Miller v. State

846 S.W.2d 365, 1992 Tex. App. LEXIS 3037, 1992 WL 360635
Court of Appeals of Texas·Decided December 10, 1992·No. No. A14-92-00049-CR·Published·Cited by 7 cases

Opinion

OPINION

ELLIS, Justice.

Appellant, Jeffery Mantrue Miller, appeals his judgment of conviction for the offense of aggravated robbery. Tex.Penal Code Ann. § 29.03 (Vernon Supp.1992). The jury rejected appellant’s not guilty plea [366] and the court, after finding the one enhancement paragraph of the indictment to be true, assessed punishment at thirty-five (35) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

In September of 1991, Jeff Schroeder worked as a superintendent for Suburban Homes and Lumber. At approximately 9:00 a.m. on September 11, 1991, Jeff arrived at the property located on Mesa Road and Little York. The property was owned by Suburban Homes and Jeff planned to mow along the roadway. He stopped his truck on the side of the road approximately thirty yards from the front gate of the property. Jeff unlocked the gate and then started back to his truck. Suddenly he noticed a black man in the passenger side of his truck. Jeff ran toward his truck, and as he did, he noticed a yellow truck parked approximately thirty feet in front of his truck. As he reached his own truck, the man was exiting the truck holding a stereo headphone set and an umbrella that belonged to Jeff. Jeff asked, “What are you doing in my truck?” The man replied, “This isn’t my truck?” Jeff responded that it was not the man’s truck.

The man held a knife in his right hand. He told Jeff, “Give me your wallet, or I’ll stab your white ass.” As Jeff handed the man his wallet, the man, still holding the knife, came within arm distance of Jeff. After he took the wallet, the man backed up a few steps. Jeff backed up and grabbed a tool out of the back of his truck. The tool had a metal blade about five to six inches wide, and about a four foot handle. Jeff took a swing at the man and missed him. The man ran around the back of the trailer away from Jeff’s truck. Jeff stayed between the man and his truck until the man yelled to the people in the yellow truck, “Get the gun and shoot him.” The man ran toward the yellow truck. Jeff threw the scraper at him, but the man avoided it. The man got into the yellow truck, and the driver headed off down Little York.

Jeff stopped a school bus and told the driver what had happened and asked him to call the police. Three school police officers arrived at the scene. They took the information regarding the instant offense and then contacted the Houston Police Department. At a pretrial lineup and in court, Jeff identified appellant in this case as the man who had robbed him.

In appellant’s first point of error, he asserts that the court erred in not suppressing in-court identification because the lineup on which they were based was unnecessarily suggestive and conducive to irreparable mistaken identification. At approximately 9:00 p.m. on the night of the robbery, Detective Whiteley of the Houston Police Department telephoned Jeff Schroeder to tell him they had a few suspects in custody in connection with the robbery. He asked Jeff to come down to the station to view a lineup. At about 11:00 a.m. the next morning, Jeff viewed the lineup. Jeff identified appellant as the man who had robbed him at knifepoint. Appellant now contends that the trial court erred in allowing the in-court identification testimony of Jeff Schroeder. Specifically, appellant contends that Jeff’s testimony was irreparably tainted because the lineup from which Jeff chose appellant was unnecessarily suggestive and conducive to irreparable mistaken identification.

An in-court identification is always admissible unless it is shown by clear and convincing evidence that it was tainted by improper pretrial identification procedures. Bethune v. State, 821 S.W.2d 222, 228 (Tex.App.-Houston [14th Dist.] 1991), aff'd, 828 S.W.2d 14 (Tex.Crim.App.1992), citing Jackson v. State, 628 S.W.2d 446, 448 (Tex.Crim.App.1982); Mullen v. State, 722 S.W.2d 808, 814 (Tex.App.-Houston [14th Dist.] 1987, no pet.). The in-court identification is inadmissible if the pretrial identification procedure is impermissibly suggestive and the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification. Bethune v. State, supra; Rogers v. State, 774 S.W.2d 247, 260 (Tex.Crim.App.1989), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L.Ed.2d 520 (1989).

[367] Appellant contends that the lineup was unnecessarily suggestive for the following reasons: (1) appellant was the only participant in the lineup who appeared in a hospital gown; (2) appellant was the only participant who was not wearing shoes; (3) appellant was the only participant with unkempt hair; and (4) appellant was the only participant with a swollen face.

The lineup consisted of eight males who ranged in age from twenty-two to thirty-one. Their weight ranged from one hundred-fifty pounds to three hundred pounds. The first four men in the lineup were chosen because of their similarities to appellant and were thus smaller men. The last four men were chosen because of their similarities to another larger suspect and were thus larger men. As in Bethune, the record in the instant case reveals that the complainant did not even notice several of the differences pointed out by appellant. The complainant testified during the hearing on the motion to suppress the in-court identification and during trial that there was no doubt in his mind that appellant was the man who had robbed him on September 11,1991. Jeff testified that he was unaware that there had been an auto chase involving appellant and that appellant had been injured and had gone to the hospital. He testified that he did not notice that appellant had been dressed differently than the other men in the lineup, nor did he notice that appellant was wearing a hospital-type shirt. Jeff did not notice that appellant’s face was puffy, nor did he notice that appellant was not wearing shoes. Jeff did not notice that appellant’s hair was messy but he did not notice whether anyone else in the lineup had messy hair. Moreover, Jeff testified that at the time of the offense, appellant was not wearing a hospital gown and he did not notice if appellant was wearing shoes or had a swollen, puffy face.

Jeff testified that he chose appellant based upon the fact that he had a scraggly beard and that after appellant lost his hat during the instant offense, his hair was messed up and sticking straight up. Because he was able to get a good look at appellant’s facial features and build during the instant offense, Jeff knew that appellant was about an inch or two taller than he was and was skinny. Jeff testified that he recognized appellant’s face. When appellant walked onto the lineup stage, Jeff knew he was the man who had robbed him. Under these circumstances, as in Bethune, this court must conclude that the lineup was not impermissibly suggestive. Bethune v. State, supra, at 229.

In assessing reliability under the totality of the circumstances, this court should consider:

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Miller v. State, 846 S.W.2d 365, 1992 Tex. App. LEXIS 3037, 1992 WL 360635 (Tex. Ct. App. 1992).

846 S.W.2d 365 (Miller v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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