Eleby v. State

632 S.W.2d 855, 1982 Tex. App. LEXIS 4426
Court of Appeals of Texas·Decided April 15, 1982·No. No. A14-81-460-CR·Published·Cited by 1 cases

Opinion

OPINION

PRICE, Justice.

■This is an appeal from a conviction for aggravated robbery. Trial was to a jury who found the appellant guilty of the offense and assessed his punishment at forty years imprisonment, appellant having had a prior felony theft conviction. Appellant asserts five grounds of error. We find no reversible error and affirm the conviction.

We summarize the facts for clarity. On September 17,1980, complainant was awaiting the arrival of a woman friend in a hotel room when an armed robber entered the room, pushing the woman in front of him. He stole the complainant’s money, jewelry and car keys, covered the complainant’s head with a coat and left the scene in the complainant’s automobile. Several days later the police stopped the driver of the complainant’s stolen automobile, a Mr. Phillip Shepherd. On October 5, 1980, Mr. Shepherd was placed in a line-up but the complainant indicated he was not the person who had robbed him.

On October 5,1980, a Houston police officer on routine patrol was flagged down by a man who, without giving his name to the officer, claimed to be the brother of Phillip Shepherd. This man implicated appellant to the officer on the basis of an alleged conversation with Shepherd on October 4, 1980. The complainant then tentatively identified appellant in a photo spread. Appellant was subsequently arrested on October 5, 1980, and identified in a line-up by the complainant on October 6, 1980. Complainant also made an independent in-court identification of appellant at trial.

[857] In ground of error number one appellant asserts that the trial court erred in admitting identification testimony of appellant obtained as a result of the illegal warrant-less arrest of appellant. The arresting officer, appellant argues, did not possess the requisite probable cause to effect an arrest nor were exigent circumstances present at the time of the arrest to justify a warrant-less arrest. Further, appellant contends that neither the credibility of the informant nor the independent source of his knowledge was established pursuant to Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Therefore, appellant argues, the line-up and the in-court identification of appellant should have been suppressed since they were the product of an illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

An in-court identification of a defendant by a witness who has previously identified him in an illegal line-up is admissible if the State can demonstrate, by clear and convincing evidence, that the in-court identification was based upon observation of the defendant other than by the line-up identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Thompson v. State, 480 S.W.2d 624, 627 (Tex.Cr.App.1972) the Court of Criminal Appeals enumerated the factors to be considered in determining the origin of an in-court identification. They included: (1) the prior opportunity to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-line-up description and the defendant’s actual description, (3) any identification prior to line-up of another person, (4) the identification by picture of the defendant prior to the lineup, (5) failure to identify the defendant on a prior occasion, and (6) the lapse of time between the alleged act and the line-up identification. Thompson v. State, supra at 627 citing United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939-40, 18 L.Ed.2d 1149 (1967) and Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969).

Applying this criteria to the present case, we find that the complainant had ample opportunity to observe appellant. There was no discrepancy of any magnitude between his pre-line-up description and the actual appearance of appellant. The record does not reflect that he had previously identified another person or that he had failed to identify appellant on a prior occasion. The lapse of time between the robbery and the line-up was not so great as to dull the complainant’s memory. The photograph tentatively identified by complainant in the photo spread was a photograph of appellant taken prior to his arrest, and the evidence was otherwise sufficient to enable the trial court to conclude that the in-court identification was of independent origin. Further, the in-court identification need not be suppressed as the fruit of appellant’s allegedly unlawful arrest but it is admissible because the victim’s independent recollections of him antedated the alleged unlawful arrest and was thus untainted by the constitutional violation. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). The photograph identification of appellant likewise antedated the alleged unlawful arrest. Appellant’s first ground of error is overruled.

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Eleby v. State, 632 S.W.2d 855, 1982 Tex. App. LEXIS 4426 (Tex. Ct. App. 1982).

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