Perry v. State

• Decision Date: 05 February 1986
• Docket Number: No. 491-84,491-84
• Parties: Rodney Joel PERRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 668

703 S.W.2d 668

Rodney Joel PERRY, Appellant, v. The STATE of Texas, Appellee.

No. 491-84.

Court of Criminal Appeals of Texas En Banc.

Feb. 5, 1986.

Connie B. Williams, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and James C. Brough and John Kyles, Asst. Dist. Atty's., Houston, Robert Huttash, State's Atty., and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Rodney Joel Perry, hereinafter referred to as the appellant, was convicted by a jury of the offense of aggravated robbery. The facts show that the complaining witness, who was the manager of a 7-11 Store in Baytown, was robbed at knife point by the appellant. The trial judge assessed punishment at five years' confinement in the Department of Corrections.

On direct appeal, the Houston [First] Court of Appeals, on its own motion, after concluding that a suggestive pretrial photographic spread had been conducted by a Baytown police officer, reviewed the issue of what effect this had upon the in court identifications that were made of the appellant by prosecution witnesses, which included the complainant. It concluded that such was fundamental error and reversed. Perry v. State, 669 S.W.2d 794 (Tex.App.--Houston [1st] 1984).

The basis for the conclusion that was reached by the court of appeals lies in the fact that a photograph depicting the appellant wearing a 7-11 Store type of shirt or jacket was shown to the State's witnesses several weeks after the robbery, which, as noted, occurred inside of a 7-11 Store. The record reflects that without objection one of the State's witnesses identified the photograph as being that of the person she saw in the store, at which time the complaining witness was then bound in a store room located in the back of the store. The same witness, again without objection, also made an in court identification of the appellant as being the same person she had seen in the store. Although the complaining witness could not identify the photograph, he also, without objection, made an in court identification of the appellant as the individual who had robbed him.

This Court granted the petitions for discretionary review that were filed on behalf of the State by the District Attorney of Harris County and the State Prosecuting Attorney in order to consider and determine, inter alia, whether the court of appeals correctly held that even though the appellant did not complain or object in the trial court, either to what it found was suggestive pretrial investigative identification procedure or the in court identifications, as a matter of law, such error was not waivable by the appellant. We agree with the State that the court of appeals erred in holding that what it found was error was not waivable by the appellant's failure to object or complain in the trial court.

Notwithstanding our disagreement with the court of appeals' holding, we also hold that the court of appeals did not err in reviewing the issue as unassigned error.

In Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983), this Court reviewed the decision of the Dallas Court of Appeals in Carter v. State, 639 S.W.2d 13 (Tex.App.1982), which had held that it had jurisdiction to make the determination whether the indictment in that cause was fundamentally defective, and also had the inherent authority to review such issue as unassigned error. It concluded that the indictment in that cause was in fact a nullity and ordered the conviction reversed. This Court affirmed the judgment of the court of appeals, holding that "After jurisdiction attaches to a particular cause, a broad scope of review and revision has been asserted by appellate courts of this State (footnote omitted)--one that is still recognized, acknowledged and confirmed by the Legislature. Thus Article 44.24(b) alludes to appellate judgments and orders 'as the law and nature of the case may require,' and Article 44.25 to reversals 'as well upon the law as upon the facts.' For a comparison with former articles see Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (Clinton concurring) notes 5 and 6 and accompanying text. So, even though enabling legislation is not needed, we have it." (469-470).

Thus, we agree with the court of appeals that it had both jurisdiction and authority to review as unassigned error the issues whether there was suggestive pretrial investigative identification and, if so, whether this tainted the in court identifications to such an extent that it deprived the appellant of a fair and impartial trial. However, for reasons soon to be stated, we are unable to agree with the court of appeals' conclusion that the error, if any, could not be waived by the appellant's failure to complain or object in the trial court.

The failure of the appellant to complain or object in the trial court constitutes a procedural default under our law. We also find that the appellant has not shown or established that he had any cause, justification, or excuse for not challenging or objecting in the trial court to the out of court identification procedure or the in court identifications that were made of him by the witnesses for the prosecution.

Just recently, Circuit Judge Reavley of the Fifth Circuit Court of Appeals, in Stokes v. Procunier, 744 F.2d 475, 481 (5th Cir.1984), correctly pointed out that in the context of improper identification, in order to obtain review on appeal in Texas, it is necessary that the defendant must first complain or object in the trial court, and, if he does not, his complaint will be deemed waived on appeal:

[W]e note that Texas courts stringently apply the contemporaneous objection rule in the context of improper identification. Without an objection to an in-court identification or to testimony based on an impermissibly suggestive identification procedure, no error is preserved. See, e.g., Johnson v. State, 504 S.W.2d 493, 495 (Tex.Crim.App.1974) (no objection to testimony by victims who identified defendant soon after robbery); Pete v. State, 501 S.W.2d 683, 686-87 (Tex.Cr.App.1973); cert. denied, 415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); Hall v. State, 490 S.W.2d 589, 592 (Tex.Cr.App.1973) (No objection to in-court identification by witness who had been shown only one photograph); Phillips v. State, 488 S.W.2d 97, 99 (Tex.Crim.App.1972) (no objection to testimony by witness who had identified defendant in one-on-one confrontation),

The Court also held: "As Stokes [the petitioner] has failed to show that we should excuse his procedural default, we hold that it bars our review of his claim on the merits."

In this instance, we find and hold that the failure of the appellant to complain or object in the trial court about the out of court identification procedure or the in court identifications constituted a procedural default under our law, and, by failing to complain or object, for purposes of appeal, he waived the error.

In this instance, not only did the appellant fail to object or complain in the trial court about the out of court identification procedure or the in court identifications, he has also failed to show any justification, cause, or excuse for his failure to complain or object in the trial court. Thus, he waived the error, if any, on appeal. It is thus unnecessary for us to address whether such omission was actually prejudicial to his case.

The court of appeals erred in holding that the error, if any, was not waivable by the appellant's failure to object or complain in the trial court.

In holding that the error could not be waived by the appellant's failure to object or complain in the trial court, the court of appeals relied upon this Court's decision of Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.1979). The court of appeals stated the following: "In very rare instances, an error in admitting evidence will be so clear and so prejudicial that it is subject to review on appeal, despite the failure of the defense to object at trial. See, Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.1979)." (801).

In Caballero v. State, supra, this Court was confronted with a violation of Art. 46.02, Section 3(g), V.A.C.C.P., which provides: "No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding." In Caballero, supra, the State had admitted into evidence, without objection, a statement of a psychologist who had examined the appellant prior to trial. This Court held that such was "clearly error", and that "the error cannot be waived because the statute is too clear and absolute to be held subject to waiver," (743). However, this Court also held that the error was harmless because the defendant had confessed to the same facts as were testified to by the State's witnesses.

We believe that to appreciate the above statement that this Court made in Caballero, supra, that the error could not be waived by a failure to object, also see Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975); Smith v. State, 502 S.W.2d 814 (Tex.Cr.App.1973); Brandon v. State, 599 S.W.2d 567 (Tex.Cr.App.1980); Callaway v. State, 594 S.W.2d 440, 443 (Tex.Cr.App.1980); Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977); Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), it is necessary to review why this is so.

Art. 46.02, supra, is the statutory law of this State that determines when a defendant is incompetent to stand trial and, if he is found to be incompetent, the consequences thereof. The statute expressly prohibits the admission into evidence at the guilt stage of the trial any statement made by the defendant during an examination ordered by the court or a hearing on the defendant's competency to stand trial. See Section 3(g) of the statute.

This statutory prohibition is to be distinguished from the actual competency...