DeGay v. State

923 S.W.2d 847, 1996 Tex. App. LEXIS 2311, 1996 WL 303079
CourtCourt of Appeals of Texas
DecidedJune 5, 1996
DocketNos. 09-94-210 CR, 09-94-211 CR
StatusPublished
Cited by7 cases

This text of 923 S.W.2d 847 (DeGay 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
DeGay v. State, 923 S.W.2d 847, 1996 Tex. App. LEXIS 2311, 1996 WL 303079 (Tex. Ct. App. 1996).

Opinion

OPINION

WALKER, Chief Justice.

For purposes of jurisprudential efficiency, these separate appeals will be consolidated by this Court and disposed of in a single opinion. A somewhat detailed rendition of the procedural events surrounding appellant’s two convictions is necessary as it appears that certain portions of the two records cannot be utilized by us in reviewing some of appellant’s points of error.

The records before us reflect that on September 8, 1988, appellant pleaded guilty to the charge of “Felony Theft” in cause number A880186. The trial court so adjudicated appellant and sentenced him to eight (8) years’ confinement in the Texas Department of Criminal Justice — Institutional Division, and fined him $1000. The trial court suspended imposition of said sentence and placed appellant on probation for a term of eight years. One of the terms and conditions of said probation stated: “(a) Commit no offense against the laws of Texas, any other State, the United States or any other governmental entity.”

On November 10, 1993, appellant was indicted for the felony offense of Aggravated Kidnapping, cause number A930617. On December 9, 1993, the State filed a motion to revoke appellant’s felony theft probation alleging a violation of “Condition (a)” based on the commission of the aggravated kidnapping offense.

Beginning on March 31, 1994, the trial court conducted a hearing on the State’s motion to revoke probation. In the weeks preceding this hearing, appellant had filed a variety of prehearing and pretrial motions m each separate case. Several of said motions, however, were virtually identical with regard to the factual and legal issues raised. By agreement of the parties, the trial court used the testimony elicited at the revocation hearing to also decide the merits of certain of appellant’s prehearing and pretrial motions. We point this out because, although the subsequent jury trial of the aggravated kidnapping charge [cause number A930617] generated six volumes of statement of facts separate and apart from the two volumes generated from the revocation hearing [cause number A880186], we are limited to considering only the testimony and evidence elicited at the revocation hearing with regard to certain points of error raised in appellant’s aggravated kidnapping appeal. We reach this conclusion from a discussion between the parties and the trial court following the voir dire proceeding prior to the start of the aggravated kidnapping trial, with the pertinent portion reproduced as follows:

The Court: ... You filed motion to suppress involving an arrest and a motion to suppress involving a line-up, which in that hearing the court denied both said motions, and the court’s ruling from the evidence that I heard — it’s my understanding that that would be the same evidence that I would hear in this particular case, and that that evidence could be substituted in this record and that the court’s ruling will remain the same as a result of the evidence that I’ve heard without ya’ll having to go through all of that again. Is that correct, State?
[The State]: Yes, Your Honor.
The Court: Is that correct, Mr. [Trial Counsel]?
[Trial Counsel]: Your Honor, it’s our impression that that’s—
The Court: Not correct?
[Trial Counsel]: No, I’m not saying that, but it’s just our impression that that would fall under the adoption of the law of the case, and that case would be applicable here. And so, the only thing that we would ask would be that we not waive any [850]*850objections, just a quickly answered question — correct.
The Court: That’s all I want is an answer to my question.
[Trial Counsel]: Okay.
The Court: You can do what you want after that answer, or you can make objections. That’s up to you.
But the evidence that I heard is the evidence that I would hear if we had a hearing on both motions to suppress, and that evidence is the same evidence which ya’ll would present today. So, there’s no need to hear it again; right?
[Trial Counsel]: That’s the evidence; correct.
The Court: All right. And the court has already stated that evidence could be put in this record and that the court’s ruling stands. Both motions are denied.
Now, do ya’ll have any other matters for the court to take up?
[Trial Counsel]: Yes, Your Honor. Back to that, because the ruling has been that the evidence would be admissible, we would ask so that we don’t bring this up in front of the jury many times, if we could have it understood that we have an objection — or that we would object to the in-court identification when it would be offered and that the court would allow us at this point to have a running objection to that when the trial starts so there would be no need to go through that at the time of trial.
[The State]: Yeah, that’s fine with us, Your Honor.
The Court: I didn’t think there was a problem. Okay.
[Trial Counsel]: Okay.
The Court: You can do that.

Thereafter, the trial of the aggravated kidnapping offense took place. Appellant was found guilty and punishment was assessed by the jury at eighteen (18) years’ confinement in the Texas Department of Criminal Justice — Institutional Division, and a fine of $5000 was also assessed. The trial court then ordered that appellant’s eighteen year sentence run consecutively with his eight year sentence in the felony theft conviction.

As is apparent from the portion of the statement of facts quoted above, any consideration by this Court of issues involving rulings on appellant’s prehearing and pretrial motions to suppress identification, motions to suppress evidence obtained from an illegal arrest, and motions for continuance, will focus solely on the record generated from the revocation hearing. This encompasses the first three points of error in each of the instant appeals. Their identical wording reads as follows:

Point of Error I: The trial court erred in its denying Appellant’s Motion to Suppress Illegal Identification of the Defendant. Point of Error II: The trial court erred in denying Appellant’s Motion to Suppress Evidence Obtained as Result of Illegal Arrest.
Point of Error III: The trial court erred in denying Appellant’s Motion for Continuance to secure the presence of a witness crucial to the Defense.

In considering appellant’s first point of error in both of his instant appeals, we observe that the Court of Criminal Appeals has recently reaffirmed its holding that, even assuming an improper pretrial identification procedure has taken place, a subsequent in-court identification is admissible if the witness’s ability to identify the defendant has an origin independent from the said improper pretrial procedure. McFarland v. State, No. 71,557, slip op. at 29, 34 n. 27, — S.W.2d -, -, - n. 27 [1996 WL 71513] (Tex.Crim.App. February 21, 1996). See also Pichon v. State, 683 S.W.2d 422, 426 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1137, 105 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
923 S.W.2d 847, 1996 Tex. App. LEXIS 2311, 1996 WL 303079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degay-v-state-texapp-1996.