Rushing, Calvin Louise

Opinion

H 30- (S IN THE

TEXAS COURT OF CRIMINAL APPEALS AUSTIN - TEXAS

NO. PD-0430- 15 ORIGINAL ON APPEAL FROM CAUSE NO. 2012-0431 FROM THE 217TH CRIMINAL DISTRICT COURT OF ANGELINA COUNTY TEXAS RECEIVED \m COURT OF GRKliML APPEALS DISCRETIONARY REVIEW TAKEN FROM THE JUN 10 2015 TWELFTH COURT OF APPEALS

TYLER- TEXAS (Ij ;,, « , f, « 0 -f^tf»_;, f*(,,^ APPEAL NO. 12-14-00112-CR

APPELLANT'S PRO SE PETITION FOR DISCRETIONARY REVIEW

CALVIN LOUISE RUSMNG TDCJ-ID# 1925565 ALLAN B. POLUNSKY UNIT 3872 FM 350 SOUTH LIVINGSTON, TEXAS 77351

APPELLANT [PRO-SE] ON PETITION FOR DISCRETIONARY REVIEW [ONLY] FILED IN COURT OF CRIMINAL APPEALS

ORAL ARGUMENTS NOT REQUESTED: JUN 10 2S'.j

Abel Acosta, Clerk STATEMENTS REGARDING ORAL ARGUMENTS

Appellant does not seek nor request Oral Argument in this case, unless other wise sought by Appellee's, or ordered by The Honorable Justices of The Texas Court Of Criminal Appeals, as Appellant firmly believes that the issues herein submitted and/or raised by Appellant in his Petition For Discretionary Review, can be determined and/or decided upon review of the official trial/appellate records, includ ing decided based upon established legal precedent cited and presented by Appellant in support of Discretionary Review without the need of Oral Arguments. [SEE:] Texas Rule Of Appellate Procedure, Rule 39.7; and Texas Rule Of Appellate Procedure, Rule 68.4[C].

Furthermore, in compliance with Texas Rule Of Appellate Procedure, Rule 68.4[CONTENTS OF PETITION], all due care and diligent has been made by this Appellant to make this Petition For Discretionary Re view as brief as possible. SEEAL90: Texas Rule Of Appellate Procedure, Rule 68.6. which provides in relevant part, that The Court may strike, order redrawn, or summarily refuse a petition for discre tionary review that is 'Unnecessarily Lenghty' or that does not conform to the rules.

•li- TABLE OF CONTENTS: ITEMS: PAGES• TABLE OF CONTENTS ~-iii- STATEMENT REGARDING ORAL ARGUMENT -ii- INDEX OF AUTHORITIES _ iv_ PRELIMARY STATEMENT OF THE CASE 1 STATEMENT OF THE CASE 3 STATEMENT OF PROCEDURAL HISTORY ." ' 3 PRAYER FOR RELIEF 18 CERTIFICATE OF SERVICE 19 GROUNDS FOR DISCRETIONARY REVIEW ..' k,11 GROUND FOR REVIEW NO.ONE: WHETHER THE TWELFTH COURT OF APPEALS [SITTING, PER CURIAM] HAS ISSUED AND/OR DECIDED AN IMPORTANT QUESTION OF SATE OR FEDERAL LAW [ON IDENTIFICATION PROCEDURES], WHICH HAS NOT BEEN, BUT SHOULD BE SETTLED BY THE TEXAS COURT OF CRIMINAL APPEALS[TEX.R.APP.HCC, Ri£ 66.3[B] 4

GROUND FOR REVIEW NO. TWO:

WHETHER THE PER CURIAM DECISION ISSUED BY THE TWELFTH COURT OF APPEALS IN THIS CASE HAS SO FAR DEPARTED FROM THE ACCEPTABLE AND USUAL COURSE OF JUDICIAL PROCEEDINGS„ OR SO SANCTIONED SUCH A DEPARTURE BY A LOWED COURT AS TO CALL FOR AN EXERCISE OF THE TEXAS COURT OF CRIMINAL APPEALS' POWER OF SUPERVISION [TEX.R.APP.HCC., HIE 66-3[F] 4

GROUND FOR REVIEW NO. THREE: WHETHER THE TWELFTH COURT OF APPEALS [PER CURIAM] DECISION COMES INTO CONFLICT WITH THE UNITED STATES SUPREME COURT'S S!DUE PROCESS''' STANDARD ANNOUNCED IN, JACKSON V. VIRGINIA. REQUIRING EVIDENCE TO BE BOTH LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN CONVICTION[AS IN THIS CASE THE EVIDENCE WAS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN TRIAL COURT'S AFFIRMATIVE FINDING OF A DEADLY WEAPON].. 17

-111- INDEX OF AUTHORITIES:

GASES: PAGE: Adams V.State. 222 S.W.3d 37(Tex.App.-Austin) 4 Abdur Raheem~V. Kelly, 257 F.3d 122[2d Cir.2001]...... 11 Broom V. Mitchell,441 F.3d 352[6Th Cir.2006] 9 Brooks V. State, 323 S.W.3d. 893[Tex.Cr.App.2012] 18 Cantu V. State, 738 S.W.2d 249[Tex.Cr.App.1987] 15 DElk V.State. 855 S.W.2d 700[Tex.Cr.App. 1993] 9 10 11 15 Ibarra V.State, 11 S.W.3d 189[Tex.Cr.App.1991] 9,lo'll' In Re Winship, 397 U. S.351[1970] 17,18 Luckette V.State,906 S.W.2d 663[Tex.App.Amarillo 1995] 17' Loserth V.State,985 S.W.2d 536[Tex.App-San Antonio 1998].. 9,10.il Kirby V. Illinois, 406 U. 8, -6821972 J 14 ' Manson V. Braithwaite, 97 S.CT. 2343[1977] 15 Maxwell V.State. 10 slw.3d 785[Tex.App.-Austin 2000] 13 McFarland V. State,928 S.W.2d 482[Tex.Cr.App.1996] 11 Moore V. Illonios, 434 U.S. 220[1977] 14 Neil V. Biggers,93 S.CT. 375[1972] 15.18 Sapp V. State, 476 S.W.2d 321 [Tex .Cr .App. ] 13' Simmons V. United States. 390 U.S. 377[1968] 14 Tillman V.State,No.14-08-00846-CR. 2010, Tex.-App. Lexis 4U13 LTex.App.-Hou. 14Th Dist. 2010] 16 Thompson V. Louisville, 80 S.ct. 62[1960] 18 United States V. Brownlee.454 F.3d 131[3d.Cir.2001] 15 United States V.Emnauel- 51 F.3d 1123[3d.Cir.2006] 15 United States V. Deleon,588 F.3d 748[lst Cir.2009].. 8 Wray V.Johnson., 202 F.3d 515[2d Cir.2000] 9 United States V. Wade, 87 S. Ct. 1926[1967] 14

CONSTITUTIONAL PROVISIONS:

ARTICLES: PAGES•- TEXAS CONSTITUTION ARTICLE ONE, -SECTION-TEN. .... . —5 ~ TEXAS CONSTITUTION.ARTICLE ONE. SECTION NINE 4 TEXAS CONSTITUTION, ARTICLE ONE^. SECTION NINETEEN 4 U.S. CONSTITUTION AMENDMENT, FIFTH 4 7 12 13 U.S. CONSTITUTION AMENDMENT, SIXTH 4' 5' 7 [± 12 U.S. CONSTITUTION AMENDMENT, FOURTEENTH 18 ' ' ' STATUTES: PAGES: TEXAS RULE OF APPELLATE PROCEDURE. RULE 39.7 -ii- TEXAS RULE OF APPELLATE PROCEDURE, RULE 68.4 -ii- TEXAS RULE OF APPELLATE PROCEDURE, RULE 66.3[B" 1.4 TEXAS RULE OF APPELLATE PROCEDURE. RULE 66.3|V . . 1, 1,4 TEXAS CODE CRIMINAL PROCEDURE, ARTICLE 38.20 16

•iv- IN THE

TEXAS -COURT OF CRIMINAL APPEALS PDR# 0430-15

CALVIN LOUISE RUSHING, § PETITION FOR DISCRETIONARY REVIEW APPELLANT, § FROM THE TWELFTH COURT OF APPEALS § VS. § TYLER, TEXAS THE STATE OF TEXAS, § APPEAL NO. 12-14-00112-CR § APPELLEE. § TRIAL COURT CAUSE NO. 2012-0431 §

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

GREETINGS- TO THE TEXAS COURT OF CRIMINAL APPEALS: Now comes, Calvin Louise Rushing, Appellant, proceeding pro-se in the foregoing entitled numbered cause of action, who in accordance with Texas Rules Of Appellate Procedure, Rule[s] 66.3[B], and 66.3[F], and hereby files and submits this, 'Petition For Discretionary Review' to The Texas Court Of Criminal Appeals; And in support of same, the Appellant will show unto The Court as follows:

I.

