In re J. S.

602 S.W.2d 585
CourtCourt of Appeals of Texas
DecidedJuly 16, 1980
DocketNo. 9188
StatusPublished
Cited by4 cases

This text of 602 S.W.2d 585 (In re J. S.) 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
In re J. S., 602 S.W.2d 585 (Tex. Ct. App. 1980).

Opinion

COUNTISS, Justice.

This appeal by the minor, J. S., is from a judgment of the juvenile court, waiving its jurisdiction and transferring J. S. to the district court for trial as an adult. Questions presented by this appeal are whether (1) the courtroom identification of J. S. was so tainted that it was inadmissible; (2) there is sufficient evidentiary support for the findings of the juvenile court; (3) the juvenile court abused its discretion in transferring J. S. to the district court; and (4) service of summons on J. S.’s parents was required prior to the transfer hearing. Finding no reversible error, we affirm.

On August 20, 1979, at approximately 6:45 p. m., a convenience store in Plainview, Texas, was robbed by two young males. A store clerk was working at the cash register when the youths entered the store. They were armed with a can of mace and a knife. They jumped over the counter, sprayed the clerk with mace, held the knife to her throat and told her to open the cash register. She did so and they took the money and ran from the store. Two youths were seen running from the store to a vehicle by a witness in a nearby store. The police were summoned, the clerk gave them a description of the youths and the witness gave them a description of the vehicle.

At approximately 8:30 p. m. on the same day, two youths came to the Plainview police station to arrange the release of a prisoner. A police officer observed that they and their vehicle fit the description given in connection with the convenience store robbery. Another police officer then went to the clerk’s residence and brought her to the police station. The patrol car parked beside the suspects’ vehicle, in which appellant J. S. was sitting. The clerk immediately identified J. S. as one of the participants in the robbery. J. S. was subsequently taken into custody. He was sixteen years of age at that time.

The clerk observed J. S. and another youth later that evening through a window in the police station, where they were standing with some police officers, and again identified J. S. as one of the participants in the robbery. She was unable to make a positive identification of the other youth, however.

The witness who observed the vehicle leaving the store also came to the police station that evening. He unequivocally identified the vehicle in which J. S. had been sitting as the one he had described to the police earlier.

The state immediately initiated proceedings under section 54.02 of the Texas Family Code1 requesting the juvenile court to waive jurisdiction and transfer J. S. to the district court for criminal proceedings. The state’s motion listed names and addresses for J. S.’s mother and father in Robstown, Texas, and his guardian in Amarillo, Texas. The record reflects issuance of summons for, and service on, the person named as his guardian büt does not reflect issuance of summons for or service on, the persons named as his parents.

After the appropriate hearing, the juvenile court waived jurisdiction, transferred J. S. to the district court for criminal proceedings and made findings of fact and conclusions of law. J. S. presents four points of error in this court. He contends the juvenile court erred: (1) in admitting into evi[588]*588dence the eyewitness identification of him by the store clerk when she testified; (2) because there is insufficient evidentiary support for the juvenile court’s reasons for transfer; (3) because the juvenile court abused its discretion in ordering the transfer; and (4) in failing to issue a summons to J. S.’s parents. We will consider the points in the order stated.

J. S. presents a dual attack on the admission of the store clerk’s courtroom identification of him. He contends, first, that the identification was not shown to be of independent origin and was tainted by the store clerk’s identifications on the night of the arrest. He then contends the identifications on the night of the arrest were made when he was entitled to but did not have counsel and, thus, the subsequent admission of the identification testimony was fundamental error.

It is, of course, fundamental that the pre-trial identification procedure not be so unnecessarily suggestive and conducive to irreparable mistaken identification as to amount to a denial of due process. Proctor v. State, 465 S.W.2d 759, 765 (Tex.Cr.App. 1971). The factors to be considered when determining the origin of a courtroom identification are:

(1) the prior opportunity to observe the alleged criminal act;
(2) the existence of any discrepancy between any pre-lineup identification and the defendant’s actual description;
(3) any identification of another person prior to the lineup; „
(4) the identification by picture of the defendant prior to the lineup;
(5) failure to identify the defendant on prior occasions; and
(6) the lapse of time between the alleged act and the lineup identification.

Garcia v. State, 563 S.W.2d 925, 928 (Tex.Cr.App.1978).

In this case, the offense in question occurred during the late afternoon in a well lighted store. The clerk was face to face with J. S. for several minutes, with ample opportunity to observe him. She testified he sprayed her with mace. She was wearing glasses, however, and her vision was not impaired. The clerk’s initial description of J. S. was consistent with his actual appearance and her testimonial description of him. When she was taken to the police station less than two hours after the robbery, she immediately identified J. S. as he sat in his car. There is no evidence of improperly suggestive activity by the police at that time or later. Insofar as the record reflects, the clerk’s identification of him has been consistent, and she has never failed to identify him. Also, there is no evidence of any improper use of photographs.

Additionally, at the hearing the clerk testified unequivocally that her identification was based upon her memory of J. S. from the robbery. Based on the foregoing factors, we are satisfied the clerk’s courtroom identification was of independent origin and not so tainted by the pre-trial identification procedures employed by the police as to be inadmissible.

J. S.’s contention that the courtroom identification was inadmissible because he was not represented by counsel when identified on the night of the robbery is also without merit. As stated in Banks v. State, 530 S.W.2d 940, 942 (Tex.Cr.App.1975):

The presence of counsel is not required until “at or after the initiation of adversary judicial proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”

See also, Ward v. State, 505 S.W.2d 832, 835 (Tex.Cr.App.1974), cert. denied, 419 U.S. 864, 95 S.Ct. 117, 42 L.Ed.2d 100.

Insofar as we can determine from the record, no formal proceedings of any kind had been initiated against J. S.

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