected” Hispanic man with “big, bulging, very white” eyes and “big, bubbly,” “purple-ish” lips. Diana told Officer Hernandez “from the very beginning, October 1st” that she could “recognize the voice of the person, the first man who did all of the talking,” and she could “remember his eyes and his mouth or how he looked in a mask.”

Diana testified that the first man spoke English and Spanish with a “very, very different accent.” His accent was “entirely different” from “an accent from a person from Mexico.” Diana testified that she had never seen the first man'before or heard his voice. According to Diana, the first man could not have been Santana because Santana was skinny, shorter, and “white complected.” She also testified that she would have been able to recognize Cruz-Garcia’s and Santana’s voices.

The State showed Diana a photo of appellant’s face from 1992 marked as State exhibit 101; as instructed by the State, Diana covered up the face, except for appellant’s lips and eyes. Diana then stated that she recognized “his eyes” and “his lips.” She testified that “those eyes and lips look like the eyes and lips of the man that was the first man in the room that night.” Diana also identified appellant in the courtroom as the person “who looks like” the man in State exhibit 101. The State offered State exhibit 101 into evidence but the trial court did not allow its admission at that time.

Diana testified that Sergeant Mehl called her years after the sexual assault and Angelo’s abduction to tell her that police had located and arrested Cruz-Garcia in Puerto Rico. DNA evidence showed that Cruz-Garcia was the man who had sexually assaulted her in 1992. It took some" time to bring Cruz-Garcia from Puerto Rico to Houston for trial. Diana testified that she and Assistant District Attorney Tise met many times to prepare for Cruz-Garcia’s trial, at which Diana testified in the summer of 2013. While preparing for Cruz-Garcia’s trial, Diana came to Tise’s office to listen to voice recordings of Cruz-Garcia, Santana, and German because police were still investigating the identity of the first man who entered Diana’s apartment in 1992.

Diana testified that she heard the three men’s voice recordings, but she did not identify any of the played voices as being the voice of the first man. Diana stated that the three recordings were not played on the same day one after another; rather, the different voice recordings were played for her “over a period of time.” Diana acknowledged knowing Cruz-Garcia • and Santana but testified that she “really, really didn’t know” German. Diana testified that she would regularly visit Tise when she would come to Houston and Tise would give her. an update on the. case. Diana remembered coming to. Tise’s office one day in 2012 as Tise was preparing for Cruz-Garcia’s trial. Diana testified that a voice recording was played for her, and she identified the voice, she heard on the recording as the voice of the first man who came into her apartment. With regard to how the voice identification occurred, Diana testified as follows:

[DIANA:] Normally when Í come to Houston, I call you [Tise] and I tell you I’m in Houston. And you said: Good. If you have time, you want to come by? And I asked you what time. And you say: Whenever is convenient. I said: Fine,' I will come tomorrow morning.

[THE STATE:] Okay. And on that particular occasion, you happened to be in town and came by my office?

[DIANA:] Yes.

[THE. STATE:] And usually when that would happen, I would update you on the case, that kind of thing?

[DIANA:] Yes, ma’am.

[THE STATE:] On that'day, did I ask you to listen to a [sic] another voice on a tape?

[DIANA:] It was more like we were talking about the case. You were on this side of the table and you played something on the computer and I heard his voice.

[THE STATE:] And, so, basically we were just talking and I clicked on the computer and played something?

[DIANA:] Yes. You clicked on the computer.

[THE STATE:] And do you remember . that Investigator Gillie was also there?

■ [DIANA:] It was Officer Gillie, .you, Ms. Tise, me, and my oldest sister, Bennie.

[THE -STATE:] Okay. And before that tape was played, did anybody say to you: Diana, we want you to listen to this and this is a suspect in the case?

[DIANA:] No, nobody didn’t—you didn’t tell me that. ' •

[THE STATE:] Did you—were you sitting there thinking, I’m fixing to hear the voice of a suspect in the case?

[DIANA:] I was just sitting there listening to you and asking what was going on with the case and it clicked and I heard it.

[THE STATE:] Okay.

[DIANA:] And I started crying and I said: That’s the voice of the man who came into my house, into my bedroom. [THE STATE:] , And was that the voice of the tall man?

[DIANA:] ■ The tall, dark complected man, yes. .,

[THE STATE:] The one who came first.

[DIANA:] The one that came in first. [THE STATE:] And the -one that was—

[DIANA:] The only one that I saw that night.

[THE STATE:] And the only one that was doing the talking?

[DIANA:] Yes, ma’am.

[THE STATE:] When, you heard the man, the little tape of the man’s voice, was he being interrogated or was he on the phone?

[DIANA:] I just heard his voice, but at the time I didn’t know he was interrogated until—when I heard his voice, he was talking to a lady.

[THE STATE:] Was he on the phone?

[DIANA:] He was on his cell phone.