PRELIMARY STATEMENT OF THE CASE AND PRESENTATION OF THE ISSUES FOR REVIEW

1- This cause of action commenced on March 5,2014[RR.VOL.I.,p. 3], upon Appellant's plea of not guilty to the first degree felony offense of, Aggravated Robbery in indictment #2012-0431. The Appellant waived a jury trial [CR. VOL.I.,p. 35], and the presiding judge after a Non jury trial found Appellant guilty of the indicted offense[CR.VOL.I.,p. 6]. During the punishment phase, the Appellant plead true[Guilty] to four enhancement paragraphs in the indictment[RR.V0L.III.,P. 5,6]; Af terward, The presiding judge finally sentenced Appellant to fifty[50] years imprisonment in The Texas Department Of Criminal Justice- Inst itutional Division]cr.vol.I.,p. 95, 96; RR.VOL. III.,p. 10]. Timely notice of appeal was given on April 29,2014[CR.VOL.I.,p. 97,98].

-1- 2- The Twelfth Court Of Appeals on March 25Th,2015, in an unpu- lished opinion affirmed the judgement of the convicting court.

3- The Twelfth Court Of Appeals in its' March 25Th,2015 [Per Cur iam] panel decision [in-Part] opined regarding Appellant's first [1st] point of error raised on [D]irect- wherewith, Appellant argured, that he had been denied 'DUE PROCESS' by the trial court's consideration of an 'Impermissible In-Court Identification; Thereinwith, The Twelfth Court Of Appeals ruled, that An In-Court Identification Is Inadmiss ible If It Had Been Tainted By An Impermissibly Suggestive Pre-trial Identification Process; Thus, in finding against this Appellant, The Twelfth Court Of Appeals found that the pre-trial 'Photo Array' and/or showing of store's security video surveillance tapes to robbery victim [Eyewitness], within seconds, minutes or hours before trial[The Ini tial Identification Process], was not 'impermissibly Suggestive - obviating the need of The Court in conducting any HARM analysis and/or dispense with the need in determining whether identification process created any likelihood of Misidentification[See: Twelfth Court Of Appeals, SLIP OPINION, at p. 3-THRU- 6].

4- Based upon the above unsound reasoning of The Twelfth Court Of Appeals, the Appellant respectfully submits, that The Twelfth Court Of Appeals decision in rejecting Appellant's legal contentions raised on appeal and in affirming the conviction of the convicting court was issued in 'Error'; Therefore, Petition For Discretionary Review should issue to "Correct"' The Twelfth Court Of Appeals erronerous Adoption, Creation, Or Mistake in the law.

-2- II.

STATEMENT OF THE CASE

Appellant, Calvin Louise Rushing, was indicted by felony indictment with allegedly committing on May 20,2012, the felony offense of, Agg ravated Robbery in cause # 2012-0431[CR.VOL. I., p. 35; RR. VOL. I., p. 3]. On March 5Th,2014, Appellant plead not guilty to the instant felony offense[RR. VOL. I.,p. 30] The trial court after a non-jury trial found Appellant guilty of the indicted offense and assessed Appellant's punishment at fifty[50] years in prison, including making an affirmative finding of a deadly weapon[CR.VOL. I., p. 95, 96; RR. VOL. III.,p. 10].

III.

STATEMENT OF PROCEDURAL HISTORY

The Appellant, Calvin Louise Rushing, on April 29, 2014, timely and orally gave [Written] notice of appeal to The Twelfth Court Of Appeals[CR. VOL. I.,p. 97,980]. The Twelfth Court Of Appeals in an Unpublished Opinion delivered on March 25Th, 2015, affirmed the jud gement of the convicting court, and when Appellant finally received written [Notification] of affirmance of his conviction from his court- appointed appellate Attorney [John Reeves], via United States Postal Service[TDCJ-ID OFFENDER LEGAL MAIL SYSTEM], the time limits for the Appellant to had sought 'Rehearing' had expired; Therefore, no Motion For Rehearing has been sought nor filed by this Appellant[See: Texas Rules Of Appellate Procedure, Rule 49.9].

-3- IV.

GROUND FOR REVIEW NO. ONE:

WHETHER THE TWELFTH COURT OF APPEALS[ACTING - PER CURIAM] HAS ISSUED AND/OR DECIDED AN IMPORTANT QUESTION OF STATE OR FEDERAL LAW [ ON IDENTIFICATION PROCEDURES] IN SUCH A MANNER WHICH HAS NOT BEEN, BUT SHOULD FIRST BE DETERMINED AND/OR DECIDED BY THE TEXAS COURT OF CRIMINAL APPEALS [SEE: TEXAS HIE CF APPEOATE HCCEEURE, HIE 66.3[B] J

WHETHER THE [PER CURIAM] DECISION-OPINION THAT WAS ISSUED IN THIS CASE BY THE TWELFTH COURT

OF APPEAL HAS SO DEPARTED FROM THE ACCEPTABLE AND USUAL COURSE OF JUDICIAL REASONING, OR HAS SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER COURT AS TO CALL FOR AN EXERCISE OF THE TEXAS COURT OF CRIMINAL APPEALS POWER OF SUPERVISION [ SEE: TEXAS HIE CF APPFILATE PRXHME, RULE 66.3[F]].

Appellant for brevity purposes, joins together his grounds for discretionary review #1 and # 2, based upon similar, legal and factual issues contained therein; However, such grounds are numbered separately so as to not confuse The Court as multifarious grounds. [SEE: ALYM3 VS. SIfflE, 222 S.W.3d 37, 53 (Tex. A??.-Austin 2005) ].

CASE ANALYSIS:

Appellant, Calvin Louise Rushing, on direct appeal argured to The Twelfth Court Of Appeals[Tyler, Texas], ^' that he had been denied his y. Appellate Counsel Incorrectly Argured On Appeal Denial Of 'DUE PROCESS* Under" The Sixth Amendment, Instead Of Arguring A Fifth Amendment Denial Of 'DUE PROCESS'

-4- rights to 'DUE PROCESS* under The Sixth United States Constitutional Amendment by the trial court's consideration of an 'impermissible In-Court' identification process that was tainted and not based on an "Idependent Factor" aside from the robbery victim [Eyewitness] on the eve of Appellant's robbery trial being allowed to view State's Security Video Surveillance [Evidence] Tapes [From The Robbed Store], and 'still photographs' of an individual that resembled Appellant; Furthermore, Appellant also argured on [D]irect appeal review, that robbery witness's In-Court identification of this Appellant was not consistent with robbery victim's identification of this Appellant immediately following robbery when Appellant was apprehended by the police. [See: APPELLANT'S BRIEF, at p. 12-Thru- 19].

The State [Appellee's], in responding to Appellant's legal arguments and/or point of error raised and briefed on appeal concluded with three[3] Appeal Court Justices for The Twelfth Court Of Appeals in agreeing with Appellee's by conceding in affirming Appellant's con viction, that there weren't presently any written applicable case law authority directly on point and/or similar with Appellant's le gal arguments I[Position], which Appellant's legal contentions were that Appellant's trial prosecutors denied Appellant his rights to 'DUE PROCESS' by the prosecutors[Instead Of Police], conducting the photo array identification process, including prosecutors conducting the live [In-Court] identification process in this case on the eve of this Appellant's criminal trial.[RR. VOL. I., p. 55-THRU_-67]; See Also: [Twelfth Court Of Appeals, Slip Opinion, p. 5-THRU- 6].

