Loving v. State

• Decision Date: 22 May 1997
• Docket Number: No. 03-95-00343-CR,03-95-00343-CR
• Parties: Cornell LOVING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 615

947 S.W.2d 615

Cornell LOVING, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00343-CR.

Court of Appeals of Texas Austin.

May 22, 1997.

Ian Inglis, Austin, for appellant.

Ronald Earle, District Attorney, Ana Louisa Morales, Assistant District Attorney, Austin, for appellee.

Before CARROLL, C.J., and B.A. SMITH and CARL E.F. DALLY, JJ. ^*

CARL E.F. DALLY, Justice (Retired).

Appellant Cornell Loving appeals from a conviction for the offense of aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03 (West 1994). Appellant's punishment was assessed by the trial court at imprisonment for forty years. In his appeal, appellant asserts the trial court erred in admitting in evidence before the jury a witness's in-court identification of appellant because that identification was tainted by an impermissibly suggestive pretrial identification procedure. In addition, appellant contends the trial court erred by improperly submitting to the jury during its deliberations an "Allen" charge. We will overrule appellant's points of error and affirm the judgment of the trial court.

Appellant and three codefendants were charged with the offenses of attempted capital murder and aggravated robbery. All defendants were tried together before the same jury. The allegations of capital murder were abandoned and the jury was charged only on the offenses of robbery and aggravated robbery. The jury acquitted Christopher Whitman and convicted Andre Webb, Timothy Scott, and appellant of the offense of aggravated robbery.

Both Juan Riojas and Jesus Javier Maldonado Ybarra, victims of the robbery, testified at trial before the jury identifying appellant as one of the robbers. Appellant, in his written statement, which was admitted in evidence, admitted coming to the scene of the robbery and fleeing with the codefendants. But according to his written statement, appellant was a mere bystander while the two codefendants decided to commit and did commit the robbery, which appellant witnessed and described in his statement. The victim-witness Ybarra testified that appellant was the robber who hit him. Ybarra's identification of appellant is unchallenged on appeal.

Appellant argues that his in-court identification made by the victim-witness Riojas "was tainted by an impermissibly suggestive pretrial procedure." As a result of this alleged tainted in-court identification testimony, appellant claims he was denied federal due process and state due course of law rights. U.S. Const. amend. V, XIV; Tex. Const. art. I, § 19. The pretrial identification "procedure" that appellant says tainted the in-court identification occurred when the witness Riojas saw a Xeroxed copy of appellant's photograph in the prosecutor's notebook. Before trial, the prosecutor told defense counsel that Riojas had seen a Xeroxed copy of appellant's photograph in her trial notebook. Before Riojas testified in the presence of the jury, the trial court conducted a hearing out of the presence of the jury. In that hearing, Riojas testified concerning the "procedure" that appellant alleges tainted Riojas' in-court identification of appellant. At this hearing, Riojas positively identified appellant as one of the robbers he saw at the time of the robbery. Riojas also testified that about thirty days before the trial the prosecutor came to his house to interview him. It was after dark and Riojas was interviewed outside his house "under a light." Riojas, recalling the interview, testified: "Well, she was flipping, you know, through her notebook and everything, and that's when I saw, and I told her 'that's him.' " Riojas was referring to appellant's Xeroxed photograph in the prosecutor's notebook. Riojas saw no other photographs before trial. In response to the trial court's questions Riojas testified he would have recognized appellant at the trial as one of the robbers even if he had not seen the photograph in the prosecutor's notebook. At the conclusion of the hearing, the trial court stated: "It will be the ruling of the court that the statement by the witness that he positively identifies the Defendant Loving at this time and is not impacted by having inadvertently seen a prior Xeroxed photograph. I take it then that the objection to his testimony doesn't go to admissibility but really goes to [its] weight and so [the] motion ... will be overruled." Trial counsel made no further objection to the trial court's ruling at that time concerning the court's conclusion that the objection was not to the admissibility of the testimony.