[THE STATE:] Okay. Talking bn the phone. He wasn’t being questioned by police officers. Did you hear a police officer?

[DIANA:] I didn’t see no police officers. The man was on the phone.

[THE STATE:] Talking to a lady?

[DIANA:] To a lady on the phone.

[THE STATE:] Okay. Did anybody, prior to putting that tape on, tell you: We are going to play you the voice of the tall man to pick out?

[DIANA:] No.

[THE STATE:] Did. anybody prepare you for—or tell you or suggest to you that you needed to pick this person?

[DIANA:] No, nobody told me.

[THE STATE:] Why did you identify that voice?

[DIANA:] I can still identify the voice if I hear the man. It’s still in me. The voice is still inside me just the same as when I feel somebody hug me from my back. I still feel .my son hugging me from my back. It’s still inside my heart, inside my feelings. The voice is still in my head.

[THE STATE:] Will you ever forget that voice?

[DIANA:] I don’t think so.

During cross-examination, Diana stated that, when she listened to the voice recording, she was not “listening for a suspect” but that “[i]t was an ‘oops’ when the voice came on the computer.” She stated: “I recognized the voice. I recognized his voice.” She acknowledged that, at the time of the identification, she was not played “anybody else’s voice that had that same dialect ... to compare it to.” Diana testified that she was shown “a group of pictures of all the suspects involved in this case” in 1992. Appellant’s trial counsel then introduced State exhibit 101 into evidence and the trial court admitted the exhibit. Appellant’s trial counsel inquired whether Diana had seen State exhibit 101 in 1992, and she replied that she had not seen the picture in 1992.

Diana testified that the man pictured in State exhibit 101 “looks like the man that went into [her] bedroom.” The State published State exhibit 101 to the jury. Looking at exhibit 101, Diana testified that the man pictured is a “dark-complected” man; his skin looks “very dark;” his eyes appear to be “very, very white;” and his “lips look dark purple.” Diana denied ever telling the police that two black men came into her apartment'in 1992; she claimed that she “said a dark man, dark complected.”

Investigator Webb testified at trial that he was assigned to assist Tise in preparing for Cruz-Garcia’s trial as well as identifying the other man involved in the crimes that occurred in 1992. In an effort to find the man whO' was -with Cruz-Garcia in 1992, Investigator Webb played voice recordings of Cruz-Garcia, Santana, and German for Diana. Investigator Webb testified that Diana did not identify any of the voices belonging to the first man “who did all the talking that night” as the man law enforcement was looking for.

He testified that Cruz-Garcia and Santana were from the Dominican Republic and German appeared to be from St. Croix, Virgin Islands. Investigator Webb identified photos of Cruz-Garcia, Santana, and German admitted as State exhibits 34, 34-C, and 34-H respectively. He also identified appellant op State exhibit 34-B. He testified that Cruz-Garcia and Santana were, not “bulky-built” but that appellant was. Investigator Webb .also testified that investigation revealed that appellant used the names: Roger, Bori, and Candido Le-brón.

The jury also heard from Investigator Gillie, who took over Investigator Webb’s duties assisting in the investigation of the case. Investigator Gillie -testified that he worked on finding the other man “involved in this crime back in 1992.” After Santana revealed during a FBI interview that appellant was the man involved in the crimes together with Cruz-Garcia, Investigator Gillie worked on locating appellant. Investigator Gillie testified that he located appellant in Georgia after several months of searching. He went to'appellant’s house and 'introduced' himself but appellant- did not “appear shocked” to see him; appellant told Investigator Gillie that he knew “what this is about. It’s about that little boy a long time ago in Houston.” Appellant agreed to be interviewed by Investigator Gillie. After the interview, -appellant called his wife on -his cell phone. Appellant’s interview and phone call both were recorded. Investigator Gillie testified that appellant was ..then. charged with capital murder and brought-to Houston to stand trial.

Investigator Gillie testified that, while appellant’s case was pending, Diana called to visit with him and Tise. According to' Investigator Gillie, Diana would call whenever she was in Houston “to stop by and see how the case is going and say ‘hi,’ see if she needed to do anything,” and he and Tise would accommodate her visit. During one visit in 2012, Investigator Gillie decided to let Diana listen to the tape recording of the phone call appellant had made to his wife after his interview in Georgia because it was the first time law enforcement had a recording of appellant’s voice. Investigator Gillie testified regarding how the tape recording was played for Diana and her reaction upon hearing the voice recording:

[THE STATE:] Before she listened to it, did you give her any information at all about who she was going to hear?

[GILLIE:] No, nothing like that at all.

[THE STATE:] What were you trying to be careful of?

[GILLIE:] We didn’t want to be suggestive in any way. You know, I just told her I wanted her to listen to the voice and see if she recognized the voice as being a person that was involved that night that Angelo Garcia, Jr. was taken, if she recalled that voice. And I told her would she listen, to just listen to the voice, not really the content.