With the above 'Back-Drop' in mind, a three[3] justice panel for The Twelfth Court Of Appeals in so agreeing with Appellee's- resulted in The Twelfth Court Of Appeals [Finding There Existed No Authority], causing The Twelfth Court Of Appeals finding NO distorting or corrup ting effects how the photo array identification process was held, or conducted in this case, including The Twelfth Court Of Appeals ruling, that because the pre-trial photo array was not impermissibly sugges tive, then the In-Court live lineup [Which Proceeded The Pretrial Photo Array Process], was admissible[See: Twelfth Court Of Appeals, SlipCpdnim, at p. 3-,mj- 6] .

-5- Despite The Appellee's argument in response to Appellant's point of error raised on appeal, the Appellee's argured, that even Assum ing Argumento, that the identification process[Procedures], were Im permissibly Suggestive, or improperly conducted, that Appellant in any event suffered no Harm of irreparable misidentification[See: State's Brief, at p. 7 -THRU- 13]; Nonetheless, even in the face of such an argument by Appellee's a Three[3] justice panel for The Twelfth Court Of Appeals in rejecting Appellee's admittance of error, found that the [Pre-trial] photo array process in this case, was conducted or held properly; Also The Twelfth Court Of Appealsbasing its' decision on such a finding found the In-Court identification admissible; And thereby, declining to conduct any HARM ANALYSIS,including declining to conduct any test to determine whether there existed the likelihood of irreparable misidentification as such declination was in error.

APPELLANT'S LEGAL ARGUMENTS IN SUPPORT OF DISCRETIONARY REVIEW:

The Appellant, Calvin Louise Rushing, now seeks Discretionary Review from The Texas Court Of Criminal Appeals because this Court has not decided, but is being called upon to decide whether the photo array process itself and the live in-court lineup[Which Proceeded The Photo Array], conducted, or held in this case by the. trial prosecutors were or were not impermissibly suggestive nor violative of Appellant's Fifth, Sixth and Fourteenth United States Constitutional Amendment rights nor conducted in violation of Appellant's rights under The Texas Constitution, Article One, Ssection, Nine, Ten and Nineteen, as has been decided in-part by The Twelfth Court Of Appeals.

The official trial/appellate records in this case reflects, that the photo array and live lineup which took place in this entitled nu mbered cause of action as complained of by this Appellant did not so occur nor was conducted within a span of seconds, minutes, hours, days, weeks nor held within a few months of commission of the instant felony robbery offense; But the photo array and live in-court lineup that was conducted in this case was held by Appellant's trial[Assistant District Attorneys] prosecutors within a matter of seconds, minutes, hours and > Mi -o T3 3 H rf > 03 i-i 03 > rf H- XI rf rf H- 03 C/5 > H SI 3 > o > h-> 03 03 o X! H- i"i ii O K 3" •XJ O T3 fD c a c O 11 f-h ro rf ro H i—1 c? 3 T3 o T3 H* o X) 3 o fD fi fD fD 13 M cr fD I-l H- rf o TJ h a 3fD era n 03 3 < i—1 T3 3 X) OQ 3 ro CL CO rf M fD H« cr 3 2! fD 3 H> 3 XI Co 03 i—i ro ro rf rf > W ro fi ro ro 3 ro CL 03 H- ro fi H" f-h O 1—' fD fD fD l_i h* v. >« < o fD rf o rf X) h-' n J2 ro M rf i—i ro OQ c i—• 3 o H- 3 rt O t-1 fD i I l- 3 i i-i H- CO 03 co < X) •a c I—1 i—' H> ro o CO OP c 03 X) Cr' c 03 *< o fD 03 fD < fD f-h fD 3 ro XI CO o fl 03 H- 03 H- 03 3 CL rf Co rf f-< H fi 3 H- 3 l-i 3 H« rt ^ 11 cr o a i-1 H« f-1 o 3 3 a. 3 rf i—• ro o O O -n rf rf 3 < I rf a i-l H- o M O o 3 3 h-> o O rf rr ^< ro rf 0 CL fi CT fi T3 o rf I H« O cr fD !-•• 3 l-fl rf 03 CO SI a. *< 1—• 'E ro 3 3 o 03 03 "< CO cr fD 3 O 03 O o 3 fD o 0Q co £ fDs 03 fl 3 ro H' 3 CO rf a 3 03 c rf o 03 M Mi o l-i i-i O 3 0 rf ro f-1 rf I-1 i-i H- rf o 3 O rf a. H* fi i—' 3 o rt rf "rf 3 CL c H- fD cr H > o 03 L_J c CTQ rf 03 H- H- fi f-fi CL 3 3 rf CO H* £ < O O *•» i-i 3 o CO fD 03 T3 cr f-1 V. rf F' O CO rf H- 3 Tj 3 H- o o 3 fD o O O 3 rf " < CO fl T3 cr 13 cr O O 3 fi OQ CO 3 OQ O 3" H> rt H* 1Q c H' 3 f-h 03 O fD " fD fD rf fD o H- fl f-h OQ «! rf Cr' 03 H- CL S4 rf rt H I—1 a. O CO H- H- i-i a rf h-' i-i 3 O CO TJ T3 ro H" o rf rf CO ro rf 03 s; p- fD fD O a 3 M i-i .. > a O f-J *•< > 03 n i-' O o CO H- 3 rf ro rt 3 fD 3 I-i "d OB rf fD O "< fD o 03 03 cr 3 i—1 » X) ro 3 3 O rf rf 3" CL < P- 1—' o rf 3 X) O cr 3 f-1 CO CO ^ fD > 3 < fD € XI O-. 3 03 a 3 3 H H* ro 0 s Ml cr H> H* fD rf fD rf c co X) fD rf H- 0 H 3 o fD H> h-1 3 3 H- Mi CT i—i o rf o Mi 3 03 cr n H- a C H" 0 o M o 03 to c M cr CO CL > o Tl 03 H- X)' "< S3 i-i CT o H* OQ b-1 i-tv H> 0- 03 i—• 3 ro o H> H* H- ro ro c rf H- fD o H- rf rf rf 3"' CO St .. o Tl ro fi 3 f-1 M a. H- 3 CL 3 o O CO 03 03 fi O O c > < H- cr H* fD — O CO l-i > H a n OQ o 03 3 3 ro 3 3 3 3 n rf rf 3 3 M X) H- O fD < X) ffi o O 03 3 3 ro H CO 1—' > co H« O 03 cl xs CL 3 fD i-h c/> 11 XI H' 3 XI rf ro rf < l—' S 3 CO ro ro 03 XI 3 O O 3 fD c l-fl -, X) 03 C s fD CO 3 OQ H- ^ rf H- H- M H» H X) o w i-h 3 ft 3 i-h m 03 T3 03 X3 O OQ fD h-J fD rf ro ro rf CO m » o o X CO 3 ro f-h cx O fD H- i—1 t-> rj o i-i rf 00 1-1 f-i o o O rf H- cr H f-' i i |_U rf ro XI 1 1 > 3 o i-i 3 fD O rf fD fD fD r1 03 cr O f-h 3 n ro M H- 03 fi i—1 cr 03 3 O f T) o fD CL fD 1—1 O rf rf CO CO H- 3 3 rf o cr il ro OQ rf £| CO T3 ro .03 O fD T) rf CO H- - fD o cr > i-i rf fD < rf ro a Cr1 fi ro o f-1 OQ cr H- G ro rt 3 3 CJO fD CO 3 3 CO ffl co i-h H- 03 fD i-i fD -. i-i to fD H- rf 3 03 O 3 n CO < H rf 3 p. 03 M ^» O CO rf v. fi 03 a < CO *< rt rf ro 3 M 3 H- ro ro H> ^.. H- o CO h^1 H- s: rf 03 H- rf f-1 fD M o cr O ro rf rf rf fi 03 CO M CO 3 cr cr 3 0 K 3" rf < H a 3 rf < 3 o ro o CO 03 O O ro o cr ro r-1 fij co 03 fD O H- H> cl 03 H' fD H« t-i I s. o i-i H« H- 3 rf 3 fi f-fi CL o 3 H" rt n H o 3 3 rf (X H- H- 3 fl fi cr - Tl O o ro OQ 3 rt o T3 fi O c fD H> cr 0Q rf I ' cr rf fD 03 O O 03 rf C rf o ro i rf CL w 3 O > (72 cr o cr rf 3 fi CO 3 03 cr 5> i-i 3 M f-1 *< i-i c. H> rf fl cr' o cr 3 c X) rf 3 ro 3 o rr •H' 3 1 3 rt O i-i 3 rt H- rf fD fi fD O n 03 3- cr' 3 ro ro XI 03 O CL rf ro O 3 1—' O *< i-i o fD fD 03 H- ^ cr ••d K •n rf cr' CO O fD o ro rt 3 ro rf rf XI c O n f-h OQ rf o rf H- 3 fD n fD I—' ht. i-i H« fD CO H C 3 cr rf TJ i—• ro ro fi o 3 fD 3 cr 03 ca r—i H> H> o rf M aq O v: cr' i—i rf CO i—' w r n p- ro rf 03 o rf •n CL H H» M rf Co 0 i-i XI O co 3 rf H- 03 fl ro cr fti SI frj o 03 rf ro fi n 3"' fi rf 3 H- i_j 03 O i-l 03 fD fD C 3 3 r-* M ro cr < M H 0 3 o H- fi CL fi ro ro o H" 0Q Td rf 3 cr O rf o CO i-J fD r—i Cr ro H- ^< 03 ro 03 • ro rf o 3 H- 03 3 3 M fi C c_ i_j cr CO H- 3 CO fD o n o H. • c 21 o rf rf CO 3 03 < n H« *! o rf 3 ** fD fD O rf ro rf X) O ro 3 < H n CO CO CO CO < h-1 G > o H 3 i-J CO H- co i-i O 3 O W fl H- H- rf H H H- H- ro H- 3 X) a" £ 3" fD o fD O rf 3 **< 3 l-i O fD 3 o 03 . H- •d W o > 03 a. Tl O 03 cr H- XI a" fD fD e 3 o 3 H- 03 rf XI CO Mi fi • • i-h i-h rrrri rf Td f-1 M H« rf 1—' 3 ro 3 ro ro X) cw c 03 o CO < O i-i -• M fD O O X) H- o i-h 3 03 CL 9? O M n CO r> ^ rf h-> fD H" i-i o M a O a O H ro a 3 CO T) 3 rf rf rf 3 h-1 I—1 •< fD o *; O M CO CO o CO o O fD fD fD fD i-1 v. fi o 3 H« cr H- H" I—1 o 3 03 3 c 03 H* i-i *< fD rt - fD o CO rf 3 3 H- 3' M cr 3 O 03 O O H- < CL 3 o 0 fi CO rf CO i-h 03 H- CO 3 CO rf O rf O cr 03 ro rf (W CO XI <3 3 3 < 3 H- rt i-ti rf cr -• SI O rf 3 cr CO CL H» fD cr ro fD 3 K cr I-1 ro X) 3 03 ro CO 3 i-h 1_J co i-i i-i fD i o C i »ti ca ro 03 rt 3 ro ro o ro H- I—1 O rf OQ SI ro us O 3 cr 3" O CL h-' S! o '• ^< 0) it M CO 3 c 03 rf f-h H- « H O H- 3 i-h O o fD 3 H K a H- rf CO o 3 o £ 3 CO rf h-1 ro 03 3 rf f-' CO 3 Cr € t-' OQ cr H- 3' H- rf fD M 03 cc ro 3 rt cr O CL 3 rf 1 rt 3d f-' ro fD CL (D 3 fD 3 cr a. ro CO CO cr fi $ a Cd 03 3 o ro 3" o ro i. fi c» H> fD fD CO rf rf ro £1 co 3 ro fD CO 1 fD i_j 1 CL 3 identification laws or other additional identification laws when The Twelfth Court Of Appeals does not possess the constitutional author ity nor legislative powers to create new or other identification law- as such action by The Twelfth Court Of Appeals is 'Judicial Activism at its' worst.

