Purchase v. State, No. 01-07-00738-CR (Tex. App. 3/6/2008), No. 01-07-00738-CR.

CourtCourt of Appeals of Texas
Writing for the CourtTerry Jennings
PartiesSAMUEL PURCHASE, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNo. 01-07-00738-CR.
Decision Date06 March 2008

Page 1

Unpublished Opinion

No. 01-07-00738-CR.
Court of Appeals of Texas, First District, Houston.
Opinion issued March 6, 2008.
Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 768286-E.

Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.



A jury found appellant, Samuel Purchase, guilty of the offense of felony theft1 and assessed his punishment at confinement for four years. The trial court suspended the sentence, placed appellant on community supervision for four years, imposed a fine of $1,500, and ordered appellant to serve sixty days of confinement as a condition of his community supervision and pay the Southwest Resource Credit Union (the "credit union") $40,028.75 in restitution. We affirmed his conviction in Purchase v. State, 84 S.W.3d 696 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd).2

Appellant filed in the trial court an application for a writ of habeas corpus,3 which the trial court denied. Appellant raises seven issues on appeal. In his first five issues, appellant contends that the trial court erred in denying his application for a writ of habeas corpus as the State, in the underlying proceeding, in violation of the Fourteenth Amendment,4 utilized a pretrial identification which led to an "irreparable misidentification" of him, suppressed or failed to disclose exculpatory or impeachment evidence to him, committed prosecutorial misconduct, used its peremptory strikes based on the veniremembers' race, and the cumulative error at trial denied him a fair trial. In his sixth and seventh issues, appellant contends that his trial counsel rendered ineffective assistance and his appellate counsel rendered ineffective assistance.

We affirm.

Factual Background

In the underlying trial, Donna DuPont, the complainant, a collection manager at the credit union, testified that, on October 9, 1997, a man purporting to be "Steve Jones," an Exxon employee, opened a checking account with the credit union. DuPont explained that, because Exxon was the credit union's parent company, the credit union automatically honored all Exxon checks. From October 9, 1997, until the complainant closed the account on October 22, 1997, "Jones" had deposited ten Exxon Chemical checks, which had a cumulative face value of approximately $44,000, and withdrawn $40,000 from the account. After discovering that the checks were counterfeit on October 22, 1997, and then completing an investigation, the complainant learned that "Jones" was not the true owner of the account. The complainant explained that the credit union's surveillance camera took eight photographs of the man purporting to be "Jones." Introduced as State's exhibits 3 through 10, the photographs depicted an African-American male conducting various banking transactions from October 10, 1997 through October 14, 1997. She noted that, by comparing the time that the surveillance camera took the photographs with the time of various banking transactions on "Jones's" account, one could conclude the photographs were of "Jones." On October 10, 1997, at 11:08 a.m., "Jones" made a withdrawal from his account at the credit union, located at 2900 Decker Drive, along with a deposit shortly thereafter.5 State's exhibits 3 and 4 depicted the African-American male conducting a banking transaction at 11:12 a.m. inside of the credit union. On October 14, 1997, at 9:20 a.m., "Jones" made a balance inquiry of his account at the credit union, along with a deposit inside of the credit union shortly thereafter. State's exhibits 5 through 9 depicted the same African-American male conducting a banking transaction from 9:20 a.m until 9:22 a.m. at the credit union. Baytown Police Department Detective C. Dougherty testified that, on November 10, 1997, he showed Mary Lou Hill, a bank teller at the credit union, a photographic array containing photographs of six African-American males with similar build, hair, and size.6 Although Dougherty informed Hill that the array "may not" include the person that committed the offense, the photographs in the array were numbered one through six, with a photograph of appellant in the number three position.

When Detective Dougherty initially showed the array to Hill, she could not make a positive identification. After scrutinizing further, Hill identified the culprit as either appellant or the man in the first photograph. When the State asked Dougherty why Hill could not make a positive identification, Dougherty explained that Hill had told her, "[S]he felt [that] she could make an identification if she could see the whole person versus just the face." Nonetheless, Dougherty did note that, on November 11, 1997, Eugene Buehring, a security supervisor for Exxon, identified appellant as the culprit after looking at the array.

