Townsend v. State

853 S.W.2d 718, 1993 Tex. App. LEXIS 1068, 1993 WL 112512
CourtCourt of Appeals of Texas
DecidedApril 15, 1993
DocketNo. 01-90-00776-CR
StatusPublished
Cited by4 cases

This text of 853 S.W.2d 718 (Townsend 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
Townsend v. State, 853 S.W.2d 718, 1993 Tex. App. LEXIS 1068, 1993 WL 112512 (Tex. Ct. App. 1993).

Opinions

OPINION

MIRABAL, Justice.

After the trial court overruled his motion to suppress, appellant, Phil Denver Townsend, plead no contest to a charge of aggravated robbery, and true to two enhancement paragraphs. The trial court found appellant guilty and assessed punishment at 40-years confinement, in accordance with a plea bargain. Appellant now appeals the ruling on his motion to suppress. We affirm.

On April 12,1990, Stephanie Howlett and Carie Olivo, the employees of a retail clothing store called Clothestime, were robbed at gunpoint. On May 9, 1990, appellant was taken to the Cypresswood police substation, where his picture was taken. Appellant’s photograph, as part of a photo-spread, was shown the same day, but at different times, to Howlett and Olivo. They each identified appellant’s photo as that of the robber. Appellant was charged with aggravated robbery. On June 25 and 26, 1990, lineups were conducted at the sheriff’s office. Appellant was again positively identified by Howlett and Olivo, who viewed separate lineups.

In his first and second points of error, appellant asserts the trial court erred in denying his motion to suppress the out-of-court identifications because they were the product of his illegal arrest. Appellant does not complain about the trial court’s denial of his motion to suppress in-court identifications by the same witnesses, How-lett and Olivo.

The trial court is the sole judge of the credibility of the witnesses in a pretrial suppression hearing and, absent a showing of an abuse of discretion, the trial court’s findings will not be disturbed. Freeman v. State, 723 S.W.2d 727, 729 (Tex.Crim.App.1986); Walker v. State, 588 S.W.2d 920, 924 (Tex.Crim.App. [Panel Op.] 1980).

On August 28, 1990, Howlett and Olivo testified at the suppression hearing that during the robbery on April 12, 1990, they saw the robber’s face, plainly and clearly, without obstruction, and in regular light. Both witnesses also made positive in-court [719]*719identifications of appellant at the suppression hearing. Carie Olivo testified as follows:

Q. [By Prosecutor]: Without going into detail about what may have happened, did something unusual happen to you on April 12th, 1990?
A. We were robbed.
Q. Did you have a chance to see the person that did the robbing?
A. Yes, Ma’am.
Q. Did you get a good look at his face?
A. Yes, ma’am.
Q. Was there anything covering his face or distorting it in any way?
A. No.
Q. What were the lighting conditions in the store at the time that you were robbed?
A. Fine. Just like here, just regular lighting.
Q. Were they bright like this or brighter or darker?
A. Just like this.
Q. Was there anything obstructing your vision between you and the person that did the robbing?
A. No.
Q. How close were you to that person?
A. He was standing right in front of me.
[[Image here]]
Q. The person that you picked out in the lineup, did you pick him out because you had seen a photograph of him or the detective showed you the photo spread or did you pick a person out because that’s the person that you remember that committed the offense?
A. Because I remember him from the robbery.
Q. And is that the same reason why you’re identifying him in the courtroom today or is it because you remember him from the lineup and the photo spread?
A. I remember him from the robbery.
Stephanie Howlett testified as follows:
Q. [By Prosecutor]: Back in April did you work at a Clothestime store?
A. Yes, I did.
Q. Where was that located?
A. On 1-45, right across from Greens-point Mall.
Q. Is that location in Harris County, Texas?
A. Yes, it is.
Q. Without going into what happened to you, on April the 12th, 1990, when you were working, did something unusual happen to you?
A. Yes. I was robbed that night.
Q. Did you have an opportunity to see the person who robbed you?
A. Yes, I did,
Q. Did you get a good look at his face?
A. Yes, I did.
Q. Was there anything covering his face or obstructing your view in any way?
A. Not his face. He had a ball cap on, but I could see his face clearly.
Q. What was the lighting conditions like in the Clothestime?
A. Our lights were very bright. It wasn’t quite dark outside yet, but the lights .in the store were very bright.
Q. So you were able to see objects in front of you with no problem at all?
A. Bight, no problem.
Q. How close did you get to the individual who robbed you?
A. I came within a foot of him.
Q. Did you speak with him?
A. Yes, I did.
[[Image here]]
Q. The person you picked out of the lineup, is it the same person seated here in the courtroom today?
A. Yes, it is."
Q. Did you pick that person out in that lineup because you had seen him earlier in a photo spread or because you remembered him from the date of the offense?
A. Because I remembered him as being the person that robbed me that night.
[720]*720Q. And your identification of him here today, is that based on the fact that you have seen him in a lineup now and you have seen him in a photo spread or was it because you remember him from the date he committed the crime?
A. Because I remember him from committing the crime?
Q. Are you sure this is the man that did the robbery?
A. Yes, I am.
[[Image here]]
Q. [By Defense Counsel]: Do you recall whether he had on long sleeves or short sleeves the night you were robbed?
A. The night I was robbed, he had a short-sleeve T-shirt on.
Q. And do you know whether or not he had any tattoos, or do you recall?
A.

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Bluebook (online)
853 S.W.2d 718, 1993 Tex. App. LEXIS 1068, 1993 WL 112512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-state-texapp-1993.