Thompson v. State

• Decision Date: 19 April 1972
• Docket Number: No. 44721,44721
• Parties: James Douglas THOMPSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 624

480 S.W.2d 624

James Douglas THOMPSON, Appellant, v. The STATE of Texas, Appellee.

No. 44721.

Court of Criminal Appeals of Texas.

April 19, 1972.

Rehearing Denied June 21, 1972.

Melvyn Carson Bruder, Dallas (Court appointed), for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery. Appellant was found guilty by a jury, and punishment was assessed by the court at confinement for 35 years.

Appellant does not challenge the sufficiency of the evidence. Mr. and Mrs. Tarrer testified that they operated a grocery store in the city of Dallas. On December 14, 1969, two Negro males, one of whom was appellant, entered the store. Appellant approached Mrs. Tarrer, who was behind the cash register, and asked her for a pack of cigarettes. The other man went to the rear of the store. Mrs. Tarrer turned around in order to get the cigarettes. When she turned again to give the cigarettes to appellant, he stated, 'This is a holdup,' and 'I want your money,' and pointed a pistol at Mrs. Tarrer. Mrs. Tarrer refused to comply and shut the cash register drawer. An argument ensued between her and appellant, he insisting that she open the cash register, and she refusing. After several attempts, appellant succeeded in opening the cash register himself, and took the money from it. During this time, the other man was holding Mr. Tarrer at gunpoint in the rear of the store. After obtaining the money, both men fled from the store on foot. Mr. and Mrs. Tarrer followed in pursuit, Mr. Tarrer firing at the men with his pistol. A police officer who was passing in a patrol car observed the chase and pursued the two men, apprehending appellant's accomplice, who was Lovie Williams. Appellant was arrested several days later.

In his brief, appellant raises seven grounds of error. In his first two grounds, which will be considered together, he contends that the identification testimony of Mrs. Tarrer was inadmissible by virtue of having been the result of an illegal lineup. He contends that it was inadmissible because, (1) he was without counsel at the lineup at which he was identified by Mrs. Tarrer, and had not knowingly and voluntarily waived the right to have counsel present, and (2) because he was in custody at the time the lineup was held by virtue of an illegal arrest.

The case of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), holds that testimony by a witness that he has identified a defendant at a lineup, if such lineup was illegal, is per se inadmissible. However, the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), holds that the in-court identification of a defendant by a witness who has previously identified him in an illegal lineup is admissible if the State can demonstrate, by clear and convicing evidence, that the in-court identification was based upon observations of the defendant other than the lineup identification.

In the instant case, the State did not attempt to bolster Mrs. Tarrer's testimony with evidence of the lineup identification. The lineup was first mentioned in the presence of the jury only in response to appellant's questions asked on cross-examination of Mrs. Tarrer regarding her identification of appellant at the lineup. Appellant cannot be heard to complain of testimony which he has himself elicited. Therefore, the issue in this case is whether the in-court identification was the product of the lineup or was of independent origin. If the in-court identification was based on observations by the witness other than the lineup identification, then it is admissible if of independent origin, although the lineup may have been illegal. United States v. Wade, supra.

Prior to trial, a hearing was held outside the presence of the jury on the issue of the legality of the lineup and the basis for Mrs. Tarrer's in-court identification. Mrs. Tarrer testified that she had the opportunity to observe appellant for approximately five minutes at the time of the robbery. She testified that appellant and four other men, all Negroes, were shown to her and her husband in the lineup, and that she identified appellant as the man who had robbed her. She testified that no suggestive remarks were made to her by police officers at or before the lineup, and that no photographs were shown to her. She testified that she particularly remembered the shape of appellant's nose from observing it at the robbery. ¹ Mrs. Tarrer testified that two of the four participants in the lineup wore jail clothes, but she could not remember how appellant was dressed at the lineup. Her description, given at the time of the robbery, was that of a Negro male wearing a stocking on his head, not covering his face, with a broad, flat nose, and wearing a green shirt. She testified that appellant was not wearing a green shirt at the lineup. She testified that her identification was based upon seeing appellant at the robbery, and that she felt that she would have been able to recognize him in court even if she had not seen him in the lineup.

The factors to be considered, in determining the origin of an in-court identification include: (1) the prior opportunity to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-lineup description and the defendant's actual description, (3) any identification prior to lineup of another of the defendant identification by picture of the defendant prior to the lineup, (5) failure to identify the defendant on a prior occasion, and (6) the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969).

Applying this criteria to the present case, we find that Mrs. Tarrer had ample opportunity to observe appellant. There was no discrepancy between her pre-lineup description and the actual appearance of appellant. The record does not reflect that she had previously identified another person or that she had failed to identify appellant on a prior occasion. She was not shown photographs. The robbery occurred on December 14, 1969, and the lineup was held five days later. Trial commenced on February 10, 1970. Thus, it appears that the lapse of time between the robbery and the lineup was not so great as to dull Mrs. Tarrer's memory. The evidence was sufficient to enable the trial court to conclude that the in-court identification was of independent origin. ² Appellant's first and second grounds of error are overruled.

In his third and fourth grounds of error, appellant contends that the trial court erred in refusing to compel his co-indictee, Lovie Williams, to answer questions concerning an affidavit previously given by him in which he exculpated appellant. ³ Appellant also contends that the court erred in refusing to admit the affidavit in evidence.

The record reflects that appellant called Lovie Williams, who was under indictment for the same offense, as a witness. Williams appeared in the company of his counsel. He refused to answer any question put to him except that he stated his name and that he was in jail and under indictment. Outside the presence of the jury, he stated that it was true that he had given the affidavit to the district attorney's office. At this time, the court ruled that the affidavit was inadmissible, but stated that appellant could ask the witness any question he desired. Thereafter, in the presence of the jury, appellant asked Williams several questions, including whether Williams was guilty, and whether he (appellant) did not participate in the robbery. Williams refused to answer any of appellant's questions. Thereafter, on cross-examination, the State asked Williams several questions concerning his participation in the robbery for which appellant was on trial. Williams refused to answer any of the questions.

Although appellant did not request that the court compel Williams to testify, nevertheless, the court acted properly in not compelling him to do so. The Sixth Amendment to the United States Constitution, which guarantees the right of compulsory process for obtaining witnesses, protects the right of an accused to call a co-defendant as a witness. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). However, the right to call a co-defendant does not preclude the co-defendant from asserting his privilege against self-incrimination. Hall v. State, 475 S.W.2d 778 (Tex.Cr.App.1972); see also, Washington v. Texas, supra, at fn. 21; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

Appellant contends that since Williams admitted giving the affidavit to the district attorney's office, he had waived his privilege. Had Williams also admitted the truth of the affidavit, we might be faced with a different situation. However, Williams only admitted giving the statement to the district attorney's office. He did not admit the truth of the statement. Therefore, Williams did not waive his privilege.

Likewise, the court did not err in refusing to admit the affidavit. The affidavit was hearsay and inadmissible. Ex parte Morriss, 110 Tex.Cr.R. 585, 10 S.W.2d 105 (Tex.Cr.App.1928). An exception to the general rule of exclusion of such declarations lies where (1) the declarant admits his guilt, (2) the State's case is based entirely upon circumstantial evidence, (3) the guilt of the defendant on trial is inconsistent with the guilt of the declarant, and (4) independent evidence shows that the declarant had the capability to commit the act. Munoz v. State, 435 S.W.2d 500 (Tex.Cr.App.1968); Cameron v. State, 153 Tex.Cr.App. 29, 217 S.W.2d 23 (1949). In the instant case, the affidavit satisfies only the fourth criteria listed above.

Appellant contends that the affidavit...