Capello v. State

• Citation: 775 S.W.2d 476
• Decision Date: 09 August 1989
• Docket Number: No. 3-87-106-CR,3-87-106-CR
• Parties: Damien CAPELLO, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 476

775 S.W.2d 476

Damien CAPELLO, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 3-87-106-CR.

Court of Appeals of Texas Austin.

Aug. 9, 1989.

Charles R. Kimbrough, Lockhart, for appellant.

Jeffrey L. Van Horn, Crim. Dist. Atty., Lockhart, for appellee.

Before POWERS, GAMMAGE and ABOUSSIE, JJ.

ABOUSSIE, Justice.

A jury found appellant guilty of aggravated sexual assault under Tex.Pen.Code Ann. § 22.021(a)(2) (1989) and assessed punishment at twenty-four years confinement in the Texas Department of Corrections. The trial court rendered judgment in accordance with the verdict, along with a finding of use of a deadly weapon. We will reform the judgment of conviction and, as reformed, affirm.

The offense occurred in the early morning of June 9, 1986, in Lockhart, Caldwell County, Texas. The assailant entered a home where the victim cared for an invalid woman, awakened the victim, threatened her with a knife, and sexually assaulted her.

The assailant remained very close to the victim for at least an hour. The two conversed for fifteen to twenty minutes and then he forced her to engage in sexual intercourse for thirty minutes. During the attack, the two were in a lamp-lit bedroom and on a porch lit by moonlight and a nearby street light. The victim saw her assailant's face throughout the incident. Before he left, the assailant told the victim to "take a good look" at him, which she did, since she was going to report him to the police. The victim had never seen her attacker before the incident and did not know his name.

The victim's description of her assailant never varied, and it matched appellant's physical characteristics. She gave an initial, detailed description of her assailant to police at 4:00 a.m. immediately following the assault. She looked through police "mug-books" later that day, but failed to identify her assailant from among the several hundred photographs which she testified "all began to look alike." The officers could not verify whether appellant's photograph was in any of the books through which the victim looked, as photographs are added to and removed from the books daily and appellant was not then a suspect.

Several days after her attack, the victim saw her assailant sitting on the front porch of a home a few blocks from where she had been assaulted. One week later, she saw him walking along a road near that home. On a third occasion, the victim again saw her assailant on the same porch where she had seen him earlier. The victim reported these three events to the police. Testimony outside the jury's presence revealed that appellant lived at the home where the victim twice saw her assailant. Neither party offered evidence of these sightings before the jury.

On June 16, 1986, after the victim first saw appellant at his home, a police artist made a composite drawing from the victim's description of her attacker. A police officer recognized appellant as the person depicted in the composite, but he did not tell the victim his identity.

The officer then showed the victim a display of photographs of six males, similar in appearance and age, including appellant. The victim independently selected appellant's photograph and told the officers that she "wouldn't positively say" that the person in the photograph was her assailant, "but he looked very, very close." Although she was "pretty sure," she "wouldn't absolutely say without a doubt." Since the police failed to preserve the array, appellant speculates it may have been "overtly" suggestive and, if so, it probably influenced the witness's later identification of appellant both at a lineup and at trial. Appellant offered no proof that the procedure was suggestive. We note that the witness resisted any alleged suggestion, as she declined to positively identify a suspect at that time. Appellant concedes that failure to preserve the photo array does not prevent the witness from making an in-court identification, so long as the victim's trial testimony is of independent origin. Van Byrd v. State, 605 S.W.2d 265, 270 (Tex.Cr.App.1980). Neither appellant nor the state introduced evidence of this array before the jury.

During a December 3 police lineup, the victim unequivocally identified appellant as her assailant. When appellant walked into the room, even before all the participants had entered, the victim identified him immediately and positively. The trial court heard uncontroverted evidence that no one influenced the victim's selection in any way.

