Herrera v. State

• Decision Date: 31 October 1984
• Docket Number: No. 69002,69002
• Citation: 682 S.W.2d 313
• Parties: Leonel Torres HERRERA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 313

682 S.W.2d 313

Leonel Torres HERRERA, Appellant, v. The STATE of Texas, Appellee.

No. 69002.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 31, 1984.

Rehearing Denied Jan. 16, 1985.

Will Gray (on appeal only), Houston, for appellant.

Reynaldo S. Cantu, Jr., Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction of capital murder. The jury answered in the affirmative the special issues submitted at the punishment stage of the trial pursuant to Art. 37.071, V.A.C.C.P., and the trial court assessed punishment at death.

The appellant presents eight grounds of error. Appellant complains in four grounds of error that the pre-trial and in-court identification of him as the perpetrator of this offense violated appellant's constitutional rights; he objects to the admission of a dying declaration; he further objects to the admission, during the punishment phase of the trial, of certain threatening statements made by appellant which he alleges were "fruits" of an interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966); he objects to testimony at the punishment phase of the trial regarding an assault on a news correspondent during appellant's arraignment on a non-related charge for which he was subsequently acquitted. Having reviewed the record and arguments of counsel and finding no reversible error, we affirm.

While appellant does not challenge the sufficiency of the evidence to support his conviction, we nonetheless will provide a detailed description of the pertinent facts in order to illuminate the legal issues appellant does raise.

Appellant was charged with the capital murder of a Los Fresnos city police officer. See V.T.C.A. Penal Code, Sec. 19.03(a)(1). The testimony at trial established that on the evening of September 29, 1981 a DPS officer (Rucker) and a Los Fresnos city police officer were shot and killed, within ten to twenty minutes of each other, along a desolate 6.2 mile stretch of highway. Enrique Hernandez was riding with Officer Carrisalez, the Los Fresnos officer, and witnessed the offense which forms the basis of appellant's conviction. The testimony at trial showed that the witness Hernandez positively identified appellant as the perpetrator of the offense. Immediately after Carrisalez' shooting, Hernandez radioed in a description of appellant and his vehicle. Carrisalez had previously radioed in the license plate number "WBZ 143"; this was subsequently corrected to "XBZ 143" (it is unclear from the record whether Carrisalez radioed in the wrong number or the dispatcher incorrectly noted the number.) Local law enforcement officers familiar with appellant determined that the description of the offender and the vehicle matched appellant and a vehicle he was known to drive and immediately obtained an arrest warrant. Upon executing the warrant the officers found the vehicle but not the appellant. The vehicle, described by Hernandez, bore license plate number "XBZ 143" and was registered to appellant's "live-in" girlfriend. She gave the officers permission to search the car. Upon inspection, the left side of the vehicle had what appeared to be blood stains blood was also found on the driver's side of the seat and floorboard. Also found in the vehicle were personal papers of the appellant and some spent shotgun shells. Forensic tests subsequently showed that the blood stains were type A; the same blood type as DPS officer Rucker.

Further testimony at trial established that Officer Rucker had been shot and killed within ten minutes of the time appellant was stopped by officer Carrisalez; a vehicle matching the description of appellant's vehicle was observed during the pertinent time period by several witnesses driving along the highway between where Rucker's body was found and where Carrisalez was shot.

Appellant was arrested on October 4, 1981. When an officer attempted to interrogate appellant, appellant demurred that "it was all in the letter" and suggested to police that they read a letter if they wanted to know what happened. He then invoked his Sixth Amendment right to counsel. Police then inventoried appellant's belongings and located six envelopes upon which appellant had written a letter essentially admitting and offering an explanation for both police killings.

Appellant by way of three grounds of error challenges the pre-trial identification procedures used and claims that Hernandez' in-court identification should have been struck and a mistrial granted, as same was based upon impermissibly suggestive pre-trial procedures which led to a substantial likelihood of irreparable misidentification.

On direct examination by the State, Hernandez testified, without objection, ¹ that he was specially trained in the army to identify certain missile systems with the naked eye, thereby establishing special training in observation and identification techniques. Hernandez testified that he had an opportunity to observe the appellant for at least 14 seconds with the aid of a police spotlight and car headlights illuminating the appellant and his vehicle. Immediately after the offense Hernandez provided police with an accurate description of both appellant and his vehicle.

The offense occurred at approximately 11:00 p.m. on the evening of September 29, 1981. On September 30 Hernandez selected three possible suspects, including the appellant, from a photographic display. The record further reflects that two officers from the Los Fresnos police department, fearing that Carrisalez had suffered a heart attack and was not going to survive, obtained a positive identification of the appellant from Carrisalez, showing him one picture in his hospital room. Subsequently, on October 1, these same officers showed this photograph to Hernandez, who then made a positive identification of appellant. The record is devoid of any indication that the showing of one picture of appellant to Hernandez was accompanied by any overt suggestiveness by police authorities. Hernandez further positively identified the appellant on October 6, 1981 from a photographic display and on October 24, 1981 in a live lineup attended by appellant's attorney. Hernandez was unwavering in his in-court identification and repeatedly testified that his identification of appellant was based upon his observations at the time of the offense. Finally, we note that all the testimony regarding the out of court pre-trial identification procedures came in by virtue of appellant's cross-examination. The State in no way attempted to bolster Hernandez' in-court identification.

In 1967 the United States Supreme Court, in a trilogy of cases, laid down the federal constitutional standard as regards the identification of an accused. United States v. Wade, 388 U.S. 218, 87 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). In these cases the Supreme Court held that a criminally accused citizen was deprived of due process if he was not offered the opportunity to have his counsel present during a pre-trial show up. However, in Wade, supra, the Court determined that the in-court identification of an accused would be inadmissible unless it could be shown by clear and convincing evidence that the in-court identification was based upon observations at the time of the offense. Factors the Supreme Court considered relevant include: (1) the witness' prior opportunity to observe the criminal act; (2) any discrepancy between the pre-lineup description and defendant's actual appearance; (3) whether the witness has identified another individual prior to the alleged illegal lineup; (4) prior identification by the witness of the accused; (5) failure to identify the accused prior to the suggestive lineup; (6) amount of time elapsed between the crime and the alleged illegal lineup. Wade, supra. Whereas the Supreme Court has found that testimony regarding the out of court illegal lineup is per se inadmissible, Gilbert, supra, testimony regarding the in-court identification may be admissible depending upon the totality of the circumstances. Stovall v. Denno, supra.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, (1968) the Supreme Court first applied the standards enunciated in the Wade trilogy the term before to photographic displays prior to arrest and determined that the Stovall totality of the circumstances review would be applicable to testimony regarding pre-trial photo lineups. While recognizing the inherent dangers of misidentification in such procedures the Court refused to adopt a blanket rule prohibiting such testimony; instead each case must be judged individually. The Court specifically held that "a conviction based on eyewitness identification at trial following a pre-trial identification by photo will be set aside ... only if the photo identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification"; Simmons, supra, at 384 and 971. The Supreme Court also noted that while showing one photograph was somewhat suggestive and to be frowned upon, that Court nonetheless recognized the sometimes inherent necessity of such a procedure. The severity of the crime and the need to quickly apprehend the assailants may make such a procedure necessary and not impermissible per se. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976).

This Court has routinely followed the Supreme Court in this area of criminal law. In Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969) this Court followed the holdings of the Supreme Court and found that the in-court identification will only be inadmissible if ...