Durrough v. State

• Decision Date: 24 May 1984
• Docket Number: No. 13-83-010-CR,13-83-010-CR
• Citation: 672 S.W.2d 860
• Parties: Fred T. DURROUGH, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 860

672 S.W.2d 860

Fred T. DURROUGH, Appellant, v. STATE of Texas, Appellee.

No. 13-83-010-CR.

Court of Appeals of Texas,

Corpus Christi.

May 24, 1984.

Chrysanthe A. Lambros, Lambros, Clay & Justice, San Antonio, for appellant.

Ed Shaughnessy, III, Appellate Div., San Antonio, for appellee.

Before NYE, C.J., and GONZALEZ, and KENNEDY, JJ.

OPINION

GONZALEZ, Justice.

This is an appeal in a murder case. The jury assessed punishment at life imprisonment. On appeal, appellant asserts that the trial court erred in admitting evidence of an allegedly tainted identification, in failing to dismiss the indictment based upon the loss by the State of some defense exhibits, in admitting an extraneous "offense," and in submitting a supplemental jury charge after the jury had retired to deliberate. Appellant also alleges that the evidence was insufficient to corroborate the accomplice testimony. We affirm.

Appellant has been indicted five times, tried four times, and found guilty three times of the murder of Henry S. Tyler. The offense occurred in San Antonio in August, 1973.

The first trial, Cause No. 74-CR-575-A, was aborted when the trial court granted the State's motion to dismiss the indictment after five jurors had been selected. Appellant was reindicted and found guilty of the offense of capital murder in Cause No. 74-CR-2140-A, but that judgment was reversed on appeal because the trial court erred in failing to grant a change of venue upon appellant's uncontroverted application. Durrough v. State, 562 S.W.2d 488 (Tex.Cr.App.1978). After the case was remanded, but before the trial which resulted in the second conviction began, the State moved to dismiss the then pending indictment because it was "faulty." A third indictment was obtained, and the appellant was found guilty and sentenced to death a second time. He appealed, and the judgment (Cause No. 79-CR-78) was reversed on the basis that the trial court erred in excluding a prospective juror that had conscientious scruples against capital punishment, and acknowledged that the mandatory penalty of death or life imprisonment might affect her deliberations, but who stated that she could answer the questions put to her based on the evidence. Durrough v. State, 620 S.W.2d 134 (Tex.Crim.App.1981).

The case now before us is an appeal of appellant's conviction in Cause No. 82-CR-418-D, a trial conducted in Nueces County on change of venue from Bexar County.

The following is an abbreviated chronology of events:

August 11, 1973 Date of offense

October 3, 4, 1973 Accomplices arrested, and statements taken in which appellant was implicated.

December 20, 1973 Appellant's Examining Trial

September 18, 1974 Hearing on motion to suppress pretrial and in-court identification in Cause No. 74-CR-575-A.

March 12, 1982 Hearing on motion to suppress pretrial identification.

June 14, 1982 Stipulation filed that prior testimony of Mrs. Dorothy Tyler given in trials in Causes 74-CR-2140A (first conviction) and 79-CR-78 (second conviction) and at the examining trial of December 20, 1973, may be read into evidence without further predicate. This is because at the time of this last trial which resulted in the instant appeal, Mrs. Tyler was deceased.

June 14, 1982 Jury sworn, trial commenced.

June 21, 22, 1982 Appellant found guilty of murder and sentenced to life.

Viewing the evidence in the light most favorable to the verdict, the record shows that three men, appellant, and Jimmy and Bobby Gifford, went to the Tyler home with the intent to commit a burglary or a robbery. After Mr. Tyler answered the doorbell, his wife heard a shot. She rushed to the front porch and found Mr. Tyler bleeding from a bullet wound. As Mrs. Tyler was pushed back into the entrance of her home by Jimmy Gifford, she saw appellant shoot her husband a second time. The trio fled, but not before appellant turned at the curb and shot Mr. Tyler a third time.

At trial, and on appeal, the key issue is whether Mrs. Tyler's identification testimony was admissible.

Since Mrs. Tyler was deceased at the time of appellant's last trial (the conviction from which this appeal stems), the State relied upon her testimony elicited at prior prosecutions of appellant, and upon part of the testimony she gave at the examining trial. The State also relied upon the live testimony of Bobby Gifford to show that appellant was the person who shot Mr. Tyler.

