Tell v. State

• Decision Date: 21 September 1995
• Docket Number: No. 2-93-525-CR,2-93-525-CR
• Parties: Anthony TELL, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 535

908 S.W.2d 535

Anthony TELL, Appellant, v. The STATE of Texas, State.

No. 2-93-525-CR.

Court of Appeals of Texas Fort Worth.

Sept. 21, 1995.

Rehearing Overruled Nov. 9, 1995.

Peavy & Dara, P.C., and Don E. Peavy, Sr. Fort Worth, Ingrid K. Stamps, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney, Betty Marshall and Charles M. Mallin, Assistant Chiefs of the Appellate Section, Helena F. Faulkner, Steve Wells, and James Cook, Assistants Fort Worth, for appellee.

Before CAYCE, C.J., and DAUPHINOT and RICHARDS, JJ.

OPINION

CAYCE, Chief Justice.

Anthony Tell was convicted by a jury of aggravated robbery with a deadly weapon. The jury found the enhancement paragraph to be "true" and assessed his punishment at confinement for seventy-five years and payment of a $1,000.00 fine. In four points of error, Tell contends: 1) the trial court erred in overruling a motion to suppress his identification in a lineup because he did not have an attorney present and the lineup was improperly suggestive; 2) the trial court erred in submitting instructions to the jury on the law of parties and parole; 3) the trial court improperly excluded the testimony of an expert witness under TEX.R.CRIM.EVID. 613; and 4) the trial court erred in admitting into evidence a ski mask that was taken from Tell's residence without a search warrant. We overrule Tell's points of error and affirm the judgment of the trial court.

Shortly after midnight, on June 27, 1992, three or four African-American men entered a back door of the M & M Steak House in Tarrant County, Texas, while four employees were cleaning up the building and closing out the day's transactions. All but one of the robbers wore ski masks; the unmasked man was armed with a gun. A dishwasher, Monserrat Dozal, was immediately beaten by the robbers. The robbers then ordered the other three employees, Chelsie Prendez, Victoria Perez Grizzard and Sherby Nixon, to lie on the floor. After ordering Nixon to open the cash register, the unmasked gunman took the register drawer. Meanwhile, one of the masked robbers took money Prendez and Grizzard had in their pockets. He also took Grizzard's purse containing $686 in cash.

Three photo spreads were shown to the victims over the next two months by Detective Richard Galloway. None of these photo spreads contained Tell's pictures and none of the witnesses identified any individual in the spreads. In a fourth photo spread including Tell, Prendez identified Tell as the unmasked gunman. However, she told Detective Galloway she would like to see the man in a live lineup to be certain of the identification.

On August 19, 1992, Tell was arrested pursuant to an arrest warrant. He was later identified in a live lineup by Prendez and Grizzard as the unmasked gunman. Nixon identified Tell at trial, but she did not identify anyone as one of the robbers at the lineup.

In his first point of error, Tell contends the trial court erred in overruling his motion to suppress the lineup identifications by Prendez and Grizzard. Tell asserts the lineup identifications were tainted because he was denied his right to counsel in violation of the U.S. and Texas Constitutions. He further contends the lineup was unnecessarily suggestive.

Tell's brief contains no argument or authorities addressing the alleged violations of the Texas Constitution. Therefore, he has waived his state constitutional claims. TEX.R.APP.P. 74(f); Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991).

Even if the state constitution complaint had not been waived, this court has previously held that the right to counsel under article I, section 10 of the Texas Constitution does not attach until a "critical stage" of the criminal process is reached. Price v. State, 870 S.W.2d 205, 207-08 (Tex.App.--Fort Worth), aff'd, 887 S.W.2d 949 (Tex.Crim.App.1994). A "critical stage" is not reached until formal charges are brought against a subject. McCambridge v. State, 778 S.W.2d 70, 76 (Tex.Crim.App.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1936, 109 L.Ed.2d 299 (1990).

Here, Tell was arrested by warrant on August 19, 1992 and the lineup was conducted on August 21, 1992. At the time of the lineup, Tell had not been arraigned. No formal charges were filed against Tell until August 23, 1992. Thus, no right to counsel existed at the time of the lineup. Price, 870 S.W.2d at 207-08.

