*1 165a, cases, and the the above circumstanc- above, Heard had Judge
es set out no power signed case order of reinstate the
July pronouncement or his oral of June
23. duty grant It the motion to
vacate his order which reinstated the case.
It will presumed Judge Heard opinion,
will act with this in accordance granted. conditionally mandamus is If not,
he does a mandamus will issue:
McGEE, J., notes his dissent.
Roger BRITTON, Appellant, Mack Texas, Appellee. STATE
No. 59223. Texas, Appeals
Court of Criminal
Panel No. 1.
Sept. 1980. Rehearing
On Feb. Dallas, Mitchell, for appel-
Lawrence B. lant. Wade, Atty., Dist. D.
Henry Ronald Schick, Hinds, Asst. At- C. Dist. David *2 merits, trial Dallas, Huttash, Prior to on the the trial court Atty., tys., Robert State’s Walker, Austin, Atty., hearing Alfred Asst. like the Court State’s held an identification the for State. Martinez in recommended 848-849 ONION, J., Before P. and PHILLIPS and positively to was unable Strom CLINTON, JJ. him in as the who robbed pellant 19,1977. The hours early morning April OPINION ger- exchanges particularly following are CLINTON, Judge. mane: follows Appeal conviction for the offense Do see the prosecutor]: you Q: [By aggravated robbery wherein the jury today you in that individual court presented, years. quest for a erred in one stantial contentions. felony conviction Texas assessed nal Though some Code, complaint Department evidence. punishment, overruling appellant’s § we 12.42(c), In need not reach is five made ground pursuant We of Corrections on the law grounds enhanced that agree confinement of error number to V.T.C.A. Pe- the trial each of and reverse. of error by timely re- for circum- a these court prior fifty are A: A: Q: [******] vidual. that met I’m not sure. anything I’m not would ask You in No, April, you about sir, say you sure. feel 1977? I you, this time can’t swear get does cannot I don’t want do look like man in trouble you swear see that that indi- someone to it. morning to I do. say if I Q: you earlier you Did asked contention, fully To understand —I’ve and tell look around the courtroom brief recitation of the facts is in order. In the indi- you us whether or not see early morning April hours of vidual that and I think— you robbed Strom, Edward was driv- complainant, you regard what did in that say ing his pickup along truck the Central Ex- individual whether or see the you not when he stalled pressway upon came van. you? in court robbed today that Nearing vehicle, per- observed Strom it, step son out from in and flag front sure, definite- A: I’m not sir. I couldn’t him down. complied Strom assisted ly pick out a man. van pushing the stranded motorist in * * * * * * nearby store. The convenience Samaritan regard anyone that is Q: But with motorist who approached was asked now, you present courtroom cigarette and, being him for a after fur- the Court under going are not to tell one, nished out a suddenly pulled knife. you you positive oath that During affray the course that en- you? robbed see the sued, several times be- was slashed general fore threw his wallet right, A: That’s sir. As the direction of his assailant. latter examination, complain- And on cross billfold, complain- rushed to retrieve change: ant’s vein did this managed ant to run into the convenience you Q: you, And once ask again, let me manager store where the assisted him and at all this just cannot police. Though called the wounds Strom’s you? the same man that robbed proved serious, to be not he discovered that No, sir, know if I I don’t A: cannot. his assailant had with both absconded not. This doing wrong I’m or this his pickup wallet and truck. Later I don’t time this. the first I’ve done day, appellant same arrested yes, maybe. I say know if should pos- Shreveport, Louisiana, while ******
session of Strom’s vehicle.
directly proved
Q:
mony
us what
which
you
you
We want
to tell
think.
who
was the
the same
one and
however, did
complainant,
robbed him. The
be,
I
could
I
A: All could
is it
cannot
say
person in
state that he identified
it.
definitely swear to
him
who had robbed
Exhibit
the man
At the conclusion of the Martinez hear-
*3
the
and,
course,
of
it is uncontradicted
ing,
findings
the trial court filed
of fact and
appellant. But this
of the
was
law
conclusions of
which recited that:
necessarily re-
identification
“bootstrapped”
witness,
“That
the
Klas
Edward
jury
can and
lies on the
inference
was unable to positively identify the de-
draw,
1 is the
e.,
did
Exhibit
i.
if State’s
fendant
cause as being
Court in this
portrays
1
guilty
Exhibit
party and State’s
connected with the commission of the of-
guilty
is therefore the
appellant, appellant
alleged
fense
in the indictment.”
inference,”
process
“a
of
party. Resort to
Though
complainant was unable to
State,
Richardson
818,
v.
