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lers, Atty., State’s and David McAngus, S. Austin, Atty., Asst. State’s the for State. HILLS, Ray Appellant, Donald v. OPINION Texas, Appellee.
The STATE of ONION, No. 49617. Presiding Judge. This is an appeal a from conviction Appeals for
Court of Criminal of Texas. theft person, from a wherein the punish- 25, June 1975. ment was by assessed the court at (4) four years following a guilty verdict. In appellant’s ground sole of error he complains the “court erred in allowing the State of Texas to bolster its witness by use of hearsay when the witness had not been ” impeached. . . . The witness in- volved was Rogers. Odis Mrs. J. Hilliard, C. old, 80 years testified that on 5, 1973, November a man snatched two deposit bank bags1 away from her while she was in downtown Temple in front of Zale’s Jewelry Store. She saw only the back of a bushy headed man as he fled. She was unable to make an identification of the appellant. Rogers testified he was in Zale’s
Odis question in Jewelry on the date when Store the he saw a man across the street snatch lady. from a He related man bags the had Afro,” face, “big long lots of hair on a his and a beard. he sideburns He stated knew by the of “Superfly.” the man name When if that was the he appellant, man asked it of fa- replied “looked like him.” “kind really,” crossing him the man the vored but “a whole lot of hair on his face.” street had altogether it not clear from the is While record, appears appellant the in the it was clean shaven. courtroom Later, a week or two he testified that alleged picked the he had out after offense pictures him at the “suspect” a from shown Belton, appel- Kreimeyer, James H. for police station. lant. and Subsequently, he Officer W. T. Jack- in interrogated son were the absence of the Carroll, Atty., Dist. Joe William P. Gib- concerning photographic identifiea- son, Belton, jury the Atty., Asst. Dist. Jim D. Vol- bags only deposits books at the already bank her and the contained 1. had made She time.
693 crossing he saw the man the picture of hearing, At the conclusion of such tion. street, picture the testify did not but he objected ground on the the appellant that appellant. posture In was that of this of attempting impeach was to their own State Officer Jackson was to events called identi- it attempt and also that was an to witness picture appellant. selected as that of fy the objections the witness. bolster The were circumstances, particular these the objection Under No on the of basis overruled. was Lyons not in violated. rule was offered. hearsay however, Rog- If, identifying the witness returned, Rogers When the testified jury photo- was a ers had testified he shown a positive made of that he a identification spread and that he had a selected graphic the he police at the station of man picture picture of that one the picture and was coming the He not saw across street. did testimony undisput- and his was appellant of picture the was that testify that selected ed, Jackson should not have then Officer was then appellant. the Officer Jackson Those, however, permitted testify. to been photo- called and testified he six showed not facts case. were the in the instant and, the the graphs Rogers to witness over stated, judgment is For the reasons the made, objections that same earlier testified affirmed. Rogers 3 as the man photograph selected # (Jackson) the and involved in theft he knew ROBERTS, Judge (concurring). Ray photograph such to be that of Donald I the opinion concur in Court’s which (the in the appellant), Hills who was seated the photographic that evidence of holds attorney. with his courtroom was the admissible over identification ob no- there was First, is observed that it testimony that it the jection bolstered of at hearsay offered
objection on the basis of identification witness. How the State’s second, of trial, and examination on the ever, appellant objected the to the had testimony presence in the Jackson’s Officer hearsay testimony, nature of the a different mainly jury it concerned the reflects was of might presented. situation have been See Rogers’ physical “picking in action with State, 42, Haughton v. 99 Tex.Cr.R. 267 3. It “selecting” photograph # or out” (1925); compare 715 v. and State Zar S.W. appear appellant’s contention that does not 80, Ariz.App. (1967). 6 430 426 agosa, P.2d testimony was Rogers’ identification that by hearsay has merit. bolstered State, 388 v. Lyons
The rule discussed in wit is that a (Tex.Cr.App.1965), 950
S.W.2d the has identified the accused at
ness who may testify also the ac he identified trial ADAMI, Appellant, Kenneth by photo in police custody while or cused v. his graphs; other may witnesses not bolster Texas, Appellee. The of STATE corroborating testimony by unimpeached identify the that he did accused. the fact 49582. No. State, (Tex.Cr. 479 473 v. S.W.2d Frison See Appeals of Texas. Court of Criminal and there cited.
App.1971), cases 25, June 1975. modi- rule or from this do not retreat We the particular show that fy The facts it. 16, July 1975. Rehearing Denied appellant Rogers the testified witness the committed man like” the who “looked posi- to make a
offense, he unable was but further He testified
tive identification. a police selected at the station had
that he