Tapley v. State

673 S.W.2d 284
CourtCourt of Appeals of Texas
DecidedNovember 14, 1984
Docket04-83-00273-CR
StatusPublished
Cited by24 cases

This text of 673 S.W.2d 284 (Tapley 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
Tapley v. State, 673 S.W.2d 284 (Tex. Ct. App. 1984).

Opinions

OPINION

DIAL, Justice.

This is an appeal from a conviction for sexual abuse of a child. The jury assessed punishment at twenty (20) years confinement and a fine.

Appellant’s first two grounds of error alleged that the trial court improperly denied his motions to quash the indictment. Appellant alleges that the indictment fails to allege a culpable mental state pursuant to TEX.PENAL CODE ANN. § 6.02(a) (Vernon 1974).

The indictment alleges that appellant engaged in the prohibited act "... with intent to arouse and gratify the sexual desire of the said TIMOTHY PATRICK TAPLEY ...”. The allegation of the specific intent as prescribed by TEX. PENAL CODE ANN. § 21.10(a) (Vernon 1974) suffices for the more general culpable state. See Ex parte Cone, 601 S.W.2d 383 (Tex.Cr.App.1980); Martinez v. State, 599 S.W.2d 622 (Tex.Cr.App.1980); and cf. Victory v. State, 548 S.W.2d 1 (Tex.Cr.App.1976) (indecency with a child). The indictment was not subject to appellant’s motions to quash for failure to allege the more general culpable mental state. Cf. Martinez v. State, 565 S.W.2d 70 (Tex.Cr.App.1978) (allegation of the required specific intent in burglary indictment held sufficient even in face of motion to quash for failure to allege the more general culpable mental state). Appellant’s first and second grounds of error are overruled.

Appellant’s third ground of error is that the trial court erred in failing to find that an impermissibly suggestive pre-trial photo array had been used by police officers in identifying appellant. Appellant further alleges that the court erred in failing to determine whether such procedure created a substantial risk of irreparable misidentifi-cation.

At the hearing on his motion, appellant produced testimony from Officer Beattie that both children, Kristen Eppner and the complainant Laura Hiller, were shown a photographic spread for identification purposes. Officer Beattie identified Defendant’s Exhibits A and B as the photographic lineup shown to each child. Beattie admitted that appellant was the only Anglo male in the spread and that all the other photos were of Mexican-American males. Following Beattie’s testimony, the court denied appellant’s motion to suppress the identification.

We have examined Defendant’s Exhibits A and B and find that the photographic spread was impermissibly suggestive. Not only was appellant’s photograph the only Anglo male in the lineup, his photograph was the only one showing a person with fair complexion, the others all having darker complexions. Appellant’s photograph was the first photograph among the ten photographs in the spread.

The general rule is that each case must be considered on its own facts, and that a conviction based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. [287]*287377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Having found the display imper-missibly suggestive, we must now consider whether this display gave rise to a very substantial likelihood of misidentification.

Whether identification procedures are unnecessarily suggestive and conducive to irreparable mistaken identification must be determined under the totality of the circumstances. Perkins v. State, 628 S.W.2d 112 (Tex.App.—San Antonio 1981, no pet.). If a witness’ in-court identification is independent of any pre-trial identification procedures such in-court identification is admissible. See Turner v. State, 614 S.W.2d 144 (Tex.Cr.App.—1981).

One of the children, Kristen Eppner, testified that she had met appellant on two occasions. She knew appellant ran the newspaper. She stated that appellant put her picture in the newspaper one Easter. She remembered appellant talking with her and the complainant, Laura Hiller, on the date in question.

The complainant, Laura Hiller, testified that she knew appellant and identified appellant as the person who committed the offense against her.

On cross-examination, she responded that she did not know what a Mexican-American was or what an Anglo-American was. She did not know how many photos were exhibited to her. When asked if the photos showed some people with brown skin and only one person with white skin, she could not remember.

Under the totality of the circumstances, we find that the in-court identification by the witnesses was not tainted and was of independent origin. Appellant’s third ground of error is overruled.

The fourth ground of error alleges the trial court abused its discretion in violation of TEX.CODE CRIM.PROC.ANN. art. 38.-06(2) (Vernon 1979) by holding that both child witnesses were competent to testify.

The competency of a child witness is a question for the trial court and the decision of the trial court in this regard will not be disturbed on appeal absent an abuse of discretion. Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978). In determining whether there has been an abuse of discretion, the appellate court will review the entire testimony of the witness in addition to that given in the hearing on competency. Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977) and Lujan v. State, 626 S.W.2d 854 (Tex.App.—San Antonio 1981, pet ref’d).

Both children testified that they knew the difference between right and wrong. Each child knew that it was wrong to tell a lie and each affirmed that they would tell the truth. Each child admitted they spoke to the prosecutor, as well as to the parents, about the events but maintained they would tell the truth in court. Their testimony concerning the alleged events was clear and unambiguous.

Reviewing the entire testimony of each child, we find no abuse of discretion on the part of the trial court. See Garcia v. State, supra, and Clark v. State, supra. The fourth ground of error is overruled.

In three grounds of error, appellant alleges error on the trial court for failure to grant a mistrial due to improper jury argument.

Appellant’s fifth ground of error alleges the trial court erred in failing to grant appellant’s motion for mistrial when the prosecutor, during jury argument, directly commented on the appellant’s failure to testify in violation of the U.S. CONST, amend. V, TEX.CONST. art. I, § 10, and TEX.CODE CRIM.PROC.ANN. art. 38.08 (Vernon 1979).

Appellant’s sixth ground of error urges the trial court erred in failing to grant a mistrial when the prosecutor made an inflammatory quotation contrary to the court’s charge on the State’s burden of proof in violation of the due process clause of the U.S. CONST, amend. V and TEX. CONST, art. I, § 15.

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Tapley v. State
673 S.W.2d 284 (Court of Appeals of Texas, 1984)

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673 S.W.2d 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tapley-v-state-texapp-1984.