Ellingsworth v. State

• Decision Date: 22 November 1972
• Docket Number: No. 45289,45289
• Citation: 487 S.W.2d 108
• Parties: John Delbert ELLINGSWORTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 108

487 S.W.2d 108

John Delbert ELLINGSWORTH, Appellant, v. The STATE of Texas, Appellee.

No. 45289.

Court of Criminal Appeals of Texas.

Nov. 22, 1972.

Johnny M. Chirafis, Dawson & Dawson by Jack K. Smith, Corsicana, for appellant.

Jimmy Morris, Dist. Atty., Corsicana, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for robbery with firearms. Punishment was assessed by the jury at ninety-nine years.

At the outset, appellant contends that the court erred in overruling his motion to suppress the in-court identification of appellant by the Witness York.

Appellant urges that the court should have excluded the in-court identification of York in that York identified appellant and the co-defendant when they were in handcuffs at the police department, with the only other persons present in the room being police officers.

George York testified that while he was working at the Tex-Gas station in Rice, on January 18, 1971, a pickup driven by a man identified as co-defendant Belt came to a stop at the station at about 5 P.M. In addition to Belt, there was another occupant of the pickup identified as the appellant. Two dollars worth of gasoline was purchased. Belt accompanied York inside the service station to obtain change from a five dollar bill used in payment for the purchase, while appellant stated he was going to the restroom. Upon York opening the cash register, appellant reappeared and 'pulled a gun and clicked it back.' York stepped back, while the appellant and the co-defendant removed what was later determined to be approximately one hundred and ninety dollars from the cash register. Officer Coleman, of the Ennis Police Department, testified that shortly after 5 P.M., on January 18, 1971, he heard a report over the police radio concerning a robbery in Navarro County in which the description of the suspects and the pickup in which they were traveling was given. Officer Coleman began a lookout for the suspects which resulted in his stopping a pickup on Oak Grove Road in the south part of Ennis that fit the description of the getaway vehicle. Pursuant to a radio request for help from Coleman, Officer Seeley, of the Ennis Police Department, arrived shortly after Coleman had stopped the pickup. Seeley testified that Coleman was talking to co-defendant Belt when he arrived and he (Seeley) began to talk to the other occupant identified as the appellant. Seeley searched appellant and removed a roll of bills amounting to one hundred and eighty-four dollars from his left front pocket. The door of the pickup was left open after appellant got out of the pickup and Seeley saw a portion of a pistol sticking out from under the seat on the floorboard which was identified by York as being similar to the pistol used in the robbery. Deputy Sheriff Owen testified that while he was enroute to the station that had been robbed in Rice, he received word that two suspects had been arrested in Ennis. Owen pickup up York at the service station and took him to Ennis where York identified appellant and co-defendant Belt as the two men who had robbed him. York testified that appellant and co-defendant Belt were in handcuffs at the police station and 'Bob Owen asked me if them two looked liked the two, and I said they did.' According to York, three or four other persons were present and two or three of them had uniforms on. Owen testified that while he and York were enroute to Ennis, from Rice, his radio was on and reports were given about catching the two suspects in Ennis.

Appellant urges that the holdings in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 are applicable in that the proceedings leading up to the in-court identification were so inherently tainted and impermissibly suggestive as to give rise but to one possible course of action and that was for York to identify appellant. In Cole v. State, Tex.Cr.App., 474 S.W.2d 696, it was stated:

'Although identification procedure whereby suspects are viewed singly by a witness rather than as part of a lineup has been widely condemned, Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), due process is not, however, invariably violated by such a procedure. See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267. Here again we note that each case must be considered on its own facts to determine the likelihood that a particular pretrial confrontation resulted in irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247.'

The short lapse of time between the crime and identification of suspects militated against misidentification. See Turner v. State, Tex.Cr.App., 486 S.W.2d 797 (10/18/72). Garcia v. State, Tex.Cr.App., 472 S.W.2d 784. While the exact time elapsing between the robbery and identification of the suspects by York is not set out in the record, the circumstances dictate that it was a relatively short time. York testified that the robbery occurred about five in the afternoon. Identification was described as having been made late in the afternoon before it was dark on the same day. Owen had been called to go to the scene of the robbery, and while he was enroute to the service station, he received a radio report that two suspects had been apprehended in Ennis. Owen picked up York at the service station and took him to Ennis, where the suspects were detained. Upon arrival in Ennis, Owen testified that York identified a pickup parked outside the police station as the vehicle used in the robbery before he ever saw the suspects. York was able to give a description of the robbers and the vehicle in which they were traveling which resulted in the apprehension of the two suspects. York testified that the robbers were in the service station about five minutes, it was light inside the station as well as outside, and he had no difficulty in seeing the faces of the men or the pickup they were driving. York further testified that his identification of appellant at the station house, as well as identification of him in court, was based upon his having seen him at the robbery.

The prompt identification of suspects is highly desirable to prevent the detention of innocent persons, however, this consideration does not dispense with the necessity of avoiding suggestive identification procedures.

In viewing the totality of the circumstances surrounding the pretrial identification, the good view that York had of the robbers at the service station, his identification of appellant and the co-defendant a short time thereafter, as well as identification of the pickup used in the robbery before he saw the suspects, leads us to the conclusion that there was nothing conducive to misidentification as to amount to a denial of due process. We find the in-court identification was of independent origin and not tainted by the station house confrontation even if it was improperly conducted. See Cole v. State, supra.

Appellant contends that his conviction should be held invalid for the reason that he was not provided counsel at all stages of the criminal proceedings.

The record reflects that counsel for appellant was appointed on February 12, 1971, and trial began on June 21, 1971.

No confession was offered into evidence so as to bring into focus Miranda v. Arizona, 384 U.S. 436, 82 S.Ct. 1602, 16 L.Ed.2d 694 and Article 38.22, V.A.C.C.P., cited by appellant.

The United States Supreme Court, in the recent case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, held that a showup after arrest, but before the initiation of any adversary criminal proceeding, unlike the post indictment confrontation in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (relied on by appella...