Johnson v. State

797 S.W.2d 330, 1990 Tex. App. LEXIS 2325, 1990 WL 133859
CourtCourt of Appeals of Texas
DecidedSeptember 14, 1990
DocketNo. 12-88-00257-CR
StatusPublished
Cited by2 cases

This text of 797 S.W.2d 330 (Johnson 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
Johnson v. State, 797 S.W.2d 330, 1990 Tex. App. LEXIS 2325, 1990 WL 133859 (Tex. Ct. App. 1990).

Opinion

COLLEY, Justice.

This is an appeal from a conviction for robbery.1 Punishment was assessed at twenty years in prison.2 We will affirm.

Appellant presents four points of error. In his first three points of error, appellant challenges the sufficiency of the identification evidence to support the conviction.

The first point of error challenges the identification by the victim, Ms. Bobbie Whittington, of appellant as the perpetrator of the robbery. The point raises both the propriety of a pretrial photographic line-up and the in-court identification of appellant. Appellant contends that Whit-tington’s identification of him resulted from an impermissibly suggestive line-up which also tainted her in-court identification.3

A pretrial identification procedure which is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification violates due process. Rogers v. State, 774 S.W.2d 247, 260 (Tex.Cr.App.1989), cert. denied, — U.S. -, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989); Jackson v. State, 657 S.W.2d 123, 127-28 (Tex.Cr.App.1983); Medina v. State, 743 S.W.2d 950, 956 (Tex.App.—Fort Worth 1988, pet. ref’d). It is well established, however, that an in-court identification is admissible, even if an impermissible pretrial procedure was employed, if the record shows that the identification is based upon the witness’ prior observation and not upon the improper pretrial identification procedure. Rogers, 774 S.W.2d at 260; Jackson, 657 S.W.2d at 130. The key to evaluating identification procedures and testimony is reliability.

In the case before us, the appellant timely objected to the victim’s testimony regarding the disputed pre-trial photographic line-up and in-court identification. At a hearing outside the presence of the jury, Whittington testified that the man who robbed her stood across the motel desk from her, about two and one-half feet away. The area was “very well lighted” and the perpetrator did not wear any kind of mask or disguise. Nothing obstructed her view of the robber and before he pushed her she was able to get a clear view of him. Whittington identified the appellant in court as the man who robbed her and stated that “I am identifying that man because that's the man that robbed me.” In response to questions from the trial court, Whittington unequivocally stated that her identification of the appellant was based upon her observation of him on the date of the offense and not as a result of the photographic line-up shown to her.

The trial court found that Whittington’s identification was indeed based upon her observations during the offense and was not tainted in any way by any photographic line-up. The in-court identification testimony was ruled to be admissible.

Before the jury, Whittington testified that on the date of the robbery the appellant came into the motel for money change around 1:00 a.m. He returned about 4:00 a.m. asking for more change. It was during the second visit that the robbery occurred. Whittington again testified that the lighting in the area was bright. She also testified that the robber had on a baseball cap and a tannish windbreaker jacket. She did not testify before the jury [332]*332about her pre-trial identification of appellant based on the photographic lineup.

The record clearly establishes that Whit-tington’s identification of appellant as the person who committed the robbery on April 1, 1988, resulted from her observation of him before and during the offense. She had the opportunity to observe the man twice at close range, in a well lighted area. She testified that the first time appellant approached her for change, he leaned so far over the counter that it made a cracking noise causing her to look up at him again. She paid enough attention to describe to the police the man’s clothing and his appearance. Whittington’s observations of appellant were sufficient to serve as an independent origin for her in-court identification of him, without regard to the pre-trial line-up. Her testimony was therefore admissible. The first point of error is overruled.

Appellant’s second and third points of error go to secondary identification issues relating to evidence of footprints found outside the motel, the identity of the vehicle in which he was riding, and the clothing he was allegedly wearing. In light of Whittington’s identification of appellant as the person who robbed her, whether or not the footprints belonged to appellant, the vehicle was accurately described, or the police ever recovered a jacket and baseball cap as described by Whit-tington, would not affect the outcome. We therefore overrule the second and third points of error.

In his fourth point of error, appellant contends that the trial court committed fundamental error by charging the jury on a culpable mental state not alleged in the indictment. The appellee (State) admits that the charge was erroneous, and agrees that the case should be reversed and remanded for a new trial.

The indictment alleged, inter alia, that appellant “intentionally, while in the course of committing theft of property ... caus[ed] bodily injury to Bobby Whitting-ton. ...” The court in its charge instructed the jury that “if you find from the evidence beyond a reasonable doubt that on or about the 1st day of April, 1988 in Hopkins County, Texas, the defendant, Ray Charles Johnson, while in the course of committing theft of property, and with intent to obtain and maintain control of said property, did then and there intentionally or knomngly cause bodily injury to Bobbie Whittington by pushing her to the floor, then you will find the defendant guilty of robbery as charged.” (Emphasis added.) The charge defined both “intentionally” and “knowingly” in accordance with Tex. Penal Code Ann. § 6.03(a) and (b) (Vernon 1974).4 Appellant made no objection to this part of the charge at trial.

We agree that the trial court’s charge was defective because it authorized a conviction on a basis not alleged in the indictment. See Garcia v. State, 640 S.W.2d 939, 941 (Tex.Cr.App.1982); Wilson v. State, 625 S.W.2d 331, 333 (Tex.Cr.App.1981). This conclusion, however, does not end our inquiry. Although neither party addressed this aspect of the point, we are instructed by Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), that when no proper objection is made at trial, reversal is proper “only if the error is so egregious and created such harm that [the defendant] ‘has not had a fair and impartial trial’_” Id. at 171. In determining whether the erroneous charge caused “egregious harm,” we must decide whether the error goes to the very basis of the case, deprived the accused of a valuable right, or [333]*333vitally affected his defensive theory. Id. 686 S.W.2d at 172. In so doing, we must look to the entire record.

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Bluebook (online)
797 S.W.2d 330, 1990 Tex. App. LEXIS 2325, 1990 WL 133859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-texapp-1990.