[THE STATE:] Okay. Do you think she was expecting for the voice to all of sudden come on that moment on the computer?

[GILLIE:] No. I don’t think she was expecting it at all because of the way the conversation was going about the other case and we had asked her and then hit ‘play’ on the computer and she started — as soon as he started talking—

* * *

[THE STATE:] But prior to playing the tape for Diana, did you say to her: We arrested this guy in Georgia and we want you to listen to his voice and see if this is the guy?

[GILLIE:] No, not at all.

[THE STATE:] You wouldn’t have ever done that, would you?

[GILLIE:] No.

[THE STATE:] Okay. You just told her: We want you to listen to something, didn’t tell her what it was going to be, and that you wanted to see if she recognized the voice?

[GILLIE:] Yes, that’s true.

[THE STATE:] So, how did it happen that the tape was played or the CD was played on the computer?

[GILLIE:] The CD was in, I just asked her to listen just a minute ago, she said she would. And getting it organized or getting ready to hit ‘play’ and hit ‘play and—

[THE STATE:] Do you think it took her off guard at first? Was she—

[GILLIE:] No, I don’t think she was ready. Because she wasn’t even looking that way at that time. She wasn’t even looking, like she was looking to hear something. She was—her sister was sitting there and I was sitting there. It wasn’t like it was something she was ready for at all.

[THE STATE:] Okay. So, when you hit ‘play,’ what happened?

[GILLIE:] It was dramatic. She broke down and just went down and started crying. And she said: That’s him, that’s him.

[THE STATE:] After that happened, did it take a little while for her to calm down?

[GILLIE:] Yes. She was shaking. And it took a pretty good while to get her to calm down just so that we could talk to her. Because I had—I needed to ask her some more stuff, but she was really upset.

[THE STATE:] And after she identified that voice, did you clarify with her which individual—where she recognized that voice from?

[GILLIE:] Yes. As soon as she calmed down, I asked her, I said: When you say that’s him, what do you mean that’s him? And she said: That’s him, the other guy that night, the tall guy that was in the room when Angelo was taken. And she was adamant about it. [GILLIE:] Did she tell you she was sure?

[THE STATE:] She said she was absolutely positive.

During cross-examination, Investigator Gillie testified that Arturo never made “a positive identification for [appellant].” He also testified that.no other voice recordings were played for Diana besides the three previously played during the investigation. Investigator Gillie testified that he listened to the voices and dialect of appellant as well as of Cruz-Garcia, Santana, and German; there were differences in the voices “in certain things” and “[n]one of them sounded like Tex-Mex.”

Investigator Gillie also testified that he was careful not to play any recording of appellant’s interrogation for Diana; he played only the recording ■ of appellant’s phone call to his wife. He stated that the call started with greetings between appellant and his wife, and Diana “almost immediately” identified the voice. Investigator Gillie' further testified that, when Arturo heard the recording of appellant’s voice, Arturo “just couldn’t remember” the voice and reminded Investigator Gillie that he “was being assaulted when that was happening” and then proceeded to show scars on his head from the beating. - .

Several law enforcement officers who were involved in the investigation of the case early on testified that Diana had described the first man Who entered the apartment as a tall, dark-skinned man speaking with a foreign accent.

Sergeant James Devereaux, who was called to the apartment the night of September 30, 1992, testified that Diana had told him that night that “she got a good look at the first suspect, the tall masked man, but didn’t get a chance to really see the second person.” Diana also “described a foreign accent being spoken by that first man” who entered the apartment.

Sergeant C.E. Elliott, who was also called to the apartment the night of the crimes, testified that he only briefly spoke to Diana and that Diana described the suspects as dark-skinned Hispanics with a foreign accent. Sergeant Elliot understood that Diana was not describing “an African-American individual from the United States” but the suspects were “probably from South America, Cuba, Dominica [sic], Puerto Rico, that are not black Americans.”

FBI Special Agent Eric L. Johnson, who was involved in the investigation of Ange-lovs kidnapping-from its inception, testified that the “focus of [the] investigation was pretty much Hispanics [sic] males from other countries, Central America, with foreign accents.” Agent Johnson agreed with appellant’s trial counsel that Diana “state[d] very specific things about the person wearing the mask that comes in first.” In particular, Agent Johnson agreed that she stated the first person who entered her apartment “had purple lips, that the person had white—their eyes were very, very white around the white part, it bulged out, and I can remember this person even .though that person had a mask on.”