CONTROLLING LAWS OF IDENTIFICATION

AS APPLIED TO THE FACTS OF THIS CASE:

While The State [Appellees'], and three[3] Justices for The Twel fth Court Of Appeals could find no legal precedent nor find 'Anything' constitutionally wrong nor 'anything' overly suggestive concerning the manner in which the pretrial photo identification process was co nducted in this case, including The Appellees', and Three Justices of The Twelfth Court Of Appeals finding nothing wrong with how State held and/or conducted its' live in-court lineup in this case; And while this Appellant 'Reluctantly' concedes to the fact, that his own dili gent research [Reading Of State And Federal] had failed to disclose, or yield any past or present legal precedent directly on point and/or similar with the procedural or factual allegations of this Appellant's case- Whereas, Assistant District Attorney's [Trial Prosecutors'], on the eve of a criminal accused defendant's trial [instead Of Law Enfor- cent Officer- Police], holds or conducts identification process with robbery victim[Eyewitness], while suspect identify and events are still fresh in eyewitness or victim's minds.

However, although this Appellant is fully legally aware of the fact, that there are [N]o two cases factually or similarily alike; Nonethe less, Appellant argues, that there is presently Ample legal precedent and/or statutory authority in the law books- which stands for the legal proposition, That Court's 'Condemns' the type of [SINGLE] One- On-One [One-Man] showup as was conducted in this Appellant's case. [See For Example: United States V. Deleon Ouinones, 588 F.3d 748(ist Cir. 2009)].

Additionally, Appellant argues, that it really should not matter nor make any legal difference whether it was the trial prosecutor's, or law enforcement [Police Officers], who conducted or held the pretrial

• -8- identification process with the robbery victim[Eyewitness] in this case as The Courts' have plainly held, that identification procedure is 'impermissibly Suggestive' whenever a criminally accused defendant is the only individual, or suspect presented before, or shown to a witness. See: Broom V. Mitchell, 441 F.3d 392[6Th Cir.2006].

Also, preexisting legal precedent states, that identification pro cedure is 'impermissibly Suggestive' when a witness is shown Criminal Accused Defendant sitting alone at the police station. See: Wray V. Johnson, 202 F.3d 515 [2d. Cir. 2000]; Thus, Appellant argues, that the same rational and/or legal reasoning announced in Wray, should likewise apply to the facts of this Appellant's pretrial identific ation process [Photo Array], when robbery victim, within seconds,mi nutes, or hours of this Appellant's robbery trial commencing was for the first time shown 'SINGLE' still photographies [Store's Security Video Tapes], which consisted of individual purposed to be Appellant, and no other African-American's still photographic was shown to the robbery victim, including, trial prosecutor's then sneaking robbery victim concealed-hidden in the courtroom[Unbeknownst To Appellant And His Attorney], for the purpose of robbery victim to identify Appell ant,who was sitting alone[The Only African-American] in the courtroom; Therefore, it is of little consequences whether robbery victim viewed defendant [Appellant] while seated alone in a room at the police st ation, or seated alone in a courtroom as such live in-court lineup [Single 'One-On-One'J, should not had been allowed to happen- Period, nor given the Stamp Of Approval by the trial judge nor Sanctioned by a Three[3] Justice Panel For The twelfth Court Of Appeals.

