OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
This is an appeal from a jury conviction for first degree murder. Punishment assessed by the jury was for a period of fifty years.
On appeal the appellant, inter alia, urged that the trial court erred in failing to suppress the prosecutrix’s in-court identification, alleging that the pre-trial identification procedure (hypnosis of the prosecutrix) violated his due process rights under the United States Constitution. The Amarillo Court of Appeals affirmed the conviction. Vester v. State, 684 S.W.2d 715 (Tex.App. —Amarillo 1983).
We granted appellant’s petition for discretionary review to consider the following claims. First, whether the Court of Appeals erred in holding that the prosecu-trix’s in-court identification was of independent origin and not as a result of hypnotically-induced testimony resulting from unnecessarily suggestive pre-trial identification procedures. Second, whether the Court of Appeals erred in holding that hypnotically-induced testimony is admissible in Texas. Our resolution of the first ground of error makes it unnecessary to address the second ground of error at this time. We affirm appellant’s conviction.
The evidence at trial showed that in the afternoon of March 31, 1978, the prosecu-trix, Edelia Ybarra, bought a six pack of beer on her way home from picking up her [921]*921sisters from school. She drank two of those beers prior to a 7:30 p.m. supper, and opened up a third beer after supper. At around 10 p.m., the deceased, Robert Rios Rivera, came around for Ybarra. The two of them carried on a conversation “for a while,” with the deceased asking Ybarra to accompany him to the liquor store. After changing clothes, Ybarra went with the deceased in his car to the liquor store. She was still drinking her third beer of the day. At the liquor store they purchased two six packs of beer, and then got back in the car and headed back the way they had come. Ybarra testified that during the course of the evening she drank one of the beers from the two six packs and that she thought the deceased drank two.
After stopping on a dirt road for the deceased to “use the restroom,” the couple drove “to a store there on East Broadway” to purchase some cigarettes. They then drove out East 19th, just outside Loop 289, to a dirt road. The deceased turned down this dirt road and parked “by a bunch of trees.” Ybarra could see the Loop from where they parked. The prosecutrix and the deceased eventually engaged in sexual intercourse in the front seat.
After intercourse, the deceased got out of the car to use the restroom. Upon his return, the deceased got into the back seat of the car and asked Ybarra to do the same. At that point, Ybarra testified that “somebody hollered in the back, ‘get out you Mexicans.’ ” Ybarra, thinking it was the police, asked “Who is it?” She testified that the deceased then said, “you b_ m_F_s, or something like that.” She further stated that at this time she could not see anyone outside the car but observed that the deceased had been shot “in the mouth.”
A man, whom she later identified as the appellant, then told Ybarra to “get in the back seat,” which she did. Ybarra could see the appellant’s face through the rear window when he approached the car and stuck a gun through the window. Appellant was 10 inches from the prosecutrix at this time.
The appellant shot the deceased again, causing the deceased to slump over Ybarra who was, by this time, screaming and crying. The prosecutrix then crawled over the deceased’s body, exited the car on the driver’s side and faced the two men standing outside the automobile, the appellant being “right in front of [her].” The appellant then told Ybarra to walk in front of him “to where the tree was.” Having complied, the appellant then raped the prosecu-trix. During the rape, the prosecutrix could see appellant’s face, there being no camouflage. The other man at this time was throwing the deceased out of the car.
After the rape, the appellant forced the prosecutrix to walk in front of him back to the car, while the other man removed the clothes from the body of the deceased. The prosecutrix stated at trial that she first saw the other man’s face when he “was telling the one that raped me [the prosecu-trix] he had to get rid of me.” That man then told Ybarra to take the deceased’s watch off, which she did, giving it to that man (appellant’s companion). The appellant and the other man then discussed killing the prosecutrix. Taking no action at that time, appellant’s companion handed the prosecutrix her clothes, as she was still unclothed at that time, having been forced to strip when she was raped.
