*1 7Q3 ry оrder. and is the transfer limits not cruel and unusual. of the form appel- appellant’s ground injury is The third of error is No shown to harm re- No overruled. lant a result of mistake. as appellant’s is
versible error shown. The error, being There no reversible error is ground first overruled. judgment is affirmed. Next, appellant complains of
question prosecutor on cross- asked
examination of a defense character heard witness had whether vagran been arrested had for
cy In prostitution burglary. Vance State, this Court said: 365 S.W.2d attested “A character witness who has PERRYMAN, Appellant, Larry may, good reputation accused of an weight, credibility, affecting Texas, Appellee. The STATE of sincerity testimony, of his be asked heard No.
cross-examination he had 43681. acts of misconduct of the accused which Appeals Texas. Criminal reputation. were inconsistent with that Sept. 16, 1971. State, Duhart Tex.Cr.R. State, S.W.2d Linton v. 213, 346 320. Such
Tex.Cr.R. S.W.2d subject objection
inquiry was not State, 154
of remoteness. Richardson v. Nor
Tex.Cr.R. S.W.2d subject objection inquiry
was the inquired about
that the act of misconduct conviction, as not resulted a final 732a,
required Ann.C. by Art. Vernon’s
C.P., impeachment an accused. for Wiley pointed
As out in such Tex.Cr.R. S.W.2d ac-
inquiry impeach not made to is weight
cused as witness but test credibility of his witness. character did the court permitting inquiry,
not err.” ground error appellant’s second
is overruled.
Lastly, the contends years and unusual confinement cruel Ann.P.C.,
punishment. Art. Vernon’s by as
provides robbery punishment for penitentiary
sault confinement
life, years. than 5 or for a term of less statuto- punishment assessed is within
punishment, enhanced under Article Ann.P.C., Vernon’s was assessed life. court, The case was tried before the appellant having his a waived jury. Flores, The record reflects that Jose
sixty-eight year man, had old left bar on Antonio; Zarzamora Street in San that he got his pickup attempt- into truck and was ing pulled to start he vehicle when was men, by out two of whom held one him pocket, while ripped open hip the other billfold, сompany took and in with the man, other fled down street. He then went back po- bar and notified the lice arrived approximately who ten minutes thereafter, later. Soon an officer who had robbery received a radio report of the ob- served men two blocks the scene two “dividing money.” some The men fit the received, description the officer had and he placed both of them under arrest. Luther Procter, appellant’s companion, fled and later; apprehended was minutes he was placed then a police car with Police Of- Thompson ficer and driven to a car wash location on Zarzamora Street where he identified as one of men Flores ap- who had thereafter robbed him.1 Soon pellant was idеntified at the station by Flores. alleges
Appellant grounds three of error: pre-trial contends (1) he evidence have been identification should not admit- ted, as such occurred absence of Antonio, Goode, for Jr., intelligently San been W. John waived; (2) permitting erred appellant. pre- based on in-court identification Butler, Quinlan, L. Atty., Dist. Ted John pre-trial identification; (3) trial Attys., III, Bitsis, Dist. Sparta Asst. appel- unfair to grossly Vollers, State’s Antonio, and D. San Jim lant. Austin, Atty., for State. following testi- The record reflects mony by arresting officer: OPINION Now, you right. All do know of “Q. ODOM, Judge. knowledge First, your own — Perryman ever read his Mr. conviction appeal from a This is an rights ? robbery by assault. offense of being Thompson mistakenly who committed other Officer identified Flores robbery. n n n n n Yes, rights He was read his 'A. sir. Well, “A. after I Officer Menchaca. decided to handle one time, said, thing he know “Q. your presence ? said, how that And goes’ ‘I’ll *3 you anyway.’ read it to my (Emphasis presence. “A. In supplied) “Q. By rights, his constitutional what “Q. You until after exactly waited he read it you do mean ? and left? By rights “A. his constitutional ? “A. I got went back and in the car.”