Even the case law precedent relied upon by The Twelfth Court Of Appeals in their March 25Th,2015, ruling[OPINION], all dealth with defendant's in those cases arguring that conduct by police led to Overly Suggestive In-Court identification procedure[s];[The Twelfth Court Of Appeals Cits, Delk V. State, 855 S.W.2d 700(Tex.Crim.App. 1993); Loserth V. State, 985 S.W.2d 536(Tex.App.-San Antonio 1998), and Ibarra V. State, 11 S.W.3d 189(Tex.Crim.App. 1999)]. The Delk case relied upon by The Twelfth Court Of Appeals, in aff irming this Appellant's case involved Delk arguring on appeal, that his in-court identification by victim was inadmissible and tainted due to impermissibly suggestive pretrial photographic array process conducted by police where witness to murder of her husband was shown a single photograph of accused suspect under arrest. The Texas Court Of Criminal Appeals in Delk's, that the trial court did not err in failing to suppress witness's in-court identification of Delk, be cause such identification was of 'Indepent Orgin' aside from the impermissible suggestiveness of the pretrial photographic array pr ocess.

Furthermore, in the reported case of Loserth, cited: and relied upon by The Twelfth Court Of Appeals in affirming this Appellant's judgement- involved a case where The Fourth Court Of Appeals[San Antonio], held that 'Display' of single photographs of defendant to eyewitness was impermissibly suggestive[Pretrial] identification process which gave rise to a very substantial likelihood of irrepa rable harm and State failed to show that in-court identification was of independent orgin and not tainted by the pretrial identifi cation process.

Likewise, in the case of Ibarra, cited and relied upon by The Twelfth Court Of Appeals in affirming this Appellant's judgement on appeal, involved a case where police conducted a One-On-One single photographic array process with witnesses in which witnesses stated that Ibarra looked familar to the murder suspect; Thereafter, police twenty-five[25] days later showed witnesses 'single photograph' of Ibarra, whom police believed was the murderer- police then conducted a live lineup where witnesses identified Ibarra. At trial the witn esses testified that the photographic array did not influence witness decision to select Ibarra out of the lineup. The witness further testified, that he could identify Ibarra in-court and at the lineup because he Independently remembered Ibarra the day of the offense. The Texas Court Of Criminal Appealsin deciding Ibarra, held that in spite of the 'overly impermissibly suggestiveness' of the photographic array process, that witnesses in-court identification of Ibarra was

-10- of independent orgin, and that the trial court did not err in fail ing to suppress in-court identification of Ibarra.

Turning this Court's attention to the single-most common- denom inator, or trait found in Delk, Loserth and in Ibarra case law deci sions cited and relied upon by The Twelfth Court Of Appeals in affirm ing this appellant's judgement on appeal, is that each reported case involved police conducting, or holding 'Condemned' single One-on-One pretrial photo array and/or live lineup procedure where individual or single photo of accused is the only person, or photograph shown or displayed to eyewitnesses- as such identification techniques has been held impermissibly suggestive, but for other reasons explained therein, The Courts' in Delk, Loserth and Ibarra, has all found that witnesses pretrial identification did. not effect witnesses in-court identification which were shown to had been made of 'independent - Orgin'; However, the robbery victim's in-court identification of this Appellant, Calvin Louise Rushing, was not shown to had been made of 'independent- Orgin', but had been shown and birthed from its' un constitutional inconception, or the by-product of the improper One- On-One [Single] individual pictorial array of person resembling this Appellant, that led to the in-court [One-On-One] identification pro cess that could not stand without the pretrial identification. See: Abdur Raheem V. Kelly, 257 F.3d 122 [2d Cir. 2001].

Further, this Appellant argues, that there presently existed a far more greater important reason for The Twelfth Court Of Appeals to had found that the 'pretrial' photo array, including the in-court identification process were constitutionally improperly conducted, or held in this Appellant's case due to the fact, Appellant's Sixth am endment right to counsel had attached at the time the pretrial photo array and live in-court identification process took place and/or was conducted by Appellant's trial prosecutors'. See: McFarland V. State, 928 S.W.2d 482[Tex.-Crim.App. 1996].

The official trial court records in this case reflects, that the Appellant's trial counsel during trial 'Objected' to any identific ation process done of Appellant while under indictment without counsel [RR.VOL.II.,p. 38, 39]. -11- Additionally, this Appellant's appellate counsel on appeals had argured and alleged, that the pretrial and in-court identification was in violation of Appellant's 'DUE PROCESS' rights pursuant to the Sixth Amendment to the United States Constitution[Although Their Is No 'DUE PROCESS' Provision Under The Sixth United States Constitut ional Amendment- But A 'Right' To Presence Of Counsel Exist Under The "Sixth" Amendment At Every Critical Stage Of The Criminal Pro ceedings- The Appellee's And The Twelfth Court Of Appeals Was Fully Knowledgeable Or Aware Of The Issues Complained About][See: Appell ant's Brief, at p. 13].

Furthermore, even the robbery victim was knowledgeable of the fact, that the day prosecutors' had robbery witness identify this Appellant [Pretrial] and in open-court- robbery victim was aware of the fact that Appellant had already been indicted and set for trial [RR.VOL.II.,p. 69].

The Appellee's [State] in a feeble attempt to squirm their way out of the Sixth amendment violation which occurred in this case when the trial prosecutors' conducted and/or held pretrial photo identif ication process, including conducting and/or holding their in-court identification process in this case after Appellant had already been indicted, The State[Appellee*s] on appellate review candidly implies, or infers, that witness viewing store's security surveillance tapes, and still photographs to refresh a witness's memory is not an iden tification- and even if there was a pretrial identification process made the morning of the trial such was not impermissibly suggestive be cause of the short time between the pretrial identification and the in-court identification[See: State's Brief, at p. 5-THRU- 10]; The Twelfth Court Of Appeals, in its' March 25Th,2015, opinion, noted, that the robbery victim was allowed to review surveillance video alone with numerous photographs made from the surveillance video[see: Twelfth Court Of Appeals, Slip Opinion, at p. 5]; The State[Appellee's], are arguring both ways, by first arguring, that there was no pretrial identification process, and even if there was a pretrial identific ation process, there was no Irreparable Harm[See: State's Brief, at p. 5, 6, 7, 13][The Appellee's Can't Have It Both Ways]. -12- The Appellee's [State], appears to argue, and firmly hides behind the fact, that the [Mere] showing to a witness[Still Photographies], from a store's security surveillance video-camera to refresh a wit ness's recollection, is not an identification procedure [See: State's Brief, at p. 6]; However, a fact previously noted by The Twelfth Court Of Appeals, and conceded to by this Appellant, is the fact of the matter, that this Appellant possessed [N]o statutory, or const itutional right to either 'demand', or 'command' police, or trial prosecutors' to conduct or hold any pretrial photographic identific ation process, and neither does this Appellant possess any right to command', or 'demand' police or prosecutors' to hold or conduct any live lineup process[See: Sapp V. State, 476 S.W.2d 321(TeX.GrIniT App Austin 2000)]; Maxwell V.State, 10 S.W.3d 785(tEX.App.-Austin 2000].

Nonetheless, once a pretrial photographic array or live lineup is conducted in a case after a criminal defendant has been indicted, then the defendant, such as this Appellant, possessed the 'valuable- right' pursuant to the Sixth United States constitutional amendment to have the presence of counsel during said identification procedures conducted by police, or The State[Trial Prosecutors'], this is so, be cause the 'Due Process' clause of the Fifth United States constitut ional amendment grants Appellant the right to presence of counsel during all critical stages of the criminal proceedings[After Indict ment Is Returned], including having counsel presence during any pre trial photographic line up, or live lineup- as the presence of cou nsel would had contributed to the 'fundamental fairness' of the ide ntification process now under constitutional challenge by Appellant [See: Twelfth Court Of Appeals, Slip Opinion, at p. 6].

The official trial court records clearly reflects, that during the period of time trial prosecutors' held, or conducted pretrial photographic showup, including holding and/or conducting live in- court identification process in this case, that neither times was Appellant's trial counsel 'adequately notified' of the photographic showup nor notified when the in-court identification would then take place; Therefore, during 'Both identification procedure[s], Appellant was 'Without Counsel'[RR.VOL. II., p. 38, 39].