The two men once again discussed “getting rid” of the prosecutrix. During the discussion, both men’s faces were clearly visible to appellant. The appellant then stated that he was going to let the prosecu-trix go, but “that if [she] told, he would get [her] anyway.” After additional threats from both men, the prosecutrix was told to “start walking.” She began to walk away, but had not gotten far when the appellant called her back. Complying with appellant’s order, she again stood face to face with him. After the prosecutrix cried and begged the appellant not to hurt her, he told her to “keep walking and don’t turn back.”
The prosecutrix then “walked several ways” and saw the two men drive off in the deceased’s car. She walked and ran [922]*922until she came to some houses, where she was assisted and the Sheriff was summoned. Deputies Keesee and Bohanon arrived at the house where the prosecutrix was and, after calming her somewhat, took her to help find the scene of the crime. At this point (the early morning hours of April 1, 1978), the Lubbock County Sheriff’s office “processed” the scene and began its investigation.
Deputy Keesee testified that, a day or two after the offense, he “took [the prose-cutrix] to the Lubbock Police Department. They pulled their mug shots of the known violent criminals and she was unable to pick out one.” Deputy Keesee further testified, however, that to his knowledge, the appellant’s picture was not present in any of the mug books viewed by the prosecu-trix.
Approximately one week after the incident, Deputy Barclay requested the prose-cutrix to look through a group of pictures to determine if there was a photograph of either of the two men in the stack. She went through the stack and stopped at the appellant’s picture. She responded, “That’s him,” or “I think that’s him,” “That looks like him,” or words to that effect. The deputy then asked her, “What do you mean that looks like him?” She answered, “That’s him.” The deputy further inquired, “Are you positive?” She said, “I’m almost positive.”
Deputy Barclay testified that he arranged to have the prosecutrix hypnotized hoping to “confirm the identification a little further” and to “[g]et her settled down where she could, maybe recall a few more details” of the incident. On May 18, 1978, a hypnotic session was conducted by Travis McPherson, the Sheriff of Deaf Smith County, Texas, and a trained forensic hypnotist. The session took place at the D.P.S. offices in Lubbock. The prosecutrix did not know that McPherson, who was dressed in plain clothes, was a law enforcement officer. Deputy Barclay gave McPherson a group of about five pictures to use in the hypnotic session. However, he did not relate to McPherson the details of the incident, the suspect’s name or his picture. Deputy Barclay, Texas Ranger Joe Hunt and D.P.S.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
This is an appeal from a jury conviction for first degree murder. Punishment assessed by the jury was for a period of fifty years.
On appeal the appellant, inter alia, urged that the trial court erred in failing to suppress the prosecutrix’s in-court identification, alleging that the pre-trial identification procedure (hypnosis of the prosecutrix) violated his due process rights under the United States Constitution. The Amarillo Court of Appeals affirmed the conviction. Vester v. State, 684 S.W.2d 715 (Tex.App. —Amarillo 1983).
We granted appellant’s petition for discretionary review to consider the following claims. First, whether the Court of Appeals erred in holding that the prosecu-trix’s in-court identification was of independent origin and not as a result of hypnotically-induced testimony resulting from unnecessarily suggestive pre-trial identification procedures. Second, whether the Court of Appeals erred in holding that hypnotically-induced testimony is admissible in Texas. Our resolution of the first ground of error makes it unnecessary to address the second ground of error at this time. We affirm appellant’s conviction.
The evidence at trial showed that in the afternoon of March 31, 1978, the prosecu-trix, Edelia Ybarra, bought a six pack of beer on her way home from picking up her [921]*921sisters from school. She drank two of those beers prior to a 7:30 p.m. supper, and opened up a third beer after supper. At around 10 p.m., the deceased, Robert Rios Rivera, came around for Ybarra. The two of them carried on a conversation “for a while,” with the deceased asking Ybarra to accompany him to the liquor store. After changing clothes, Ybarra went with the deceased in his car to the liquor store. She was still drinking her third beer of the day. At the liquor store they purchased two six packs of beer, and then got back in the car and headed back the way they had come. Ybarra testified that during the course of the evening she drank one of the beers from the two six packs and that she thought the deceased drank two.
