French v. State

699 S.W.2d 672, 1985 Tex. App. LEXIS 12435
CourtCourt of Appeals of Texas
DecidedOctober 30, 1985
DocketNo. 04-84-00108-CR
StatusPublished

This text of 699 S.W.2d 672 (French 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
French v. State, 699 S.W.2d 672, 1985 Tex. App. LEXIS 12435 (Tex. Ct. App. 1985).

Opinion

OPINION

Before CANTU, TIJERINA and DIAL, JJ.

CANTU, Justice.

The conviction is for unauthorized use of a motor vehicle. Punishment was assessed by the jury at fifteen years’ confinement in the Texas Department of Corrections and a $10,000.00 fine.

The indictment, in separate counts, alleged theft of an automobile and unauthorized use of a motor vehicle as well as an enhancement paragraph. The theft count was waived and abandoned by the State and the jury’s verdict is based upon the submitted count. The sufficiency of the evidence is challenged, thus necessitating a recitation of the facts presented.

On June 3, 1983, Patty Booth, a waitress at the Jim’s Coffee shop at Walzem Road and Loop 410 in San Antonio, left the coffee shop at about 7:00 o’clock p.m. and discovered that her black 1974 Datsun 260Z automobile was missing. Booth returned to the restaurant and reported the theft to a City of Windcrest police officer who happened to be there. A report was also made that evening to the San Antonio Police Department.

Booth also telephoned her boyfriend, John Glass, to inform him of the theft. The next evening Glass and two friends, Scott Slaughter and Jeff Kothmann, were traveling south on Perrin-Beitel Road in Glass’ vehicle.

Glass had informed Slaughter that Booth’s car had been stolen. Slaughter was familiar with Booth’s car having at one time been interested in purchasing the car from his neighbor from whom Booth bought it.

At approximately 7:00 o’clock p.m. as they approached a turn-around lane under Loop 410, Slaughter, sitting in the passenger side of the vehicle, recognized Booth’s car traveling north on Perrin-Beitel. Slaughter observed an individual with long red hair, a full beard and mustache driving Booth’s car.

Upon being alerted by Slaughter, Glass cut through a vacant lot, drove over a curb and made a U-turn in an effort to pursue Booth’s car traveling north on Perrin-Bei-tel.

The pursuit led Glass down Perrin-Beitel to the intersection of Naco-Perrin Road where the Booth car stopped in the parking lot of an apartment complex. Glass drove past the parked vehicle, turned and passed the parked car once again.

Slaughter claimed at trial that he was able to clearly view the individual sitting [674]*674behind the steering wheel of Booth’s car. He identified that individual as appellant.

Glass also recognized the Booth car but was not able to obtain a clear view of the driver. Both Glass and Slaughter observed a passenger in the Booth car but could not specifically describe the individual.

After passing the parked car a second time, Glass drove to a nearby Stop-N-Go convenience store to call police. Following a phone call to police, Glass and one of his companions left in pursuit of the Booth car, which had since left the parking lot. The other companion remained at the Stop-N-Go to await police.

Glass’ pursuit of the Booth car was unfruitful inasmuch as the Booth vehicle disappeared from Glass’ view.

Later that evening Glass notified Booth about what had transpired. Booth in turn notified the Windcrest Police of the incident and gave a description of the suspect as a white male with long red hair, a full beard and mustache.

Thereafter, on June 9th at about 1:30 o’clock a.m., Booth received a phone call from a close friend, Joyce Rifenbury. Ri-fenbury told Booth that she had spotted Booth’s car parked outside of a game room known as the Galaxy Billiards located not too distant from the Jim’s Coffee Shop where Booth was employed.

Booth drove a rental car to Galaxy Billiards where she met Rifenbury and Fred Wilson, Rifenbury’s boyfriend.

Booth, using a spare set of keys, drove her Datsun 260Z back to Jim’s Coffee Shop and called the Windcrest police from there. San Antonio police had already been contacted from Galaxy Billiards.

Rifenbury and Wilson then drove Booth back to Galaxy Billiards. There, with a description of the suspect seen by Slaughter, Wilson entered Galaxy Billiards and approached some of the patrons asking “if anyone owned a Datsun, a black 260.” Appellant responded, “I think it’s mine.” Under a pretext that Wilson had collided with the Datsun auto causing damage, appellant accompanied Wilson out to the parking lot where the Booth vehicle had originally been parked prior to being moved by Booth.

Appellant emerged from the club and onto the parking lot. He hesitated then stated, “It’s not mine, mine’s on the other side” and attempted to walk away but was stopped and apprehended by police officers arriving on the scene.

Wilson testified that no other Datsun had been on the parking lot other than the vehicle being driven by Rifenbury and the Booth car which had been removed by Booth.

Appellant was placed in one of the police cars and was driven back to the Jim’s Coffee Shop on Walzem Road.1 At the Jim’s Coffee Shop parking lot Slaughter identified appellant as the individual he had seen driving Booth’s car on June 4th.

Appellant’s grounds of error numbers one, two and three all complain of the trial court’s action in permitting the jury to hear evidence of appellant’s identification while at the Jim’s Coffee Shop. Appellant’s sixth ground of error challenges the sufficiency of the evidence to support the conviction. Argument is made that the identification of appellant by Slaughter was through procedures which were patently and unduly suggestive because it was made at a time when appellant was clearly under arrest, handcuffed and confined to a police car. It is argued that such identification procedures created a substantial likelihood of irreparable misidentification. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In support of his position, appellant points to numerous instances of conflicting testimony of the various witnesses, some of which supports his position that an arrest was effectuated by San Antonio police officers at the Galaxy Billiards, a location [675]*675within the City of .San Antonio. There is, however, much testimony that appellant was not arrested by Windcrest police until he was identified at the Jim’s Coffee Shop parking lot after voluntarily accompanying San Antonio police to a location within the corporate limits of the City of Windcrest. Such conflict in testimony is to be resolved by the trier of fact as in any other case depending on credibility of witnesses. It was within the province of the trial court to determine the admissibility of such testimony and within the jury’s province to accept or reject. Walker v. State, 588 S.W.2d 920 (Tex.Crim.App.1979). There is ample evidence to support the version adopted by the jury.

Individual identification or show-up procedures are frowned upon, but their results are not per se inadmissible. Neil v. Biggers, supra; Cole v. State, 474 S.W.2d 696 (Tex.Crim.App.1971). This court must, as a reviewing court, determine whether, although suggestive, the pretrial identification was, under the totality of circumstances, reliable, or if there is a substantial likelihood of misidentification. See Manson v. Brathwaite,

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Related

Neil v. Biggers
409 U.S. 188 (Supreme Court, 1972)
Manson v. Brathwaite
432 U.S. 98 (Supreme Court, 1977)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Walker v. State
588 S.W.2d 920 (Court of Criminal Appeals of Texas, 1979)
Cole v. State
474 S.W.2d 696 (Court of Criminal Appeals of Texas, 1971)
Jackson v. State
657 S.W.2d 123 (Court of Criminal Appeals of Texas, 1983)
Norman v. State
523 S.W.2d 669 (Court of Criminal Appeals of Texas, 1975)
Edwards v. State
551 S.W.2d 731 (Court of Criminal Appeals of Texas, 1977)
Irving v. United States
423 U.S. 931 (Supreme Court, 1975)

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Bluebook (online)
699 S.W.2d 672, 1985 Tex. App. LEXIS 12435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/french-v-state-texapp-1985.