-13- Adversary judicial [Criminal] proceedings are considered to begin after formal charges are filed, preliminary hearing, indictment is returned by a Grand Jury, arraignment, or information "is presented. [See: United States V. Wade, 388 U.S. 218, 237 (1967); Moore V.- Illinois, 434 U.S. 220(1977); Kirby V. Illonois, 406 U.S. 682(1972)].

Even while the official trial court records 'reflects' that the Appellant had already been indicted by an Angelina County Grand Jury, the robbery victim prior to Appellant being indicted and/or set for trial was never asked to participate in any traditional identific ation process by police after robbery and had not been asked prior to Appellant's trial to select, or choose person or individual who had robbed him; Thus, when it came down to the time of Appellant's trial robbery victim did not identify Appellant in 'Open Court' nor pointed directly at Appellant [Letting The Records Reflect], that witness identified Appellant as person who used the store's rest- room prior to being robbed.[RR.VOL.II.,p. 38].

Nevertheless, The Twelfth Court Of Appeals in their March 25Th, 2015, unpublished opinion erronerously has found that the robbery victim identified Appellant at trial as person who committed the offense; And that even without witness identification, The store's surveillance video speaks for itself, and could had been used by the trial court[Judge] to link Appellant to the offense[As If The Trial Judge Was An Eyewitness To Offense][Emphasis Those Of Appellant's]; [See: Twelfth Court Of Appeals, Slip Opinion, at p. 5,6].

It is the 'vise' of such corrupting belief and/or procedure that thereafter a witness may be convinced that he or she is correct and would have came to the same decision[Identification] anyway. [See: Simmons V. United States, 390 U.S. 377, 383 (1968)].

Given the unsound decision in this case by The Twelfth Court Of Appeals, it is 'obvious' why the most single important factors att ributing to 'wrongful convictions' in The United States is Eyewit ness Identification. United States V. Wade, 87 S.Ct. 1926(1967); Fu rthermore, mistaken identification are responsible for more wrongful convictions than any other cause combined. United States V. Brownless,

-14- 454 F-.3d 131 (3D cIR. 2006).

Because 'misidentification' is the leading causes of many wrongful convictions in The United States, it is primarily for those reasons, that The 'Due Process* clause 'mandates' that identification process is to be 'free' of identification techniques that are unnecessarily suggestive, that may lead to 'irreparable mistaken'identification. United States V. Emanuel, 51 F.3d 1123 (3D Cir. 2006).

Courts have been called upon, and have already held that procedu res where witness[s] are shown single photograph of suspect under arrest, was constitutionally improper. See: Delk V. State, 855 S.W. 2d 700 (Tex. Crim.App. 1993).

The trial prosecutors' in this case, 'acting in bad faith', purpo sely postponed having robbery detectives [Police] conduct or hold with robbery eyewitnesses any photographic showup or live lineup of possible robbery suspects with witnesses knowing full well it would virtually be next to impossible for robbery eyewitnesses to identify this Appellant from a photographic array or from a live lineup since robbery suspect's face was covered.

For the sake of not being too argumentative, Appellant admits, that The Twelfth Court Of Appeals [First] correctly went about determining whether the in-court identification was improper by conducting Biggers determining factors which weighted heavely against The State[See: Neil- V. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.ed. 2d 401(1972)][Two- Step Analysis]; While The Twelfth Court Of Appeals correctly relied on Biggers' first-step analysis in determining the reliability of the witness's identification testimony; However, The Twelfth Court Of App eals 'obviated' analyzing the second-step of the Biggers' factor once The Twelfth Court Of Appeals found that the 'in-court' identification process was conducted properly[See: Manson V. Braithwaite,97 S.Ct. 2243 (1977)]; Cantu V. State, 738 S.W.2d 249(Tex.Crim.App. 1987) ].

