Payne v. State

838 S.W.2d 668, 1992 Tex. App. LEXIS 2591, 1992 WL 186571
CourtCourt of Appeals of Texas
DecidedJuly 31, 1992
DocketNo. 05-91-00687-CR
StatusPublished
Cited by4 cases

This text of 838 S.W.2d 668 (Payne 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
Payne v. State, 838 S.W.2d 668, 1992 Tex. App. LEXIS 2591, 1992 WL 186571 (Tex. Ct. App. 1992).

Opinions

OPINION

OVARD, Justice.

Curtis Allen Payne appeals his jury conviction for burglary of a building. Payne answered true to two enhancement paragraphs, and the jury assessed punishment at forty years’ imprisonment. In two points of error, Payne complains that the trial court erred in admitting (1) a complaining witness’s identification testimony and (2) hearsay testimony. We hold that the trial court properly admitted the witness’s identification and that Payne waived any error in the admission of the hearsay testimony. We affirm the trial court’s judgment.

FACTS

Early on the morning of March 17, 1991, Sandra and Robert Page awoke to the sounds of a disturbance in their back yard. Robert went outside to see what was going on, while Sandra looked through their bedroom window. Sandra testified that, from the window, she observed a man inside their storage building, which was approximately twenty-five feet away. She said that her view was unobstructed and that the area was very well lit. Sandra saw the man, whom she later identified as Payne, take their lawn mower, pause to put up his jacket hood, and leave on foot with the mower. While watching Payne, Sandra called the police.

Officer Karen Favors testified that she and her partner arrested Payne approximately two and one-half hours after the burglary was reported. Favors stated that she and her partner stopped an automobile driven by Angelo Warren early the morning of March 17, 1991. The officers detained the car because the police computer showed that an arrest warrant existed for the car’s owner. Curtis Payne was the passenger in Warren’s car. The officers arrested Warren on a burglary warrant and searched the car. They found a lawn mower in the trunk. Favors checked to see if anyone had reported a lawn mower stolen that evening and discovered that the Pages’ mower was missing. Though the theft report gave no description of the Pages’ mower, fresh mud on the mower aroused the officer’s suspicions. Accordingly, the officers questioned both Warren and Payne. Favors said that Warren told her that “it was not his lawn mower, that he had picked up Mr. Payne as Mr. Payne was pushing the lawn mower down the street.” Favors stated that she and her partner took Payne and the lawn mower into custody and proceeded to the Pages’ home.

At the Pages’ home, Robert described the mower, which matched the one police found with Payne. Sandra again gave the police her description of the burglar. The police then showed her Payne, and she identified him as the burglar. Sandra confirmed that, although she requested that Payne put his hood on, she would have recognized him with or without it. The officer confirmed that Sandra did not hesitate to identify Payne.

THE IDENTIFICATION TESTIMONY

In his first point of error, Payne contends that the trial court erred in allowing the in-court identification of Payne by Sandra. Payne argues that Sandra’s pretrial identification of him was unduly suggestive because he was handcuffed, in police custody, alone and because Sandra had been told that he had their lawn mower.

The practice of showing suspects individually to a person for identification, and not as a part of a lineup, has been widely condemned. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). However, a one-man identification, 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); Garza v. State, 633 S.W.2d 508, 512 (Tex.Crim.App.1981) (op. on reh’g). Before setting aside a conviction based on an eyewitness identification at trial following an on-the-scene identification, the court must determine that the pretrial identification [670]*670was impermissibly suggestive and gave rise to a substantial likelihood of misidenti-fication. Garza, 633 S.W.2d at 512.

Absent clear and convincing evidence that the in-court identification is tainted by improper pretrial procedures, the in-court identification is always admissible. Jackson v. State, 628 S.W.2d 446, 448 (Tex.Crim.App. [Panel Op.] 1982). When the defendant challenges a complaining witness’s in-court identification, the court must determine the witness’s ability to reconstruct an accurate independent image of the criminal wrongdoer in comparison with the defendant’s in-court appearance. Id. If the totality of the circumstances reveals no substantial likelihood of misidentification despite the suggestive pretrial identification procedure, the court will deem the identification testimony reliable and admissible. Garza, 633 S.W.2d at 513. In assessing the reliability of the in-court identification, we weigh the following nonexclusive factors against the corrupting effect of the suggestive identification procedure:

(1) The witness’s opportunity to view the criminal at the time of the crime.
(2) The witness’s degree of attention.
(3) The accuracy of the witness’s prior description of the criminal.
(4) The level of certainty demonstrated at the trial confrontation.
(5) The time between the crime and the confrontation.

Id. Although the use of one-man identification is discouraged, one-man identification that takes place soon after the crime allows a witness to test his recollection while his memory is still fresh and accurate. Lewis v. State, 751 S.W.2d 895, 897 (Tex.App. — Houston [14th Dist.] 1988, no pet.). When coupled with the other factors listed above, the suspect identified soon after a crime is less likely to be misidentified. See Hudson v. State, 675 S.W.2d 507, 510 (Tex.Crim.App.1984) (witness’s in-court identification allowed because she observed criminal act in progress, gave description to police, and identified defendant individually ten minutes later); Lewis, 751 S.W.2d at 898.

The record shows:

(1) Sandra saw Payne for several minutes both inside and outside the storage building.
(2) Sandra saw Payne’s face at least twice, once from approximately twenty-five feet away and once at about thirty feet away. Both times were in well-lighted areas.
(3) Sandra remained at the window and observed Payne during all but a moment of the entire intrusion.
(4) Sandra described Payne as an eighteen-year-old black male, 5'7", 130 pounds, wearing dark pants, a T-shirt, and a gray jacket with a hood. Although Payne is actually a forty-one-year-old black male, who is 5'10" and weighs 190 pounds, his clothing did match Sandra’s description.
(5) Sandra identified Payne as the burglar only two and one-half hours after the crime.
(6) At trial, Sandra again unequivocally identified Payne as the burglar.

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838 S.W.2d 668, 1992 Tex. App. LEXIS 2591, 1992 WL 186571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/payne-v-state-texapp-1992.