“Q. What was read to the man ? duty The officer at station police “A. The card that we are issued when brought was in testified: S.A.P.D. “Q. (By Court) you Did hear Mr. “Q. you Do have that card you? with Perryman any time before Mr. Flores identified him ask for a “A. Sure.
lawyer lawyer ap- or to have a No, “Q. just sit pointed down. This is a nor- for him ? mal card that officers car- officers, “A. I asked the the uniformed ry? they officer at the time had been Yes,
“A. sir. rights they advised their and if telephone wanted to make a call. “Q. you And heard this cаrd read to during times Several this hour or Perryman Mr. there at the twenty hour and fifteen or minutes station ? place, they that this giv- took were No, opportunities “A. en use the this wasn’t at to tele- sta- phone. I don’t remember which
tion.
said,
one
7 don’t have
use for
Oh,
“Q.
excuse me. Where was it read
lawyer,
I don’t
I
need one.’
don’t
to him?
remember which one it was but
neither
wanted to use the
By
“A.
the car wash. That’s where
phone.
this was read to him.”
they
they didn’t
“Q. Had
indicated
testified,
The witness further
on re-di-
phone?
want to use the
rect examination:
“Q.
right,
Perryman
sitting
And
“A. That’s
sir.”
was
still
the car then ?
motion
hearing
After an
on the
extensive
“A.
think
Now wait minute.
I
he
suppress
to
the in-court
standing
was
behind the car when
trial
appellant, the
court stated:
got
he
out and then he read him
right
the side
rights,
there on
there
“Gentlemen,
finds that
the Court
wash,
car
outside outside
line-up
and in fact
truth
which
car,
that’s
where was.
line-up
that there was a
it does not show
Wade,
Gilbert,
it in
as we know
“Q.
side
?
On the
of the car
going
Court is
to find
Martinez. The
Yes, sir, right
“A.
on the back.
intelligent
that there
attorney
to
the Defendant of his
“Q.
it that did that ?
Who
Therefore, the
finds
there
Court
be—
suggestions by anyone
“A. Menchaca.
was no
as to the
identity of the
point
Defendant
that the
expressly gave
as the reason that he
part
of time was in
proximity
already
knew them because he had been
gestae, you
say
might
res
many
of the ar-
them
advised of
times before.”
part
investigative
rest and
proce-
bar,
Perez,
supra,
the case
unlike
took,
dure of this
not more
continued
officer
read
than an hour and a half and the Court
warnings
constitutional
until hе fin-
finds that —The
is going
deny
ished.
hold he
We
waived
the motion to suppress the
evidence
Zerbst,
counsel. See
Johnson
this cause.”
458, 469,
present. As
the court
Russell v. United
appears
majority
to assume
States,
U.S.App.D.C.
“However,
post-Wade
cases the ex-
since
there
an affirmative
counsel,
cusable absence of
while not dis-
counsel.2
positive,
‘totality
among
of the cir-
bearing on
process
cumstances’
the due
disagree
major-
regard
I
this
with the
question. And
since
case also
ity
First,
respects.
in two
reasons
presents
single-suspect
in-custody con-
later, I
appear
agree
do not
may
suggestive,
frontation which
applicable
rules are
Wade-Gilbert
to an
carefully
possible
must
consider all
occurring
or near
scene confrontation
unreliability
еvidence
of actual
deter-
reasonably
time
within a
short duration of
requirements
mining whether
due
Second,
alleged
after the
offense.
even if
process have been met.”
applied
to the instant
*6
case,
agree
sup-
I cannot
that
the record
We have
considered
evidence and
ports a valid waiver of counsel.
deprivation
process.
find no
of due
Hamblin,
also State v.
