Ward v. State

• Decision Date: 27 February 1974
• Docket Number: No. 47428,47428
• Citation: 505 S.W.2d 832
• Parties: Roy WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 832

505 S.W.2d 832

Roy WARD, Appellant, v. The STATE of Texas, Appellee.

No. 47428.

Court of Criminal Appeals of Texas.

Feb. 27, 1974.

Rehearing Denied March 20, 1974.

Stark & Barnhart, Gainesville, for appellant.

Jerry Woodlock, County Atty., Gainesville, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted of rape. His punishment was assessed at life imprisonment.

The record reflects that on the night of May 21, 1972, the prosecutrix went to her sister's house, 1005 East Scott, in Gainesville, which was unoccupied because prosecutrix's sister was vacationing. The prosecutrix was accompanied by her seven-year-old grandson. After putting her grandson to bed, she sewed and watched television until almost 2:00 A.M. at which time she heard a bumping noise. She went into the bedroom to check on her grandson. While leaving the bedroom and as she passed the door between the bathroom and bedroom, she saw a man squatted at the end of the bathtub.

The bathroom was lighted by two lights, one over the medicine cabinet and the other an overhead light. Both lights were burning that night and the bathroom was brightly lit. When the prosecutrix first observed the man squatted, she was only five (5) feet from him. She screamed and attempted to shut the bathroom door but he kicked it open, grabbed her, told her to be quiet and wrestled her onto the bed in the bedroom.

Prosecutrix and her grandson both pleaded with her assailant for him to go away and leave them alone, to which he answered with threats to prosecutrix and to her grandson. The assailant dragged prosecutrix off the bed onto the floor where he stood astraddle of her. Then the record reflects that the alleged act occurred.

The assailant then took ten or eleven dollars from prosecutrix and left after asking her whether she was going to give him any trouble over this.

After a short while, the prosecutrix called the police. Officer Bill Woods was the first officer on the scene to talk to prosecutrix and she described her assailant as having a walk and profile like Ester Ward, mother of appellant. She further described her assailant as being five foot and one or two inches in height, young, weighing around 135 or 140 pounds, wearing his hair about medium length, not close-cropped, and not an Afro, wasn't sure about whether he had a mustache or not, that he had on a pair of blue jeans with no shoes and no shirt.

At 6:00 A.M. on May 22, Officer Jones of the Gainesville Police Department became involved in the investigation of the rape. At approximately 8:00 A.M. on May 22, Jones interviewed prosecutrix and then at about 11:00 A.M. that same day he went back to her house to show her a group of photographs of a number of subjects. Out of the pictures she picked a side view of appellant as her attacker.

At approximately 1:00 P.M. on the 22nd of May, a lineup was held in the County Courthouse. The appellant was one of the persons in that lineup. All in the lineup were of appellant's race, approximate size and near his age, one being his brother. Prior to his appearance Officer Jones warned appellant of his rights concerning the lineup, and he was asked if he understood the rights as they had been explained to him and if he wanted to proceed without an attorney present. To this the appellant answered affirmatively. Appellant further signed a written waiver of his rights concerning the lineup. The prosecutrix asked to see appellant and his brother again after the lineup had been completed and then asked to have them repeat certain words. Appellant's brother repeated the words first and there was no response from the victim. When the appellant repeated the words she broke down and started crying because she stated that she knew that was the man who raped her.

The lineup occurred some eleven (11) hours after the rape.

Appellant's fourth, fifth and sixth grounds of error all concern the independent nature of the in-court identification of appellant by the prosecutrix.

More specifically, appellant contends that the in-court identification of appellant by the prosecutrix 'was derived from a lineup;' that appellant 'was without assistance of counsel at the time of the lineup and no evidence of intelligent waiver by the defendant was shown by the state;' and finally that the 'identification of the defendant . . . was derived and pertained to photographic 'mug shots' identification.'

The grounds of error will be considered jointly.

The record reflects that appellant filed a motion to suppress any evidence by the prosecuting witness which would identify or tend to identify the appellant. A hearing was had on appellant's motion in the absence of the jury prior to trial. Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. At this hearing the prosecutrix testified that appellant was the person who was in hiding in the well-lighted bathroom and who subsequently raped her, basing this recognition on her confrontation with him at the time of the offense. It was further established that prosecutrix also identified appellant from a group of mug shots, and subsequently went into hysterics after she identified appellant's voice as opposed to appellant's brother's voice.

Compelling appellant merely to appear for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsory of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have. United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Kirby v. Illinois, 406 U.S. 682, 687, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

We conclude that the record supports the trial court's denial of the motion to suppress the in-court identification of appellant. The prosecutrix unequivocally identified appellant as being the man whom she saw in the brightly lit bathroom and who raped her. She identified a 'mug shot' of appellant a few hours after the rape. Finally, she visually identified number 2, appellant's number in the lineup, and after hearing his voice prosecutrix became hysterical. This voice identification was competent evidence. Locke v. State, Tex.Cr.App., 453 S.W.2d 484.

Appellant's contention as to his right to counsel at the lineup is without merit. At the time of the lineup no charges against appellant had been filed. His right to counsel had not attached. Kirby v. Illinois, supra; Evans v. State, Tex.Cr.App., 499 S.W.2d 123; Turner v. State, Tex.Cr.App.,486 S.W.2d 797. Furthermore, the record reflects that appellant voluntarily executed a waiver of his right to counsel at the lineup.

Appellant's final identification ground concerns the exhibition of photographs to the prosecutrix. We have reviewed the record and note that the photographs were all similar to the description of appellant. The photographs were shown to the victim only nine hours after the offense, and nothing in the record reflects that the procedure used by Officer Jones was so impermissibly suggestive to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491; Benson v. State, Tex.Cr.App., 496 S.W.2d 68; White v. State, Tex.Cr.App., 496 S.W.2d 642. See also United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

Appellant's third, fourth, fifth and sixth grounds of error are overruled.

Appellant's first three grounds of error deal solely with the sufficiency of the evidence and will be considered jointly.

We have reviewed the aforementioned evidence including the unequivocal identification of appellant by the prosecutrix, and, having determined that the identification procedures employed by the State were in no way tainted, we conclude that the evidence is sufficient to support the jury's verdict. See Brookins v. State, Tex.Cr.App., 499 S.W.2d 320; Satterwhite v. State, Tex.Cr.App., 499 S.W.2d 314.

Appellant complains in his seventh ground of error that 'the court erred in failing to grant defendant's requested instruction on mistaken identity.'

We fail to find any evidence in the record to require the submission of such an instruction. Appellant did not testify at the trial. The prosecutrix gave the police a description of appellant after the rape. She also...