Ashford v. State

630 S.W.2d 705, 1981 Tex. App. LEXIS 4610
CourtCourt of Appeals of Texas
DecidedDecember 31, 1981
DocketNo. 01-81-0209-CR
StatusPublished
Cited by1 cases

This text of 630 S.W.2d 705 (Ashford v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ashford v. State, 630 S.W.2d 705, 1981 Tex. App. LEXIS 4610 (Tex. Ct. App. 1981).

Opinion

STILLEY, Justice.

Appellant was convicted of aggravated robbery in a trial to the court and his punishment was assessed at six years confinement. We affirm.

By his first ground of error, appellant alleges a fundamental defect in the indictment for failure to describe the “property” taken in the robbery, citing several cases, including, Ex parte Canady, 563 S.W.2d 266 (Tex.Cr.App.1978). Canady was indicted for robbery under the provisions of the former Penal Code. An indictment for aggravated robbery under the present penal code no longer needs to describe the property taken during the robbery. Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974); Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.1980). Appellant’s first ground of error is overruled.

By his second ground of error, appellant challenges the sufficiency of the evidence to support a conviction for aggravated robbery.

The complainant walked out of his house to move his truck. He was approached by appellant who twisted the complainant’s arm behind his back and stated, “I will shoot you.” Appellant had his right hand in his pocket, implying possession of a pistol. Appellant was then joined by another male who pointed a small, black revolver at the complainant’s head and stated, “I ought to kill you.” The complainant testified he was in fear for his life at this point. Appellant then reached into the complainant’s left pocket, removed his wallet, and departed with the other assailant. After the complainant notified the police, a patrol car arrived within minutes. The officers broadcasted the description of the robbers given to them by the complainant, and then began patrolling the neighborhood with the complainant. A few minutes later another police car called, announcing they had two suspects in custody approximately nine blocks away. The complainant was taken [707]*707to the scene of the arrest and identified the two suspects as the people who robbed him. When arrested, appellant had in his possession the wallet taken from the complainant, in addition to other property stolen from an automobile parked at the scene of the robbery.

In prosecutions not based on circumstantial evidence, the Court of Criminal Appeals has stated, “[i]n reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused.” (cited cases omitted). Banks v. State, 510 S.W.2d 592, 595 (Tex.Cr.App.1974).

The trial court had sufficient evidence before it from which to find that appellant was guilty of aggravated robbery. Appellant’s second ground of error is overruled.

By his final ground appellant alleges error by the trial court in not sustaining his motion to suppress complainant’s in-court identification of appellant.

Appellant’s motion was premised on the actions of the police at the scene of appellant’s arrest, where appellant and the other suspect were shown to the complainant and identified by him as the robbers. Appellant argues that the one-on-one confrontation conducted by the police officers at the scene of the arrest was so suggestive and conducive to irreparable mistaken identification, that appellant was denied due process of law, citing, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Piper v. State, 484 S.W.2d 776 (Tex.Cr.App.1972); and Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976).

Several cases involving one-on-one confrontations between a suspect and a complainant have indicated the law to be as follows:

[although identification procedures whereby suspects are viewed singly by a witness rather than by conducting a lineup has been widely condemned, Stovall v. Dennis, supra, due process is not invariably violated by such procedure. Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). Each case must be considered on its own facts to determine the likelihood that a pre-trial confrontation resulted in irreparable mis-identification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, [971] 19 L.Ed.2d 1247 (1968).

Archie v. State, 615 S.W.2d 762, 764 (Tex.Cr.App.1981).

We are thus faced with a determination whether the one-on-one confrontation created the likelihood that the complainant misidentified appellant.

Appellant argues that the complainant based his identification of appellant on appellant’s clothes, directing our attention to testimony by the complainant indicating the clothes assisted in his identification.

However, during later cross-examination by appellant, the complainant further testified:

“Q. Mr. Singleton, you went to the scene of the arrest, you would not have been able to identify those people if they wouldn’t have had the same clothes on?
“A. Yes.
“Q. You wouldn’t have been able to do it, now, tell the truth—
“A. Yes, I could.
“Q. —because you didn’t see their faces at the time of the altercation?
“A. I glanced at it.
“Q. You said earlier you made your identification by the clothes that they had on.
“A. If they had been at a lineup with five or six people—
“Q. You could have?
“A. I think so.
“Q. You think so, but you are not sure?
“A. Yes, I could.”

The complainant had also previously testified that prior to the date of the robbery, he had seen appellant once or twice. The complainant also testified:

“Q. The man who actually took your billfold, is there any doubt in your mind that that’s not the man seated over at the [708]*708counsel’s table in the white shirt (appellant)?
“A. That’s the man.
“Q. Is there any doubt in your mind about that?
“A. No.”

Appellant further argues that the arresting officers asked the complainant to identify the suspects so as to prompt the complainant to make the identification, apparently implying that the arresting officers told the complainant that appellant was one of the suspects. The testimony was as follows:

“Q.

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Related

Brown v. State
757 S.W.2d 828 (Court of Appeals of Texas, 1988)

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Bluebook (online)
630 S.W.2d 705, 1981 Tex. App. LEXIS 4610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashford-v-state-texapp-1981.