Cantu v. State (1987)

In Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987), the complainant, Juan, was shown an array of five photographs that included the defendant. Juan said he did not recognize anyone in the photographs; however, the police officers noted that he avoided looking at defendant's photograph. Id. at 251. The officers thought Juan recognized the defendant but was afraid to identify him. Id. Two and one-half months later, another officer showed Juan a second array that consisted of five photographs that were not the same as the first array, but included a photograph of the defendant. Id. Juan again said he did not recognize anyone, but he appeared shaken. Id. The next day, another officer talked to Juan, and Juan agreed to view the photographs again. Id. After viewing the second photo array a second time, Juan identified the defendant. Id. He said he had recognized the defendant before, but was afraid to tell the police. Id. The Court of Criminal Appeals said, " Showing several photographic displays on different occasions, each containing a photograph of appellant, when Juan has previously not identified appellant, is a suggestive procedure." 738 S.W.2d at 251-52. The court went on to say, "Not every case in which several arrays or displays of a defendant containing different pictures of a defendant are (sic) suggestive. It may be necessary to show a witness different pictures because a defendant may have several 'different looks' . . . . Suggestiveness must be determined by the circumstances of each case." Id. at 252. The court noted that, although a different photograph of the defendant was used in the two arrays, there was no showing of how they differed or that they depicted the defendant differently. Id. The court said that "in the abstract," the procedure in Cantu was suggestive, but it weighed the procedure's necessity, created by the officers' certainty that Juan recognized the defendant but was afraid to identify him, in its analysis of the totality of the circumstances. Id.