*1 reliving that event when the memories of that triggered occasion were in her mind. that, agree prosecutor if the had made
reference to the defendant’s exercising his
right jury to a way trial in a calculated to
place upon blame compel- defendant for
ling testify, the victim to such would consti- legal
tute error. It is pretend fiction to jury is not aware that the victim has been
subjected judicial process, but
prosecutor approach should never this as a
way suggest jury punish should
the defendant for the workings judicial This,
process. however, does not mean that jury cannot consider the aftereffects of
the criminal act itself part as a of the impact
of the criminal act the victim. We
distinguish present case from the Villar-
real point and this of error is overruled. judgment is affirmed. Texas, Appellant,
The STATE of MEDRANO, Appellee.
Matthew
No. 08-97-00492-CR. Texas,
Court Appeals
El Paso.
Feb.
Opinion Denying Rehearing Feb. *2 7, 1996, hypnotized J.E. was
On October Ocegueda of the El Paso by Sergeant Pete 14, 1996, October Department. On Police identify the shooter from unable to J.E. was lineups. On October photographic two photo- more J.E. was shown three these, she From one of graphic lineups. Medrano. identified defendant challenged photographic both the Medrano any in-court identifi- lineup identification and J.E., the bases that: cation on (1) proce- identification photographic impermissibly suggestive dure used was so identify Me- the witness to that it induced contrary rights under the due drano to his of the U.S. Constitution process provisions One, Sec. 19 of the and Article Constitution.
(2) following Any in-court identification session, photographic hypnotic and identification, unduly suggestive would be unreliable, pursuant and and inadmissable 403; of Criminal Evidence to Texas Rule State; to the Zani v. the 6th Amendment Constitution; process clause U.S. due Atty., Esparza, Jaime E. Dist. John L. to the U.S. Consti- of the 14th Amendment Paso, Davis, Atty., Asst. Dist. El for State. tution; provisions of law the due course Islas, Abraham, El Luis E. Arthur A I Sec. 13 of the Texas Constitu- under Art. Paso, appellee. tion; right by jury under Art. I to trial Texas Constitution and due Sec. 15 of the BARAJAS, C.J., LARSEN, Before of law under Art. I Sec. 19 course McCLURE, JJ. Texas Constitution. (3) Any procedure in-court OPINION impermissibly the result of the would be LARSEN, SUSAN Justice. pro- suggestive photographic identification post-hypnotic recall has cedure and the attempted This is an State’s very given rise to a substantial likelihood granting a the trial court’s order motion to of Medrano irreparable misidentification hypnotically enhanced identification exclude pro- probative trial. The value of from introduction at trial. We dismiss the outweighed by clearly posed want 403 of the Tex- prejudicial effect. Rule Rules of Criminal Evidence. as FACTS granted hearing, the trial court Following a 5, 1996, pizza delivery man On October stating in her written order: the motions 221 South Carolina was shot and killed at Street, Paso, day 20th of October time of the On the 3rd and El Texas. At the Defendant’s J.E., came on to be heard the fourteen-year-old girl, shooting, Photographic Identifi- Suppress Motions to yard in the front of her home down After and In-Court Identification. gave police a statement to the cation street. J.E. argument of including considering the evidence and night, the events of that about stated on the for the reasons description of the shooter and the car he counsel and 21, 1997, hereby Court in. October rode record (cid:127) grants said Motions. The Court also finds fingerprints. They with the were one in said identification the same. was obtained violation 4th, 5th, 6th and 14th Amendment of appeals. The State the United States Constitution and Article I, 9, 10, Sections 13 and 19 of the Texas JURISDICTION *3 Constitution. question The first we must address is jurisdiction whether we have to review the reasoning, The trial court’s referred to in her stage trial court’s decision at this proceed- of open order and set out in court was: ings. We conclude we do not. having The Court ap- reviewed what may This court hear the State’s inter pears only to be hypnotically- the case on locutory appeal only in limited circums testimony, enhanced the Zani case1.... tances.2 Unless authorized to hear such an case, reviewing After the standards in that appeal by Legislature the or the Constitu the is going grant Court now to the motion tion, Here, jurisdiction.3 we lack the State suppress the in-court jurisdiction contends this court has on two upon based the Zani standards. grounds. will separately. We address them weighed I have the factors in the case and believe that the in-court identification Appeal “effectively court’s order suppressed. should be terminating prosecution the the favor of defendant” weighing
In
admissibility
the factors for
case,
as set out in
Zani
theory
[the
]
there are two
The first
under which the
compelling
jurisdiction
State asserts this court
reasons for the decision to
has
hold
that because the
hypnotically-enhanced eyewitness
hypnotized
the
the
testi-
witness is the
evidence with
the
which
mony as inadmissable in this case.
