Winn v. State, 47905
| Decision Date | 16 January 1974 |
| Docket Number | No. 47905,47905 |
| Parties | James Alton WINN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Richard M. Price (Court appointed), Abilene, for appellant.
Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
The offense is robbery by assault; the punishment, enhanced under Art. 62, Vernon's Ann.P.C., life.
Appellant rises four grounds of error.
In grounds of error one and two appellant complains of the pre-trial identification of appellant by the injured party.
The record reflects that on February 26, 1973, Resalda Pena, a telephone operator for Southwestern Bell in Abilene, got off work at 9:30 and proceeded to her car. As she approached her car she observed a man, whom she subsequently identified as appellant, running down the street toward her. As the man ran past her, he grabbed her purse causing her to lose her balance and fall. Miss Pena testified that she was nevertheless able to hold onto the purse and a struggle ensued. She related that it was only when appellant raised his arm as if to strike her that she released her grip on the purse. She testified that appellant then ran in a northerly direction. She immediately reentered the telephone building and called the Abilene police, giving an account of what had taken place and a description of the man to a Lieutenant Davis. She testified that she then went immediately to the police station, where some ten to fifteen minutes after the assault she observed appellant being 'booked' for this offense. It is this viewing of the appellant and identification by the injured party that is the basis for complaint in these two grounds of error.
At a hearing held outside the presence of the jury, testimony of police officers reflected that Miss Pena reported the offense at 9:32 p.m. She described her attacker as a tall black man with an Afrotype hairstyle, moustache and goatee, wearing a yellow windbreaker, light shirt and dark pants. Lieutenant Davis and another police officer immediately left the police station, proceeding to an area north of the telephone building within one half block of the police station where appellant was observed walking across the street and carrying a purse. A brief chase ensued, during which appellant dropped the purse he was carrying. The contents of the purse, recovered about fifteen feet from where appellant was seized and arrested, reflected that it belonged to Miss Pena. At the time of his arrest appellant was wearing dark pants, a light shirt, a yellow windbreaker, and he had a moustache, goatee, and Afro-hairstyle. Appellant was then taken to the police station and was being 'booked' at 9:49 p.m., some seventeen minutes after Miss Pena had called the police. Lieutenant Davis testified that he took Miss Pena downstairs to the 'booking' area and asked her if she recognized the man who took her purse. She then identified appellant who was standing with several officers at the booking counter.
Appellant was the only black man in the room at the time the identification was made. Miss Pena was told that she was being taken to look at a man they had found with her purse. The police made no attempt to hold a line-up. Appellant had not waived his right to have counsel present during any identification procedures.
The injured party testified that the lighting on the street was good, there being three street lights and a nearby bank building which was well lit. She testified that during the struggle for the purse she had ample opportunity to observe appellant's features. Appellant was wearing the same clothing when observed by the injured party at the police station as he had been wearing during the assault. A period of only seventeen minutes had elasped from the time of the assault until the identification was made. Miss Pena testified that her in-court identification of appellant was based solely on...
To continue reading
Request your trial
-
Wyatt v. State
...and the appellant was not entitled to counsel as a matter of absolute right. Brown v. State, Tex.Cr.App., 513 S.W.2d 35; Winn v. State, Tex.Cr.App., 503 S.W.2d 816. Even if it could be argued that formal charges had been filed prior to the lineup, no reversible error would be presented. The......
-
Pizzalato v. State
...1877, 32 L.Ed.2d 411; Ward v. State (Tex.Cr.App.), 505 S.W.2d 832; Ellingsworth v. State (Tex.Cr.App.), 487 S.W.2d 108; Winn v. State (Tex.Cr.App.), 503 S.W.2d 816. Nevertheless, appellant, prior to appearing in the lineup, executed in writing a waiver of any right he had to have an attorne......
-
Waller v. State, 56042
...was not the product of an unduly suggestive pretrial confrontation. The testimony was properly admitted. See and compare Winn v. State, 503 S.W.2d 816 (Tex.Cr.App.1974); Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App.1972); Cole v. State, Appellant contends that the trial court erred in ......
-
Brown v. State, 48814
...right. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Lane v. State, Tex.Cr.App., 506 S.W.2d 212; Winn v. State, Tex.Cr.App., 503 S.W.2d 816. Aside from the question of whether the right to counsel had attached at the time of the lineup, the record reflects that at t......
-
Pretrial Motions
...indictment or other initiation of adversary judicial proceedings. See U.S. v. Gouveia, 467 U.S. 180, 81 L.Ed.2d 146, fn 5; Winn v. State, 503 S.W.2d 816 (Tex. Crim. App. 1974). Aside from any question of right to counsel, it is recognized that some identification procedures conducted prior ......
-
Pretrial Motions
...indictment or other initiation of adversary judicial proceedings. See U.S. v. Gouveia, 467 U.S. 180, 81 L.Ed.2d 146, fn 5; Winn v. State, 503 S.W.2d 816 (Tex. Crim. App. 1974). Aside from any question of right to counsel, it is recognized that some identification procedures conducted prior ......
-
Pretrial Motions
...indictment or other initiation of adversary judicial proceedings. See U.S. v. Gouveia, 467 U.S. 180, 81 L.Ed.2d 146, fn 5; Winn v. State, 503 S.W.2d 816 (Tex. Crim. Aside from any question of right to counsel, it is recognized that some identification procedures conducted prior to trial may......
-
Pretrial Motions
...indictment or other initiation of adversary judicial proceedings. See U.S. v. Gouveia, 467 U.S. 180, 81 L.Ed.2d 146, fn 5; Winn v. State, 503 S.W.2d 816 (Tex. Crim. App. 1974). Aside from any question of right to counsel, it is recognized that some identification procedures conducted prior ......