Lassere v. State

650 S.W.2d 203, 1983 Tex. App. LEXIS 4344
Court of Appeals of Texas·Decided April 20, 1983·No. No. 04-81-00140-CR·Published·Cited by 3 cases

Opinion

OPINION

BUTTS, Judge.

This appeal is from a conviction for aggravated robbery, with punishment enhanced by a prior conviction. Tex.Penal Code Ann. §§ 29.03(a)(2), 12.42(c) (Vernon 1974). After a jury verdict of guilty, the trial court assessed punishment at sixteen (16) years’ imprisonment.

Appellant alleges these errors: that police identification procedures were unduly suggestive and violated due process requirements; that the State denied appellant a constitutionally fair trial by using perjured testimony; that the evidence is insufficient to support the conviction; that the jury charge is defective in three instances. We affirm.

This is a circumstantial evidence case; appellant relied upon the defense of alibi. About 10:00 a.m. on October 26, 1979, a masked man took money at gunpoint from Jim Valdez, the manager of a Sigmor Shamrock station on Southwest Military Drive in San Antonio. In recounting the incident, Valdez told how he grabbed a gun when the robber ran out the back of the station and he shot up in the air. He said the person turned and shot at him while going up the hill behind the station. One bullet pierced the sign four feet above Valdez’s head. Valdez, the robbery victim, failed to identify appellant facially when officers brought the suspect to the station about one hour later. Two other witnesses identified him.

Lisa Meissner, an identification witness, testified she went to the car wash located up the hill behind the station that same morning. She observed a man drive a blue car into the car wash and park, alight from it, and go down the hill toward the station. She stated she saw his face plainly, describing his features and his clothing (blue jeans and blue jeans jacket). A few minutes later she heard gunfire, then heard a worn-[205] an across the street yelling “Get the license plate,” but she did not see who got in the blue car and “tore out of the car wash and up the street.”

Bridget Heare, manager of the apartments across from the car wash, testified she saw appellant from her window hurrying “backwards” up the hill, carrying a gun and a bag. She heard shots. She saw the man get into a blue car at the car wash and leave hurriedly. She called out the license number of the car to her mother, also present in the apartment, who wrote down the number and called the police. That paper with Heare’s initials was admitted at trial. Heare testified she saw appellant’s face plainly and described his appearance, including clothing of blue jeans and jacket.

Deputy Sheriff Kenneth Strarup, patrolling in the southern part of Bexar County, heard on his car radio the description of the car, “white over baby blue Mercury,” with the license number. Within minutes he saw that car and gave chase. He stated the cars reached speeds nearing 120 miles per hour and that appellant’s car veered off the pavement in the semi-rural area off Highway 1604 several times — “... the man was doing something while he was driving.” He saw the car swerve and hit three mailboxes at the side of the road. The other car slowed and stopped; the appellant, driver of the car, offered no resistance and was arrested.

Items recovered off the road in different places near where appellant’s car stopped were a blue jeans jacket and a canvas bag containing over $600.00 and “handmade” money wrappers. The bag and wrappers were later identified by Valdez as taken in the robbery. A search of appellant disclosed several hundred dollars in his pockets. Later that day other officers found a woman’s hose which, the testifying officer said, had been cut off at the knee. [The robber wore a woman’s hose over his head and face]. Strarup testified he did not see any items thrown from appellant’s car as he followed, sometimes at the distance of a mile.

Both women identified appellant at the service station. Valdez did not identify him. Appellant argues that the two women gave conflicting statements as to whether he had a moustache in their pre-showup statements to officers, whereas they readily identified him at the station in a one-on-one viewing. Appellant had a light colored moustache. There is no dispute that appellant was brought to the station by police officers, that he was handcuffed, and that there was no other suspect on view. The record reflects unsureness by Meissner about the moustache.

The trial court conducted a pretrial identification hearing and determined that the in-court identification by the two witnesses would be admissible and that the police procedures were not “unduly suggestive.” [Valdez did not testify]. Appellant’s first two grounds of error attack this finding. Each case must be considered on its own facts to determine the likelihood that a particular pretrial confrontation resulted in irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

Here the showup occurred within two hours of- the crime. One justification for the procedure utilized would be to allow the police to continue their search immediately if a person had been mistakenly apprehended. Whether or not a showup procedure “is so unnecessarily suggestive and conducive to irreparable mistaken identification” as denounced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), depends on the totality of the circumstances surrounding it. Passmore v. State, 617 S.W.2d 682, 688 (Tex.Cr.App.1981) and cases there cited. The admission of evidence of a showup without more does not violate due process. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972). Factors to be considered include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of the certainty demonstrated by the witness at the confronta[206] tion, and the length of time between the crime and the confrontation.” Id. U.S. at 199-200, 93 S.Ct. at 382-383.

Witnesses Meissner and Heare testified at trial that they could identify appellant based on their observations of him at the car wash and on the walk. Such observations would provide an independent basis for the admissibility of their identification testimony. Passmore, supra, 617 S.W.2d at 685-686. Valdez admitted at trial he could not identify appellant’s face because the mask. He stated, however, he could identify the appellant because of his clothing and general “build”. He testified he could thus identify appellant at the showup. Appellant did not object to the admission of his in-court identification; in fact, defense counsel cross-examined him extensively on the matter of the showup identification. Further, the other two identification witnesses’ testimony was similarly admitted without objection and followed by extensive cross-examination. Moreover, there was no motion to strike the in-court identification of any of the witnesses. We conclude that the evidence supports the court’s finding at the pretrial hearing that the identification by Meissner and Heare had an origin independent of the complained of showup. The two grounds based on identification error are overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Lassere v. State, 650 S.W.2d 203, 1983 Tex. App. LEXIS 4344 (Tex. Ct. App. 1983).

650 S.W.2d 203 (Lassere v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Patrick Earl O'Neal, Jr. v. the State of Texas
Court of Appeals of Texas, 2023
Santos Salinas Jr. v. State
Court of Appeals of Texas, 2015
Lopez v. State
860 S.W.2d 938 (Court of Appeals of Texas, 1993)