- Sergeant Swaim testified that, on October 6, 1992, he visited the apartment Cruz-Garcia and his wife had lived-in before Cruz-Garcia fled Houston. Sergeant Swaim learned that a tall Hispanic male was staying at the apartment. At the apartment, a tall Hispanic male answered the door and introduced himself as Candi-do Lebrón. The man said he was from St. Croix and gave Sergeant Swaim a St. Croix birth certificate 'with the name Can-dido Lebrón. When the man could not answer questions about his birth certificate and could not state his parents’ names listed on the birth certificate, Sergeant Swaim asked the man to accompany him to the police station to be interviewed by a Spanish-speaking officer. The man went with Sergeant Swaim to the police station; he was interviewed and photographed there at that time.

At trial, Investigator Swaim identified State exhibit 84 as being a photo of the Hispanic mále whom he encountered at Cruz-Garcia’s' apartment and who identified himself as Candido Lebrón. Investigator Swaim testified that the photo was taken on October 6, 1992, six days after Angelo was abducted. He identified appellant in court as “an older version of the individual that [he] interviewed on that day.”

FBI Special Agent Michael Hochrein testified that he and another agent visited Santana in a Pennsylvania prison in May 2011 to conduct an interview and determine if Santana knew anything about Angelo’s abduction. At first, Santana denied knowing about Angelo’s kidnapping and murder but then he admitted being with Cruz-Garcia arid appellant the night Angelo was taken from his home and killed in 1992. Agent Hochrein' testified that Santana revealed he had gone with Cruz-Garcia and appellant tó Diana and Arturo’s apartment. Santana described in' detail how he,- Cruz-Garcia, and appellant were involved in the kidnapping and murder of Angelo that night. .

The jury- also heard Santana’s testimony at trial. Santana testified that he was bom in the Dominican; Republic but left the country to .go to Puerto Rico when he was about -18 years old because it is easier to immigrate to the United States from there. He testified that, he and Cruz-Garcia came to the United States to sell drugs. At first,- the two were partners but then Cruz-Garcia took control of the business; he also had a lot of control over Santana.

According to Santana, he became friends with appellant in early 1992. He knew appellant as Rogelio or Bory. Santana explained that “Bory” means “from Puerto Rico” and Santana believed appellant to be from Puerto Rico. Santana identified appellant in court as the man he knew as Bory or Rogelio but stated that appellant was “big and tall and much more muscular” back iri 1992. Santana also identified appellant in a photograph admitted as State exhibit 34-B and agreed that “that is the way Bory or Roger looked back in 1992.” Santana testified that appellant was “certainly bigger and taller” than he and Cruz-Garcia were.

Cruz-Garcia also became friends with appellant, and the three men “started going everywhere” together. Santana testified that he, Cruz-Garcia, and appellant drove to Diana’s and Arturo’s apartment on September- 30,1992, because Cruz-Garcia wanted to “look for his drugs and his money.” ■ Cruz-Garcia parked his car in “the back dark part of the apartments, a small street that was behind the apartments with not much traffic.” Cruz-Garcia instructed Santana to wait in the car while he arid appellant went to Diana’s and Arturo’s apartment, which was not visible from where Cruz-Garcia had parked his car. Cruz-Garcia was armed with a pistol and appellant carried a pocket knife when they went, to the apartment; both men wore masks.

Santana sat in the car and waited while appellant and CruzrGarcia were in Diana and Arturo’s apartment for about 20 to 30 minutes. When Cruz-Garcia returned to the car, Santana saw him" carrying Diana’s son Angelo in his arms. Santaná' asked him why he brought Angelo with him. He responded that Angelo ’ saw his face and recognized hiña; he then handed Santana the child. Cruz-Garcia also told Santana that hie had sexually' assaulted Angelo’s mother. Appellant came back to the car, and Cruz-Garcia drove Santana, appellant, and Angelo to a wooded area in Baytown.

Cruz-Garcia stopped the car and told appellant: “Bory, you already know what you have to do.” Santana saw appellant take Angelo out of the car; Santana walked away from the car feeling ill. Cruz-Garcia stayed at the front of the ear holding his pistol. Appellant, took Angelo to the back of the car; Santana could not see appellant and Angelo but he heard Angelo moan. Santana walked to the back of the car and saw Angelo laying face-up on the ground “full of blood.” Cruz-Garcia'ordered Santana and appellant to put the child’s body in the car, and they complied. Cruz-Garcia then drove back toward the city. On the way, Cruz-Garcia stopped by a river and ordered appellant and Santana to throw Angelo’s body in the water. Cruz-Garcia also ordered appellant and Santana to sink Angelo’s bo'dy in the water, so they looked for rocks and placed them on Angelo’s body until it sank.

