Jackson v. State

• Decision Date: 21 September 1983
• Docket Number: No. 958-82,958-82
• Citation: 657 S.W.2d 123
• Parties: Henry JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 123

657 S.W.2d 123

Henry JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 958-82.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 21, 1983.

William Morrow, John L. Carrington, Brownsville, for appellant.

Selden N. Snedeker, Dist. Atty. and Randell W. Friebele, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appeal is taken from a conviction for theft of a motorcycle valued at more than $200.00 but less than $10,000.00. Punishment was assessed by the jury at five (5) years' imprisonment.

On appeal the conviction was reversed in a published opinion by a panel of the Corpus Christi Court of Appeals with Justice Raul Gonzales dissenting. Jackson v. State, 653 S.W.2d 842 (Tex.App.1982). The Court of Appeals held that the in-court identification of appellant by Mrs. Besteiro and her granddaughter was tainted by the out-of-court identification procedures and not shown to be based on independent observations at the time of the alleged offense. The State in its petition for discretionary review contends the majority of the panel was in error. We agree and reverse the Court of Appeals.

It was the State's theory that the appellant, a black man, went to the home of Mrs. Dolores Besteiro and requested to test ride the motorcycle her grandson had for sale; that he took the motorcycle and did not return.

Appellant filed a motion to suppress the identification testimony of Mrs. Besteiro and her granddaughter, Joana, contending such witnesses had identified him at a pre-trial police station confrontation under identification procedures which were unduly prejudicial, unfair and in violation of due process, and that such out-of-court identification should be suppressed as well as any in-court identification tainted thereby. The motion called into question the admissibility of both the out-of-court and in-court identifications.

After a hearing on the motion to suppress, the court overruled the same. ¹ At trial the said witnesses made their in-court identification and this was bolstered by testimony of the out-of-court identification elicited by the prosecution.

The reversal by the Court of Appeals was based on appellant's first ground of error, which contends the "trial court erred in overruling appellant's motion to suppress and admitting into evidence the in-court identification of appellant by the witnesses Dolores and Joana Besteiro because it was tainted by an improperly conducted one man show up which was inherently suggestive. Said viewing denied appellant due process of law because it was inherently, unnecessarily and overly suggestive and conducive to irreparable mistaken identification."

Appellant's claim of due process violation is independent of the exclusionary rules announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), which were fashioned to deter law enforcement authorities from exhibiting an accused to witnesses prior to trial for identification purposes without notice and in the absence of counsel absent an intelligent waiver by the accused. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968).

Since the facts are important in assaying appellant's contention, we shall examine the same in some detail.

At the pre-trial hearing on the motion to suppress Dolores Besteiro, 80 years of age, testified that after reporting the motorcycle being stolen on March 16, 1979, the police called her a few days later and told her they wanted to see her. She was not told why they wanted to see her. A police officer brought her to the station. She testified, "I had figured out they were going to ask me if I could recognize the motorcycle but, when I arrived, they opened up the door and I saw the man ..." She related she recognized the black man as the man who took the motorcycle. She identified the appellant as that man and as the man who was at the station.

On cross-examination by appellant Mrs. Besteiro related that when she entered the police office there was one police officer and one Negro man; that she had not seen a Negro from the date of the theft until the time of the police station confrontation; that she was not asked to view other black people; that she was not shown a photographic display. She also testified that two weeks before the suppression hearing she saw the appellant in the courtroom at the time of an earlier setting of the case.

Joana Besteiro, 13 year old granddaughter of Mrs. Besteiro, testified that a Brownsville policeman came to the house on March 16th when the theft of a motorcycle was reported. She described to the policeman the man who had taken the motorcycle as "Tall, slender, black, a short Afro, black pants and white shirt." She saw the man later at the police station where the police had taken her and her grandmother. She did not know why they were taken to the station. Upon arriving, they were taken to a room in which a black man was sitting down, and her grandmother told the police that was the man. She stated the police did not say the man was the suspect or ask her to identify the black man. She then identified the appellant as that man and as the man who took the motorcycle. Appellant did not interrogate. In response to the court's question, Joana testified the man who took the motorcycle was in her presence and her grandmother's presence for about an hour in a garage, and she was three or four feet from the man during the hour.

Brownsville Police Sgt. Patricio Ochoa testified that on March 19, 1979, as he was leaving work shortly after 5 p.m. Mrs. Besteiro and her granddaughter arrived. Since he had called the Besteiros earlier, he met them in the parking lot and walked back to the station with them. As he opened the door to an office and they walked in, Mrs. Besteiro stated, "That is the man that took the motorcycle." He denied he pointed out the appellant or prompted Mrs. Besteiro. On cross-examination Ochoa stated only Police Lt. Sauceda (a non-black) and the appellant were in the room when they entered the office. While he had earlier denied it, Ochoa acknowledged that when he called Mrs. Besteiro to come to the police station he told her the police had a suspect, but did not mention the suspect was black. He stated that there had not been a lineup and that pictures were not shown to the Besteiros. On redirect examination Sgt. Ochoa stated he could not, in Brownsville on March 19, have gotten a lineup of six black men of the same physical build, height, physical attributes, etc., as the appellant. He stated that black people were scarce in the area.

Pat Tamayo, police employee, testified on March 19, 1979 he was in his office adjacent to the Sgt.'s office and heard a female voice saying, "That is him; that's the one that stole the motorcycle." He went next door and saw Mrs. Besteiro and Joana and heard Mrs. Besteiro repeat the above remark. He did not hear any prompting.

After the suppression motion was overruled and at the trial on the merits, Dolores T. Besteiro testified that on the afternoon of March 16, 1979, about 5 p.m., a black male arrived at her home in Brownsville and inquired about a motorcycle that her grandson had offered for sale. She and her granddaughter, Joana Besteiro, talked to the black male for more than an hour. He told her his family was from New Jersey, had gone to California, his mother now lived in Dallas, and that he had two children. After they had talked awhile, the black male showed her a Texas Driver's license. He asked about a hamburger stand and was told there were several in the neighborhood. He asked permission to use the motorcycle to go to one of the stands. He left an identification card when Mrs. Besteiro granted permission. The black male did not return and neither did the motorcycle. She described the black male as wearing a plain tee shirt and dark trousers. She made a positive in-court identification of the appellant as the black male who took the motorcycle. She also testified on direct examination she had seen him later at the police station.

Joana Besteiro testified she was at her grandmother's home on March 16, 1979 when the appellant came to the house about 5 p.m. She described him as being dressed in a white long-sleeved shirt and black pants; that she had talked to him about an hour; that he talked about his children and "sort of" talked about where he was from. She recalled he asked if he could "try out" the motorcycle around the block and see if he liked it, and that he took the motorcycle and did not return. She made a positive in-court identification of the appellant as the black man who took the motorcycle.

On direct examination Joana related that a few days later she saw the appellant at the police station. On cross-examination appellant's counsel established that in the police office she saw a white officer and a black man; that her grandmother said, "That's the man" and that she had agreed.

Victor Rodriquez, Brownsville police officer, then testified for the prosecution that he went to the Besteiro residence on March 16, 1979; that Mrs. Besteiro and a girl told him a black subject, six feet tall, 175 pounds, wearing a brown shirt and black pants, with a short afro haircut had come to the residence in a cab and asked to drive the motorcycle which was for sale. They handed the officer a valid New Jersey driver's license which the man had left with them when he left to test the motorcycle. They told the officer the man did not return with the motorcycle.

The appellant denied the offense and stated that the day of his arrest, March 19, 1979, was the first time he had been in Brownsville.

He testified he lived in Mazatlan, Mexico with his wife and two children. He...