Jackson v. State

772 S.W.2d 459, 1989 Tex. App. LEXIS 1568, 1989 WL 60962
CourtCourt of Appeals of Texas
DecidedMay 3, 1989
DocketNo. 09 88 197 CR
StatusPublished
Cited by7 cases

This text of 772 S.W.2d 459 (Jackson 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
Jackson v. State, 772 S.W.2d 459, 1989 Tex. App. LEXIS 1568, 1989 WL 60962 (Tex. Ct. App. 1989).

Opinion

[461]*461OPINION

BROOKSHIRE, Justice.

The opinion issued on this cause on April 26, 1989, is hereby withdrawn and the following opinion is substituted.

The Appellant was indicted for the act of intentionally and knowingly, while in the course of committing theft of property, threatening and placing the complainant, one Jake Daleo, III, in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely: a firearm. The indictment further alleged that he had been convicted of three felony offenses prior to the commission of the primary offense. Before trial on the issue of guilt-innocence, Appellant pleaded not guilty. The trial was to a jury, which found Appellant guilty of aggravated armed robbery as alleged in the indictment. At the punishment stage the Appellant pleaded untrue to all enhancement allegations in the indictment. The jury found that Appellant was previously convicted of the offenses as alleged, found him guilty of an enhanced first degree felony and sentenced him to fifty years confinement in the Texas Department of Corrections. Appellant now brings forward a pro se appeal. He asserts twenty-one points of error.

The undisputed facts of the case, as stated in the record, are as follows. On June 8, 1987, Jake Daleo, III, (hereinafter styled complainant), according to his testimony, entered the premises of Dickie’s Discount Liquor Store in Beaumont, where he was part-owner, at about 5:45 p.m. Upon doing so, he found a man, whom he identified as the Appellant, holding a gun and screaming hysterically. The complainant stated that he saw another co-owner, one Mark Lawson, tied up behind the store counter. He testified that Appellant told him he was committing a robbery, then forced the complainant to move behind the counter into the office area and kneel down. The complainant stated that Appellant threatened to kill him if he moved and then proceeded to take a money box from the register filled with checks and cash. Complainant then said that Appellant again threatened to kill his victims, and then ran out of the store, carrying the money box with him. Complainant then grabbed a gun kept in the store and chased Appellant for several blocks, firing at him several times. Complainant then testified that Appellant dropped the money box and ran away, limping as though he had been shot. Complainant stated that he scooped up the cash box with the money, some $8,000 of which was in checks, and returned to the store.

Officers David. Froman and David Kiker of the Beaumont Police Department testified for the State. Both testified that they responded to a dispatcher’s report that shots had been fired in the area where the robbery occurred. Upon arrival, Officer Froman testified that a black woman came to him and told him that a robbery had taken place at a liquor store and that the robber had just run past her. The officers testified that a search of the area resulted in the apprehension of Appellant, who they found hiding under a house near the scene of the robbery.

Appellant was then transported to the scene of the robbery. Complainant testified that he went to the squad car where Appellant was sitting. He then stated that he was asked by the officers if Appellant was the man who robbed the store. Complainant then stated that he identified Appellant as the robber as he sat in the squad car.

In his pro se brief, Appellant has failed to include references'to the record in the synopsis of his points of error presented at the beginning of his brief. Such inclusions are required by TEX.R.APP.P. 74(d). Therefore, such multifarious points of error present nothing for review. However, in the interest of justice, we shall deal with Appellant’s claims under his points of error, if the record references and argument under the point of error sufficiently direct our attention to the objections underlying each issue contained therein. TEX.R. APP.P. 74(d), (f)(2); Holland v. State, 761 S.W.2d 307 (Tex.Crim.App.1988); Hollins v. State, 571 S.W.2d 873 (Tex.Crim.App.1978).

[462]*462In Appellant’s first point of error, he asserts that the court erred in overruling his pre-trial motion to suppress evidence seized as a result of what he asserts to be an unlawful detention. Officer Kiker stated at trial that he arrested Appellant because he was under a house near the area where the robbery occurred and that he fit the description given him by Officer Froman. Froman gained the description from a woman who allegedly saw Appellant flee the store. The arresting officers had reasonably trustworthy information which would warrant a reasonable man in believing that Appellant had committed the crime and was about to escape. Therefore, the officers met the test for probable cause for a warrantless arrest. Brown v. State, 481 S.W.2d 106 (Tex.Crim.App.1972); Adkins v. State, 764 S.W.2d 782 (Tex.Crim.App.1988); TEX.CODE CRIM.PROC.ANN art. 14.04 (Vernon 1977). Appellant’s first point of error is overruled.

Appellant’s second point of error asserts that the trial court erred in failing to suppress the in-court identification, of Appellant as the robber, made by the complainant. He claims that the identification was based upon the one to one show-up conducted at the robbery scene, at which the complainant also identified Appellant as the perpetrator of the crime. Appellant asserts that the identification at trial is illegally tainted by such identification at the show-up. Appellant’s twelfth point of error also involves the one-to-one show-up; he claims that error occurred when the arresting officers read Appellant his Miranda rights, then transported him to the scene of the robbery to be identified without the presence of counsel. Related to both points of error is point of error fifteen, in which error is claimed to have occurred when complainant picked out Appellant’s photograph as that of the robber out of a mug book the day after the robbery. That fact was discovered during the pre-trial hearing on the motion to suppress complainant’s in-court identification of Appellant. Appellant also alleges that the jury should have been able to view the photograph at issue, and, in any case, that photo identification improperly tainted the in-court identification.

First, the show-up at the crime scene, which occurred about ten minutes after his arrest, was not improper. Officer Froman testified at the trial that the confrontation was transacted to identify the suspect, or release him without unwarranted detention if he turned out to be innocent. Such motive for a show-up a short time after apprehension has been held proper. Cole v. State, 474 S.W.2d 696 (Tex.Crim.App.1972).

Second, even assuming that the show-up confrontation was improper, complainant’s testimony clearly demonstrated that his identification of Appellant came from viewing his actions at the time of the robbery. This constitutes identification from an independent source, bereft of improper taint or suggestiveness, and, therefore, admissible at trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Appellant, on appeal, has failed to prove by clear and convincing evidence that an improper taint had discredited the at-trial identification. Holloway v. State,

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Bluebook (online)
772 S.W.2d 459, 1989 Tex. App. LEXIS 1568, 1989 WL 60962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-texapp-1989.