Allen v. StateAllen v. State
- Reporters:
- ,
- Before:
- Odom
OPINION
ODOM, Judge.This is аn appeal from conviction for robbеry; punishment was assessed at fifteen years.
By his first and fourth grounds of error, appellant contends thе trial court erred in overruling his motion for new trial and in denying him compulsory process for a witness at the hearing on the motion for new trial. The record reflects that appellant was tried and judgment entered in July of 1970. His original motion for new trial wаs filed July 30, 1970. Under the provisions of Article’ 40.05, Vernon’s Ann.C.C.P., this motiоn was overruled by operation of law twenty days thereafter. There is no showing in the record that any extension of time was granted or that good cause for any extension existed. Neither the trial court’s action in overruling the amended motion for new trial nor process for attendаnce of witnesses for the hearing on said motiоn is before us for review where it appears from the record that said motion was filed over two years after conviction. See St. Jules v. State, Tex.Cr.App., 438 S.W.2d 568.
Appellant next contends the trial court erred in dеnying his motion to suppress the in-court identifications by witnesses Ruiz and Cole. Following a pretrial heаring on the motion to suppress, the court deniеd the motion and entered findings of fact and conclusions of law. After reviewing the evidence, we find the trial court’s decision is fully supported by the .record. It appears that three photographic displays and one line-up were conducted in the investigation of this case. The first photographic display contained no рhotograph of appellant. At the seсond display a tentative identification was mаde, but the witnesses were not positive because of the poor quality of the picture. Identification was positive at the third display and аlso at the line-up, at which counsel for the accused was present. Each identificatiоn by each witness was made in the absence оf the other. No suggestion was made by the investigating officers regarding who, if any of the persons in the line-up, were suspects in the case. The reсord supports the trial court’s conclusion that the identifications were untainted and admissible.
Appellant’s remaining contention is that the court erroneously overruled his special requеsted charge for an instruction under Article 38.23, V.A.C.C.P., with respect to the identification testimony. He cites no authority for the application of that article to in-court identifications. By its own terms it applies to illegally obtained evidence. We hold that in-court identifications are not within the scope of Article 38.23, supra.
Finding no reversible error, the judgment is affirmed.