Holder v. State

• Decision Date: 26 August 1992
• Docket Number: No. 3-90-307-CR,3-90-307-CR
• Citation: 837 S.W.2d 802
• Parties: Thomas Elton HOLDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 802

837 S.W.2d 802

Thomas Elton HOLDER, Appellant, v. The STATE of Texas, Appellee.

No. 3-90-307-CR.

Court of Appeals of Texas Austin.

Aug. 26, 1992.

Discretionary Reviews Refused

Dec. 23, 1992.

Thomas Elton Holder, pro se.

Ken Anderson, Dist. Atty., John M. Bradley, Asst. Dist. Atty., Georgetown, for appellee.

Before CARROLL, C.J., and ABOUSSIE and SMITH, JJ.

PER CURIAM.

A jury found appellant guilty of aggravated robbery and assessed punishment, enhanced by a previous felony conviction, at imprisonment for seventy-five years and a $10,000 fine. Tex.Penal Code Ann. § 29.03 (Supp.1992). Appellant represents himself on appeal, having knowingly and voluntarily waived his right to counsel.

On the afternoon of March 29, 1990, James Adams, the manager of Research Boulevard branch of Capitol City Savings, was robbed at gunpoint by a man wearing a cap, a blue denim jacket, and a bandana over part of his face. A small radio transmitter was concealed in a bundle of bills Adams gave the robber. With the aid of this device, police were able to locate and stop appellant as he drove south on Research Boulevard approximately fifteen minutes after the robbery. The stolen money, with the tracking device, was found in a bag in the back seat of appellant's car. The police also found in the car a cap, blue denim jacket, and bandana identified by Adams as being like those worn by the robber. An unloaded BB pistol bearing a strong resemblance to an automatic firearm was located between the driver's seat and the center console of appellant's car.

Following his arrest, appellant was placed in a police vehicle and driven to the bank. There, he was identified by Adams as the man who robbed him. In his sixth point of error, appellant contends this one-on-one identification procedure was impermissibly suggestive and that the district court erred by overruling appellant's motion to suppress the identification testimony.

While they are often criticized, one-on-one showups are not violative of due process as a matter of law. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App.1982) (opinion on rehearing). The question that must be answered in each case is whether the suggestiveness inherent in the procedure was such as to give rise to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. at 198-99, 93 S.Ct. at 381-82; Jackson v. State, 657 S.W.2d 123, 127 (Tex.Crim.App.1983); Capello v. State, 775 S.W.2d 476, 482 (Tex.App.--Austin 1989, pet. ref'd). Among the factors to be considered in making this determination are: the opportunity of the witness to view the criminal at the scene; the witness' degree of attention; the accuracy of the witness' prior description of the accused; the level of certainty demonstrated at the confrontation; and the length of time between the crime and the confrontation. Capello, 775 S.W.2d at 483.

Adams testified that he was in the presence of the robber for two or three minutes. During the time he had a good opportunity to see the robber's face, although the lower portion was obscured by the bandana. The description of the robber Adams gave the police (white male, six feet tall, blue shirt or jacket) accurately described appellant on the afternoon in question. The showup at the bank took place less than an hour after the robbery, and Adams was instantaneous and positive in his identification of appellant. From this evidence, the district court could reasonably conclude that the identification procedure was sufficiently reliable. The court did not err by admitting evidence of the pretrial showup identification.

Because the pretrial identification was shown to be reliable, there was nothing to taint Adams' in-court identification of appellant. In any event, Adams testified that he based his in-court identification on his observation of appellant at the time of the offense. The trial court did not err by admitting the in-court identification.

Much of appellant's argument under this point of error is an attack on Adams' credibility. Appellant argues that because of the bandana and cap worn by the robber, Adams could not have been as positive in his identification of appellant as he claimed to be. The assessment of Adams' credibility was for the triers of fact: the court at the suppression hearing and the jury at trial. Obviously, they found Adams to be credible witness.

Appellant also complains that he was denied his right to counsel at the pretrial identification. But because formal charges had not been brought against appellant at the time of the showup, his right to counsel had not attached under either the United States or Texas Constitutions. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972); Foster v. State, 787 S.W.2d 385 (Tex.Crim.App.1990). Point of error six is overruled.