As they continued driving toward Houston, Cruz-Garcia handed Santana the “knife that was used to kill the little boy” and told Santana to “dump it out to the freeway.” Thereafter, two of the car’s tires blew up. The three men managed to get to a hotel in Pasadena where Cruz-Garcia called Bienviendo Melo because Cruz-Garcia kept, a second car at Melo’s home. After picking up Cruz-Gareia’s car from Melo’s home, appellant stayed at a hotel , and Cruz-Garcia and Santana drove to . Cruz-Garcia’s apartment. . The next day, Cruz-Garcia,, and Santana asked a friend to repair the car with the blown-out tires; they then washed the car and sold it. Santana testified that Cruz-Garcia sold the car for cash and bought a ticket to leave the country. .Santana drove Cruz-Garcia to, the airport, and he left the country. Santana never told police about Angelo’s kidnapping and. murder until 2011 when two FBI agents interviewed him in a Pennsylvania prison.

Linda .Hernandez, who was Melo’s girlfriend at the time of the murder, testified at trial that Cruz-Garcia called her home at about 1:30 a.m. on October 1, 1992, to speak to Melo. Hernandez testified that Cruz-Garcia asked Melo to pick him up in the car Cruz-Garcia had lent Melo but Melo refused and told Cruz-Garcia to pick up the car himself. According to Hernandez, Cruz-Garcia and Santana arrived at her home around 2:30 a,m. by taxi. Santana appeared very nervous but Cruz-Garcia was calm. The two men drove off in the car. Hernandez testified that Santana returned the ear to Melo a few days later; the car was dirty, “[l]ike it’s been to the beach.”

The jury also heard testimony from three experts, Dr. David Lisak, Prof. Phillip Lyons, and Dr-. Al Yonovitz, who opined regarding identification procedures, voice-identification and memory decay, and how memories of traumatic events are stored.

After deliberation, the jury found appellant guilty of the capital murder of Angelo, and the trial court assessed appellant’s punishment at life imprisonment., Appellant timely filed an appeal.

Analysis

I. Identification

In his first issue, appellant argues.that the “trial court reversibly erred by allowing (1) testimony about [Diana]’s pre-trial voice identification of’ appellant because Diana identified appellant’s voice “under suggestive circumstances that unquestionably encouraged [Diana] to identify' the voice she heard as that of the only remaining unknown suspect from a twenty-year-old offense;” and (2) Diana’s “in-trial identification of [appellant] in photograph and in person” because Diana identified appellant at trial “for the first time only after knowing that the voice she identified under unduly suggestive circumstances belonged to” appellant, and “this identification is inseparable from the unduly suggestive pre-trial voice identification.”

A. Pre-Trial Identification

We begin by addressing appellant’s contention that the trial court should not have admitted any testimony regarding Diana’s pre-trial voice identification of appellant because Diana identified appellant’s voice “under suggestive circumstances that unquestionably encouraged” her to identify the voice she was played while visiting with Tise and Investigator Gillie as the voice of the first man who came into her apartment on September 30, 1992. Appellant correctly contends that he preserved his argument for appeal. Based on the arguments presented at the hearing on appellant’s motion to 'suppress, the trial court was asked to suppress Diana’s pretrial and in-court identification of appellant’s voice; and the trial court denied appellant’s motion to suppress. See Livingston v. State, 739 S.W.2d 311, 334 (Tex.Crim.App.1987) (“It is- settled that when a pre-trial motion to suppress evidence is overruled,- the accused need not- subsequently object to the admission of the same evidence at trial in order to preserve error.”).

We thus consider whether the trial court should have suppressed testimony regarding Diana’s pre-trial identification of appellant’s voice because, it resulted from an unduly suggestive 'identification procedure.

We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App.2010); Mendoza v. State, 443 SW.3d 360, 362 (Tex.App.— Houston [14th Dist.] 2014, no pet.). We afford almost total deference to a trial court’s -determination of historical facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010). The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Id.; Adams v. State, 397 S.W.3d 760, 763 (Tex.App.—Houston [14th Dist.] 2013, no pet.). The trial court is entitled to believe or disbelieve all or part of a witness’s testimony, even if that testimony is uncontroverted, because it has the opportunity to observe the witness’s demeanor and appearance. Valtierra, 310 S.W.3d at 447.

If the trial court makes express findings of fact, we view the evidence in the light most favorable to its ruling and determine whether the evidence supports these . factual findings. Id.; State v. Smith, 335 S.W.3d 706, 714 (Tex.App.—Houston [14th Dist.] 2011, pet. ref d).

- We review a trial court’s application of the law to the facts de novo. Mendoza, 443 S.W.3d at 362; Adams, 397 S.W.3d at 763; see Valtierra, 310 S.W.3d at 447. We will sustain the trial court’s ruling if that ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-48; Mendoza, 443 S.W.3d at 362; Adams, 397 S.W.3d at 763.

“[A] pretrial identification procedure may be so suggestive and -conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex.Crim.App.2001). To determine the admissibility of a pretrial identification, we use a two-step analysis asking (1) whether the pretrial procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable .mis-identification. Santos.v. State, 116 S.W.3d 447, 455 (Tex.App.—Houston [14th Dist.] 2003, pet. refd); see also Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). An analysis under these steps requires an examination of the totality of the circumstances surrounding the particular case and a determination of the reliability of the identification. Conner, 67 S.W.3d at 200; Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995). A defendant must prove the pre-trial identification is unreliable by proving both elements by clear and convincing evidence. See Santos, 116 S.W.3d at 451.

