Johnson v. State
Decision Date | 20 April 1971 |
Docket Number | No. 43659,43659 |
Citation | 466 S.W.2d 735 |
Parties | Amos JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
William H. Shields, Dallas, 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, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of robbery with firearms. the jury was qualified on the death penalty; punishment was assessed at 99 years.
The first ground of error is appellant's contention that his in-court identification was tainted by pretrial viewing of pictures by witness Mary Berdine.
The record reflects that at approximately 2:30 P.M. on August 29, 1967, the Market Liquor Store in Dallas was robbed by two men. The owner, Vance R. Fuller, was shot, stabbed five times, hit over the head with bottles, one finger was broken, and he was then tied up. The assailants took his money, four transistor radios, a gas pellet gun, a .38 Smith & Wesson gun and 'two or three bottles of whiskey.' His injuries necessitated 'thirty days' hospitalization.
Witness Fuller could not identify the men but gave a general description of them. Mary Berdine was 'right across the street' from the store and she made positive identification of the appellant and Johnny Mack Brown as the robbers.
During a hearing, out of the presence of the jury, the following is revealed by the record:
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The trial court found: 'This witness has convinced me beyond a reasonable doubt that she has identified that man (appellant) on the basis of her having seen him in the flesh at some other point of time.'
Relying on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, appellant contends that viewing 'the relatively few pictures' with the statement by the officer that 'those were the right boys,' was impermissibly suggestive.
In Simmons v. United States, supra, the court stated:
The officer should not have stated 'those were the right boys.' However, there is no showing that any Prior suggestion was made; in fact, the evidence is that there was not. The evidence was sufficient to support the trial court's finding that the in-court identification was of independent origin. See Daniels v. State, Tex.Cr.App., 464 S.W.2d 368; Smith v. State, Tex.Cr.App., 459 S.W.2d 642; Grundstrom v. State, Tex.Cr.App., 456 S.W.2d 92; Thames v. State, Tex.Cr.App., 453 S.W.2d 495; Bowman v. State, Tex.Cr.App., 446 S.W.2d 320; Evans v. State, Tex.Cr.App.,444 S.W.2d 641.
We perceive no error.
Next, appellant contends that insufficient probable cause existed for the search of his person and the trial court committed reversible error by admitting the fruits of said search into evidence.
Officer Sam O. Sorsby (a Dallas Police Officer for 9 years) testified that on the date in question he was at a location approximately seven blocks south and three blocks east of the scene of the robbery; that he had a conversation with a person after which he called the Dallas Police Dispatcher's office to 'ascertain if there had been a robbery committed in the vicinity.' He then 'saw a man running across the street * * * approximately one hundred feet * * * south of the intersection.' The officer identified the appellant as the man he saw and was asked to 'describe the clothing that he had on, the best you recall?'
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A hearing was then held outside the presence of the jury and the testimony developed that the officer had been informed by a bus passenger of two men wearing torn and bloody clothing who had come to the vicinity of a bus with a sack containing a large amount of whiskey and cigarettes; that he stopped appel...
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