Rushing, Calvin Louise ( 2015 )

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
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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
GROUND FOR REVIEW NO. TWO:
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
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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-
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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.