Perryman v. State
Decision Date | 16 September 1971 |
Docket Number | No. 43681,43681 |
Citation | 470 S.W.2d 703 |
Parties | Larry PERRYMAN, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
John W. Goode, Jr., San Antonio, for appellant.
Ted Butler, Dist. Atty., John L. Quinlan, III, and Sparta Bitsis, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of robbery by assault. The punishment, enhanced under Article 62, Vernon's Ann.P.C., was assessed at life. The case was tried before the court, the appellant having waived his right to a jury.
The record reflects that Jose Flores, a sixty-eight year old man, had left a bar on Zarzamora Street in San Antonio; that he got into his pickup truck and was attempting to start the vehicle when he was pulled out by two men, one of whom held him while the other ripped open his hip pocket, took his billfold, and in company with the other man, fled down the street. He then went back to the bar and notified the police who arrived approximately ten minutes later. Soon thereafter, an officer who had received a radio report of the robbery observed two men two blocks from the scene 'dividing some money.' The men fit the description the officer had received, and he placed both of them under arrest. Luther Procter, appellant's companion, fled and was apprehended minutes later; he was then placed in a police car with Police Officer Thompson and driven to a car wash location on Zarzamora Street where he was identified by Flores as one of the men who had robbed him. 1 Soon thereafter appellant was identified at the police station by Flores.
Appellant alleges three grounds of error; (1) he contends evidence of the pre-trial identification should not have been admitted, as such occurred in the absence of counsel which had not been intelligently waived; (2) the court erred by permitting in-court identification based on the pretrial identification; and (3) the pre-trial identification was grossly unfair to appellant.
The record reflects the following testimony by the arresting officer:
'
The witness further testified, on re-direct examination:
'Q. And was Perryman still sitting in the car then?
'A. Now wait a minute. I think he was standing behind the car when he got out and then he read him the rights, right there on the side of the car wash, outside Outside of the car, that's where it was.
'Q. On the side of the car?
'A. Yes, sir, right on the back.
'Q. Who was it that did that?
'A. Menchaca.
'A. Well, after I decided to handle one thing at a time, he said, 'I know how that goes.' And he said, 'I'll read it to you anyway.' (Emphasis supplied)
'
The officer on duty at the police station when appellant was brought in testified:
'Q. (By the Court) Did you hear Mr. Perryman at any time before Mr. Flores identified him ask for a lawyer or to have a lawyer appointed for him?
'A. I asked the officers, the uniformed officer at the time if they had been advised of their rights and if they wanted to make a telephone call. Several times during this hour or hour and fifteen or twenty minutes that this took place, they were given the opportunities to use the telephone. I don't remember which one said, 'I don't have any use for a lawyer, I don't need one.' I don't remember which one it was but neither one wanted to use the phone.
After an extensive hearing on the motion to suppress the in-court identification of appellant, the trial court stated:
While the court's findings are not as complete as might be desired, they were stated into the record, and the finding was that appellant had waived the right to counsel. In Martinez v. State, Tex.Cr.App., 437 S.W.2d 842, this court stated:
'For the purposes of appellate review, it would be better practice for the court to enter written findings or to state into the record following such hearing his reasons for admitting such evidence, if he does.'
See also Spencer v. State, Tex.Cr.App., 466 S.W.2d 749.
We are confronted with the question of whether or not appellant intelligently, knowingly, and voluntarily waived his right to counsel. First, appellant interrupted the officer who was apprising him of his constitutional rights with the statement: 'I know how that goes.'
The Supreme Court of Nebraska, confronted with a similar situation as the one at bar, in State v. Perez, 182 Neb. 680, 157 N.W.2d 162, 2 stated:
'The basic question, under the Miranda holding, is whether the defendant, knowing his rights, voluntarily and intelligently waived them.'
The defendant in Perez, supra, while being advised of his rights, stated: 'You don't have to advise me of my rights, I know more about them than you.'
The court stated further:
'Not only was the effect of his statement to refuse to be further advised, but he expressly gave as the reason that he already knew them because he had been advised of them many times before.'
In the case at bar, unlike Perez, supra, the officer continued to read to appellant his constitutional warnings until he finished. We hold he waived his right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed.2d 1461.
Secondly, appellant manifested no desire to contact a lawyer at the police station when he was repeatedly offered such opportunity.
Thirdly, the record reflects appellant's previous experiences with law enforcement authorities and lends credence to the proposition that he intelligently, knowingly and voluntarily waived his right to counsel. See Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed.2d 268; Johnson v. Zerbst, supra; Narro v. United States (5th Cir.) 1966, 370 F.2d 329, cert. denied, 1967; United States v. Hayes (4th Cir.) 385 F.2d 375.
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the majority stated:
'Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver."
We conclude that appellant's waiver of counsel was valid. However, appellant attacks, independently of any waiver of counsel, the pretrial identification, contending it to be grossly unfair, and a denial of due process of law. True, witness Flores made a mistaken identification when he first walked up to the automobile at the car wash, which he thereafter repudiated by identifying appellant upon his arrival at the police station. The record reflects the following testimony:
Evidence relating to the pre-trial identification at the police station is revealed by testimony of Officer William Jack Harlow, as follows:
'Q. (By the Prosecutor) Where were you and Flores?
'A. Flores--I got him a seat, he was sitting about the same distance as you and I. A little closer I guess and I was sitting behind the desk. I just came in and sat down.
'Q. Did you ask him if he recognized anyone?
'A. Well, I talked to him a second about robbery and another officer had come in and sort of interrupted and I asked him if they had any suspects, sort of asking the officer more than the complainant, 'at this time do they have any suspects?'
This identification having been made less than an hour and a half after the robbery, we conclude that the said pre-trial identification was not tainted. See United States v. Perry, D.C.Cir., 449 F.2d...
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