Ward v. State, 44142

• Decision Date: 23 November 1971
• Docket Number: No. 44142,44142
• Citation: 474 S.W.2d 471
• Parties: Eddie James WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 471

474 S.W.2d 471

Eddie James WARD, Appellant, v. The STATE of Texas, Appellee.

No. 44142.

Court of Criminal Appeals of Texas.

Nov. 23, 1971.

Rehearing Denied Jan. 18, 1972.

Sam Houston Clinton, Jr., Larry Bales, Austin, for appellant.

Robert O. Smith, Dist. Atty., Herman Gotcher, Lawrence Wells, and Dain Whitworth, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of robbery by firearms. The state did not seek the death penalty. Punishment was assessed by the jury at 101 years.

We affirm.

The record reflects that, shortly before 9:00 A.M. on July 9, 1969, two men entered the Texas Warrant Company in Austin, produced pistols, and announced a 'holdup'. The two gunmen herded those present into a restroom in the rear of the office and proceeded to take some $4,000 in currency from the cash drawers, assisted involuntarily by a customer who entered the premises while the robbery was in progress. Eight persons testified that they saw the two during the ten to fifteen minutes they were on the premises.

Lieutenant Merle Wells, of the Austin Police Department, investigated the robbery. Based upon the general description of the men given to him, eight mug shots were obtained at around 9:30 A.M., and shown to the witnesses. Photographic identification of appellant was made by some of the witnesses and a 'pick up' was put out over the police radio. Shortly thereafter, appellant was arrested in a barber shop by Officers Barrett and Chew.

At the police station, a glasses case was taken from the person of appellant. The case contained sunglasses which were similar to those identified by witnesses as having been worn by one of the men at the time of the robbery. Also found on appellant's person was a receipt in appellant's name for a $12.48 purchase made at Texas State Optical.

At approximately 2:00 P.M., a lineup was held. Appellant was again identified by at least three of the witnesses. After the completion of the lineup, the witnesses were shown the sunglasses. One witness, Bruce Haile, thought that these were the same glasses worn by appellant.

At his trial, appellant interposed the defense of alibi. He called several witnesses to give an account of his whereabouts on the morning in question and an employee of Texas State Optical who testified that the company's records indicated that the sunglasses in question were purchased between the hours of 9:00 A.M. and 12:00 noon on July 9, 1969.

Prior to trial, appellant moved to suppress any mention of the pre-trial identifications and to suppress any in-court identification on the ground that such pre-trial procedure violated his right to due process of law. Also, he requested that he be permitted to sit in the audience until such time as the state's witnesses were able to identify him in court or, in the alternative, that persons physically similar to him be allowed to sit with him at the defense table until the in-court identifications were made. On March 9, 1970, a pre-trial hearing was held. Such motions were overruled, the court stating:

'And the ruling of the Court is that the line-up is not admissible in court; however, the In-Court identification will be admissible, because it has not been tainted, either by the mug shots or the line-up, for the following reasons: That the witnesses, all of the witnesses, had prior opportunity to observe the criminal act from three to five minutes, and there is no discrepancy between the line-up description and the actual appearance of the accused; and there was no identification of any other person, other than the defendant in this case, prior to the line-up, and at all times the witnesses identified the defendant and no other person, and the lapse of time between the time of the occurrence and the time the pictures were shown to the witnesses was forty minutes. And between the time of the occurrence and the line-up was less than five hours, and it is the opinion of the Court that the In-Court identification which the Court held at the Pre-Trial Hearing, or the separate hearing out of the presence of the jury, was of independent origin, to which the defendant excepted.'

The court also overruled appellant's motion relating to the procedure to be followed during the in-court identifications.

By his first four grounds of error, appellant contends that the trial court erred in overruling these pre-trial motions and reasserts his contention that the pre-trial identifications were so conductive to mistaken recognition as to taint the later in-court identification.