600
825
S.W.2d
assailant,
appellant
his
identify
as
both dur-
a distinguishing
is
fea-
(Tex.Cr.App.1980),
the Martinez
hearing
and at the trial on
case,
accepted
ture of a
the merits he
did state that
from
legal logic
notion
derived
being that
1, mug
depicted
State’s Exhibit
shot of
experi-
“the
results of human
acknowledged
taken shortly after his arrest
Cochran, 45 Tex.Civ.App.
v.
ence,”
Brewer
Louisiana, was the individual who
had
46,
1032,
(Civ.App.1907,
99
1037
writ
S.W.
him.
fact robbed
The witness made such
and,
ref’d),
thus,
enough, in-
compelling
if
an identification
when Dallas
offi-
ferences,
drawn
deductions and conclusions
cer came to his
with some six
house
differ-
may
from collateral facts and circumstances
photographs
ent
purported
of
suspects.
as
proved
establish the main fact
to be
only
The
other
tending
evidence
to connect
23
satisfactorily as direct evidence. See
appellant with the commission of this of-
Evidence,
25,
Tex.Jur.2d
6.§
possession
fense was his
of the complain-
“vagaries
eyewitness
ant’s billfold and
Given the
of
identi-
control over his motor
Wade,
fication,”
vehicle.
United States
388 U.S.
218, 228,
1926, 1933,
L.Ed.2d
18
87 S.Ct.
Returning,
then, to appellant’s complaint,
(1967),
1149
eyewitness
an
permitted
that,
it is urged
given
complainant’s
testify to
postoffense identification
failure to effect a
in-court
identifi-
on
bearing
as
the issue of
accused
a fact
cation, there was no
relating
direct evidence
State,
821,
identity, Lucas v.
271
823
to the main fact
proved
to be
herein —iden-
State, 68
and Weaver v.
(Tex.Cr.App.1954)
tity. The failure of the trial court to in-
785,
(1912),
Tex.Cr.R.
150 S.W.
788
struct the
jury
the law of circumstantial
the cir-
recognized
because it is
“one of
timely
consistent with the
request
which the witness bases
upon
cumstances”
therefor, asserts
appellant,
error. We
weak,
identification,
strong
whether
or
agree.
Fortune
accused,
S.W.
It is well
direct evidence is
settled that
(Tex.Cr.App.1924).
that which
directly demonstrates
main
produced
Our own research has
several
proved,
fact to be
while circumstantial evi
first,
venerable
point.
cases on the
In the
proof
secondary
dence is direct
of a
fact
Smiley
87 Tex.Cr.R.
222 S.W.
by logical
which
inference demonstrates the
(1920),
an
from a
for
main fact. Frazier v.