Last, but not least, this Appellant argues that The State [Appell ee's] has failed to prove, that members of The Angelina County Dist rict Attorney's Office were qualified to hold or conduct photograp hic or live lineip procedures as a 'routine performance' [Job Des- -15- CO CU X) r—i 4-1 , CO M-l cu J-l 1 J-l CO U"i CO o •H X) o J-l o CU rH o o 4-1 CU o si i X3 rH •H 4-1 4-1 X! CO J-l CU 3 o CU a •H CU •H CO ,3 J-l 4-1 CN 3 X3 3 CN CU Q 4-1 4-J CO oo cu M •xi J-l CU CO B •H X! X) '•4-1 si 4-1 X) CL 0 •H t CU CU CO 4-1 XI •i-l 00 c X) 3 CU CL o 3 CO •.—1 CL o •H 4-1 i—l •H IS 00 X) 3 t cO cu CJ 3 cu •H p X) o •rl 3 CL CO CO 4-1 o 3 rH rC 00 •H oo O pa 4-> p •H ^1 E CJ CU o B '4-1 U 3 CO CU CM O CO ft CO •H •H t w > CU 4-1 CU X X CL 3 CO co P 4-1 CU o CU XI CU 4-1 O o •H 3 J-i T-H 3 X) o o 4-1 CU O O •H CO a xi T3 CU J-l CO CO 4-1 J-l 4-) CU 00 CM 3 O -J rH H 4-1 3 •r-4 •H •rl &i CL CU o CU X! P CL J-l 3 r-H O cd co X) M-l rH p 4-1 M-l' CU 3 >-> 4-1 o o 4-1 4-1 X! < •H .—1 4-1 3 l CO 3 M-l CO H •H CO •rl B 4-> CU O CO J-l J-l 3 3 rH CO O X |3 o o 4-1 a) o 4-1 o 4-1 j-i •H r—i M-l X! CM CU CL CO •V CO o 9s O XI CJ rH CL o o 4J CM CO •rl B o 4-3 CO o 4-> s CO i-H r-l •H CU (U •H . CL •H CL co CO 00 4-1 fl o M-l CU 4-1 i_—i 0 3 o r-l CO 4-1 J-l > M-l • H < CU CU u 00 •H 4-1 3 cu 4-) CO •rl 'X XI f) 1 O 4-1 co O CU •H CO 3 •H •H M-l 00 J-i < J-l CO c ^ cu CO M-l 4-1 •H o cu CU >. •H —. o CL J-J O X) rH o O CU •X • 3 IS ^1 I—l ,D •H c o j_i 3 E CU rH 4-1 CU 4-1 X! CL 4-1 •H CU CU rJ 00 X Xl o •rl cu 4-1 CU ^ 4_1 o n o r-i 0 S CU CO o J-l CU 3 CO CU < CU U M-l •H o o X3 3 CL CO 3 P • 3 •H H CU CU 0 4-1 4-1 CO J-l r-t r-i 3 X) 'XI o oo B S a • CO 4-1 a) o CU •H CU •rl M-l CU •H 3 •H si r-l XI 00 & 4-1 u cO •H X) 4-J o ^ CL o < •H 4-1 CL 3 4-1 •H -o rH ~ & N 00 o CO o 0 1—1 < •H j-i •rl cO ,rj ^ Xl 3 CL O CU •H CO CL •H X! 3 3 & ^ tH CO cu }_l CO CM M-l o 1 •x o •H CU XI •H 13 •H 4-1 4-) •H & CO U CO •H co c o 4-1 o . o o CL >, >. co B si ,3 CO o •H J-l CO CO X J-l 3 P tjM CO 4-) o •H •iH o CO l_l OO ^{ 4_) cO co > 4-1 CO 4-1 P •rl i—l O oo 3 •H X! X) Q CM X E J4 u •H P-l CO 4-1 r—1 B *. cO X) 4-> si J-l 3 P !H CO OT 3 <; cu •rH CL Q c •H co cu 3 m cu - 3 CL 4-1 CU 3 4-1 >. CL •H 0 CJ •(rl CO #S rJ J-l rH cu B 3 cu 4-) CL) CU o X) CU •S3 CO •iH 3 3 J-l 4-1 I 0 x: 4-> >1 4-> o c >, CO rH 4-J CJ CU C/j r-l •H crj Xi o •• co u CU CO U-l o CU o 3 M-l •H 4U CO PQ CO • o •H c 4J co CU MH 4-> i—l •H O 4-1 > •H 3 ' • I o J-l 3 o 4-1 •3 XI tH CL M-l •H rj J_| •H 4-J ,X3 CO o o co 4-1 U 3 CO 0) CO 3 3 -o Cu 1 X) X) CL rJ H ,—1 o 4-1 •H oo •rl o 3 •rl 3 3 4-1 J-l X) CU 4-1 J-l 3 J-J CU a CO 3 CU J-l c XI •rl •H 4-1 CO cO O CO 3 CU 4-1 E CO O •H T3 u CO CO 4-1 cu CJ CU O J-l x: •rl CO X! rH 0 •H cu CU CU J-t CL M CO •H 4-1 o CU 0 60 X o rO X < X) •H CO 4-1 4-1 J-l CU 3 XI CL co O CO 3 4-1 CO CU X! CJ o CU CO cd 3 CU o M-l CO >> cd 4-1 00 cO 4-1 CL o o •H xs X) E > 4-1 4-1 H 4-3 3 cu H CJ •H 3 " CU CJ •X- X) (30 CO 5^ & 00 Xi B CU I—l CO 3 co CU r-l CU 4J o •H 3 4-1 H 3 CO > CU CM 0) •H C 4-1 t CO x< CO H cO OO 4-1 CO •H CU CO J-l X E-i CO •H J-l •H o J-i CU p J-4 CU < < CJ J_| H Pj >-i 'X • J-l 3 X 3 CO M-l P X) 3 m-i CU J-i u 3 > ••* M-4 QJ ^ 25 1 cO 3 3 4-> •H CU TJ 4-1 3 «•- U—1 X! r-l Xl o > 3 p- XI •H Pd o CU 4-) H >> CU r-1 Xi XI •r-1 o i-l H CU CO •H X) 3 4-1 O 3 o X) 3 CU 4-1 cj #s o L_J X3 J-l cO o cu CJ t^ 4-1 XI CU 0 CU CU co 3 X! O OO CU •H o o i o •H 3 ^ 4-1 CM CU » •rl > 00 CO si CU CU o CO O 3 o o CU Cu J-l X) oo 4-1 x) P B -3 4-> > J-l 4-1 CU CO i-l E E CU o o CU J-i. M-l • j_i 4-1 cO CO cu cu •rl 4-1 •H H Pu CO •rl •H CO O J-l •H 3 4-1 J-l XI CL M-^ 00 00 jj < 4-1 CO r-\ cO o •rl 4-) Pj 'Xl '4-4 CL 4-1 i—1 si o X •H 3 J-l o 4-1 4-) CL 4-1 CU O CO •H B cu XI o o pj •rl i—1 O " p-l 4-1 3 CU J-l CO M-l "\ o o X) CL O > Q CU QJ M X >, cu CO CO CU 4-1 X) O crj CU 4-1 XI •H cO CU 3 CO 3 1 cu XI CU 4-> cu PL4 Xl > CU cd r-1 3 •H 3 5 W) >N co - 3 > 3 4-1 O CO CU tH oo 4-1 4J J_l 3 CO X 3 c CO O •H CO CO i—l >^ CO CO cO H o •H CU 3 o 3 B B o o 4-1 o rH xl •H CL •x o CM s i—l 4-1 M J-l cO 4-1 J-l •rl 3 1 •H 4-1 SB crj CO 3 CO cO cu CU CU B •H CL •H CU 3 3 XI o P- J-l cu 3 CO X) r-H P «ifN J-l CO j-i •H ^ 00 Xi E-i CJ CU • »N CO CU XI •rl CL S M O •H co I > 3 S Xi H •H CO CU 4-) O CU B •H O •H i—l CU S J-l O o Xi CO M-l > o • T-l cu co CO 00 CU •H 3 CO 3 co u •rl J-l rfl M-l 4-1 O J-l o CU CU XI o CO •H o •rl CU o o J-l u co CO c x CO CU X3 cO >-. o CL o CO O cO Cb CL 2 CO CO CO J-i 13 4-J 4-1 i—1 CO Z CM CL < •rl 4-1 CJ rH CU '4-1 O o X X! Xi V.

GROUND FOR REVIEW NO. THREE;

WHETHER THE TWELFTH COURT OF APPEALS [PER CURIAM] DECISION COMES INTO CONFLICT WITH THE U.S. SUPREME COURT'S 'DUE PROCESS' STANDARD THAT WAS ANNOUNCED IN JACKSON V. VIRGINIA REQUIRING EVIDENCE TO BE BOTH LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN CONVICTION [AS IN THIS CASE THE EVIDENCE WAS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN THE DEADLY WEAPON FINDING].

CASE DISCUSSION:

Appellant argues that the evidence heard by the presiding judge in this entitled cause of action was legally and factually insuff icient, to support the trial court's affirmative finding of a deadly weapon, as alleged in the charging instrument, was not supported by the evidence.

In this case, The State failed to introduce or produce any 'Demo nstrative-Evidence' for inspection by the trier of facts[Presiding Judge], of the weapon allegedly used by the robber, as the actual weapon allegedly used by the robber was never found by investigating police nor entered into evidence by the trial prosecutor;Therefore, the trier of facts[Presiding Judge], had [N]o real evidentiary proof, that the weapon used by the robber, in its' 'manner, or use' was capable of causing serious bodily injury, or death, due to the fact, The State hearing conflicting evidence of the actual description of the weapon allegedly used by the robber through its' witnesses', The State 'willfully' failed to proffer the testimony of a 'weapon' expert to testify that the weapon depicted in store's surveillance security video was capable of causing serious bodily injury. See: Luckette V. State, 906.S.W.2d 663(Tex. App.-Amarillo 1995);The 'Only* objects offered to. witness to identify did not match the description of the weapon used by the robber[RR.VOL.I.,p. 43-THRU-73]; And.The State 'knowingly' declined to present the testimony of an expert witness as far as the weapon used being a deadly weapon[RR.VOL.II., p. 127]. *

-17- THE LAW:

The Appellate Court decision in this case, conflicts with the applicable standard announced in Jackson V. Virginia, 443 U.S 307 99 S.Ct. 2781, 61 L.ed.2d 560(1979), because the testimonial-evidence given by the robbery victim and police who apprehended Appellant did not prove, that the weapon allegedly used by Appellant to rob a con- vience store, was in its' manner & use capable of causing serious bodily injury, or death. The evidence presented by The state, and heard by the presiding judge [The Trier Of Facts], was legally in sufficient to satisfy the 'Due Process* clause of the Fourteenth amendment, which required The State to prove each element of the offense beyond a reasonable doubt. See: In Re Winship, 397 u.s. 358 (1970). In this case, it was clear that Appellant suffered a viola tion of his Fourteenth amendment right to 'fundamental fairness', that is guaranteed by the due process clause, and The Twelfth Court Of Appeals decision fatally denied Appellant of that right of which he's guaranteed protection under. See Also, Thompson V. Louisville. 362 U.S. 199, 80 S.Ct. 62, L.ed.2d 654(1960). The testimony of the description of the deadly weapon, and its' manner and use capable of causing serious bodily injury and/or death was simply based upon a hunch' that lacks any evidentiary support that requires this Court to reverse the convicting court's deadly weapon[Affirmative Finding] findings. See: Brooks V. State, 323 S.W.3d 893 (Tex.Crim. App. 2012)

VI.

PRAYER

Appellant, Calvin Louise Rushing, respectfully presents this Petition For Discretionary Review, and prays that this Court will reverse' his conviction, and remand this case back to the convict ing court for proceedings consistents with this Court's decision; Or in the alternative , without waiving the above and foregoing, the Appellant request these proceedings be returned back to The Twelfth Court Of Appeals with instructions for The Twelfth Court Of Appeals to 'complete* the second-step of The Biggers' factor- whether The Identification Procedure Gave Rise To A Substantial Likelihood Of Irreparable Misidentification. -18- ITTED.

