Marshburn v. State

• Decision Date: 24 January 1973
• Docket Number: No. 45590,45590
• Citation: 491 S.W.2d 663
• Parties: Tommy Preston MARSHBURN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 663

491 S.W.2d 663

Tommy Preston MARSHBURN, Appellant, v. The STATE of Texas, Appellee.

No. 45590.

Court of Criminal Appeals of Texas.

Jan. 24, 1973.

Rehearing Denied March 21, 1973.

Emmett Colvin, Jr., and Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty., Jerome L. Croston and Harry J. Schulz, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

Appellant and a co-defendant Jerry Lee Johnson were jointly tried for the offense of robbery. This is an appeal by appellant from his conviction with punishment assessed by the jury at seventy-five (75) years confinement in the Texas Department of Corrections.

The facts, as set out in appellant's brief and approved by the State in its brief, are as follows:

'At 1:00 or 1:30 A.M. on 11/5/70, the appellant and Jerry Lee Johnson went to the home of Franklin E. Lewis. They informed Mr. Lewis that his brother had sent them over and that they were looking for work.

'When Lewis opened the door to give the appellant and Johnson his office address, Johnson grabbed him and held a knife to his throat. At this time Mrs. Lewis entered the room. The appellant and Johnson then forced Mr. and Mrs. Lewis to lay face down on the floor and tied their hands and feet. A rug was thrown over the Lewis' heads while the appellant and Johnson searched the house.

'The property that was stolen included watches, rings, $993.00, and several credit cards, including a BankAmericard. There was evidence that the appellant had used Lewis' BankAmericard to make a purchase at a liquor store.'

In his first ground of error appellant complains as follows:

'The trial court committed error in invoking 'The Rule' upon its own initiative and in subsequently refusing to allow the testimony of two defense witnesses.'

The record reflects that at the beginning of the trial when the witnesses were sworn the court announced that the 'rule will be invoked' and instructed all witnesses among other things to remain outside the courtroom while testimony was being given. At such time the court cautioned the attorneys to advise any witnesses not then present of the rule. After the State had presented testimony and rested its case appellant called two witnesses who had remained in the courtroom and heard all of the testimony and proceedings. When the first witness was called the State objected to her testifying on the ground that the rule had been invoked and she would not be 'qualified to testify' to which objection the court stated, 'Yes, you are right; the rule was asked for and at this stage of the proceedings, why, of course, I will not permit her to testify at this particular time.' The other witness was not permitted to testify for the same reason.

Appellant insists that in effect the court invoked the rule sua sponte which was beyond his authority under Articles 36.03 and 36.04, Vernon's Ann.C.C.P. He also insists that the exclusion of the witnesses under the circumstances denied to him his right to compulsory attendance of witnesses as granted by the Sixth Amendment to the United States Constitution.

We do not agree, as the record does not reflect that the court invoked the rule on his own initiative but to the contrary reflects that the rule had been requested as provided by Art. 36.03, supra. ¹ The matter of enforcement of the rule is within the sound discretion of the trial court. See Art. 36.04, supra. The early case of Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893) by the Supreme Court of the United States, cited by appellant, recognized that the right to exclude a witness who had violated the rule under particular circumstances 'may be supported as within the sound discretion of the trial court.'

Appellant has made no effort to show this Court what the testimony of the two witnesses would have been had they been permitted to testify.

Under the record we find no abuse of discretion in the trial court's refusal to permit the witness to testify.

We are unable to apply the decision of the United States Court of Appeals, Fifth Circuit, in Braswell v. Wainwright, 463 F.2d 1148 (1972) to the facts in the instant case and hold that the trial court's refusal to permit the witnesses to testify was a violation of the appellant's right to compulsory process under the Sixth Amendment to the Constitution of the United States. The ground of error is overruled.

In his grounds of error numbers two, five and six, appellant insists that the court committed error in allowing in-court identification by three witnesses in that the pretrial photographic identification procedure was so impermissibly suggestive as to give rise to the likelihood of misidentification.

The State's witness Davenport identified the appellant in court as the person who came into his liquor store and used a Bank Americard bearing the name of the injured party in the robbery, Franklin E. Lewis, on it to purchase liquor from him. Prior to trial an officer had gone to the witness' store and exhibited a photograph on appellant's driver's license to him. The witness told the officer he was reasonably sure it was of the person who had purchased the liquor with Lewis' credit card. The next day an officer returned to the store and exhibited four pictures to the witness and at that time he identified one of the pictures as being of the appellant.

The injured party, Franklin E. Lewis, and his wife both identified appellant and Johnson at the trial as the men who had entered their home and committed the robbery. On Saturday, two days after the crime was committed, an officer brought six or eight pictures to the Lewises' home and exhibited the photographs to them. Lewis identified one of the pictures as being of the appellant and another picture as being of the defendant Johnson. His wife identified one of the pictures as being of the appellant.

Appellant insists that because only one photograph was exhibited to the witness Davenport prior to trial that his in-court identification was not trustworthy and should not have been allowed under the decision of the United States Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. He further insists that showing the photographs to the Lewises was so suggestive and inflammatory that their in-court identification should not have been allowed.

The record reflects that the witness Davenport had ample opportunity to observe the appellant while h...