State
prove
can
thus the order ex
important
any
The most
is the lack of
cluding the evidence is in effect a dismissal of
evidence to
testimony.
corroborate that
the indictment.
Zani,
In
fingerprints were found at the
This
upon
statutory
assertion relies
the
scene of the defendant who was identified
authority granting
jurisdiction
us
to hear the
hypnotically-enhanced
the
appeal
State’s
of an order which:
hypnosis
The
session here occurred one
indictment, information,
an
[Dismisses
or
day
explanation
after the incident with no
complaint
any
indictment,
portion
or
of an
from
why
law enforcement as to
and to
information,
complaint.4
or
what
memory
extent there
awas
loss.
agree
We
the
State that the label at-
Zani,
hypnosis
In
the
session occurred
tached to the trial court’s order does not
years
after the incident. The defendant
control
our exercise of
jurisdiction
had left
appre-
the
and was not
Appeals
Court of Criminal
has cautioned that
time,
years,
hended for 13
and at that
the
the name attached to a defendant’s motion or
young eyewitness
hypnotized to
was
see if
trial court’s order cannot determine its
there
Thus,
was
recall for the identification.
pealability.5
that Medrano’s motions
The identification in that case did coincide
are
suppress”
dispos-
titled “motions to
is not
44.01(a)(1) (Ver
appeal
1. The substance
State’s
is that Zani
Proc. Ann. art.
TexCode Crim.
State,
1999);
Howard,
Supp.
(Tex.Crim.App.1988)
non
v.
tion is: framed her order to conclude that constitu- violated, pretrial suppression her find- provisions [T]he order is a tional had been ings balancing which the State can the result of a test con- evidence with were case, 403.12 prove narr^y hypnotically its en- ducted under Texas Rule of Evidence invoke eyewitness suppress specifically hanced The motions to 697, added). (Tex.App. (Emphasis 699-700 Worth 6. — Fort Howard, 1991, ref'd); State v. pet.). no (Tex.Crim. Taylor 7. — Amarillo App.1994). (Tex.Crim. Taft, 958 S.W.2d 11. State v. Roberts, 44.01(a)(1) (Ver- App.1998); 940 S.W.2d at Proc. Ann. art. 8. Tex-Code Crim. Supp.1999). non relevant, “Although may be evidence excluded 44.01(a)(5) (Ver- 9. TexCode Crim. Proc. Ann. art. substantially outweighed probative value is if by danger prejudice, of unfair confusion issues, misleading jury, or consider- or Roberts, delay, presentation of of undue or needless ations 10. State v. Kaiser, Crim.App.1996); also State cumulative evidence." TexR. Evid. see rule; grant- that the trial court’s reasons for To establish it that is entitled to ing speak the motions in “weighing terms of mandamus relief in a criminal (as admissibility.” factors for relief) discern no party seeking other mandamus allegation in the record that defendant Me- satisfy must requirements. First, two it rights drano’s were somehow violated the must adequate remedy show it has no at law witness; rather, hypnosis of the the motions harm; second, alleged redress the the act exclude evidence are based the unre- sought compelled to be purely must be minist liability hypnotically enhanced erial.1 An act is ministerial “where the law general, unreliability and the of the identi- clearly spells duty performed out the to be fication of Medrano under the facts of this ... certainty with such nothing is left to Here, particular. case in we do not see that the exercise of judgment.”2 discretion or Legislature intended the court of appeals Here, the State claims that “since the trial replay” undertake “instant of the trial court’s decision relied on a case based on court’s decision probative value of Frye,3 Frye expressly rejected has been J.E.’s substantially identification was out- by the Texas Court of Criminal since weighed by dangers which would result Kelly, 1992 in the trial court’s decision was allowing jury.13 it before the clearly contrary to well-settled Texas crimi nal law.”