appeal
conviction
“The in a identity prose- the assailant evi- one of direct the case would be cution for frequently depends assault man However, identity as the upon circumstances, dence. this is true in wit- only instances, fled is injured some who not conceded. although par- upon subject light ty may claim on the trial to ness who throws *4 accused; experience acquaintance appellant, and has demonstrat- no with the had party momentarily ed the mere of the dashed that conclusion saw him but as he injured touching identity of of shrubbery, part the of- saw but a through the fender, previous no incomplete where there is ac- was his person, so his and noticed, quaintance, peculiarities give no and to was unable view that witness the opportunity for observation is often description any definite ap- unreliable.”1 his or of in any peculiarity who fled parel which would furnish or movements Id. at 1109. identification.” definite Court, identity, matter of reasoned the Id. 254. was in such a as to render it left condition for the trier of fact determine necessary our trilo- respected The third member of evidence, by inference rather direct than 117, 161 State, v. 72 Tex.Cr.R. gy, Harris circumstantial was evidence (1913), bigamy prosecu- S.W. 125 involved therefore warranted.2 upon in which the relied testimo- tion State in the defendant was ny one Adams that Weaver v. 96 Tex.Cr.R. proper pur- for the day on a San Antonio (1924), similar presents S.W. 253 situation. complainant. Again, pose marrying after offense at issue a days Several evidence finding that circumstantial complaining witness saw the defendant and order, the Court noted: in charge was that, opinion, felt in his defendant was the away one who had run and the same relied state “... it is manifest that illegal from an still. This witness had but a John on circumstances to show that person near the momentary glance at the Antonio, who, married M. Harris in San still about “positive” and was not his fea- per- Alice Ellison was one and the same tures that a on clothing. Holding or who Miss Harry Harris married son M. required evidence was under circumstantial of that positive testimony No Cheney. facts, Judge these Morrow wrote: evi- introduced in fact was offered or The circumstances are doubtless dence. statement is one complainant’s] “[The that cogent, tending to show evidence, strong and which, facts in with the other fact, testimony but there is no that might support the inference M. Har- is, Harry appellant, the record that pellant was the man who fled. It life, ris, Antonio in however, was ever in to be classified as circumstantial San positive testimony that if San rather than direct evidence of that fact. and no vitality, throughout by its we note emphasis supplied As if to reaffirm 1. All State, supra, opinion Smiley with writer indi- has been cited of this unless otherwise v. only recently disposition approval cated. in our own (Tex.Cr. of App.1980). 600 S.W.2d Sattiewhite where the evidence is it is only such that going Antonio he was under the name of Harris, virtual same practically John under such circum- logically M. the factum evidence of refusing give thing stances the court erred in as direct special charge requested by appellant probandum.” on circumstantial evidence.” J., dissenting). (Roberts, Id. at 846 Id. at 128. outlined above While the circumstances find- support sufficient recently may
More a fact situation that have been equiva- are not the principle clearly cannot distinguished guilt, they Though the guilt. pointed only eye- Court lent of direct evidence complain- from the pur- apart witness to a crucial transaction that ported appellant robbery by to link the accused to a identification ant’s uncertain assault, assailant, an almost Blankenship may lead to 481 S.W.2d as irresistible conclusion (Tex.Cr.App.1972): although circumstances indicat- guilty, and “... Dodson was asked at the time of court is not ing guilt strong, the trial ‘anyone trial if in the courtroom looks charging jury duty relieved of the like driving where, here, pointed car...?’ He but reasoning. inference and upon case is based positive.” [Emphasis stated he was not Levi v. supra; Frazier in original.] (Tex.Cr.App.1978); Hielscher v. S.W.2d 784 Because there was no direct evidence of his *5 (Tex.Cr.App.1974). participation robbery,3 in the failure of the to so instruct The failure of the trial court trial court to honor request therefore, was, error. jury the reversible jury charged that the be on circumstantial record also that this passing, We note in evidence was held to be reversible error. engaged in ar prosecutor reflects that the however, inquiry, The is not finished for gument phase which during punishment the we must next consider whether the facts an extrane encouraged jury the to consider shown were in such close relation to the affixing punishment after ous offense when main fact to proved identity—as be to be — go into this area being not to instructed equivalent the to direct