tarily and abandon those The fact that man had authorities, previous experience enforcement appellant’s And rience with law while warnings “go” ing and fails to liquor knows how front of a dividing store some request up money not add to af- counsel does approximately two blocks from at a pre-trial firmative waiver of counsel scene of robbery. They matched the lineup the to- physical description or confrontation even when given and wore the de- tality of circumstances is clothing. considered. scribed He acquainted was also State, supra. them, with knowing they McCandless were unemployed and did not employment. seek Thompson respect this I dissent the hold- took them into custody although Proctor ing majority. fled the approach police of a vehicle. however, quickly He was reached, apprehended both I concur in the result sus- pects were taken to a car wash at Zarza- because I convinced that the am mora and Culebra ap- Streets to avoid the rationale was never intended crowd that beginning gather at the ply in the to confrontations such as one scene of the Thompson arrest. Officer case bar. testified he was mistakenly identified the court conducted hear- Prior to trial Flores as one of the robbers while he was ing suppress appellant’s on the motion Proctor, police seated in a car with the station the in-court identificatiоn and that he later police showed Flores his iden- 28.01, Article house identification. See tification. He recalled that appellant hearing Vernon’s At such Ann.C.C.P. wash, was in another car at the car he left Bar Flores testified Gilbert’s Jose but he could not remember that Flores about Zarzamora Street San Antonio seen him. 16, 1969, May p. 7:45 or 8 onm. Detective Harlow testified that on the nearby. parked pickup walked to his truck night question working he was on a bur- he As he commenced to start his vehicle glary case when he to assist the was asked They approaching observed men him. two robbery detail. He directed the uniformed vehicle, pulled him from the officers bring suspects all witnesses and ripped held him men while other to the police He station. entered the rob- containing pocket, pants taking wallet bery office any unaware of of the details fled. approximately They then $71.00. offense persons. and found several Flores to the bar and the returned After brief conversation he determined taken to a car were called. Later he was complaining that Flores was the wit- away identi- several where he wash blocks At juncture ness. another officer fied Luther Proctor as one his assail- walked into inquired the room and Harlow he shortly ants and thereafter he related of him suspects. there were Before Perryman identified the the officer sponta- could answer Flores police station as. his other assailant. neously pointed who was ap- acknowledged that Flores when positively sаme room and identified proached car at the car wash him appears as one of his It assailants. mistakenly Proctor he iden- identified *8 Proctor was in another the time. room at Thompson (who tified was dressed Officer This station house identification occurred in civilian other clothes) as the assailant. approximately within an hour half and a He admitted he later realized his mistake. after the offense. Perryman He the seeing did not recall at car wash. any Appellant testify did not make or that Thompson testified while Officer any pre-trial claim that there was other in the dressed mufti he had heard taint the in- identification which would pro- concerning robbery the and broadcast court identification. in car the area. Twelve ceeded his own to overruled, he suppress
or fifteen the broadcast The motion to minutes after finding pre-trial stand- the identifi- appellant observed the Proctor the court that and me, it in “I know robbed all we know dared don’t who lineup cation was not a “as you appel- look people and that alike.” and Martinez” black Gilbert Wade only inde- lant claimed time he saw Flores at the the in-court identification was brought the pendent appellant station was when origin. Thereafter the robbery to book him plea him of the office jury trial entered a out waived pass- standing up. he observed Flores guilty not before the court which had ed the to suppress. motion testimony After such was elicited there any re- Thomp- was no motion nor to strike other
At trial Flores аnd Officers already requested testimony lief repeated as to the substantially son Harlow in evidence as identification a to in-court testimony. their earlier Flores made identification, stating positive that the station house confrontation. in-court appel- good opportunity he had a to see Do these facts invoke the mandate robbery face at the time of lant’s Gilbert and Wade? as to lighting that the conditions were such permit adequate appellant’s observation post-in- Both and Wade involved his support features.4 Thereafter in lineups dictment cases where elicited in-court State already appointed had for the ac- been objection the fact that without from Flores In cases the court found that cused. these he also identifi- had made station house sug- at situations the risks of least cation. lineup gestibility procedure and the