CALVIN LOUISE RUSHING TDCJ-ID# 1925565 ALLAN B. POLUNSKY UNIT 38/2 FM 350 SOUTH LIVINGSTON, TEXAS 7735i

VII

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing 'Appellant's Petition For Discretionary Review' on this / DAY of /j/z/j/g, s 20155 has been nailed by United States Postal Service to the State's Counsel; Carey Jensen, Assistant Di strict Attorney of Angelina County.

CALVIN TDCJ-ID # 1925565 ALLAN B. POLUNSKY UNIT 3872 FM 350 SOUTH LIVINGSTON. TEXAS 77351

•19- COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 25,2015

NO. 12-14-00112-CR

CALVIN LOUISE RUSHING, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. 2012-0431)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

Greg Neeley, Justice. Panel consistedof Worthen, CJ., Hoyle, J., and Neeley, J. NO. 12-14-00112-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CAL VIN LOUISE RUSHING, § APPEAL FROM THE 217TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § ANGELINA COUNTY, TEXAS

===== MEMORANDUM OPINION Calvin Louise Rushing appeals his conviction for aggravated robbery, for which he was sentenced to imprisonment for fifty years. In two issues, Appellant argues that (1) the trial court erred in permitting a witness to make an impermissible in-court identification of him and (2) the evidence is legally insufficient to support his conviction. We affirm.

Background

Appellant was charged by indictment with aggravated robbery and pleaded "not guilty." The case proceeded to a bench trial. The evidence at trial indicates that shortly before 3:00 a.m., on May 20, 2012, an African American male entered the Polk's Pick-it-Up store near the Idlewood subdivision in Angelina County, Texas. The store employees, Micah Cooper and Mindy Tovar, were in the process of closing the store. Once inside, the man entered the store's public restroom near the checkout counter. A short time later, he emerged from the restroom and exited the store. As he departed, the man walked past Cooper, who "got a good look at him." At the time, the store's interior and exterior were equipped with multiple surveillance cameras connected to a continuously operating digital video recorder system. Soon thereafter, Cooper was in the store cooler and heard Mindy Tovar call his name. Cooper looked through the cooler doors and saw Tovar and an African American male with a towel over his head walking toward the cooler. Cooper noted that the man was wearing the same clothes as the man he observed leaving the restroom earlier.' Cooper exited the cooler and saw that the man had a "spear like object" in his hand. Cooper elaborated that the object was a couple of feet long with a two or three inch long sharp metal point on the end. The man directed Cooper and Tovar to walk to the checkout counter, where they emptied the money from the cash registers and handed it to him. Next, the man led the two store employees to the back storeroom and told them to lie face down on the floor. Cooper and Tovar complied and remained there until Cooper heard a customer in the store. At that point, Cooper engaged the silent alarm and called 9-1-1 from his cell phone. Cooper later determined that the man had absconded with approximately $400 in cash, a six pack of beer, cigarettes, and cigarette lighters. In response to Cooper's 9-1-1 call, Angelina County Sheriffs Deputy Howard McDaniel arrived at the scene. McDaniel viewed the surveillance video and identified the vehicle in which

the suspect arrived at the store as a white Buick Century. The following evening, a Lufkin Police Department officer stopped a vehicle matching that description. McDaniel, who was contacted regarding the vehicle, soon arrived at the location. Appellant, who was driving the vehicle, was arrested for driving without a valid license. During the ensuing search of the vehicle, a towel bearing some similarity to the towel worn in the Polk's store robbery was discovered in the vehicle along with an open thirty pack of beer. On cross examination, McDaniel stated that, at the time of arrest, Appellant had a similar build and similar features as did the man Cooper described to him. But McDaniel conceded that Appellant did not, at that time, have any facial hair, nor was he dressed the same as the man Cooper described. McDaniel also acknowledged other discrepancies. Specifically, he testified his report indicated that Cooper stated the object the man used may have been a rake or a cultivator, but that the dispatch call notes set forth that the suspect used a metal pipe. He further

At trial, Cooper identified Appellant as the individual he encountered that night. testified that the garden cultivator found in the trunk of the Buick Century was suspected to have been the object used in the robbery, and no spear-like object was found in the vehicle.2 James Bates testified he was the owner of and a passenger in the Buick Century that Appellant was driving when he was stopped by police the night after the robbery. Bates further testified that he had known Appellant for a couple of months and that Appellant sorrowed the vehicle the night of the offense and returned it the next day. Bates only vaguely recalled" Appellant's reason for borrowing his vehicle. And he could not remember whether Appellant had facial hair at the time in question. Bates verified that the vehicle identified in the surveillance video and photographs had the same type of tires his vehicle had at that time. Melton Joyce testified that Appellant worked for him at the time leading up to the robbery. Joyce further testified that he could not remember if Appellant had facial hair during the time immediately preceding his arrest. However, Joyce recalled that Appellant did, at times, have facial hair when he worked for him.

At the conclusion of trial, the trial court found Appellant "guilty" as charged. After conducting a sentencing hearing, the trial court sentenced Appellant to imprisonment for fifty years. This appeal followed.

Admissibility of the In-Court Identification

In his first issue, Appellant argues the trial court erred in allowing Cooper's in-court identification because it was tainted by an earlier, unduly suggestive identification procedure.3 Applicable Law

An in-court identification is inadmissible if it has been tainted by an impermissibly suggestive pretrial identification procedure. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). In determining whether a trial court erroneously admitted in-court identification testimony, we first must determine whether the pretrial procedure was impermissibly suggestive. See id. Next, we ascertain whether the procedure gave rise to a substantial likelihood of irreparable misidentification. See id.; Loserth v. State, 985 S.W.2d 536, 543 (Tex. App.-San

2 McDaniel stated that even though his report indicated that Cooper referred to the object as a rake or cultivator, Cooper never, in fact, referred to the object as a rake or cultivator. McDaniel further stated that he did not intendto imply in his reportthat Cooper identified the object as either of those things.

3Cooper did notparticipate in any traditional identification "lineup." Presumably, Appellant contends that allowing Cooper to view the video security surveillance footage of the offense shortly before he testified at trial was an unduly suggestive identification procedure. Antonio 1998, pet. ref d); see also Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). The defendant bears the burden to prove these two elements by clear and convincing evidence. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). If the defendant meets his burden, the in-court identification is inadmissible unless the state presents clear and convincing evidence that the identification was of "independent origin." United States v. Wade, 388 U.S. 218, 240 n.31, 875 S. Ct. 1926, 1939 n.31, 18 L. Ed. 2d 1149 (1967). Reliability is the linchpin in determining the admissibility of the identification testimony. See Loserth, 963 S.W.2d at 772. Testimony is reliable if the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure. See id. In assessing reliability, we consider the following nonexclusive factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of alertness; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of confrontation; and (5) the lapse of time between the alleged act and the time of confrontation. See Ibarra, 11 S.W.2d at 195 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972)). We consider these factors, all issues of historical fact, deferentially in a light favorable to the trial court's ruling. Ibarra, 11 S.W.2d at 195. The factors, viewed in this light, are then weighed de novo against "the corrupting effect" of the suggestive pretrial identification procedure. Id. at 195-96. A finding that a challenged pretrial identification procedure was not, in fact, impermissibly suggestive will obviate the need to assay whether, under the circumstances, it created a substantial likelihood of misidentification. Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). Analysis

In the instant case, Cooper described the suspect to law enforcement officers as an African American male over six feet tall and having a muscular build, with a mustache and goatee. Cooper conceded at trial that a customer's using the public restroom was not unusual. However, he stated that the man was wearing a white shirt with a palm tree on the back, which caught his attention. Moreover, Cooper admitted that he avoided looking directly at the man during the commission of the offense. But he reviewed the surveillance video of the robbery on the store's computer and was able to see that man's face in some of the footage. Cooper stated that he was not asked to view a photo lineup or otherwise identify the man who entered the store to use the restroom and who later committed the crime.