Morrow v. State

• Decision Date: 30 June 2004
• Docket Number: No. 06-03-00189-CR.,06-03-00189-CR.
• Citation: 139 S.W.3d 736
• Parties: Randall Keith MORROW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

139 S.W.3d 736

Randall Keith MORROW, Appellant, v. The STATE of Texas, Appellee.

No. 06-03-00189-CR.

Court of Appeals of Texas, Texarkana.

Submitted May 11, 2004.

Decided June 30, 2004.

Appeal from the 71st Judicial District Court, Harrison County, Bonnie Leggatt, J Kevin McCarter, Marshall, for appellant.

Al Davis, Asst. Dist. Atty., Joe Black, Harrison County Dist. Atty, Marshall, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Randall Keith Morrow pled guilty to aggravated kidnapping.¹ The jury found him guilty as instructed and assessed his punishment at forty years' imprisonment. He appeals,² contending the trial court erred by (1) denying his motion to suppress an in-court identification; (2) denying his motion to take depositions; and (3) denying a hearing on his motion for new trial. Randall also contends his trial counsel rendered ineffective assistance.

I. Factual Background

Annie Morrow testified she and Randall were married in October 2002, after a brief courtship. The marriage was rocky from the start, and the two separated in December 2002. On the morning of January 28, 2003, Randall went to Marshall, where Annie was living. Annie telephoned the police, and Randall left. Undeterred, he returned at 3:00 a.m. and told Annie her eldest son was ill in the hospital. Annie rushed to the hospital, but her son was not there. Randall admitted his lie, telling Annie he wanted to get her out of the house so they could talk. Randall convinced Annie to talk in his vehicle, out of the cold weather. When she acquiesced, he sped off to his mother's house on the lake. There, he accused Annie of cheating on him, and he beat and raped her.

The next day, Randall took Annie back to Marshall and allowed her to pick up some clothes. He then took her back to his mother's property, where he assaulted her again, this time stabbing her in the chest, puncturing her lung. He then locked her in the trunk of his car and left the premises in that vehicle. Annie pulled wires and yelled for help. At one point, the car stopped and she heard voices outside. She began beating on the inside of the trunk and screaming, "Somebody help me. He's going to kill me."

Deborah Johnson testified she was at Hawk's Grocery Store when a man pulled up in a tan Honda Accord. She heard a woman's voice coming from inside the trunk saying, "Let me out. He's trying to kill me. Will you help me? Will somebody please help me?" She looked at the man driving the Honda, and he told her it was his sister who had run away from home. Deborah went into the store and told the attendant to telephone the police. The man got back in the car and sped off. The next day, Deborah identified Randall from a photographic lineup as the man in the Honda.

Randall again took Annie back to his mother's house and told her to take a shower. Annie went into the bathroom and tried to shower. She heard the police outside and ran out the back door.

Randall's account of the events, both in his statement to police and in his testimony at trial, differed sharply from Annie's version. He testified Annie voluntarily went with him to his mother's house, where they had consensual sex. Randall testified a fight did ensue over money and over whether Annie was having an affair. They exchanged slaps and then struggled over a knife that had fallen from Annie's purse. After the struggle, Randall noticed Annie had blood on her shirt, but he did not believe it was anything serious. They left together for Marshall, where she got some clothes to change into, and then went back to his mother's property. Another argument ensued over whether Annie was having an affair, and she picked up a stick and hit Randall on the wrist. He also picked up a stick and hit her on the head. They left his mother's property with Annie in the passenger seat, and while he was driving, Annie began kicking the dashboard and grabbing the steering wheel, almost causing an accident. Randall told her he would put her in the trunk to prevent her from doing that, so Annie got out of the car and got in the trunk. Randall slammed the trunk lid on her. He proceeded to a store to get gas, and Annie began "hollering and talking crazy" from the trunk. He left the store, went ten yards and got Annie out of the trunk. They went back to his mother's house, where Annie went to the bathroom and he walked down the street to his sister's house to cool off. He was at his sister's house for fifteen to twenty minutes when he observed police vehicles going up and down the road. He left the area without being detected and was apprehended six days later.

II. Propriety of Identification

Randall contends Johnson's in-court identification of him was tainted by the impermissibly suggestive photographic lineup she was shown before trial. The day after Johnson observed the Honda at Hawk's Grocery, she went to the police station as requested. Lieutenant Doyle Kuhn showed her a photographic array of six individuals and asked if she saw the gentleman who was at Hawk's Grocery. Johnson immediately identified Randall. Randall moved to suppress the identification and any in-court identification Johnson would potentially make as being tainted by the impermissibly suggestive photographic array. The trial court held a hearing on Randall's motion to suppress and denied it by written order.

a. Findings of Fact and Conclusions of Law

Although expressing an intention at the pretrial hearing to make findings of fact and conclusions of law, the trial court failed to do so. Randall contends this case should be abated to allow the trial court to make those findings of fact and conclusions of law.

We previously abated this appeal for the trial court to make findings of fact and conclusions of law concerning whether the statement Randall made to police was voluntary, as required by TEX.CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon Supp.2004). See Morrow v. State, No. 06-03-00189-CR (Tex.App.-Texarkana Feb. 24, 2004, order) (not designated for publication). No comparable rule requires an abatement for findings of fact and conclusions of law concerning the denial of a motion to suppress. While it is better practice for such findings and conclusions to be made when a motion to suppress has been denied, such is not required. See Jones v. State, 944 S.W.2d 50, 51 (Tex.App.-Texarkana 1997, pet. ref'd). We therefore will consider Randall's contentions on the suggestive nature of the pretrial photographic array from the record before us. Because the trial court did not make express findings of historical fact, we view the facts in the light most favorable to the trial court's ruling. See Wallace v. State, 75 S.W.3d 576, 584 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App.2003).

b. Suggestiveness of Photographic Array

A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App.1995). We apply a two-step analysis to determine the admissibility of an in-court identification and ask (1) whether the pretrial identification procedure was impermissibly suggestive and, if so, (2) whether the improperly suggestive procedure created a very substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384, 88 S.Ct. 967; Barley, 906 S.W.2d at 33. A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33-34. The analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 33.

If a court finds that a pretrial identification procedure was impermissibly suggestive, it must then consider the factors enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. These nonexclusive factors are: (1) the witness' opportunity to view the criminal; (2) the witness' degree of attention; (3) the accuracy of the witness' description of the suspect; (4) the level of certainty at the time of confrontation; and (5) the time between the crime and confrontation. Id.

We have reviewed the record, as well as the photographic array, and find nothing impermissibly suggestive about either the array itself or the officer's use of the array in the questioning of the witness. Kyle Ready, a detective, prepared the photographic array. He further testified he tries to ensure that all the photographs used are as similar as possible. He testified he tries to use similar stature, size, race, skin tone, and hair design. The photographic array in question consisted of a total of six photographs, three arranged in a line above three others. Randall's photograph was in the center of the top line. All the individuals in the photographic array, including Randall, were black males. They all had short hair, close or similar skin tones, and all were face-forward photographs. Kuhn showed Johnson the photographic lineup and explained to her she needed to determine if she saw the person who was at Hawk's Grocery. Kuhn testified he did not tell Johnson that Randall was in the photographic array, and he did not give her any indication of who he believed the perpetrator to be.

Randall contends error was committed because the photographs on either side of his appeared to be looking in his direction, and his head is the largest in the photographs. Nothing in the evidence shows — or even suggests — these differences were intentional or made for the purpose of suggesting that Randall's photograph was the one the witness should select. Although it may be possible to configure a...