During the prosecutor's redirect examination of Adams, appellant was required, over objection, to put on the jacket, mask, and cap worn by the robber and to say words ("Give me the money" and "Hurry up") spoken by the robber. After this demonstration, Adams was asked, also over appellant's objection, if there were "any doubt in your mind at all" that appellant was the man who robbed him. Adams said there was not. In his seventh point of error, appellant urges that this episode constituted improper bolstering of the witness and violated his Fifth Amendment privilege against self-incrimination.

Appellant's Fifth Amendment claim is without merit. Requiring the defendant to stand, put on items of clothing, or otherwise exhibit his physical characteristics does not violate his privilege against self-incrimination because such demonstrations are not testimonial in character. Taylor v. State, 474 S.W.2d 207, 210 (Tex.Crim.App.1971). Similarly, requiring the defendant to speak for the purpose of aiding identification is outside the protection of the Fifth Amendment and Art. I, § 10 of the Texas Constitution. McInturf v. State, 544 S.W.2d 417, 420 (Tex.Crim.App.1976).

Under the facts of this cause, the challenged procedure did not constitute improper bolstering. Before the incident of which appellant complains, defense counsel had vigorously sought to discredit Adams' identification of appellant through cross-examination. Among other things, counsel himself put on the cap and bandanna in order to demonstrate to the jury the limited view Adams had of his assailant. ¹ Although Adams remained unshaken in his identification of appellant, we find that the attempted impeachment was of a sufficient degree to authorize the alleged bolstering. See Roney v. State, 632 S.W.2d 598, 601 (Tex.Crim.App.1982). We also find that the State's demonstration served to rehabilitate the witness on the specific point upon which he had been attacked. See Sledge v. State, 686 S.W.2d 127, 129 (Tex.Crim.App.1984). Appellant's reliance on Pena v. State, 630 S.W.2d 686 (1981), rev'd, 640 S.W.2d 295 (Tex.Crim.App.1982),is misplaced in light of the Court of Criminal Appeals' apparent disavowal of the reasoning in that opinion. Pena, 640 S.W.2d at 297 n. 1. Point of error seven is overruled.

Appellant's first five points of error concern, in one manner or another, the BB pistol used during the robbery. Appellant argues that the trial court erred by admitting the pistol in evidence because the chain of custody was broken (point one); the State's expert was erroneously permitted to express an opinion based on an improper experiment conducted on the pistol (point two); the evidence was insufficient to establish that the pistol is a deadly weapon (point three); the State was erroneously permitted to amend the allegations in the indictment concerning appellant's use of the pistol as a deadly weapon (point four); and the district court erroneously instructed the jury as the State's burden of proof on the deadly weapon issue (point five).

We begin with point four. The indictment alleged that, while in the course of committing theft, appellant intentionally and knowingly threaten[ed] and place[d] James Adams in fear of imminent bodily injury and death by using and exhibiting a deadly weapon, namely, a BB pistol, that in the manner of its use and intended use was capable of causing death and serious bodily injury, and said BB pistol was manifestly designed, made and adapted for the purpose of inflicting death and serious bodily injury.

At trial, the State abandoned the allegation that the pistol was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, and elected to proceed only on the allegation that the pistol was capable of causing death or serious bodily injury in the manner of its use or intended use. Contrary to appellant's argument, the decision to abandon one of two alternative allegations as to the manner of committing the offense is not an amendment of the indictment within the meaning of Tex.Code Crim.Proc.Ann. art. 28.10 (1989). Garcia v. State, 537 S.W.2d 930, 933 (Tex.Crim.App.1976); Stockton v. State, 756 S.W.2d 873, 875-76 n. 2 (Tex.App.--Austin 1988, no pet.). Point of error four is overruled.

In point of error five, appellant complains that despite being alleged conjunctively in the indictment, the question of appellant's use of a deadly weapon was submitted disjunctively in the court's charge to the jury. That is, the court authorized appellant's conviction for aggravated robbery if the jury found that he "used or exhibited" a weapon that in the manner of its "use or intended use" was capable of causing "death or serious bodily injury." When the indictment conjunctively alleges different methods of committing the offense, it is proper to charge the jury disjunctively. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); Robinson v. State, 596 S.W.2d 130, 133-34 (Tex.Crim.App.1980). The fifth point of error is overruled.

Appellant's first point of error...