Perryman v. State

470 S.W.2d 703, 1971 Tex. Crim. App. LEXIS 1595

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 1971
• Docket: 43681
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of robbery by assault. The punishment, enhanced under Article 62, Vernon’s Ann.P.C., was assessed at life. The case was tried before the court, the appellant having waived his right to a jury.

The record reflects that Jose Flores, a sixty-eight year old man, had left a bar on Zarzamora Street in San Antonio; that he got into his pickup truck and was attempting to start the vehicle when he was pulled out by two men, one of whom held him while the other ripped open his hip pocket, took his billfold, and in company with the other man, fled down the street. He then went back to the bar and notified the police who arrived approximately ten minutes later. Soon thereafter, an officer who had received a radio report of the robbery observed two men two blocks from the scene “dividing some money.” The men fit the description the officer had received, and he placed both of them under arrest. Luther Procter, appellant’s companion, fled and was apprehended minutes later; he was then placed in a police car with Police Officer Thompson and driven to a car wash location on Zarzamora Street where he was identified by Flores as one of the men who had robbed him.¹ Soon thereafter appellant was identified at the police station by Flores.

Appellant alleges three grounds of error: (1) he contends evidence of the pre-trial identification should not have been admitted, as such occurred in the absence of counsel which had not been intelligently waived; (2) the court erred by permitting in-court identification based on the pretrial identification; and (3) the pre-trial identification was grossly unfair to appellant.

The record reflects the following testimony by the arresting officer:

“Q. All right. Now, do you know of your own knowledge — First, was Mr. Perryman ever read his rights ?

'A. Yes, sir. He was read his rights by Officer Menchaca.

“Q. In your presence ?

“A. In my presence.

“Q. By his constitutional rights, what exactly do you mean ?

“A. By his constitutional rights ?

“Q. What was read to the man ?

“A. The card that we are issued by the S.A.P.D.

“Q. Do you have that card with you?

“A. Sure.

“Q. No, just sit down. This is a normal card that police officers carry?

“A. Yes, sir.

“Q. And you heard this card read to Mr. Perryman there at the police station ?

“A. No, this wasn’t at the police station.

“Q. Oh, excuse me. Where was it read to him?

“A. By the car wash. That’s where this was read to him.”

The witness further testified, on re-direct examination:

“Q. And was Perryman still sitting in the car then ?

“A. Now wait a minute. I think he was standing behind the car when he got out and then he read him the rights, right there on the side of the car wash, outside outside of the car, that’s where it was.

“Q. On the side of the car ?

“A. Yes, sir, right on the back.

“Q. Who was it that did that ?

“A. Menchaca.

⅝ ⅜ ⅜ ⅜ ⅝

“A. Well, after I decided to handle one thing at a time, he said, 7 know how that goes’ And he said, ‘I’ll read it to you anyway.’ (Emphasis supplied)

“Q. You waited until after he read it and left?

“A. I went back and got in the car.”

The officer on duty at the police station when appellant was brought in testified:

“Q. (By the Court) Did you hear Mr. Perryman at any time before Mr. Flores identified him ask for a lawyer or to have a lawyer appointed for him ?

“A. I asked the officers, the uniformed officer at the time if they had been advised of their rights and if they wanted to make a telephone call. Several times during this hour or hour and fifteen or twenty minutes that this took place, they were given the opportunities to use the telephone. I don’t remember which one said, 7 don’t have any use for a lawyer, I don’t need one.’ I don’t remember which one it was but neither one wanted to use the phone.

“Q. Had they indicated they didn’t want to use the phone?

“A. That’s right, sir.”

After an extensive hearing on the motion to suppress the in-court identification of appellant, the trial court stated:

“Gentlemen, the Court finds that there was a line-up which in truth and in fact it does not show that there was a line-up as we know it in Gilbert, Wade, and Martinez. The Court is going to find that there was an intelligent waiver of the Defendant of his attorney and to be — Therefore, the Court finds that there was no suggestions by anyone as to the identity of the Defendant that the point of time was in the proximity as part of the res gestae, you might say of the arrest and part of the investigative procedure of this which only took, not more than an hour and a half and the Court finds that — The Court is going to deny the motion to suppress the evidence in this cause.”

While the court’s findings are not as complete as might be desired, they were stated into the record, and the finding was that appellant had waived the right to counsel. In Martinez v. State, Tex.Cr.App., 437 S.W.2d 842, this court stated:

“For the purposes of appellate review, it would be better practice for the court to enter written findings or to state into the record following such hearing his reasons for admitting such evidence, if he does.”

See also Spencer v. State, Tex.Cr.App., 466 S.W.2d 749.

We are confronted with the question of whether or not appellant intelligently, knowingly, and voluntarily waived his right to counsel. First, appellant interrupted the officer who was apprising him of his constitutional rights with the statement : “I know how that goes.”

The Supreme Court of Nebraska, confronted with a similar situation as the one at bar, in State v. Perez, 182 Neb. 680, 157 N.W.2d 162,² stated:

“The basic question, under the Miranda holding, is whether the defendant, knowing his rights, voluntarily and intelligently waived them.”