After stopping on a dirt road for the deceased to “use the restroom,” the couple drove “to a store there on East Broadway” to purchase some cigarettes. They then drove out East 19th, just outside Loop 289, to a dirt road. The deceased turned down this dirt road and parked “by a bunch of trees.” Ybarra could see the Loop from where they parked. The prosecutrix and the deceased eventually engaged in sexual intercourse in the front seat.
After intercourse, the deceased got out of the car to use the restroom. Upon his return, the deceased got into the back seat of the car and asked Ybarra to do the same. At that point, Ybarra testified that “somebody hollered in the back, ‘get out you Mexicans.’ ” Ybarra, thinking it was the police, asked “Who is it?” She testified that the deceased then said, “you b_ m_F_s, or something like that.” She further stated that at this time she could not see anyone outside the car but observed that the deceased had been shot “in the mouth.”
A man, whom she later identified as the appellant, then told Ybarra to “get in the back seat,” which she did. Ybarra could see the appellant’s face through the rear window when he approached the car and stuck a gun through the window. Appellant was 10 inches from the prosecutrix at this time.
The appellant shot the deceased again, causing the deceased to slump over Ybarra who was, by this time, screaming and crying. The prosecutrix then crawled over the deceased’s body, exited the car on the driver’s side and faced the two men standing outside the automobile, the appellant being “right in front of [her].” The appellant then told Ybarra to walk in front of him “to where the tree was.” Having complied, the appellant then raped the prosecu-trix. During the rape, the prosecutrix could see appellant’s face, there being no camouflage. The other man at this time was throwing the deceased out of the car.
After the rape, the appellant forced the prosecutrix to walk in front of him back to the car, while the other man removed the clothes from the body of the deceased. The prosecutrix stated at trial that she first saw the other man’s face when he “was telling the one that raped me [the prosecu-trix] he had to get rid of me.” That man then told Ybarra to take the deceased’s watch off, which she did, giving it to that man (appellant’s companion). The appellant and the other man then discussed killing the prosecutrix. Taking no action at that time, appellant’s companion handed the prosecutrix her clothes, as she was still unclothed at that time, having been forced to strip when she was raped.
The two men once again discussed “getting rid” of the prosecutrix. During the discussion, both men’s faces were clearly visible to appellant. The appellant then stated that he was going to let the prosecu-trix go, but “that if [she] told, he would get [her] anyway.” After additional threats from both men, the prosecutrix was told to “start walking.” She began to walk away, but had not gotten far when the appellant called her back. Complying with appellant’s order, she again stood face to face with him. After the prosecutrix cried and begged the appellant not to hurt her, he told her to “keep walking and don’t turn back.”
The prosecutrix then “walked several ways” and saw the two men drive off in the deceased’s car. She walked and ran [922]*922until she came to some houses, where she was assisted and the Sheriff was summoned. Deputies Keesee and Bohanon arrived at the house where the prosecutrix was and, after calming her somewhat, took her to help find the scene of the crime. At this point (the early morning hours of April 1, 1978), the Lubbock County Sheriff’s office “processed” the scene and began its investigation.
Deputy Keesee testified that, a day or two after the offense, he “took [the prose-cutrix] to the Lubbock Police Department. They pulled their mug shots of the known violent criminals and she was unable to pick out one.” Deputy Keesee further testified, however, that to his knowledge, the appellant’s picture was not present in any of the mug books viewed by the prosecu-trix.
