414 S.W.3d 251
Tex. App.2013Background
- Appellant Michael Carson Anderson was indicted for aggravated robbery and convicted by jury; punishment set at 40 years with two enhancements.
- Бар the robbery occurred at Litehouse Ice House in Spring, Texas, June 23, 2011, involving a gunpoint robbery of the bartender, Fuoss.
- Police released video images; an anonymous Crime Stoppers tip identified Anderson; officer Cook formed a photo array using features matching the robber.
- Fuoss identified Anderson from the array after a two-minute review, with about 95% certainty, after being instructed not to feel obligated to identify anyone.
- Fuoss’s mother-in-law was present but allegedly did not influence Fuoss; trial court denied suppression of the photographic array; appellate panel denied abatement request for findings of fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance via voir dire objection | Anderson | State | No error; counsel not ineffective for failing to object to the common-sense instruction on reasonable doubt. |
| Abatement for findings of fact on suppression | Anderson | State | Trial court not required to file findings absent proper request; issue overruled. |
| Suppression of photographic array as impermissibly suggestive | Anderson | State | Array not impermissibly suggestive; identification admissible under totality-of-circumstances. |
Key Cases Cited
- Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003) (defines juror interpretive approach to beyond a reasonable doubt)
- Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) (juror determines what constitutes beyond a reasonable doubt)
- Rogers v. State, 795 S.W.2d 300 (Tex. App.—Houston [1st Dist.] 1990) (no required jury definition of beyond a reasonable doubt)
- Wansing v. Hargett, 341 F.3d 1207 (10th Cir. 2003) (factors in Biggers may differ by jurisdiction (cites Oklahoma law))
- Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) (due process concerns for pretrial identification)
- Neil v. Biggers, 409 U.S. 188 (1972) (establishes Biggers factors for reliability)
- Haro v. State, 371 S.W.3d 262 (Tex. App.—Houston 2011) (distinguishes Wansing in Texas law)
- Colgin v. State, 132 S.W.3d 526 (Tex. App.—Houston 2004) (array must fit rough description of suspect)
- Hughes v. State, 962 S.W.2d 689 (Tex. App.—Houston 1998) (police development of suspect does not make line-up impermissibly suggestive)
- Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988) (pretrial identification procedures considerations)
- Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996) (objecting to leading questions in voir dire)