Ortega v. State

651 S.W.2d 278, 1983 Tex. App. LEXIS 4204
Court of Appeals of Texas·Decided March 23, 1983·No. No. 2-81-301-CR·Published·Cited by 5 cases

Opinion

OPINION

FENDER, Chief Justice.

Appellant, Danny Negrete Ortega, was convicted by a jury of burglary of a habitation. Punishment was assessed at thirty-five years.

We affirm.

Ortega raises ten grounds of error in this appeal. They are as follows:

(1) The Court erred in denying Appellant’s motion to suppress the tainted in-eourt identification.
(2) The Court erred in denying Appellant’s motion to suppress the imper-missibly suggestive pre-trial identification.
(3) The pre-trial identification procedure viewed from the totality of the circumstances, was so unnecessarily suggestive and conducive to irreparable mistaken identification, as to amount to a denial of due process.
(4) The Court erred in allowing the State to impeach its own witness over Defendant’s timely objection.
(5) The Court erred in overruling Appellant’s objection to the State’s argument that the jury should consider a prior conviction as evidence of Appellant’s guilt.
[280]*280(6) The evidence was insufficient to sustain a conviction.
(7) The Court erred in refusing to suppress the fruit of an illegal search and seizure.
(8) The Court erred when Defendant was denied compulsory process when the trial court denied the subpoena for the police officer.
(9) The Trial Court committed reversible error when it denied Defendant’s motion to discover police dispatcher’s recordings.
(10)Mandatory Supervision constituted a denial of Defendant’s right to due process, equal protection, and freedom from an unlawful restraint.

On September 25, 1980, a seventy-two year old woman was preparing lunch when she heard someone enter her home through a screen door. The intruder entered the kitchen with a brown-handled pocket knife and demanded all of the victim’s money. The intruder took a dollar and change left on the table for the milkman and then went through her coin purse for more change.

At this point the intruder closed the outside doors and wheeled the victim into the bedroom (The victim is an amputee and consequently is confined to a wheelchair). He told her not to scream or he would hurt her while holding the knife with the blade open. He then made her take her clothes off, laid her on the bed, and raped her. After the rape, the intruder wheeled the victim back into the kitchen. He sat down at the table and had some cookies and Kool-Aid. He then smoked a cigarette which came from a green and white cigarette package.

As he left, the victim watched him walk away. She then called her daughter-in-law, who contacted police.

The police officer who answered the call got a description of the intruder from the victim. She described him as a Mexican male in his early twenties, with medium length black hair and a thin mustache. He was five foot six, 150 pounds, and was wearing a black fishnet shirt, black slacks, and black shoes.

As the officer was waiting at a stop sign some six to ten blocks from the victim’s home, an automobile whose driver’s shirt, hair, and mustache matched the victim’s description passed directly in front of him. As the car passed, the driver was looking at the officer and sliding down the car seat. When the officer pulled out behind the car, it accelerated. The driver would not pull over when the officer turned on his emergency lights. The other two occupants of the car repeatedly turned to look at the officer and there was movement as if to hide something under the seat.

When the car did pull over, the driver stepped from the car. The officer noticed that he matched the description given by the victim and placed him under arrest. The officer identified Ortega at trial as the driver he arrested.

In the search of Ortega incident to the arrest, the officer found a brown bone-handled knife, a dollar bill and some change, and a green and white Salem cigarette package.

Ortega’s first three grounds of error assert that the victim’s in-court identification was tainted by improper pre-trial identification procedures. He contends that the police suggested an identification of him to the victim.

The line-up Ortega complains of took place on September 28, 1980. The record reflects that the police informed the victim that they felt they had apprehended her assailant. However, they did not tell her he was definitely in the line-up or his name. She did not have any trouble picking Ortega as the one who assaulted her, and even remembered what position Ortega occupied in the line-up. She testified that she picked Ortega from the line-up because he was the man who raped her, and she was positive that her identification was correct. All the line-up participants were “Spanish looking”, had dark hair, and were of the same build. She testified that her assailant had on white cover-alls at the line-up, and that she saw no black clothing on him. She testified that after the line-up, she went to a detec[281]*281tive’s office where she saw some pictures of Ortega. She never saw pictures before the line-up. She also testified that she did not mark the appropriate box on the line-up sheet, but that she did sign it.

Ortega complains that he had no attorney, that the police informed the victim before the line-up that they thought they had her assailant, that the detective marked the correct box on the line-up sheet, that she saw only a photo of Ortega, and the photo was not preserved.

Ortega has not shown that he was entitled to counsel at the line-up. The record does not show that Ortega had been formally charged with the commission of an offense prior to the line-up. Rudd v. State, 616 S.W.2d 623, 624 (Tex.Cr.App.1981). The information given to the victim that the police thought they had her assailant prior to the line-up is of no consequence as it is merely what anyone would assume upon viewing a line-up. The fact that the detective marked the box on the line-up sheet does not affect the validity of the identification here, given the facts recited above. Further, the photograph does not taint the identification as it was not seen until after the line-up.

However, assuming, arguendo, that the line-up could be considered impermissi-bly suggestive, still no error is shown. The Court of Criminal Appeals recently said in Jackson v. State, 628 S.W.2d 446, 448 (Tex.Cr.App.1982):

A defendant who contends on appeal that a trial court erred in allowing an in court identification of him by a complaining witness has a difficult and heavy burden to sustain, for unless it is shown by clear and convincing evidence that a complaining witness’ in court identification of a defendant as the assailant was tainted by improper pre-trial identification procedures and confrontations, the in court identification is always admissible.

The test for determining the independence of the in-court identification is set out in Turner v. State, 614 S.W.2d 144, 146 (Tex.Cr.App.1981):

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Ortega v. State, 651 S.W.2d 278, 1983 Tex. App. LEXIS 4204 (Tex. Ct. App. 1983).

651 S.W.2d 278 (Ortega v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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