Green v. State

• Decision Date: 05 May 1971
• Docket Number: No. 43736,43736
• Citation: 467 S.W.2d 481
• Parties: Jackie Eugene GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 481

467 S.W.2d 481

Jackie Eugene GREEN, Appellant, v. The STATE of Texas, Appellee.

No. 43736.

Court of Criminal Appeals of Texas.

May 5, 1971.

Rehearing Denied June 16, 1971.

J. Rodney Brister, Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland Jr. and Edgar A. Mason, Asst. Dist. Attys., Dallas, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery by firearms ¹ with the punishment being assessed by the Jury at 25 years.

Jim Carson, owner of Papa Jim's Grocery Store on Holmes Street in the city of Dallas, testified that about 9:15 a.m. on February 27, 1968, the Appellant Green entered his store and at gunpoint robbed him of $153, some change and several cartons of cigarettes.

He identified a .22 cal. revolver as the firearm used by the Appellant. The weapon was shown to have been recovered from an automobile the Appellant and three other men were pushing when they were arrested in Dallas on March 3, 1968.

Testifying in his own behalf the Appellant denied the offense and related he was arrested in Dallas on March 3, 1968.

In his first ground of error Appellant contends the trial court erred in permitting the in-court identification of him by Carson as such identification was in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Appellant's court appointed counsel on appeal cites and relies upon 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.

The record reflects Appellant's retained trial counsel made no objection to Carson's positive in-court identification nor requested a separate hearing to determine its admissibility. At no time during the trial did such counsel move to strike such testimony or make known to the trial judge the claim now advanced, even though it is apparent from the record Appellant's counsel knew there had been a photographic identification and a lineup.

In Thornton v. State, Tex.Cr.App., 451 S.W.2d 898, this Court said:

'In Martinez v. State, Tex.Cr.App., 437 S.W.2d 842, it was observed that a timely objection to identification testimony must be made at the first opportunity. This was not done, and no reason is shown for delaying his objection. See Lucas v. State, Tex.Cr.App., 444 S.W.2d 638; Evans v. State, Tex.Cr.App., 445 S.W.2d 180, and Evans v. State, Tex.Cr.App., 444 S.W.2d 641.'

In Evans v. State, Tex.Cr.App., 444 S.W.2d 641, 644, it was pointed out that violation of constitutional rights, the same as other rights, may be waived by failure to make a timely and appropriate objection and this is particularly true where the accused deliberately bypasses orderly State procedure for raising constitutional claims, and as here, fails to call the trial judge's attention to the complained of testimony and afford him an opportunity to comply with the dictates of Gilbert and Wade. When he does, he is precluded from raising the question for the first time on appeal.

Further, we note that the State made no effort to bolster the in-court identification by offering evidence as to any pretrial identification.

On cross-examination, Appellant's counsel did elicit from the complaining witness Carson that he had identified the Appellant in a police station lineup composed of four men some four to six days after the alleged offense.

The Appellant also testified he was placed in a lineup a few days after his arrest with those with whom he had been arrested. He made no claim he was at the time without counsel or had not waived the same.

Officer Sewell was called as a defense witness and related that approximately 45 minutes after the robbery he had shown Carson a group of four or five pictures and that Carson had selected Appellant's picture from the group.

The use of photographs for the purpose of identification is not a denial of due process. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Evans v. State, Tex.Cr.App., 444 S.W.2d 641; Daniels v. State, Tex.Cr.App., 464 S.W.2d 368; Proctor v. State, Tex.Cr.App., 465 S.W.2d 759.

Sewell's testimony did not indicate that the procedure utilized was suggestive or that it could have resulted in an irreparable mistaken identification.

We find nothing in the record relating to the lineup to indicate any violation of the Wade-Gilbert principles.

Ground of error #1 is overruled.

The appellant did seek to make identification an issue before the jury contending the 65 year old Carson who had no sight in his right eye had been mistaken when he identified the Appellant as his assailant. And Carson, who testified he was 6 11 tall, did report to the police that he had been robbed by a man 'around five feet something', 'around five feet, between four and five feet, something like that. Seemed like he reached me up here (indicating) around my ears.' The appellant testified he was five and a half feet tall.

It was shown that Carson had 20/20 vision in his left eye and did not use glasses except sometimes when he read at night. Further, he had a good opportunity to observe his assailant during the course of the alleged robbery in daylight hours. ² In his jury argument, Appellant's counsel acknowledged that the jury had seen the witness, Carson, and that such witness was closer to 5 11 tall than the height...