Thus, although implications constitutional *5 may decision, present be in this we find it doWe not believe that the trial was not “suppression” in the sense contem- court’s decision can be characterized as min plated by Procedure, of Code Criminal here; contrary, isterial on the it required 44.01(a)(5)14 Article and the case law inter- analysis judicial extensive balancing and of preting it. We have no under many complex factors. Neither do we think Procedure, Texas Code of Criminal Article that the trial court’s reliance the factors 44.01(a)(5).15 set forth in Zani v. State4 necessarily was “clearly contrary to well-settled Texas crimi
CONCLUSION law,” nal as the State would it. have As we noted in original opinion, our at least one juris- When a court it determines has no appeals recently court of applied diction to decide the appeal, merits of an Zani factors without correction the Court appropriate action is to dismiss.16 This Moreover, of Appeals.5 Criminal Zani peal is for dismissed want of specifically Texas case addressing the problem which was before the trial court for OPINION ON REHEARING decision; simply penned because Zani was rehearing, urges On Frye we while was the standard for admission of appeal, alternatively, consider its as a re- scientific evidence does not necessarily viti quest for relief writ of analysis mandamus. We ate its of the factors to be consid cannot, conclude that we and overrule the ered in a situation involving hypnotically en motion. hanced Roberts,
13. See
Dalehite,
ruled. Huntsville, for Anthony Gouglass,
Michael appellant. Houston, Holmes, Hart- Calvin B.
John mann, Houston, appellee. MIRABAL,
Panel consists Justices DOUGLAS, Anthony Appellant, O’CONNOR, NUCHIA. Michael OPINION Texas, Appellee. The STATE Justice. SAM NUCHIA 01-98-00885-CR. No. jurisdiction to entertain areWe without Texas,
Court of by the Appellant was sentenced appeal. this Dist.). (1st Houston motion for 1998. No judge trial on June filing filed. The deadline new was Feb. See July notice of Tex.R.App.P. proa se Appellant 26.2. mailed 3, 1998, July appeal, postmarked notice According Appeals. Fourteenth Court of Procedure Appellate to Texas Rule 25.2(b)(1), be filed with notice of must *6 appeal The notice of the trial court clerk.1 July until filed in the trial court was not days after it was due. See four Tex. R.App 25.2(b)(1).2 .P. filed in
Although the notice of 15-day period time the trial court within time to filing for extension of a motion extension appeal, no motion for file notice of Tex.R.App.P. 26.3. filed. See of time was presented precisely This was situation Olivo v. There the court held:
Crim.App.1996). appeal, but no motion a notice of When time, fif- is filed within the extension of appeals lacks teen-day period, the court dispose purported jurisdiction to by dis- other than appeal in manner missing it for lack 9.2(b) provides that in Appellate Rule 25.1 Appellate pro- Procedure. Procedure 1. Texas Rule mistakenly document received within 10 vides that mailed ‘‘[i]f civil cases notice timely filing days court, considered after the deadline is appellate the notice is with the filed if, among things, sent other it was to the filed day with the been filed the same deemed to have proper properly See Tex. addressed. clerk and clerk, appellate clerk must and the trial court R.App.P. added). 9.2(b)(1)(A), (B) (emphasis copy of immediately send the trial court clerk However, case. done in this neither was provision for is no similar the notice.” There TexR.App.P. 25.1(a) Compare criminal cases. Su- approach of the Texas 2. The difference in Tex.R.App.P.25.2(a), (b). preme Court of Criminal Court and the Texas amended Rules is reflected in the