Garza v. State
Opinions
OPINION
This is an appeal from a conviction for attempted burglary. Punishment, enhanced by allegation and proof of two prior felony convictions, is life.
In his first ground of error appellant contends it was error for the trial court not to suppress the in-court identification by witnesses Rosado and Garcia. After a hearing on the motion to suppress, the trial court denied the motion, and subsequently both witnesses identified appellant before the jury as the individual they saw break a window of the premises where the burglary was attempted.
Our review of the testimony heard at the motion to suppress shows that Ms. Garcia heard glass breaking next door to where she lived. Ms. Rosado, whose residence was the object of the offense, was at Ms. Garcia’s home at the time. Both ladies stepped outside and saw two forms on the porch of Rosado’s house. They yelled at the two would-be burglars, asking what they were doing, whereupon the intruders walked from the scene. Ms. Garcia followed them a short distance to see what direction they were going, then returned to the house.
Within minutes the police arrived. The two witnesses gave a general description of [510]*510the persons they had seen: thin, not too tall and not too short, in their late teens or early twenties, both dressed in dark shirts, one in dark pants and the other in light pants. Two officers went in the direction that the witnesses had seen the offenders depart, while a third officer interviewed the witnesses at the scene. Within minutes appellant and his companion were stopped a few blocks from the scene because they matched the general description given by the witnesses, and were immediately returned to the scene for possible identification. Before they arrived at the scene, however, the officer told them that two suspects were being brought back, and asked them if they were sure about the age of-the suspects. Garcia testified they told the officer they could not say the age for sure because they did not get a clear view of the offenders and that they were unable to give a positive identification.
When appellant and his companion were brought to the scene, Garcia and Rosado positively identified them as the persons they had seen attempting the burglary. They also testified, however, that they identified them on the basis of the clothing they were wearing, and admitted they had not been able to see their faces.
Each case must be judged on its own facts. Sutton v. State, Tex.Cr.App., 495 S.W.2d 912, 916. The record convinces us that Rosado and Garcia were not able to identify appellant at trial on the basis of their observations of the individuals at the time of the offense. At best the evidence shows that when appellant was brought to the scene of the offense, he was identified on the basis of the clothing he was wearing, and that any identification in court was on the basis of the witnesses’ observations of him after his arrest, and not at the time of the offense.1
[511]*511Although it is true that the fact that a witness is not positive of his identification goes to the weight of his testimony, not to its admissibility, Valenciano v. State, Tex.Cr.App., 511 S.W.2d 297, this case does not present an incident in which less than positive identification was introduced. In her testimony before the jury Ms. Rosado was positive that appellant was one of the men she saw committing the offense:
“Q. Can you positively tell us whether or not Mr. Garza was, in fact, standing by that window at 416 E. Carson?
“A. Yes, he was, and the other man, too, both holding onto the window, and glass falling on the ground. That’s when I hollered at them to stop breaking those windows, that I lived there.”
Despite the uncertainty of the identification demonstrated earlier in this opinion, the trial court denied the motion to suppress the in-court identification of appellant, and permitted Rosado to make this positive identification. The positive identification of appellant as the person seen committing the offense was patently unreliable, as demonstrated by the witness’ testimony at the hearing on the motion to suppress, and it should not have been admitted.
We hold it was reversible error to deny the motion to suppress, to admit the in-court identification.
The judgment is reversed and the cause remanded.
Before the Court en banc.
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633 S.W.2d 508 (Garza v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.