Approximately one week after the incident, Deputy Barclay requested the prose-cutrix to look through a group of pictures to determine if there was a photograph of either of the two men in the stack. She went through the stack and stopped at the appellant’s picture. She responded, “That’s him,” or “I think that’s him,” “That looks like him,” or words to that effect. The deputy then asked her, “What do you mean that looks like him?” She answered, “That’s him.” The deputy further inquired, “Are you positive?” She said, “I’m almost positive.”
Deputy Barclay testified that he arranged to have the prosecutrix hypnotized hoping to “confirm the identification a little further” and to “[g]et her settled down where she could, maybe recall a few more details” of the incident. On May 18, 1978, a hypnotic session was conducted by Travis McPherson, the Sheriff of Deaf Smith County, Texas, and a trained forensic hypnotist. The session took place at the D.P.S. offices in Lubbock. The prosecutrix did not know that McPherson, who was dressed in plain clothes, was a law enforcement officer. Deputy Barclay gave McPherson a group of about five pictures to use in the hypnotic session. However, he did not relate to McPherson the details of the incident, the suspect’s name or his picture. Deputy Barclay, Texas Ranger Joe Hunt and D.P.S. polygraph operator, Ron Rogers, observed the hypnotic session through a two-way mirror and heard the dialogue through a sound system.
The tape of the hypnotic session reveals that after a rather lengthy process of placing her in an “hypnotic state,” the prosecu-trix recounted several details of the events of the evening of the incident. Concerning identification, McPherson tried without success to build a composite drawing of Robert’s assailant and the prosecutrix’s rapist. While the prosecutrix was in the “hypnotic state” McPherson asked her to fix the assailant’s image in her mind’s eye. Then he would ask her to open her eyes and view one of the photos from the array for identification purposes. When the prosecutrix saw the appellant’s picture, she identified him as the deceased’s assailant and her rapist.
The tape further reveals that the prose-cutrix had a cough at the time of the hypnotic session. On numerous occasions during the session, the prosecutrix’s hacking cough erupted and disturbed her “hypnotic state.” After each coughing episode, McPherson would attempt to restore the prosecutrix’s “hypnotic state” by asking her to take a drink of “lemonade,” telling her to relax and encouraging her “to go deeper.” At the conclusion of the session and after the prosecutrix had been brought out of the hypnotic state, she repeated her identification of the appellant.
At a later date and in an effort to enhance the prosecutrix’s memory regarding the role and identity of the co-defendant, McPherson again attempted to hypnotize her, but was unsuccessful because her “hacking cough” repeatedly defeated his efforts. At a final hypnotic session, which is essentially unrelated to the case before us, McPherson conducted a session concerning the co-defendant.
The appellant filed a motion to suppress the prosecutrix’s identification alleging, inter alia, that it resulted from undue suggestions placed in the prosecutrix’s mind at [923]*923the time of the hypnotic session. After listening to both the testimony presented at the hearing on the motion to suppress and the tape of the hypnotic session in question, the trial court overruled the appellant’s motion to suppress the prosecutrix’s in-court identification. In denying the motion, the court found that the prosecutrix’s identification of the appellant “was of independent origin and was an independent recollection of the Defendant [appellant] at the time of the alleged occurrence in question.” The court further concluded that the prosecutrix’s identification was not tainted nor impermissibly suggested by the photographic lineups of the hypnotic procedure or sessions, and that the procedure did not “give rise to a ‘very substantial likelihood or irreparable misidentification.’ ”
Appellant vigorously contends that all of the prosecutrix’s in-court identification testimony should be excluded because she (the prosecutrix) had previously undergone hypnosis for the purpose of restoring her memory of the events in issue. Appellant relies upon People v. Shirley, 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243 (1982), in support of such contention.
That reliance is misplaced. In Shirley, the court held “that the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.” 641 P.2d at 804, 181 Cal.Rptr. at 252.1 That court said nothing regarding testimony as it related to identification prior to any hypnotic session.