of that a during the trial on the merits. Such See, g., supra fact. e. Frazier v. at see, g., Berry e. practice beyond pale, the Riggins 620. As was stated in dissent in (Tex.Cr.App. hill v. 501 S.W.2d 841 (Tex.Cr.App.1971): 468 S.W.2d light punishment of the 1973),especially in a difference between facts be- “There is retrial, the event of a here assessed. In the juxtaposition in such a to warrant an to, as confine its always, expected State is guilt being inference of and facts in such by this arguments those areas sanctioned juxtaposition equivalent as to [the] Alejandro v. 493 S.W.2d Court. See former, testimony. no mat- direct or how strong they ter how certain is found, judgment For the error is re- accused, cannot guilt justify versed and the cause remanded. charge failure to on circumstantial evi- dence. The latter set of facts will occur Before the court en banc. Thereafter, both vehicles entered a cul-de-
3. As summarized the Court: sac, U-tum, stopped. made a The two individuals, "... neither of whom [T]wo got men who had robbed the store then into appellant, Minyard’s Supermar- the ket, robbed Chevrolet, down, the white ducked and left store, got walked out of the into a Ponti- driver, thought with the who one witness automobile, having ac then left. After driven appellant. looked like The white Chevrolet approximately ‘three-quar- for a distance of ters of a proceeded Storybook then convertible mile,’ a white 1966 con- Chevrolet Land.” vertible turned onto behind them the street Id. at 150. and followed them short distance. for a is the graph, that individual that OPINION ON STATE’S MOTION morning April FOR you REHEARING robbed on the 19th, 1977? McCORMICK,Justice. Yes, “A. sir. from a appeal This is an conviction of the aggravated robbery offense of enhanced at “Q. your doubt in mind any Is there prior conviction. felony jury assessed photo- (50) years. all
punishment fifty at is the robbed graph his through attorney, raises a Appellant, you? single relating error to the fail- ground of “A. whatsoever.” None ure on jury of the trial court to the law of circumstantial evidence. wit- the trial did the during At no time appellant positively. ness Strom early was shown At trial it reveal that be- What did the evidence 19, 1977, April the com- morning hours of taking photo- tween the time of the Strom, plainant, pickup Edward stopped appellant’s hair of trial graph and the time being flagged on after down freeway been cut, moustache had had been assisting motorist. by stranded After cut, and he did not trimmed, his sideburns some dis- pushing vehicle motorist photograph. appear store, motorist as he did tance a convenience cigarette, gave asked for a which he Strom trial, Sergeant Paul Hendrix Later in the him. point, produced At this motorist department testi- police Shreveport began slashing cutting knife and appellant in Loui- arrested fied that he had attacker Strom. The demanded Strom’s 19,1977. positively He iden- April siana on wallet, ground threw which Strom on he trial as tified some feet While the eight away. six or identified State’s positively arrested and wallet, up the picking attacker was Strom appel- Exhibit Number 1 as a fled into the convenience store where the April Ap- appeared lant as he on helped attendant called was, based on the pellant contends that his wounds. The attacker fled bandage circum- entitled to a *6 that same pickup. Later scene Strom’s complainant stantial evidence since the did day, arrested in Louisiana appellant was identification. not in-court make a pickup. stolen driving while submission, panel this of original On trial, of Strom testified that At the time reversed, holding that: Court had, robbery, after the identified shortly outlined “While the circumstances spread photographs of from assailant sup- been sufficient above have may police. photo- Dallas shown to him they are guilt, clearly of port finding trial, at and the fol- graph was introduced evidence of of direct equivalent not the lowing place: took evidence, apart guilt. Though the State’s Prosecutor) you Let show “Q. me (By uncertain identifi- from complainant’s what’s been marked for identifica- assailant, may cation of Strom, Mr. purposes, tion as State’s lead an almost irresistible conclusion recog- you Exhibit Number Do although and cir- guilty, that is nize that exhibit? guilt strong, indicating are cumstances Yes, Strom) (By “A. Mr. sir. duty not relieved of the the trial court is it, please? what is “Q. And jury on circumstantial charging here, where, man that the case is based picture “A. That’s reasoning.” robbed and stabbed me. and upon inference U [*] [*] [*] We now hold that there was no error in charge on circum- the trial failure Now, Exhibit court’s “Q. regard with to State’s grant and mo- individ- stantial State’s 1, there, the photograph photo- rehearing. tion for ual that depicted that’s