Testifying before the jury, Riojas, based on what he saw during the robbery, positively identified appellant as one of the robbers. On cross-examination there was considerable testimony concerning the "procedure" in which Riojas observed appellant's photograph in the prosecutor's notebook. Much of this extensive cross-examination testimony is set out in appellant's brief; although this testimony is more ambiguous than the testimony in the earlier hearing, Riojas reaffirmed the testimony elicited at the hearing. Concerning the cross-examination testimony, appellant argues that "[a]t times, Riojas did indicate that the viewing was unintentional. However, the fairest interpretation of Riojas' testimony is that the prosecutor displayed Appellant's photograph when Riojas asked to see the likenesses of the robbery suspects who were in custody."

Defense counsel renewed his objection after Riojas testified before the jury and requested that the trial court withdraw from the jury's consideration Riojas' in-court identification testimony. This objection and request the trial court overruled, but told appellant's counsel he would be allowed to make a bill of exception. For that bill of exception, appellant's counsel called as witnesses the three attorneys who represented the other defendants. These attorneys were present when the prosecutor told appellant's attorney about Riojas seeing appellant's photograph in her notebook. On the bill, one of the attorneys testified concerning the meeting of defense counsel and the prosecutor. "I believe she stated that her first and only--in her first meeting with Juan Riojas she had inadvertently revealed a photograph of Cornell Loving as she was thumbing through her file, and he picked it out and asked to see it." On cross-examination the attorney testified that he recalled that the prosecutor had told defense attorneys, "I was thumbing through the notebook, but he stopped her ... and said, 'That's him.' " The other two defense attorneys concurred with the first defense attorney's testimony on the bill. After appellant's counsel presented argument on the bill of exception, the trial court stated that seeing Loving's photograph, which the court thought was a poor likeness, could not have in any way materially altered or influenced the witness's in-court identification of appellant.

Determining the admissibility of a challenged in-court identification requires a two-step analysis. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). First, the photographic display procedure must be impermissibly suggestive; and second, the impermissibly suggestive procedure must give rise to a very substantial likelihood of irreparable misidentification. Analysis under these steps requires an examination of the totality of the circumstances of the particular case under consideration and a determination of the reliability of the in-court identification. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, (1972); Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App.1995); Cantu v. State, 738 S.W.2d 249, 251 (Tex.Crim.App.1987). If the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed reliable, "reliability [being] the linchpin in determining the admissibility of identification testimony." Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988); Jackson v. State, 657 S.W.2d 123, 130 (Tex.Crim.App.1983). A defendant who contends on appeal that a trial court erred in allowing in-court identification of him by a complaining witness carries a difficult and heavy burden. Unless the defendant shows by clear and convincing evidence that the complaining witness' in-court identification of a defendant as an assailant was tainted by improper pretrial identification procedures, the in-court identification is always admissible. Jackson v. State, 628 S.W.2d 446, 448 (Tex.Crim.App.1982); Johnson v. State, 891 S.W.2d 284, 286-87 (Tex.App.--San Antonio 1994, no pet.).

In this case, the trial court found Riojas positively identified appellant and that the witness's in-court identification was "not impacted by [his] having inadvertently seen a prior Xerox photograph" of appellant. See Jackson, 628 S.W.2d at 448-49 (prosecutor immediately prior to trial showed witness defendant's photograph--judgment affirmed). We conclude, that based on the totality of the circumstances, it has not been clearly and convincingly shown that Riojas' inadvertent viewing of appellant's Xeroxed photograph was impermissibly suggestive. See Barley, 906 S.W.2d at 33-34. Even if it could be successfully argued that the viewing of the photograph was impermissibly suggestive, the totality of the circumstances do not show clearly and convincingly a substantial likelihood of irreparable misidentification. Id. at 34-35. The witnesses Riojas and Ybarra were victims and not casual observers. See Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App.1987). Riojas' description of appellant soon after the robbery was not entirely accurate, but Ybarra's description of appellant to the officers was quite accurate. Neither witness identified appellant in photographic identification exhibits after the robbery. However, although the light...