David Fitzgerald Freeman v. State ( 1995 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-234-CR





DAVID FITZGERALD FREEMAN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 94-013, HONORABLE FRED A. MOORE, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated robbery. Tex. Penal Code Ann. § 29.03 (West 1994). ⁽¹⁾ The district court assessed punishment at imprisonment for thirty-five years.

In point of error one, appellant contends the evidence is insufficient to prove that the offense was committed within the statute of limitations. The limitations period for aggravated robbery is five years. Tex. Code Crim. Proc. Ann. arts. 12.01(4)(A), 12.03(d) (West Supp. 1994). The indictment in this cause was filed on January 5, 1994.

The complaining witness, Bobbie Davis Bryant, testified that she was employed as cashier at the Quick Pantry convenience store in Lockhart from October 8, 1993, until January 1994. She further testified that appellant entered the Quick Pantry during the early morning hours of November 9 and robbed her at gunpoint. Although Bryant did not expressly state the year in which the robbery took place, her testimony as a whole is sufficient to show that it was committed on November 9, 1993. Bryant's testimony was corroborated by that of an investigating police officer, who testified that the date of the offense was November 1993. Point of error one is overruled.

Appellant's second point of error is that the State failed to prove that Bryant owned the money taken in the robbery. As previously noted, Bryant was employed as cashier at the Quick Pantry. Except for appellant, she was alone in the store at the time of the robbery. Bryant testified that when appellant pointed a pistol at her and demanded her money, she opened the store cash register and stepped back while appellant took the money. Again, while Bryant did not expressly testify that she had care, custody, and control of the stolen money, her testimony as a whole is sufficient to establish her possession of the money, and thus her ownership. Tex. Penal Code Ann. § 1.07(a)(35(A) (West 1994); Compton v. State, 607 S.W.2d 246, 250-51 (Tex. Crim. App. 1980) (opinion on motion for rehearing); Ceasar v. State, 661 S.W.2d 256, 258 (Tex. App.--Houston [1st Dist.] 1983, no pet.). Point of error two is overruled.

Finally, appellant contends that Bryant's identification of him as the robber was tainted by an impermissibly suggestive pretrial photographic display and should have been suppressed. To prevail on this point of error, appellant must prove by clear and convincing evidence that the display was impermissibly suggestive and gave rise to a very substantial likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).

One week after the robbery, Bryant was shown fifteen photographs that are reproduced in the record. Each is a police "mug shot" of a black male. Each person seems to be of the same general age and each appears in the array only once. The officers who prepared the array testified that they did not suspect appellant and it is not contended that the officers said or did anything to suggest that Bryant should identify appellant's picture. Appellant's only complaint is that he was only person pictured wearing a black knit shirt with "Raiders" printed on the front. ⁽²⁾ Appellant urges that this is significant because Bryant testified that the robber wore a black jacket and dark shirt.

Appellant has failed to establish that the photo array was impermissibly suggestive. While appellant was the only person pictured wearing a "Raiders" shirt, at least four other men were pictured wearing dark shirts. On this record, we do not believe that the word "Raiders" on his shirt was likely to suggest to Bryant that appellant was the robber.

Furthermore, appellant has failed to show that the alleged suggestiveness of the display led to a very substantial likelihood of misidentification at trial. Bryant testified that appellant was in the store twice on the night of the robbery, the first occasion being a few minutes before he returned with the pistol. One of the investigating officers testified that Bryant was unusually "observant of detail" and gave an "excellent" description of the robber. The evidence reflects that Bryant's identification of appellant's photograph was immediate and positive. She never identified any other person as the robber. We conclude that the indicia of reliability of Bryant's in-court identification of appellant outweigh any possible corrupting effect from the photographic display. Point of error three is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 18, 1995

Do Not Publish

1.   This offense took place before September 1, 1994, and is governed by the law in effect at the time the offense was committed. Penal Code, 73d Leg., R.S., ch. 900, § 1.18, 1993 Tex. Gen. Laws 3586, 3705. Because the code amendments effective September 1, 1994, have no substantive effect on this offense, the current code is cited throughout this opinion for the sake of convenience.

2.   Appellant also discusses what he believes to be the inadequacies of photographic displays and complains of the "inherent unreliability of eyewitness evidence," but these contentions do not speak to the suggestiveness of the identification procedure in question.