If the indicia of reliability outweigh the influence of an impermissibly suggestive pretrial identification, then the identification testimony is admissible. Santos, 116 S.W.3d at 451, 455-56; see Neil, 409 U.S. at 199, 93 S.Ct. 375. Therefore, even if the pretrial procedure is found to be impermissibly suggestive, identification testimony nevertheless is admissible if the totality of the circumstances shows no substantial likelihood of irreparable misidentification. See Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App.1999); Adams, 397 S.W.3d at 764. If the totality of the circumstances indicates that a substantial likelihood of misidentification exists, then admission of the identification of the defendant amounts to a denial of due process. See Neil, 409 U.S. at 198-99, 93 S.Ct. 375; Adams, 397 S.W.3d at 764.

The analysis of an identification of a voice differs somewhat from that of an identification by sight, but the standards used to validate a visual identification are equally applicable. See Davis v. State, 180 S.W.3d 277, 283 (Tex.App.—Texarkana 2005, no pet.) (analyzing admissibility of voice identification); see also Williams v. State, 116 S.W.3d 788, 792 (Tex.Crim.App.2003) (“ ‘while one’s voice and handwriting are, of course, means of communication,’ a voice or handwriting exemplar ‘is an identifying physical characteristic’”) (quoting United States v. Dionisio, 410 U.S. 1, 6-7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973)). Because the sole,purpose of the use of the tape recording of appellant’s voice was the same as the use of a photo of appellant would have been had Diana been asked to attempt an identification from appearance, we will apply the same types of strictures as are used in the more typical situation involving visual identification. See Davis, 180 S.W.3d at 282.

We first will determine whether the pretrial voice identification procedure in this case was impermissibly suggestive. Suggestiveness may arise from the manner in which a pretrial identification procedure was conducted. Barley, 906 S.W.2d at 33. For example, a police officer may point out the suspect or suggest that a suspect is included in the lineup or photo spread. Id. An identification may be suggestive based on a single procedure or the cumulative effect of multiple procedures. Id.

Even if a pretrial identification procedure may have been suggestive, a defendant must establish by clear and convincing evidence that the procedure was impermissibly suggestive. See Santos, 116 S.W.3d at 451, 455-56. To be impermissi-bly .suggestive, “the identification procedure utilized must in some way be so defective as to indicate or suggest the [individual whom] the witness is to identity.” See Ward v. State, 474 S.W.2d 471, 475 (Tex.Crim.App.1972). “Suggestiveness must be determined by the circumstances of each case.” Cantu v. State, 738 S.W.2d 249, 252 (Tex.Crim.App.1987) (holding that showing a witness several photo spreads containing the same photo of defendant on different. occasions was impermissibly suggestive).

' At the suppression hearing, Investigator Webb testified that he played recordings of Cruz-Garcia’s, Santana’s, and German’s voices for Diana at Tise’s 'office after Cruz-Garcia had been charged with capital murder. At the time, law enforcement knew that Cruz-Garcia was the man who had sexually assaulted Diana and were looking for the other, yet unidentified, man “who did all the talking.” Investigator Webb testified that he and Tise decided to play the three men’s voice recordings for Diana to determine whether one of the three men “might, be our unidentified person.” Diana knew some of the men whose voices Investigator Webb had played; and evidence showed that Diana knew Cruz-Garcia “for a period of time.” According to Investigator Webb, Diana did not identify any of the, three voices he played for her as being the voice of the “man who did all the talking.”

Investigator Gillie also testified .at the suppression hearing, describing .how the voice identification of appellant occurred and that Diana immediately and positively identified appellant’s voice as being the voice of the first, “tall man that came into her room that night” and who “was doing all the talking.” ' Investigator Gillie testified that Diana came to Tise’s office to talk about-Cruz-Garcia’s trial reset and discuss travel; Diana’s visit was not “planned and she did not come down in order to hear a voice and I.D. it” nor was Diana “told that that was going to happen.” According to Investigator Gillie, he and Tise decided during their visit with Diana to play a portion of appellant’s recorded phone call to appellant’s wife for Diana. Investigator Gillie testified regarding the instructions he gave Diana before playing the taped phone call for her and her immediate reaction upon hearing the recording as follows:

[THE STATE:] Prior to playing the statement, did you give [Diana] some instructions?

[GILLIE:] Yes.

[THE STATE:] And what were those? [GILLIE:] To listen to the voice-on the tape and not the contents and try and see if she recognized the sound of the voice and how it sounded and see if she recalled that.

