Rushing, Calvin Louise, PD-0430-15

Background

Appellant Calvin Rushing was tried non-jury for aggravated robbery (indictment alleged use of a "large stick with metal point at end"); the trial court found him guilty and assessed 50 years with an affirmative deadly-weapon finding.
Store employee Micah Cooper observed an African-American man enter the store, use the restroom, then return with a towel over his head and a spear‑like object; surveillance video and stills were recovered and played at trial.
Police stopped a vehicle the next evening; Rushing was arrested in that vehicle and officers found a towel and open beer; witnesses and surveillance linked the vehicle to the offense.
Pretrial, Cooper viewed the store surveillance video at the prosecutor’s office shortly before testifying; Cooper then made an in-court identification of Rushing. Rushing contended the pretrial show‑up was an impermissibly suggestive one‑on‑one and counsel was absent for the identification.
On appeal the Twelfth Court of Appeals (per curiam) affirmed in an unpublished opinion: it held the pretrial procedure was not impermissibly suggestive (so no further harm analysis was needed) and that the evidence was legally sufficient to support the deadly‑weapon finding.

Issues

Issue	Plaintiff's Argument (Rushing)	Defendant's Argument (State)	Held
Whether Cooper’s in‑court identification was tainted by an impermissibly suggestive pretrial identification	The prosecutor showed Cooper surveillance stills and had Cooper view the video shortly before trial (and Cooper saw Rushing alone in the courtroom), amounting to a one‑on‑one, suggestive show‑up that created a substantial likelihood of misidentification; counsel was absent at the identification (Sixth Amendment)	The State argued viewing surveillance stills to refresh memory is not an identification procedure or, alternatively, that the pretrial showing was not impermissibly suggestive and caused no irreparable harm	Court held the pretrial procedure was not impermissibly suggestive under the totality of circumstances (Biggers factors), so it did not reach a substantial‑likelihood‑of‑misidentification analysis; in‑court ID admissible
Whether the identification required presence of counsel (Sixth Amendment)	Rushing argued counsel should have been present for identification after indictment; absence violated his right to counsel at a critical stage	State did not successfully demonstrate counsel’s presence was required or that any right was prejudiced	Court did not find a Sixth Amendment violation; focused on suggestiveness and reliability rather than counsel‑presence claim
Whether evidence was legally sufficient to support the deadly‑weapon finding	Rushing argued the State presented no weapon into evidence, no expert, and conflicting witness descriptions; thus evidence was legally and factually insufficient under Jackson v. Virginia	State pointed to surveillance video, Cooper’s lay testimony describing a two‑foot ‘‘spear‑like’’ object with a metal point, and Cooper’s fear to show the object was capable of causing serious bodily injury	Court held evidence legally sufficient: surveillance images plus Cooper’s testimony could support finding the object was a deadly weapon (capable of causing serious bodily injury)
Whether the Twelfth Court’s unpublished opinion departs from controlling law and warrants CCA review	Rushing argued the court created new identification law, failed to apply Article 38.20 protections, and omitted required Biggers step two analysis	State relied on existing precedents and the record to support the appellate holding	Twelfth Court’s ruling affirmed; Rushing sought discretionary review to press these claimed legal errors (petition filed to Texas Court of Criminal Appeals)

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (constitutional standard for legal sufficiency review) (sets the due‑process benchmark for sufficiency)
Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App.) (two‑step test for evaluating impermissibly suggestive identifications and reliability under Biggers)
Loserth v. State, 985 S.W.2d 536 (Tex. App.—San Antonio) (condemns use of single‑photo displays as impermissibly suggestive in some circumstances)
Delk v. State, 855 S.W.2d 700 (Tex. Crim. App.) (addresses in‑court ID admissibility when pretrial one‑on‑one photographic displays occurred)
Neil v. Biggers, 409 U.S. 188 (sets nonexclusive factors for reliability of eyewitness ID)
Wade v. United States, 388 U.S. 218 (discusses counsel presence at post‑indictment identification procedures)
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.) (Jackson sufficiency framework reaffirmed)
Tucker v. State, 274 S.W.3d 688 (Tex. Crim. App.) (deadly‑weapon capability may be inferred from circumstances and lay testimony)
In re Winship, 397 U.S. 358 (proof beyond a reasonable doubt is constitutionally required)