DeBlanc v. State

644 S.W.2d 801, 1982 Tex. App. LEXIS 5621
CourtCourt of Appeals of Texas
DecidedSeptember 8, 1982
DocketNo. 09-82-009-CR
StatusPublished

This text of 644 S.W.2d 801 (DeBlanc 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
DeBlanc v. State, 644 S.W.2d 801, 1982 Tex. App. LEXIS 5621 (Tex. Ct. App. 1982).

Opinion

OPINION

CLAYTON, Justice.

The jury convicted appellant of aggravated robbery and assessed his punishment at confinement for thirty years.

The primary question which we must address on this appeal is the contention that the identification procedures employed by the arresting officers violated the constitutional rights of the defendant. A brief statement of the evidence will be made so as to put the events in proper perspective.

[802]*802Around 8:30 in the evening of June 27, 1980, three Mexican Nationals employed as agricultural laborers in Liberty County went to Jane’s Lounge in the small town of Ames where they drank beer for a while. While inside the lounge, they were approached by two black men, and the conversation led to talk about certain types of entertainment they could have with young ladies.

The three “wet backs,” as one termed himself, decided to forego such entertainment despite the fact that it was payday and each had a substantial sum of money on his person. They drove away from the lounge but were followed by another car in which appellant and his companion were riding. As the car approached the City of Liberty, appellant’s vehicle driver signaled the complainants to stop, and they did near a cafe alongside the road.

In the reflected light of the cafe, appellant and one of the complainants again engaged in conversation concerning the proffered entertainment, and the complainants turned around and followed appellant’s car back to the town of Ames and onto a dirt road in thick woods. There, each was robbed of his money, his shoes were taken from him, and appellant fled with the keys to complainant’s vehicle.

Prior to trial, the appellant presented his motion challenging the identification procedures used, and a hearing was held with the trial judge following the procedures recommended in Martinez v. State, 437 S.W.2d 842, 847-848 (Tex.Cr.App.1969). See also, Beapre v. State, 526 S.W.2d 811, 813 (Tex.Cr.App.1975). At this hearing the witness Armando Salazar, speaking through an interpreter, testified that, while in the company of Juan Salazar and David Dominguez, he encountered two black males outside Jane’s Lounge in Ames, Texas, where the two black males engaged in conversation with them.

After leaving the parking lot of the lounge and while proceeding to Dayton, he again had the opportunity to see the same two black males while stopped in the vicinity of Walker’s Cafe. The area was lighted; he was “pretty close” and could see the faces of the two black males. After a conversation at this place, Armando, Juan, and David followed the same two black males to a secluded spot on a road near Ames where the same two black males, with the aid of a rifle, robbed them. He identified appellant as one of the blacks who robbed him, and was very definite in his identification. He was “sure” of his identification and that appellant was the one who “pushed him with his rifle.”

The witness, Armando, then testified that he saw the appellant about three days later in the Liberty County jail. He testified that his identification of appellant was not influenced by his seeing appellant in the jail but was based upon his confrontation with him on the evening of the robbery.

David Dominguez testified he had a conversation with appellant inside Jane’s Lounge for approximately thirty minutes. He testified further that he was also confronted by appellant outside the lounge and that the lighting was “pretty good,” and he could see the faces of the two black males. He also saw the two men again at Walker’s Cafe.- He was able to see the two men at the scene of the robbery and was able to state with particularity which of the men had the knife and which had the rifle. David also stated that the voices he heard at the scene of the robbery were the same voices he heard at Jane’s Lounge and Walker’s Cafe. He also was able to see the faces of the two men at the scene of the robbery.

After the robbery, David, Armando, and Juan returned to a cafe in Ames where they were met by Roy Carrier of the Ames Police Department. The three victims described the two black males to Carrier. David testified that approximately one week later he saw the same two persons in a room in the Liberty County jail. He also testified that during the evening of the robbery he was in a position to see the two black men “real good” for almost an hour, and that his identification was based upon his observations of appellant and not because of seeing appellant in the jail. He remembered appellant from “when they [803]*803robbed me.” He testified that six photographs of different men were presented to him by Officer Carrier and that all of the photographs were of black men with the same or similar appearance. He had no difficulty in “picking out” appellant’s photograph.

Juan Salazar’s testimony was similar, as to the events of the evening, to that of Armando and David. He testified that his identification of appellant as one of the men who robbed the three victims was based solely upon his observation of and confrontation by appellant on the evening of the robbery.

In overruling the motion to suppress the court’s identification of appellant by the three victims, the trial court found:

“Juan Salazar, Armando Salazar, and David Dominguez had at least approximately one hour to view the parties who allegedly robbed them, 30 minutes of which [were] inside Jane’s Lounge. That, notwithstanding the fact that all these Mexicans could not speak English—one of them could. David Dominguez could speak English, and that they were close enough to where they could each see this .defendant, Herbert Thomas DeBlanc, speak. He could hear him speak, see his facial characteristics, and the identification testimony of the witnesses ... is not tainted by the lineup at the jail.
“Further, that in-Court identification of Herbert Tom DeBlanc by the witnesses Armando Salazar, Juan Salazar, and David Dominguez are each of an independent origin or source.”

The trial court did not specifically make a finding as to the photographic display. However, since the court conducted a hearing on the issues, and since there was evidence to support a finding of admissibility, and appellant’s motion to strike the in-court identification was overruled, the court’s action in overruling the motion was tantamount to a finding of admissibility as fact on such issue. Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972); Williams v. State, 477 S.W.2d 885 (Tex.Cr.App.1972).

Photographic identification does not automatically taint an in-court identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973); Ward v. State, 474 S.W.2d 471 (Tex.Cr.App.1971); Jones v. State, 458 S.W.2d 62 (Tex.Cr.App.1970).

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Related

United States v. Wade
388 U.S. 218 (Supreme Court, 1967)
Simmons v. United States
390 U.S. 377 (Supreme Court, 1968)
Jones v. State
458 S.W.2d 62 (Court of Criminal Appeals of Texas, 1970)
Ward v. State
474 S.W.2d 471 (Court of Criminal Appeals of Texas, 1971)
Clay v. State
518 S.W.2d 550 (Court of Criminal Appeals of Texas, 1975)
Turner v. State
614 S.W.2d 144 (Court of Criminal Appeals of Texas, 1981)
Williams v. State
625 S.W.2d 769 (Court of Appeals of Texas, 1982)
White v. State
496 S.W.2d 642 (Court of Criminal Appeals of Texas, 1973)
Bedford v. State
501 S.W.2d 625 (Court of Criminal Appeals of Texas, 1973)
Wyatt v. State
566 S.W.2d 597 (Court of Criminal Appeals of Texas, 1978)
Glover v. State
470 S.W.2d 688 (Court of Criminal Appeals of Texas, 1971)
Beaupre v. State
526 S.W.2d 811 (Court of Criminal Appeals of Texas, 1975)
Garcia v. State
626 S.W.2d 46 (Court of Criminal Appeals of Texas, 1981)
Dunlap v. State
477 S.W.2d 605 (Court of Criminal Appeals of Texas, 1971)
Williams v. State
477 S.W.2d 885 (Court of Criminal Appeals of Texas, 1972)
Thompson v. State
480 S.W.2d 624 (Court of Criminal Appeals of Texas, 1972)
Martinez v. State
437 S.W.2d 842 (Court of Criminal Appeals of Texas, 1969)
Garcia v. State
563 S.W.2d 925 (Court of Criminal Appeals of Texas, 1978)

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Bluebook (online)
644 S.W.2d 801, 1982 Tex. App. LEXIS 5621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deblanc-v-state-texapp-1982.