Thompson again he not re- stated could inability of to reconstruct the accused appellant seen call whether Flores had purpose of cross-examina- events earlier at the car re-direct ex- lineup wash. On tion at trial identifica- rendered police report amination he was handed his de- stage prosecution tion critical agreed it was which he stated At manding presence of counsel. no holdings had indeed seen the Per- Flores point did the court indicate the ryman Larry Perryman was lineups. and “When post-indictment were limited to was, complainant to brought where re- fact, car be the court indiсated would Perryman he like stated looked quired “scrutinize confron- person the other that robbed him.” critical if it was a tation” to determine acknowledged though that the re- proceedings. stage U.S. port memory. did refresh his appears that 1967. It 87 S.Ct. en- deter law fashioned Gilbert were “to Tefteller related that an investi- Officer exhibiting an authorities forcement
gation showed that Proctor had on $31.00 trial for identi- before accused to witnesses person and the had on $40.00 notice and in purposes without fication his person at the time the arrest. Denno, of counsel.” Stovall absence behalf, at 1970. The Testifying p. own U.S. en- year all appears be appellant, previously sweep language old who limited seem be felony, compassing and would bеen convicted of denied the of- implied concession charged by the fense and claimed an alibi. He court’s consid- countervailing policy “although no money he had dice shooting stated been with against re- advanced girlfriend had been borrowed from a and won erations $40.- cases, some in these of counsel quirement that at the car after his arrest wash situations. might future had been exhibited to who de- advanced Flores *9 State, in ab- Tex.Cr.App., “police held 3. 437 station identification” v. Martinez in- an in absence of and of counsel 842. sence S.W.2d telligent of the same. only objection identi- 4. the in-court by the was that fication was tainted 712 easy
It is thus not to determine the full simple pre/post dichotomy indictment scope holdings of these for it has been wоuld making render decision written that: easier, courts far but would leave the door open possibility that the true aim of “ ‘The metes and bounds of the Wade rulings Wade and Gilbert could be eas- * * * decision readily are not ascer- ily by conducting defeated all iden-
tainable,’
Cooper,
Commonwealth
356
v.
proceedings prior
tification
to indictment.
74,
253,
Mass.
248 N.E.2d
and one source
Without passing upon
scope
the full
problems
respect
in this
is that
rationale,
the Wade-Gilbert
this court has
‘expressions
opinions
in the
in these
* * *
recognized
applica
the rationale has
cases
and
out-
[Wade
Gilbert]
pre-indictment
tion
post-in
as well as
run their
Davis,
facts.’ United States v.
lineups, showups,
e.,
dictment
See,
etc.
i.
Cir.,
2
71S to protection of hood and returned the scene of the proper police area where he identified the wit- public may greatly embarrassed crime where the opportunity ness restricting intelligent, without for counsel to be by rigid fair rulеs present. ap- The witness made an in-court must be Such action action. of identification and a officer testified praised appreciation with commonsense as the policemen to out of court identification. problems confront which patrolling a residential area.” Certiorari referring to the decision in Rivers After 1034, 651, was denied. 393 89 S.Ct. U.S. States, Cir., 935, v. United 5th denied, rehearing 21 L.Ed.2d. 579 and applied in holding the rule case Wade 1112, 888, 21 L.Ed.2d 393 U.S. types “regardless to all of confrontations 814. occurs, of in when the identification time * * ”5 place in- or *. suggestibility is the decision unquestionably While Kinnard, D.C., suspect presentation of one United States v. 294 F. volved in the custody Supp. excluding or a an on the scene iden the victim of a crime to witness, occurring forty-five aft to the scenе tification minutes proximate when even offense, ap- robbery, er a of which would the Court said: time pear tip in favor an exten- to the scales of language Wade would “While of sion to such situa- of Wade Gilbert encompass on-the- prompt thus seem to tions, calling Bumpus strikes a balance identifications, do fall they not scene commonsense attention the need a holdings or its com- within the of Wade daily appreciation problems panion case, California. the police. confront cases disapproved these confrontations Similarly, result
Relying upon Bumpus
post-indictment
lineups.
the same
Davis,
terms,
though
spoke
was reached in United
in broad
States
[Su-
den.,
evidently focusing
U.S.
(2nd Cir.),
cert.
preme]
F.2d
lineup
primarily
21 L.Ed.2d
449.
on the routine
pо-
employed by
show-up procedures
Boens,
Ariz.App.