Similarly, the right to counsel under the Sixth Amendment of the U.S. Constitution does not attach until at or after the time judicial proceedings are initiated. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). It is well-settled that a lineup conducted after a defendant's arrest, but before arraignment, indictment, or formal charges, is merely investigatory in nature; therefore, the defendant is not entitled to presence of counsel at such a lineup. Id. at 688-91, 92 S.Ct. at 1881-83, 32 L.Ed.2d at 417-18; Wyatt v. State, 566 S.W.2d 597, 600 (Tex.Crim.App. [Panel Op.] 1978); Price, 870 S.W.2d at 207.

At the time of the lineup in this case, no arraignment had occurred and no formal charges had been filed against Tell. Since no judicial proceedings had been initiated, Tell had no right to counsel under the Sixth Amendment of the U.S. Constitution.

Tell's contention that he was formally charged when Detective Galloway's arrest warrant affidavit was filed and reviewed for issuance for an arrest warrant is without merit. The sole purpose of the arrest warrant affidavit was to establish probable cause to arrest Tell, not to formally charge him. Tell was only a suspect at the time of the lineup. An arrest alone does not trigger adversarial judicial proceedings, with or without a warrant. Dunn v. State, 696 S.W.2d 561, 565 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 1478, 89 L.Ed.2d 732 (1986).

In addition, we disagree with Tell's contention that the live lineup was improperly suggestive. The lineup included five other young African-American males, all dressed in identical prison garb. There were some differences in weight, height and complexion of the men, but none of the men differed unreasonably from the descriptions of the unmasked gunman. Furthermore, Tell did not stand out as distinctively different from the other men in the lineup. See Cooks v. State, 844 S.W.2d 697, 732 (Tex.Crim.App.1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993); Ford v. State, 794 S.W.2d 863, 866 (Tex.App.--El Paso 1990, pet. ref'd). Based on the record before us, we find that the lineup was conducted with fairness and care.

Point of error one is overruled.

In his second point of error, Tell contends that the trial court erred in submitting to the jury an instruction on the law of parties. Tell complains that the charge on the law of parties allowed him to be convicted of an offense for which he was not indicted. We disagree.

It is well-settled that a trial court may submit a charge on the law of the parties, if it is supported by the evidence, even if there is no such allegation in the indictment. See Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991); Michel v. State, 834 S.W.2d 64, 67-68 (Tex.App.--Dallas 1992, no pet.); Moore v. State, 804 S.W.2d 165, 166 (Tex.App.--Houston [14th Dist.] 1991, no pet.). The record in this case shows that Tell's acts before, during and after the offense showed that Tell acted with the intent to promote or assist the offense of aggravated robbery by soliciting, encouraging, directing, aiding, or attempting to aid his companions in the commission of the offense. See TEX.PENAL CODE ANN. § 7.02(a)(2) (Vernon 1994); Estrada v. State, 846 S.W.2d 332, 335-36 (Tex.Crim.App.1993) (Baird, J., dissenting).

Specifically, the evidence showed Tell was the unmasked gunman who forced Grizzard, Prendez and Nixon at gunpoint to lie on the floor while his companions looked for "stuff" and knocked things over in another room; Tell ordered Nixon at gunpoint to show him where the money was, while one of his companions took money from Grizzard's and Prendez's pockets; and, Tell took the cash register drawer and fled the scene with the other robbers. Based on this evidence, we hold the trial court did not err in allowing the jury to determine whether Tell was criminally responsible as a party to the aggravated robbery.

Tell also argues that the trial court erred in submitting a parole instruction because it purportedly confused the jury and caused the jury to speculate how many calendar years Tell would serve. We find this unsupported conclusion to be without merit.

Article 37.07, section 4(a) of the Texas Code of Criminal Procedure required the trial court to submit the parole charge submitted below. TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a) (Vernon Supp.1995). The jury was charged not to consider how good conduct time or the parole law might be applied to Tell. Nothing in the record indicates that the jury did not follow the trial court's instruction, and this court must presume that it did. See Boudreaux v. State, 723 S.W.2d 230, 232 (Tex.App.--Beaumont 1986, no pet.). Point of error two is overruled.

In his third point of error, Tell contends that the trial court erred in excluding the testimony of his investigator, Ralph Williams, for violation of Rule 613 of the Texas Rules of Criminal Evidence ("the Rule"). It is undisputed that the State invoked the Rule three times and that Williams remained in the courtroom during the entire proceedings. At trial, Tell's attorney claimed that Williams was not subject to the Rule because he did not anticipate calling Williams as a witness when the Rule was invoked, and that the necessity of his testimony did not become apparent until after the State rested its case. Tell's attorney asserts that if Williams was under the Rule he was exempt from its application because he was a "defense expert," and that even if...