On appeal, appellant argues that the identification of appellant by Mrs. Tyler was the result of a pre-trial confrontation so suggestive that her in-court identification of appellant could not have been of an independent origin, and was therefore so tainted as to be rendered inadmissible. Appellant then argues that because her testimony was the only source of evidence to corroborate the testimony of Bobby Gifford, his conviction must be reversed, as the uncorroborated testimony of an accomplice is insufficient to support his conviction.

Specifically, appellant alleges in his first ground of error that:

"The honorable trial court erred in admitting into evidence over appellant's timely objection, the tainted in-court identification testimony of Mrs. Dorothy Tyler, which was not of independent origin."

The State asserts that appellant's first ground of error was not properly preserved for review, arguing that in order to complain of a tainted in-court identification, the accused must lodge a timely and specific objection. See Deary v. State, 510 S.W.2d 956, 957-58 (Tex.Crim.App.1974).

Appellant counters that no objection at trial was necessary because a pre-trial hearing was conducted, and appellant's motion to suppress Mrs. Tyler's identification testimony was overruled. When such a motion is heard and overruled, another objection before the jury is not required to preserve error. Waller v. State, 581 S.W.2d 483, 485 and 485 n. 1 (Tex.Crim.App.1979).

The pre-trial hearing to which appellant refers was conducted on September 18, 1974, in Cause No. 74-CR-575-A in conjunction with appellant's first trial. Appellant states that the examining trial and suppression hearing testimony of Mrs. Tyler and Police Chief Stewart was "offered into evidence and incorporated into the record by reference, on the basis of which Appellant's Motion to Suppress was overruled by the Trial Court." ¹

A detailed review of the facts is necessary in order to properly evaluate appellant's contention. The offense occurred on August 11, 1973. After the confrontation on the front porch of the Tyler home, the assailants fled. After appellant was "implicated" by the Gifford brothers, he was arrested in Dallas on August 26, 1973.

Our examination of the record, as properly delivered to this Court by the District Clerk, and excluding the material we received from appellant's attorney in the form of "omitted exhibits," leaves no reasonable conclusion but that a motion to suppress Mrs. Tyler's pre-trial identification and in-court identification was filed and that this motion was overruled. ² Therefore, appellant's objection to Mrs. Tyler's identification testimony was properly preserved for review.

Before the police became privy to the identity of the suspects through the aid of their informer, they attempted to establish a description from the recollections of Mrs. Tyler. Soon after the shooting, Officer Stewart and Texas Ranger Carpenter went to her home. This interview occurred in the interim between the murder and Mr. Tyler's funeral. At this time, she was not shown any photos; however, she did construct a composite of the person, later identified as Jimmy Gifford, who shoved her back inside her home as the other two assailants struggled with her husband. (Mrs. Tyler testified that she was not asked to make a composite of appellant.)

Stewart testified at trial that in response to a telephone call on or about October 2, 1973, he arrested Jimmy Ray Gifford. Jimmy Gifford gave a statement on October 4, 1973, and called his brother, Bobby. Bobby Gifford came to the Olmos Park Police Department and also gave a statement. Both brothers implicated appellant in the murder.

As another part of their efforts to ascertain the identity of the assailants, the authorities also showed photographs to Mrs. Tyler. Mrs. Tyler testified that she looked at photographs, both before and after the men were apprehended, on four to six occasions.

Concerning appellant, the results of these photo show-ups were inconclusive. The scenario was basically as follows: Carpenter and Stewart would lay down eight to ten photos, then ask Mrs. Tyler if she recognized anyone. Mrs. Tyler picked out a picture and said, "This is the man that shoved me." She also picked out another picture and said, "This is the man who pushed Colonel Tyler back against the wall." But Mrs. Tyler never picked a photo and categorically stated that it was a picture of the gunman. She would only go so far as to say that two or three "looked familiar." In her words, "I wasn't going to have anybody get in trouble with my mistaking a hazy photograph." Mrs. Tyler testified that she never marked any of the photos with her name or a date, and that she was never told any was a suspect, or that she had picked anyone related to the case.

As it later developed, one photographic spread of nine pictures contained two pictures of appellant, one with a mustache, one without. As indicated above, Mrs. Tyler failed to make a positive identification. Notwithstanding the lack of certainty on the part of Mrs. Tyler, the police were apparently convinced they had their man, for no line-up was conducted, and Mrs. Tyler was told the names of the suspects as each was arrested. Charges were filed against appellant, and after his arrest, he requested an examining trial.

The events that transpired at, and immediately preceding, this examining trial are brought forward by appellant to substantiate his claims that the identification testimony of Mrs. Tyler should have been...