[THE STATE:] And did you tell her that the voice may or may not have anything to do with the crime that she w[a]s the victim of all of those years ago? - :

[GILLIE:] Several times.

[THE STATE:] And did you explain to her she was under no obligation to pick anyone? .

[GILLIE:] Absolutely.

[THE STATE:] Just if she recognized someone to let us know?

[GILLIE:] That, and if she didn’t recognize someone to let us know.

[THE STATE:] And if she recognized someone from the events that happened all those years ago?

[GILLIE.:] Yes.

[THE - STATE:] Okay. And then you played the audio of ... the phone call, correct?

[GILLIE:] Yes, ma’am.

[THE STATE:] And you said that she reacted. How strong a reaction was it?

[GILLIE:] It was hard for her. She was noticeably heartbroken. You know, it' looked like there- for a minute she almost stopped breathing.

[THE STATE:] It was very emotional?

[GILLIE:] It was very emotional. I mean ...

[THE STATE:] She started crying? [GILLIE:] Yes.

[THE STATE:] And she immediately said that was the voice of the tall man that came into her room" that night?

[GILLIE:] Yes.

[THE STATE:] And did she express to you how certain she was?

[GILLIE:] She said she was absolutely positive he was the one that was doing all the talking.

[THE STATE:] When he came in the room?

[GILLIE:] He was the one that did all the talking.

[THE STATE:] And is your understanding of the offense that—from reviewing the report of the offense that one of the individuals that came into her room that night did all the talking and the other was silent?

[GILLIE:] Yes.

Investigator Gillie also testified that, although recordings of Cruz-Gareia’s, Santana’s, and German’s voices were played for Diana during the investigation in the same way appellant’s voice recording was played for her, Diana did not identify any of the three men’s voices as belonging to the first man who entered her apartment and “who did all the talking.”

Appellant presented testimony from criminal justice professbr Dr. -Phillip Lyons. Dr. Lyons testified as an “expert on identification procedures, and specifically photographic lineups and eyewitness identification.” Dr. Lyons testified that he has been “involved in assisting law enforcement agencies identify appropriate identification procedures.” He has worked with ■ the Law Enforcement Management Institute of Texas on developing a proposed model identification policy that law enforcement could employ, but the legislature did: not adopt the policy. The model identification policy strongly discourages showups and “recommend[s] photographic arrays as preferential to' live lineups.” To minimize suggestibility, the model policy proposes that an independent officer should present sequential-photos to a witness for identification instead of a photo array.

Dr. Lyons testified that he has not been “involved with voice recognition identification of any means” and that everything he learned about voice identification was based on his study of a few published articles and studies on voice recognition. He opined that concerns of suggestibility are equally present in eyewitness and voice identifications. He agreed that “just like trying your best to get to sequential [photo] identification with an unbiased officer, the same thing would be apparently applicable to voice recognition.” Dr. Lyons also agreed that-“when a person has been given an opportunity to hear multiple voices that would be a less suggestive technique;” it would be the “encouraged” approach which “would be less likely to lead to misidentification.”

Dr. Lyons was asked by appellant if “the time between the exposure to the voices [has] any effect? For example, if you came in and you were asked to hear three or four or five voices on one day right after each other, versus one day you hear one voice, three or four days later you hear another voice, would that change the factors' regarding suggestibility, that method?” Dr. Lyons responded he was “not aware of any studies that have compared those two different approaches.” He stated: “What you just described to me doesn’t really sound like a lineup, though. It sounds like a number of sequential individual presentations.”

In denying appellant’s motion to suppress, the trial court rejected appellant’s argument that the pre-trial identification procedure was impermissibly suggestive because (1) Investigator Gillie never suggested to Diana that the voice played was that of her assailant; (2) other voice samples had been previously played for Diana; and (3) Diana did not identify any of the previously played voices as being the voice of her assailant.

Appellant argues that the “use of a single voice for identification played twenty years after the offense suggested to [Diana] that the. voice belonged to the only remaining unknown suspect in case.” Appellant argues that playing a single voice is as suggestive as showing a single photo because there is no ability to compare the played voice with other similar voices. According to appellant, neither Tise nor Investigator Gillie “successfully diminished the suggestive context in which [Diana] heard only [appellant]’s voice as a suspect for identification purposes twenty years after the offense” because they did not play a voice lineup for Diana. Appellant also argues that, although Diana was played voice recordings of Cruz-Garcia, Santana, and German before being played appellant’s voice, Diana knew the three men, and appellant’s voice was the only unfamiliar voice that was played for Diana.

Contrary to appellant’s assertion, the evidence presented at the suppression.hearing does not show that Diana “personally knew” all three men whose voices she did not identify as being the voice of the “man who did all the talking.” The evidence presented at the hearing shows that Diana knew Cruz-Garcia “for a period of time.” The evidence does not support appellant’s contention that his voice was the only “unfamiliar voice” played for Diana.

