Garcia v. State, 44139

• Decision Date: 26 October 1971
• Docket Number: No. 44139,44139
• Citation: 472 S.W.2d 784
• Parties: Mike GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 784

472 S.W.2d 784

Mike GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 44139.

Court of Criminal Appeals of Texas.

Oct. 26, 1971.

Rehearing Denied Nov. 30, 1971.

Jones, Blakeslee, Minton, Burton & Fitzgerald by Dain P. Whitworth, Austin, for appellant.

Robert O. Smith, Dist. Atty., Lawrence Wells, Asst. Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On June 17, 1968, the appellant waived trial by jury and entered a plea of guilty ¹ before the court to an indictment charging him with the possession of marihuana. The punishment was assessed at five years, but the imposition of the sentence was suspended and the appellant was placed on probation. Among the conditions of probation was the requirement that he 'commit no offense against the laws of this or any other state or the United States.'

On June 5, 1970, the State filed a motion to revoke probation alleging that appellant had violated his probation by committing the offense of attempted burglary during the probationary period.

A hearing on such motion was conducted on July 23, 1970, following which the court revoked probation and imposed sentence.

At the hearing Ray Rodriquez, part owner of Frances' Beauty Shop, 911 E. 1st Street, Austin, testified someone attempted to break into his locked establishment on June 4, 1970. Other evidence showed that a screen had been ripped out.

John Walker, who lived adjacent and just across the narrow driveway from the beauty shop, testified that at 2:20 a.m. on that date he was awakened by a barking dog, turned on his floodlight and saw the appellant jump off the hood of his wife's car parked in the driveway and leave.

His wife, Stella Walker, testified she was awakened at the time by someone hammering on the window glass of the beauty shop, and when she looked out a window she saw the appellant standing on her car pounding on the glass window of the beauty shop with his fists. She related there was a nearby street light and a light inside the beauty shop and that she had no difficulty seeing the appellant. At the time her husband turned on the floodlight she had gone to call the police.

Austin Police Officer Chris Lopez testified he responded to a reported burglary call at the Frances' Beauty Shop at 2:20 a.m. on June 4, 1970, and arrived within 40 seconds after the call as he was nearby at the time. Upon his approach he observed the appellant and another man coming around the corner of the drug store located in the same building as the beauty shop and asked them 'to hold up a minute.' As he got out of the police vehicle the other man fled, and he fired a shot which hit the other man. Both individuals were placed under arrest at which time it was observed appellant wore shoes but no socks.

It appears that shortly thereafter John Walker was taken to the hospital where he observed the appellant sitting in a police car and identified him.

The appellant testified that after going to bed he got up at 1:30 a.m. and with a Joe Rivera went to tell their employer to pick them up at 6 a.m. that morning instead of 7 a.m. He denied the attempted burglary or being in the car in question.

Appellant first contends the in-court identification by John Walker should not have been permitted since the 'one man show-up' conducted by the police at the hospital shortly after the alleged offense tainted such identification.

There are a number of reasons why this contention is without merit.

First, the evidence shows an excellent opportunity for the witness to have observed the appellant in the narrow driveway under good lighting conditions at the time of the alleged offense after the floodlight was turned on, and it appears the in-court identification was based upon these observations.

Moreover, this court has in the past refused to extend the holdings of 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, to an on or near the scene confrontation between a suspect and a witness occurring shortly after the commission of a crime or under other circumstances which necessitate a prompt identification. Watkins v. State, Tex.Cr.App., 452 S.W.2d 444; Elliott v. State, Tex.Cr.App., 444 S.W.2d 914; Perryman v. State, Tex.Cr.App., 470 S.W.2d 703 (concurring opinion). Cf., however, the majority opinion in Perryman v. State, supra. While the record is silent as to counsel at the hospital confrontation, there appears to be no evidence of suggestiveness. ²

We also observe that there was no objection to the in-court identification. This court has repeatedly stated that it is fundamental that a timely objection to inadmissible evidence must be urged at the first opportunity. This was not done nor has any reason been shown for the delay. Martinez v. State, Tex.Cr.App., 437 S.W.2d 842, 847 (1969); Jones v. State,...