Appellant first contends that the trial court erred in overruling his motion relating to the in-court identification procedure. Faced with an almost identical problem in Moore v. State, 424 S.W.2d 443, this court stated:

'We know of no law which prohibits a court from requiring that a defendant sit at the counsel table with his attorney during the trial. Nor do we know of any law which prohibits state's counsel from pointing to a defendant in the courtroom and referring to his physical appearance in the presence of witnesses.'

We adhere to this court's decision in Moore v. State, supra. See also Sertuche v. State. Tex.Cr.App., 453 S.W.2d 841. The first ground of error is overruled.

By his second ground of error, appellant claims that the trial court erred in failing to determine whether the mug shot display was unduly suggestive and presented a likelihood of misidentification. The trial court determined that in-court identification would be admissible 'because it has not been tainted, either by the mug shots or the lineup * * *.' The second ground of error is overruled.

Appellant's third and fourth grounds of error relate to his contention that pre-trial identification procedures utilized tainted the in-court identifications. ¹

Photographic identification of an accused prior to trial does not automatically taint an in-court identifications. The Supreme Court, in the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, stated that:

'* * * convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.'

In order to violate the Simmons test, the photographic identification procedure utilized must in some way be so defective as to indicate or suggest the photograph which the witness is to identify. Green v. State, Tex.Civ.App., 467 S.W.2d 481; Powell v. State, Tex.Cr.App., 466 S.W.2d 776; Johnson v. State, Tex.Cr.App., 466 S.W.2d 735; Smith v. State, Tex.Cr.App., 459 S.W.2d 642; Sertuche v. State, Tex.Cr.App., 453 S.W.2d 841. Thus, the Simmons test has been held to have been violated in cases where the defendant's photograph was the only non-mug shot in the grouping and was 2 1/2 times larger than the other photographs in the array. United States v. Sutherland, 5 Cir., 428 F.2d 1152; United States v. King, D.C., 321 F.Supp. 614. Similarly, the police cannot indicate to a witness prior to a photographic identification which photograph they think should be identified or show the witness only one photograph of a suspect who generally resembles the description of the law-breaker given by the witness. Simmons v. United States, supra; Green v. State, supra; Johnson v. State, supra; Johnson v. State, Tex.Cr.App., 462 S.W.2d 955.

The record in the instant case reflects that eight black and white mug shots of like size composed the photographic array used. The photographic identification by the witnesses took place only forty minutes after the robbery had occurred. The mug shots were of persons who fit the general description of the robber which had been given by the witness. ² The photo array was shown to the witnesses individually. The record is devoid of any evidence that the police officer who conducted the investigation in any way indicated who he thought the robber might be.

Appellant's complaint with regard to the photographic identification is that he was the only person portrayed in the mug shot array wearing an Afro hair style. He believes that, since hair style was one feature noted by the witnesses in their general description, there is a substantial likelihood that his photograph was selected from the array on this basis. He contends that subsequent identifications were based solely on the witnesses' recollection of his photograph.

We do not agree. The robbery took place during the daylight hours in a well-lit office, and each of the five persons who were able to identify appellant had ample opportunity to observe him. Each witness reached his decision with respect to identification without consultation with his fellow witnesses. Appellant fits the original description given by each witness immediately following the robbery. The short time lapse between the robbery and the photographic presentation would militate against an identification based solely on one physical feature in the instant case. ³ The witnesses had never failed to identify appellant; nor had they identified someone other than appellant. Taken together, these circumstances leave little doubt that the in-court identification of appellant was based solely on their observations at the time of the robbery. Martinez v. State, Tex.Cr.App., 437 S.W.2d 842.

While it might be better practice to use photographs which portray persons whose every feature matches the pre-identification description, we do not feel that either due process of law ⁴ or common sense ⁵ requires such procedure. Accordingly, we hold that the photographic identification procedure used in the instant case was not so impermissibly suggestive as to deny appellant due process of law. Simmons v. United States, supra; Glover v. State, supra; Thurman v. State, ...