The defendant in Perez, supra, while being advised of his rights, stated: “You don’t have to advise me of my rights, I know more about them than you.”

The court stated further:

“Not only was the effect of his statement to refuse to be further advised, but he expressly gave as the reason that he already knew them because he had been advised of them many times before.”

In the case at bar, unlike Perez, supra, the officer continued to read to appellant his constitutional warnings until he finished. We hold he waived his right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 82 L.Ed.2d 1461.

Secondly, appellant manifested no desire to contact a lawyer at the police station when he was repeatedly offered such opportunity.

Thirdly, the record reflects appellant’s previous experiences with law enforcement authorities and lends credence to the proposition that he intelligently, knowingly and voluntarily waived his right to counsel. See Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed.2d 268; Johnson v. Zerbst, supra; Narro v. United States (5th Cir.) 1966, 370 F.2d 329, cert. denied, 1967; United States v. Hayes (4th Cir.) 385 F.2d 375.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the majority stated:

“Thus both Wade and his counsel should have been notified of the impending lineup, and counsel’s presence should have been a requisite to conduct of the lineup, absent an ‘intelligent waiver.’ ” .

We conclude that appellant’s waiver of counsel was valid. However, appellant attacks, independently of any waiver of counsel, the pretrial identification, contending it to be grossly unfair, and a denial of due process of law. True, witness Flores made a mistaken identification when he first walked up to the automobile at the car wash, which he thereafter repudiated by identifying appellant upon his arrival at the police station. The record reflects the following testimony:

“Q. * * * Did you identify the policeman as being one of the robbers because he looked like one or because he was with Proctor ?

“A. Because he was looking like one you see. Right away I recognize he wasn’t.

“Q. Okay, Now, and then you saw Perryman again at the station house, police station ? * * * This Defendant ?

“A. No, I don’t remember seeing him over there. I saw him over there when they brought him at the police station.

“Q. And the reason you remember him, you identified him in the courtroom today as being the man who robbed. Is it because you remember him from the robbery?

“A. Yes.

“Q. Okay. And there is no doubt in your mind?

“A. No, sir.”

Evidence relating to the pre-trial identification at the police station is revealed by testimony of Officer William Jack Harlow, as follows:

“Q. (By the Prosecutor) Where were you and Flores ?

“A. Flores — I got him a seat, he was sitting about the same distance as you and I. A little closer I guess and I was sitting behind the desk. I just came in and sat down.

“Q. Did you ask him if he recognized anyone ?

“A. Well, I talked to him a second about robbery and another officer had come in and sort of interrupted and I asked him if they had any suspects, sort of asking the officer more than the complainant, ‘at this time do they have any suspects?’

“I didn’t know Mr. Thompson that well, Officer Thompson.³ And the complainant then pointed to this man here and said he was one of them.

“Q. All right. Did you in any way suggest this Defendant to the complainant or the complaining witness?

“A. No. At that time I didn’t know one from the other really.

“Q. Okay, sir. Now, was he definite in his identification?

“A. Yes, sir.”

This identification having been made less than an hour and a half after the robbery, we conclude that the said pre-trial identification was not tainted. See United States v. Perry, D.C.Cir., 449 F.2d 1026.

Appellant further contends “the corroborating evidence that appellant was the guilty party was almost non-existent,” and the “totality of the circumstances” standard spoken of in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, points to a deprivation of due process. Examining the “totality of the circumstances” in the case at bar, we find: (1) the police arriving at the scene of the robbery within ten minutes of the offense; (2) a plainclothes policeman answering the radio dispatch and observing two men fitting the description given dividing money, two blocks from the scene of the crime fifteen minutes after the offense; (3) the amount of money recovered from appellant and his companion matching the amount taken from Flores; (4) the flight of appellant’s companion upon arrest, and; (5) the identification by Flores less than an hour and a half later.

Appellant’s references to Palmer v. Peyton, 359 F.2d 199 (4th Cir., 1966) which was cited in Stovall v. Denno, supra, are misplaced, as Palmer dealt with the voice identification of a suspected assailant by requiring him to enunciate words spoken during the assault, as his facial features were never seen by the complainant. The suspect was the only one used in this identification procedure, and such was held to be a deprivation of due process. However, in the case at bar, such circumstances of unfairness and unreliability are not present. As the court in Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969) cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 stated:

“However, in post-Wade cases the excusable absence of counsel, while not dis-positive, is among the ‘totality of the circumstances’ bearing on the due process question. And since this case also presents a single-suspect in-custody confrontation which may be suggestive, the court must carefully consider all possible evidence of actual unreliability in determining whether the requirements of due process have been met.”

We have considered such evidence and find no deprivation of due process. See also State v. Hamblin, 448 S.W.2d 603 (Mo.), and authorities cited therein.

There being no reversible error, the judgment is affirmed.

1 . Flores also mistakenly identified Officer Thompson as being the other one who committed the robbery.

2 . Cert. denied, 393 U.S. 886, 89 S.Ct. 200, 21 L.Ed.2d 163.

3 . Officer Thompson was in plain clothes and apparently resembled appellant.