Buehring testified that, after the complainant discovered that "Steve Jones's" checks were counterfeit, without telling Buehring of any suspects, the complainant called him into the complainant's office in order to show him the surveillance photographs. Buehring explained that, because he worked in security for Exxon and appellant had been an employee with Exxon, he knew appellant personally. Upon looking at the photographs, Buehring "instant[ly]" recognized appellant as the culprit.7

After Buehring identified appellant in the surveillance photographs, Detective Dougherty showed him the array, asking him if any person in the array looked similar to the person he identified from the surveillance photographs, and Buehring identified appellant as the culprit. On cross-examination, appellant's trial counsel asked Buehring, "When you looked at [the array], was number three[,] [appellant's photograph,] circled already at the time it was shown to you?" Buehring replied, "No." On redirect examination, Buehring explained that, after he identified appellant as the culprit, Dougherty circled appellant's photograph and Buehring signed his initials underneath appellant's photograph and inside of the circle.

Hill testified that, on October 9, 1997, when she was working as a bank teller at the credit union, appellant, after he had just opened the checking account as "Steve Jones," approached her to make an initial deposit of $50 into the account. Hill specifically remembered speaking with appellant while he made this deposit because she was trying "to get to know" a new member and noticed that appellant was wearing an Exxon uniform. A few hours later, appellant again approached her and deposited a check for approximately $4,300 into the account. When the State showed her the surveillance photographs, Hill, based upon her "recollection of the events," identified appellant as the culprit. Thereafter, the State questioned Hill about the array, asking if anything in the array appeared "suggestive," to which Hill replied, "No." After the State handed Hill the array, it offered the following testimony: [Hill]: When I looked at the six [photographs], I looked at them very carefully. I picked two of the gentlemen, and my response to [Detective Dougherty] was that the only way I could make a positive identification was to see the whole body. As a teller, when you're looking at things, you're looking at body postures; you're looking at height; you're looking at, you know, the way they stand, more than just a cropped part of their head. So I stated to [Dougherty] that if I saw the person—the whole body—I would be able to identify him.

[The State]: Is one of the persons that you chose in [the array] in the courtroom today?

[Hill]: Yes, sir.

[The State]: What number is underneath his [photograph] in [the array]?

[Hill]: No. 3.

[The State]: Putting this thing aside, putting this down, I want you to tell the jury if there is somebody in the courtroom today—if the person in the courtroom today[,] is the same person who came into the bank and made a deposit[?]

[Hill]: Yes, sir.

[The State]: Not talking about the [array,] I'm asking you to tell the jury right now: Looking at him, looking at the way he's sitting—his appearance, his posture[,] everything—are you sure that this is the same person that made those deposits?

[Hill]: Yes, sir.

Appellant offered the testimony of Lloyd Dubose, Jr., Gerald Lightfoot, Ken Mayes, and Jody Whiteside, all Exxon refinery employees who had worked at Exxon for years with appellant, who testified that the surveillance photographs did not depict appellant. Also, Dubose and Mayes noted that they had never received a check from Exxon for $4,000 or more, while Lightfoot stated that a $4,000 check would be unusually large. Moreover, both Lilly Lewis, appellant's mother-in-law, and Lola Purchase, appellant's wife, testified that the surveillance photographs did not depict appellant.

Mrs. Purchase testified that appellant could not have committed the offense because on the day that the checking account was opened at the credit union, October 9, 1997, appellant was either with her or at other verified locations. Mrs. Purchase noted that, although appellant had worked for Exxon refinery in 1996, he quit his job and was unemployed at the time of the offense. She explained that, because they had only one car, on October 9, 1997, Mrs. Purchase rode with appellant to drop their daughter off at school in Baytown before appellant dropped her off at her work at approximately 8:30 a.m. Appellant then went to their home in La Porte, cooked a picnic lunch for the two of them, and, at 11:15 a.m., picked Mrs. Purchase up at work for lunch. After eating, at approximately 12:30 p.m., they went shopping at the grocery store for their daughter's birthday party. At approximately 1:10 p.m., appellant dropped Mrs. Purchase off at work before appellant went to his mother-in-law's house in Baytown in order to set up for their daughter's birthday...

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