Gerald Gerrod Darby v. State
14-14-00687-CR
| Tex. App. | Jan 23, 2015Background
- Appellant Gerald Gerrod Darby was charged with burglary of a habitation with intent to commit theft; his indictment included two prior felony enhancements. After a mistrial, a second jury convicted him and assessed 62 years imprisonment; Darby appealed.
- On April 15, 2013, complainant Alejandro Panjoj-Moralez woke to two men in his apartment; he saw the backside of one intruder’s face for about 4–7 seconds. A laptop was taken and the door was broken.
- Apartment staff summoned police; 40–60 minutes after the report officers returned to the scene with Darby in the back of a patrol car and asked Panjoj-Moralez to identify him. Darby was the only person shown; no photo spread or pre-identification admonitions were given.
- The laptop was never recovered and no forensic evidence (fingerprints/DNA) tied Darby to the burglary. The other intruder was never identified or arrested. Panjoj-Moralez was the only witness to identify Darby.
- For punishment, the State introduced certified judgments to prove prior convictions; one certified judgment reflected the prior assault conviction as from Fannin County, not Grayson County as alleged in the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the out-of-court "show-up" identification violated due process | Darby: the single-person show-up in a patrol car was impermissibly suggestive and created a substantial likelihood of misidentification, so identification and in-court ID should be excluded | State: (implied) identification was reliable and admissible under totality of circumstances | Darby argues reversal should follow; brief urges suppression and reversal for due-process violation |
| Sufficiency of the evidence to prove burglary with intent to commit theft | Darby: only tainted eyewitness ID ties him to the crime; no recovered property or forensic evidence; identification alone (given suggestiveness) is insufficient under Jackson v. Virginia | State: (implied) identification and other trial evidence support conviction | Darby argues evidence legally insufficient; requests acquittal or new trial |
| Sufficiency of proof for the enhancement paragraph alleging prior felony in Grayson County | Darby: certified judgment shows the prior assault conviction is from Fannin County, not Grayson County as pled; proof of correct county is material to enhancement and failure is a material variance | State: (implied) offered certified judgments as proof of prior convictions | Darby argues enhancement not proven as pled and asks for a new punishment trial/remand |
| Remedy requested | Darby: reverse conviction and render acquittal or, alternatively, remand for a new trial (at least as to punishment) | State: (implied) oppose relief | Darby requests reversal/acquittal or new trial; brief seeks remand for punishment if enhancement fails |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (Jackson sufficiency standard and review of legal sufficiency in criminal cases)
- Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987) (setting out Biggers/Manson factors for evaluating reliability of identification)
- Fisher v. State, 887 S.W.2d 49 (Tex. Crim. App. 1994) (applying Jackson standard to evidence and correct jury charge corresponding to indictment)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of the evidence in criminal prosecutions)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (classifying variances between pleading and proof and materiality analysis)
- Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977) (reliability of identification under totality of the circumstances)
- Neil v. Biggers, 409 U.S. 188 (U.S. 1972) (factors for evaluating suggestive identifications)
- Simmons v. U.S., 390 U.S. 377 (U.S. 1968) (impermissibly suggestive identification procedures can implicate due process)