Appellant cites Davis v. State as authority that playing a witness a single voice recording constitutes an impermissibly suggestive identification procedure. See Davis, 180 S.W.3d at 281-83. Davis is distinguishable. In Davis, the police played only one voice recording for the complainant during the entire investigation. Id. at 281. Here, Diana was played voice recordings of three different men during the investigation, albeit not on the same day as she was played the recording of appellant’s voice.

Further, no one suggested to Diana that appellant’s voice recording was that of a suspect; nor was she told or encouraged to identify or “pick anyone” after listening to appellant’s voice recording. Contrary to appellant’s assertion, the evidence does not establish that Diana “was expecting to hear the voice of the tall man.” Instead, evidence establishes that Diana did not expect to hear any voice recording during her visit with Tise and Investigator Gillie; Diana was at Tise’s office to discuss the fact that Cruz-Garcia’s trial had been reset, “discuss travel,” and get an update on Cruz-Garcia’s case in general.

Playing appellant’s voice recording for Diana would no more have suggested that the “voice belonged to the only remaining unknown suspect in the case” than when she was played recordings of Cruz-Garcia’s, Santana’s, and German’s voices. Appellant’s argument that, “[without a [voice] lineup for comparison, [Diana] understandably latched onto this voice as belonging to the only remaining unknown suspect,” is not persuasive. This is so because Diana knew Cruz-Garcia had been charged with capital murder, and that law enforcement was trying to find the “only remaining unknown suspect” when she heard recordings of Cruz-Garcia’s, Santana’s, and German’s voices; yet, Diana did not identify any of the three voices as being the voice of the man “who did all the talking.”

Based on the record before us and considering the totality of' the circumstances, we; conclude' that the pre-trial identification procedure was • suggestive but not impermissibly so. Even if appellant had proven by clear and convincing evidence that the pre-trial voice identification procedure used by law enforcement was unduly suggestive, we cannot conclude that it gave rise to. a substantial likelihood of irreparable misidentification so-.as to make the identification testimony inadmissible.

In determining whether an impermissi-bly suggestive identification procedure gave rise to a' substantial likelihood of irreparable misidentification, we weigh the folio-wing factors: (1) the witness’s opportunity to hear the criminal at the time of the crime; (2) the witness’s degree of at; tention; (3) the accuracy of the witness’s prior description of the criminal’s voice; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. See Neil, 409 U.S. at 199, 93 S.Ct. 375; Santos, 116 S.W.3d at 453, 455-56. Because these factors are issues of historical fact, we weigh them deferentially in a light favorable to the trial court’s ruling. See Ibarra, 11 S.W.3d at 195-96; Adams, 397 S.W.3d at 764. We then weigh the factors, viewed in this light, de novo against the “corrupting effect” of the suggestive pretrial identification procedure. See Ibarra, 11 S.W.3d at 195-96; Adams, 397 S.W.3d at 764.

At the suppression hearing, the' trial court heard testimony from several experts and police investigators relevant to the reliability of Diana’s pre-trial identification of appellant’s voice. Appellant asked his expert on eyewitness identification procedures, Dr. Lyons, to opine on a person’s ability to “recognize voices over a period of time where there has been'any time lapse.” Dr. Lyons stated that “there is a decay effect. And as more time goes by, people do accurately identify at lower rates than if the attempted identification is sooner after the—sooner after the voice is heard.” Appellant’s counsel asked: “Where a person is speaking Spanish, but a person comes from a different location, is there any difficulty in recognizing the voices where the accent is different?” Dr. Lyons answered that he was “not aware of any studies that have been done that have looked at regional accent or dialects, only at different languages.”

On cross-examination, Dr. Lyons stated that he has no direct experience in the area of voice identification, and what he has learned about voice identifications was the “result' of doing research and studying scholarly articles in preparation for [his] testimony.” Dr. Lyons also stated that, at most, three articles were relevant to this case and the’ issue of the effect of a time lapse on a voice identification. None of the articles was based on studies that “involved a situation where an individual actually went through a real-life traumatic event, something that would stick with you for a long time, and test their memory as to that voice and their ability to I.D. it after a long period of time.”

Dr. Lyons stated that in the past 20 years there has been a “tremendous amount of research” conducted in the' area of “trauma and the impact it has on attention and processing and encoding” as well as how the brain stores memories of traumatic-events. Dr. Lyons testified that research hás: shown that memories of traumatic events “can be extremely durable over time.” He testified that he was “familiar with the line of research that talks about how during a traumatic -event sometimes sensory memories, like the things that you hear, the things that you feel, are the things that are most likely to revisit you over a period of years as you relive that trauma.” He admitted that it is a different scenario to ask someone to remember .a voice after hearing “something that’s meaningless to them, doesn’t have a big impact on their life” versus “the memory of a traumatic event that