The police held the December 3 lineup, after appellant's indictment, in the absence of legal counsel, and without a waiver of counsel by the accused. An accused cannot be subjected to a pre-trial lineup in the absence of counsel under these circumstances without violating his right to counsel under the Sixth Amendment of the United States Constitution. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969); U.S. Const. amend. VI. A witness's testimony that she identified a defendant at an illegally held lineup is inadmissible at trial, Gilbert, 388 U.S. at 277, 87 S.Ct. at 1958; Thompson, 480 S.W.2d at 626, and cannot be used instead of, or to bolster, an in-court identification, Martinez, 437 S.W.2d at 846. The State did not offer evidence regarding the the victim's identification of appellant at the lineup.

During trial, the victim testified before the jury and identified appellant. A victim who has previously identified a defendant at an illegally staged lineup may identify the accused at trial if the State has established by clear and convincing evidence that the testimony is based upon the witness's observations of independent origin, purged of any taint of the illegal pre-trial confrontation. Gilbert, 388 U.S. at 272, 87 S.Ct. at 1956; Wade, 388 U.S. at 241, 87 S.Ct. at 1939; Thompson, 480 S.W.2d at 627; Martinez, 437 S.W.2d at 846.

Appellant filed a motion to suppress evidence which asserted the following:

Defendant respectfully requests the Court to suppress the following items seized as evidence in this cause:

* * * * * *

Item 3. Any statement, written or oral, by Defendant, or action done by Defendant, at or subsequent to his apprehension by law enforcement officers.

Item 4. All testimony of law enforcement officers, or agents thereof, as to the seizure of any tangible, identification, or line-up evidence in this cause.

* * * * * *

Item 6. All identification or line-up evidence obtained by law enforcement officers, or agents thereof.

In support of this motion, Defendant would show that all of the items noted above were seized by law enforcement officers, or agents thereof, as a result of an illegal detention, arrest, and search of Defendant, and in violation of appropriate constitutional and statutory authority ... U.S. CONST. amends. IV, V, VI, XIV; TEX. CONST. art. I, §§ 9, 10, 19; and TEX.CODE CRIM.PRO.ANN. arts. 1.04, 1.05, 38.08, 38.22, 38.23 [emphasis added].

The court held a hearing on the motion outside the jury's presence to consider (1) whether appellant gave voluntary written consent to the search and (2) whether the basis for the victim's identification of appellant at the time of trial was of independent origin.

As to the first issue, we note that appellant never contended below, and does not complain on appeal, that the police illegally detained or arrested him. Appellant disputed below only the taking of samples from his person for testing. The State conceded that the police did not obtain these samples by a warrant, but by appellant's written consent, and the only issue is whether appellant voluntarily consented. On appeal, appellant does not attack the validity of the search or its fruits, but instead attacks for the first time the written consent form itself as an improperly admitted confession.

As to the second issue, the State conceded below that the lineup constituted a violation of appellant's sixth amendment right to counsel and, as such, was an illegal pre-trial procedure. The State denied, however, that this illegal procedure restricted the eyewitness's ability to identify appellant before the jury.

Appellant argued below, but not on appeal, that he was entitled to counsel at the time police showed the victim photographs and that the photograph array must have been suggestive, since the State failed to prove otherwise. Appellant also argued below that the in-court identification should be suppressed because the lineup was illegal and suggestive, the witness may have been influenced by the "illegal" photograph array, and the State failed to prove the resulting taint of those procedures was removed. Appellant cross-examined the State's witnesses, but did not offer evidence or testify himself.

The State offered evidence that neither the photograph array nor the lineup was suggestive, that no one influenced the victim at any stage of the proceedings, and that the witness recognized appellant from the attack. The State also offered evidence that an officer requested appellant's voluntary consent for the taking of body specimens; that he first administered appellant the Miranda warnings; and that he typed a consent form which appellant read and voluntarily signed, without coercion or threats.

The court, after hearing extensive testimony, found that (1) appellant's consent was admissible and (2) that the victim could identify appellant at trial.

In his motion to suppress, and in virtually all of his points of error, appellant relies upon a string of citations, including both federal and state constitutional and statutory references, without briefing and analyzing each one separately and fully. On this basis, the points are multifarious and may be overruled. See McCambridge v. State, 712 S.W.2d 499, 502 (Tex.Cr.App.1986). Nevertheless, w...