Walker v. State, 42711

• Decision Date: 29 April 1970
• Docket Number: No. 42711,42711
• Parties: Ronnie Lee WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 415

454 S.W.2d 415

Ronnie Lee WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 42711.

Court of Criminal Appeals of Texas.

April 29, 1970.

Rehearing Denied June 17, 1970.

Jim Claunch, Fort Worth, (court appointed attorney), for appellant.

Frank Coffey, Dist. Atty., Rufus J. Adcock, Truman Power and Ann Delugach, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, 30 years.

Trial was before a jury on a plea of not guilty. Appellant was found guilty and the jury assessed his punishment.

The state's evidence reflects the following:

During the early morning hours of December 31, 1968, a man, later identified as the appellant, entered the office-residence of the Mecca Tourist Courts in Fort Worth, Texas. The intruder held Thomas Wayne Kimbrell at pistol point and forced him to wake his uncle and aunt, Mr. and Mrs. R. L. Marshall, who were sleeping in the adjoining bedroom. He then tied up Mr. Kimbrell and Mr. Marshall and took them into the other room, after which he returned to the dedroom and raped Mrs. Marshall.

The evidence shows that appellant took the money earned through the operation of the business, the cash from the billfolds of Mr. Kimbrell and Mr. Marshall, and a diamond ring belonging to Mrs. Marshall. The evidence further shows that appellant took an unspecified amount of tax money from a mayonnaise jar. Officers from the Fort Worth Police Department lifted a fingerprint from the jar which matched the right thumb print of the appellant.

All three witnesses to the robbery testified that they got a good look at the appellant during the commission of the offense and identified him at the trial.

In appellant's first ground of error, he contends that the trial court erred in denying his motion to quash the indictment, for the reason that appellant was placed in lineup without the assistance of counsel. Specifically, appellant contends that the state failed to show that he made an intelligent waiver of his right to have counsel present at the lineup, and that the state failed to establish by 'clear and convincing proof' that the in-court identification was not the fruit of the lineup identification made in absence of counsel or intelligent waiver of counsel.

Appellant's second ground of error is that the trial court erred in admitting into evidence the in-court identification of Mr. and Mrs. Marshall, because they had viewed appellant at the pre-trial lineup.

The record shows that appellant was taken into custody on February 2, 1969, and placed in the lineup on February 4, 1969. Appellant was appointed counsel on April 3, 1969.

At the trial, evidence was adduced concerning the legality of the lineup in question. A copy of a written instrument, signed by appellant, was admitted into evidence. The said instrument stated that appellant had been informed by Officer B. G. Whistler that he was being held as a suspect for the offenses of armed robbery and rape and that he had a right to have an attorney retained or appointed to be present at the lineup. It further stated that appellant, with full understanding of his right to have an attorney present at the lineup, voluntarily waived such right. The instrument in question was witnessed by Officer F. D. Raulston. At the trial, Officer Whistler testified that he had warned appellant of his right to have counsel present at the lineup, and Officer Raulston testified that he witnessed appellant sign the waiver.

The record reveals that all three witnesses to the robbery positively identified the appellant at the trial as being the man who committed the robbery on the date in question. Mr. and Mrs. Marshall testified that they had identified the appellant at the lineup on February 4, 1969. Mr. Kimbrell did not view appellant at the lineup.

The record before this court clearly shows that appellant made an intelligent waiver of his right to have an attorney present at the pre-trial lineup. (Martinez v. State, Tex.Cr.App., 437 S.W.2d 842) It was further shown that the in-court identification was of an independent origin, in that each of the witnesses unequivocally stated that they had observed the appellant during the commission of the offense. The in-court identification was not the fruit of an illegal lineup, and the trial court did not err in admitting the identification testimony of Mr. and Mrs. Marshall.

Appellant's first and second grounds of are overruled.

Appellant's third ground of error is that the trial court erred in overruling appellant's motion for mistrial on the grounds that no Negroes served on the jury that tried this case. There is no record of the voir dire examination of the jury panel. The record shows that there were four Negroes on the jury panel and all were excused by the exercise of the state's peremptory challenges.

There was no showing that the state's exercise of peremptory challenges constituted a purposeful pattern of discrimination against Negro members of the jury panel. Absent such a showing, the striking of Negroes in a particular case is not a denial of equal protection of the laws. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Johnson v. State, Tex.Cr.App., 411 S.W.2d 363.

Appellant's third ground of error is overruled.

The fourth ground of error contends that the trial court erred in not appointing counsel prior to April 3, 1969. Appellant urges that he was deprived of the assistance of counsel at a most important stage of the trial process, namely, the pre-trial lineup.

The record shows that appellant was given every opportunity to have an attorney appointed and to be present at the pre-trial lineup. For the same reasons we overruled appellant's first ground of error, we overrule his fourth ground of error.

Appellant's fifth ground of error is that the trial court erred in admitting into evidence testimony regarding the fingerprint taken from a glass jar at the scene of the crime.

At the trial, Officer Jerry Jack Frye, a Crime Scene Search Officer with the Forth Worth Police Department, testified that he had received training in taking and evaluating evidence. Such training included the taking and lifting of fingerprints. He further testified that he had been working in that capacity for four years. F. M. Alexander, Identification Officer for the Fort Worth Police Department, also testified to his qualifications with regard to the classification and identification of fingerprints. It was shown that he had received training with the Federal Bureau of Investigation, the Texas Department of Public Safety, and had been continually training with the Fort Worth Police Department for twenty years. We find no error in the trial court's admitting the testimony of these officers, it being shown to the court that they were qualified in the taking and identification of fingerprints.

Ground of error number five is overruled.

Appellant's sixth ground of error is that the trial court erred in admitting into evidence State's Exhibit #8 showing the fingerprint that was removed from the glass jar handled by appellant during the commission of the offense, for the reason that...