The United States Supreme Court in an evolution of cases has described the following test for determining whether the in-court identification is admissible: (1) whether there is an “independent origin” of the in-court identification, United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967); Gilbert v. United States, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967); (2) whether the “totality of the circumstances surrounding” the pre-trial identification demonstrates a violation of due process, Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); (3) whether there is a “substantial likelihood of misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 383, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977) and (4) whether the identification is “reliable,” reliability being “the linchpin in determining the admissibility of [in-court] identification testimony.” Manson, 432 U.S. at 114, 97 S.Ct. at 2253.
Following the above stated principles, we conclude that the prosecutrix’s in-court identification of appellant was admissible. The circumstances presented in the record before us reveal that the pre-trial identification process was not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Furthermore, the record reveals clear and convincing evidence that the prosecutrix’s in-court identification was of independent origin. It follows, therefore, that the prosecutrix’s in-court identification of appellant is reliable.
The record shows that the prosecutrix was a witness and a victim to a vicious criminal episode, which spanned a considerable length of time giving the prosecutrix ample opportunity to observe the perpetrators of the offense. The prosecutrix, the deputies and Allen Johnson from the National Weather Service all testified that although the offense occurred in the early morning hours, visibility ranged from adequate to good. The evidence further reveals that the offense occurred approximately one-fourth of a mile off Loop 289. Deputy Bohanon was at the scene shortly after the offense occurred. He testified: “The lighting was — it was fairly light due to the lights from the loop. If I remember correctly, there was a quarter moon, but it [924]*924was fairly light.” The prosecutrix stated that she observed the appellant for a “long time.” This testimony is supported by the extended events of the criminal episode (i.e., the murder, several orders, the removal of the prosecutrix’s clothes, the rape, the theft of the deceased’s watch, a discussion between the perpetrators as to the prosecu-trix’s fate, her aborted walk away from them, her return, another discussion concerning her fate, and finally their last order to “keep walking”).
The evidence further shows that the prosecutrix was very close to appellant on several occasions during the episode. The prosecutrix was 10 inches from appellant when he stuck his arm in the car window and shot the deceased the second time. She was face to face with appellant when he raped her. She further testified that she could see the faces of both men clearly when they discussed killing her, with the prosecutrix standing face to face with appellant during the second discussion of her fate.
The testimony reflects that the prosecu-trix identified appellant one week after the offense in a photographic array with Deputy Barclay. She never varied from that identification. There is nothing in the record to reflect that the “photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. at 383, 88 S.Ct. at 970, 19 L.Ed.2d at 1253. See also Stovall v. United States, supra. Deputy Barclay handed the prosecutrix a stack of photographs and merely asked her to look through them to see if she could identify any of them. At no time did Barclay suggest that a suspect was amongst those photographs, or make any other such impermissibly suggestive remark.
The record also contains several unequivocal statements made at the suppression hearing and at trial showing the independent origin of the prosecutrix’s in-court identification. In response to an inquiry as to why she felt her testimony was untainted by the hypnotic session, the prosecutrix stated: “I remember this man well. He’s the one that killed Robert [the deceased] and he’s the one that raped me. I just remember him well.” When asked “if you had not been placed under hypnosis, do you think your memory would have come back?”, she replied, “I would still remember it.” Considering that the prosecutrix identified appellant one week after the offense, never varied from that identification and that such identification was prior to any hypnosis, we find much credence in such statements by her.
We therefore conclude that the prosecu-trix’s in-court identification had an independent origin from the hypnosis sessions, and the circumstances surrounding that initial pre-hypnosis identification reveals reliability. Such identification is admissible.
As stated previously, at this time we do not reach the issue of whether hypnotically-induced testimony is admissible in Texas. The fact that such testimony was admitted in appellant’s case was not harmful, if indeed it was error at all, because it was merely cumulative of already reliable identification testimony.
We therefore affirm the Court of Appeals’ affirmance of appellant’s conviction, while not expressly adopting its entire rationale.