And in State v.
use at trial.
to obtain evidence for
lice
P.2d
court
(1968),
en-
both to
Court was concerned
wrote:
procedures
fairness of such
hance the
any ele-
jury
expose
judge
and to
(fif-
as this
“If
confrontations
unreliability
of unfairness
ments
after offense at the scene
teen minutes
typi-
might attend
In these
them.
crime)
our Constitution
violate
cases,
re-
counsel had been
cal
where
much
‘suggestive,’
are
then
because
could
factor it
tained and time was not a
evidentiary
forms
material which
policy
countervailing
find ‘no substantial
machinery
grist
fact-finding
*
**
re-
against
considerations
be constitu-
our courts should well
”
”
* *
of counsel.’
quirement
presence
unreliability.
tionally banned for
the witness with a
out-
fication in circumstances such
these fos-
suspect were
fresh,
weighed by
рroblems
delay
objectives
the
the desirable
of
accu-
of
the
ters
proceedings
identification
undertaken
rate identification which
some instances
with
present,
may
an in-
possible overnight
counsel
of
lead to the immediate release of
de-
individuals,
suspect
tention
nocent
at
of innocent
the
the same time enable
of
possible
the
the search for
interruption
for the
to resume
the
of the search
fleeing culprit while the trail
real
is fresh.
criminal.
*
*”
*
apprehended two blocks from the would, therefore, money I with the exact amount of conclude that scene applicable short in- holdings not to have been taken. The Wade-Gilbert are claimed crime near the occurrence of the an on or the scene confrontation terval between occurring “identification,” any, a at the car suspect between a and witness and subsequent apparent inad- shortly a and and after the commission оf crime or wash police vertent confrontation at the station in other circumstances which necessitate a identification, but prompt being not conducive to misidentification there some fresh, elasticity to insure accurate place. reasonable time tended rather a Terry Peyton, Perry, D.C.Cir., United v. States v. 449 identification. F.2d Dutton, Cir., 1970); 112 (4th 1016 State v. N.J.Super. (1970). 271 A.2d Putting aside the to counsel factor apparent is question now the turning of wheth- concern I testimony. testified process er due Flores dispute violated manner identify in which the at confrontations case he did see police they bar were at the station. conducted, considering the totali- until both circumstances, Denno, recall ty Thompson could not v. Stovall Officer the car appеllant at supra, proce- noted that had seen the identification Flores effect wash, report to the whereby suspects singly dure are his written viewed appel- had said car part a than line- that Flores wash witness rather at did not condemned, the robbers up widely has one of been Stovall lant looked like Denno, memory. appellant alone at supra, p. refresh U.S. S.Ct. however, at not, to Flores been exhibited process is claimed 1967. Due invari- identify could not and Flores ably procedure. the car wash violated as to 404, 408, not clear Tennessee, is thus The record Biggers U.S. him. wash, al- transpired the car just 19 L.Ed.2d United States what indicate that Follette, nothing to though F.2d 1380 there is Springle ex rel. Cir., police indicated to 1970). process suggestiveness re- used Nor does due (2nd every Since “be Flores had the actual robbers. quire undisputed laboratory it is that Flores had misidenti- under conditions conducted the rob- Thompson as lineup.” United fied Officer approved States prac- bers it would have been better
tice to subsequent avoid confrontation
at the station formal conduct However,
lineup. confrontation appears station been inad- to have arranged by design.
vertent or not While
one on one confrontations to be ap- are not rule,
proved general say as a I cannot *13 surrounding
circumstances the identifica- night
tion of the the rob-
bery totality considered their so un-
necessarily suggestive and to ir- conducive
reparable as to amount misidentification process
a denial of grossly due or to be un-
fair appellant. pretrial ex- Gilbert, light
cludable in of Wade and nor process
entailed due the in- violations and identification, independent being of
origin, admissible and untainted identifications. stated,
For the reasons I concur judgment.
affirmance al., Appellants, et
James J. HOPP JAMES,
Sheryl Appellee. P.
ANo. 2444. Appeals Texas, Court of Civil San Antonio. Morriss, Davis, Boatwright, Lewis & Sept. 8, 1971. Antonio, appellants. San for Sept. 22, Addendum Schwepee, Schweppe Allison, & An- San
tonio, appellee.
PER CURIAM. appeal judgment en- This is denying after the court tered trial before change custody appellants’ motion for Hartsfield, child, Allen Ronald the minor said child be ordering custody