427 where a Similarly, substance is taken A on circumstantial evidence deliv- and possession from the an accused is where evidence of main required only a third who identifies ered to guilt entirely is purely facts essential to a direct narcotic, is as a there substance Wilson 225 circumstantial. v. S.W.2d the sub- proves evidence chain which 173, (1950), 59 154 Tex.Cr.R. Hall v. was a nar- accused possessed stance 297, (1955). 161 460 278 Tex.Cr.R. S.W.2d evi- cotic, charge on and no circumstantial way, on circumstan Put another State, 488 required. Cazares dence is is when the necessary only tial evidence (Tex.Cr.App.1973). 110 S.W.2d depends wholly case on circumstan similar to the probably most V.A.C.C.P., Finally, 36.14, Article tial evidence. See bar, that often arises is the situation case at charge usually begins note 437. Such an fingerprints are used when following terms: Ofttimes, steps in there are three accused. depending “This is a case for conviction First, of an chain. the introduction this on circumstantial evidence.” Smith of a introduction print; unknown then the 157 Tex.Cr.R. 665 253 S.W.2d testimony known prints; lastly, set of (1952). the known and who connects expert occurs, no When such prints. unknown proof evidence is Circumstantial is re- change on circumstantial evidence inference, which a fact from an based on 151 Tex.Cr.R. quired. Grice experience, common can Where be drawn. State, 516 (1941); Reed v. S.W.2d proved one fact is from which another fact inferred, is this is circumstantial evidence. Gentry v. 56 S.W. Tex.Cr.R. facts in the case None of the shown (1900). But there authority exists no circumstantially. Had the proved bar are says proof which of one fact which is rob- prosecuting witness testified directly (rather then used to than man prove photograph, ber looked like the infer) a second fact Louisiana circumstantial evi or had the officer from photograph appel- said the looked like the dence. contrary, proof On lant, have this would been circumstantial second and ultimate fact does not rest an could evidence from which inference any respect on evidence. pho- drawn that person depicted link in such proven by When each a chain is fact tograph appellant. was in Such direct, testimonial does evidence which testimony. was not the inference, any call for tantamount this is proof. direct testimony prosecuting depicted witness that the The situations where of evidence a chain the man who robbed him is direct evidence composed solely direct fact, robbed him is i. e. the man who of that limited. Three such situations are analo- *7 nothing and is left to be photograph, gous to the one at bar. person photo in who the inferred as to The first such analogy prosecu- the man testified that graph is. The officer tion of murder cases where evidence con- is the This is appellant. photograph nects the accused killing with the of some the man in direct evidence fact that but other direct is neces- appellant. fact the Thus, sary killed. Nothing is to be inferred. The testimo left where there is a chain of direct evidence to ny, together, taken not cir directly, shows prove accused killed the photo cumstantially, man in indictment, alleged in the and where there is the graph who robbed witness Strom chain, is no circumstantial evidence in that be drawn? appellant. What inference need no evidence is re- circumstantial Nothing is piece Each of evidence is direct. quired. Hogan 594 S.W.2d being shown and (Tex.Cr.App.1973), Howard v. appear and a thereon would (1928). Tex.Cr.R. supra. Hall required. What of direct we have a chain here is guilt
evidence pointing unequivocally
of the accused. timely
aIn se brief which was not pro
filed, presented has four addition- grounds error. We have examined
al
each of and find no reversible error. them rehearing
The grant- motion for State’s
ed, and judgment is affirmed.
ONION, J., ROBERTS, and P. CLINTON TEAGUE, JJ., dissent. Woodburn, Amarillo, for
Douglas R. pellant. Curtis, Atty.,
Thomas A. Dist. Schi- Steve Dist. At- Mallory Holloway, Asst. wetz and Huttash, Amarillo, State’s tys., Robert Walker, Asst. Atty., Alfred BUSH, Appellant, Paul Austin, for the Atty., State. DOUGLAS, Texas, Appellee. ROBERTS Before
The STATE CLINTON, JJ. No. 63587. Texas, Appeals
Court of Criminal OPINION Panel 2.No. ROBERTS, Judge.
Oct. 1980. for appeal This is an from conviction Rehearing On Feb. methampheta- delivery the offense of tri- was assessed mine. Punishment eight al confinement judge years’ issue Department Corrections. trial court erred presented is whether the prosecution on this failing to dismiss entrapment. basis of 1(9), 28.01 V.A.C. § Pursuant Article C.P., in the trial court hearing was held raised entrapment determine matter to dismiss. written motion by appellant’s pre-trial hear- adduced at the 5, 1978, that on June Charles revealed agent, narcotics an Carpenter, undercover *8 infor- Gray, paid was advised Allen mant, sell some wished to Agent day, Later that methamphetamine. Stubbs, Agent Carpenter partner, and his lot of Dunkin parking met infor- arranged by the Donuts—a location appellant and meeting between mant.