Garza v. State

• Decision Date: 25 March 1981
• Docket Number: No. 60426,No. 1,60426,1
• Parties: Alejandro GARZA, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 508

633 S.W.2d 508 Alejandro GARZA, Appellant,
v.
The STATE of Texas, Appellee. No. 60426. Court of Criminal Appeals of Texas, Panel No. 1. March 25, 1981.
On Rehearing May 26, 1982.

Page 509

Ernesto Acevedo, Jr., San Antonio, for appellant.

Bill M. White, Dist. Atty., Wayne Hampton, Teofilo C. Chapa and Anton Paul Hajek, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and ODOM, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for attempted burglary. Punishment, enhanced by allegation and proof of two prior felony convictions, is life.

In his first ground of error appellant contends it was error for the trial court not to suppress the in-court identification by witnesses Rosado and Garcia. After a hearing on the motion to suppress, the trial court denied the motion, and subsequently both witnesses identified appellant before the jury as the individual they saw break a window of the premises where the burglary was attempted.

Our review of the testimony heard at the motion to suppress shows that Ms. Garcia heard glass breaking next door to where she lived. Ms. Rosado, whose residence was the object of the offense, was at Ms. Garcia's home at the time. Both ladies stepped outside and saw two forms on the porch of Rosado's house. They yelled at the two would-be burglars, asking what they were doing, whereupon the intruders walked from the scene. Ms. Garcia followed them a short distance to see what direction they were going, then returned to the house.

Within minutes the police arrived. The two witnesses gave a general description of

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the persons they had seen: thin, not too tall and not too short, in their late teens or early twenties, both dressed in dark shirts, one in dark pants and the other in light pants. Two officers went in the direction that the witnesses had seen the offenders depart, while a third officer interviewed the witnesses at the scene. Within minutes appellant and his companion were stopped a few blocks from the scene because they matched the general description given by the witnesses, and were immediately returned to the scene for possible identification. Before they arrived at the scene, however, the officer told them that two suspects were being brought back, and asked them if they were sure about the age of the suspects. Garcia testified they told the officer they could not say the age for sure because they did not get a clear view of the offenders and that they were unable to give a positive identification.

When appellant and his companion were brought to the scene, Garcia and Rosado positively identified them as the persons they had seen attempting the burglary. They also testified, however, that they identified them on the basis of the clothing they were wearing, and admitted they had not been able to see their faces.

Each case must be judged on its own facts. Sutton v. State, Tex.Cr.App., 495 S.W.2d 912, 916. The record convinces us that Rosado and Garcia were not able to identify appellant at trial on the basis of their observations of the individuals at the time of the offense. At best the evidence shows that when appellant was brought to the scene of the offense, he was identified on the basis of the clothing he was wearing, and that any identification in court was on the basis of the witnesses' observations of him after his arrest, and not at the time of the offense. ¹

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Although it is true that the fact that a witness is not positive of his identification goes to the weight of his testimony, not to its admissibility, Valenciano v. State, Tex.Cr.App., 511 S.W.2d 297, this case does not present an incident in which less than positive identification was introduced. In her testimony before the jury Ms. Rosado was positive that appellant was one of the men she saw committing the offense:

"Q. Can you positively tell us whether or not Mr. Garza was, in fact, standing by that window at 416 E. Carson?

"A. Yes, he was, and the other man, too, both holding onto the window, and glass falling on the ground. That's when I hollered at them to stop breaking those windows, that I lived there."

Despite the uncertainty of the identification demonstrated earlier in this opinion, the trial court denied the motion to suppress the in-court identification of appellant, and permitted Rosado to make this positive identification. The positive identification of appellant as the person seen committing the offense was patently unreliable, as demonstrated by the witness' testimony at the hearing on the motion to suppress, and it should not have been admitted.

We hold it was reversible error to deny the motion to suppress, to admit the in-court identification.

The judgment is reversed and the cause remanded.

Before the Court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

DALLY, Judge.

This is an appeal from a conviction for the offense of attempted burglary. The punishment, enhanced by two prior felony convictions, is life imprisonment.

In the panel opinion on original submission the appellant's judgment of conviction was reversed because of the trial court's failure to suppress the identification testimony of two witnesses, Josephine Rosado and Theresa Garcia. The panel opinion held that the in-court identification of the appellant by Rosado and Garcia was based upon their observations of the appellant after his arrest and was patently unreliable.

In the panel opinion it was noted that the witnesses observed two men breaking a window at an apartment building. They were unable to observe their faces but were able to see their clothing and their general physical characteristics. Rosado yelled at the pair and the two men walked off and Rosado and Garcia briefly followed them to see in which direction they went. The police arrived approximately five to ten minutes later and were given a description of the men and the direction they headed. The appellant and a companion were apprehended a few blocks away and they consented to return to the scene. The police returned with the pair approximately twenty-five minutes from when Rosado first saw the two men. Rosado and Garcia at that time identified the pair as the two men they saw breaking the window. At trial Rosado and Garcia, after a hearing on the appellant's motion to suppress, testified as to their identification of the appellant at the scene and identified the appellant as the man the police had brought back.

The State in its motion for rehearing requests that we reconsider our original opinion and their motion. Because of the issues raised, a restatement of the constitutional principles involved is required.

The Supreme Court in its trilogy of United States v. Wade, 388 U.S. 218, 87

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S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) expressed its concern about the effect of pretrial identification procedures upon eyewitnesses' subsequent trial testimony. As a result of this concern the Court in Wade created a right to counsel at pretrial confrontations. If that right was violated the witness could not make an in-court identification unless it was shown that the identification had an origin independent of the confrontation. In Gilbert the Supreme Court stated that if the pretrial confrontation was in violation of the defendant's right to counsel, testimony about the confrontation was inadmissible. The sanctions of Wade-Gilbert were restricted to in-person confrontations, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) that occur after the initiation of adversary judicial criminal proceedings, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In the case at bar, the appellant's right to counsel was not violated since formal criminal proceedings had not been initiated. Kirby v. Illinois, supra; Wyatt v. State, 566 S.W.2d 596 (Tex.Cr.App.1978); Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975), cert. denied 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1981).

In the present case the issue raised is whether the appellant was denied due process of law. Stovall, the remaining opinion of the Supreme Court's trilogy, stated that a pretrial confrontation could be "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it would deny an accused due process of law. The Court while noting that one man showups were widely condemned held that a claimed violation of due process in the conduct of a confrontation depends upon the totality of the circumstances surrounding it. Indeed, the admission of evidence of a one man showup without more does not violate due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Stovall the Supreme Court concluded that in the facts of that case the one man showup was "imperative." The victim of a stabbing was in the hospital and it was unclear how long she might live when the confrontation was arranged. The police, needing to take immediate action to identify the attacker and knowing that only the victim could exonerate the accused, followed the only possible...