Jacob Theodore Monroe v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jacob Theodore Monroe

Appellant

Vs.                   No. 11-04-00015-CR -- Appeal from Taylor County

State of Texas

Appellee

Jacob Theodore Monroe appeals his conviction by a jury of the offense of robbery.  The court assessed his punishment at five years in the Texas Department of Criminal Justice, Institutional Division.  He contends in three points of error that (1) the trial court abused its discre-tion by overruling his motion to suppress his statement, (2) the trial court abused its discretion by admitting evidence of pretrial and in-court identification, and (3) the trial court erred by denying him a new trial because the prosecutor made a false statement during final argument.  We affirm.     Monroe contends in point one that the trial court abused its discretion by overruling his motion to suppress a statement that he gave to the police prior to trial.  At a suppression hearing, the trial court is the trier of fact and assesses the witnesses= credibility and the weight to be given their testimony.  Herron v. State, 86 S.W.3d 621, 627 (Tex.Cr.App.2002).  As long as they are supported by the record, we afford almost total deference to a trial court=s findings of historical fact.  Id. We defer to a trial court=s ruling on the application of laws to the facts if they turn on an evaluation of credibility and demeanor.  Id.

Monroe sought to suppress a written statement that he had given to the police on the basis that it was an involuntary statement and that it was taken in violation of his right to counsel because he continued to be questioned after he had asked for an attorney.  After a pretrial hearing, the trial court made the following findings:

1.  The defendant was advised of his right; and, the defendant was not promised anything in return for his statement. 

2.  The defendant did not request an attorney.

3.  The defendant did not terminate the interview.

4.  The defendant was shown the proposed statement and was asked Awhether there was anything in the statement that he disagreed with,@ and he said, Ano.@

5.  The defendant knowingly and voluntarily waived his rights with regard to the statement; and, the defendant knowingly and voluntarily signed the statement.

At the hearing on his motion to suppress, Monroe testified that he was questioned before he got to the police department, that he was not given any Miranda^[1] warnings, and that he had requested an attorney.  He said that the police did not allow him to seek an attorney.  He related that he was told that, if he did not cooperate, he could be Aviolated@ for his felony probation.  Monroe also testified that he was intoxicated at the time he made his statement. 

Officer Brent Irby of the Abilene Police Department stated that he took Monroe=s statement, that Monroe never asked for an attorney, that Monroe was not promised that he would not be charged with a crime if he cooperated, and that Monroe showed no signs of intoxication at the time the statement was made.  He noted that the statement form contained the Miranda warning.  He stated that he personally went over each of the rights contained in the warning with Monroe.  He related that Monroe indicated he understood these rights and that Monroe freely and voluntarily waived those rights.  Officer Irby testified that, although Monroe was brought to the police station in a patrol car, he went freely and voluntarily and was not under arrest. 

Officer Steffen Hartness of the Abilene Police Department testified to witnessing the statement Monroe gave to Officer Irby.  Officer Hartness indicated that he would not have witnessed and signed the statement as a witness had Monroe not either read the bottom portion of his rights, which included statements that he read and understood his rights and that he was waiving the rights and making the statement freely and voluntarily, or had those statements read to him.  Officer Hartness denied making or hearing any promises to Monroe that maybe the police would go easier on him if he made a statement, or anything to that effect. He indicated that, if Monroe requested an attorney, he was not present.  He related that Monroe was released after making the statement, adding that no one except a Hispanic male was arrested that night.

The testimony was conflicting regarding the matters discussed by Monroe with respect to this point on appeal.  The trial court=s findings resolving those matters are supported by the record.  Monroe=s argument relies on the truth of his own testimony, without making any mention of the conflicting testimony that supports the findings of the trial court and the court=s overruling of Monroe=s motion to suppress.  We overrule point one. 

Monroe asserts in point two that the trial court abused its discretion by admitting evidence of both pretrial and in-court eyewitness identification.  The complainant was robbed while delivering a pizza.  Probably not more than 45 minutes after the robbery, the complainant was taken back to the scene of the offense, where he identified Monroe as one of those participating in the robbery.  At the time of the identification, Monroe was the only male present who was not a police officer.  Nothing would have prevented the police from having a lineup rather than the one-on-one identification procedure.

Even if an identification procedure is suggestive and unnecessary, the admission of identification testimony does not violate due process so long as the identification possesses sufficient aspects of reliability.  Neil v. Biggers, 409 U.S. 188 (1972); Garza v. State, 633 S.W.2d 508, 513 (Tex.Cr.App.1982).  We must review the totality of the circumstances and, in doing so, must consider various factors, including (1) the opportunity to view, (2) the degree of attention, (3) the accuracy of the description, (4) the witness=s level of certainty, and (5) the time between the crime and the confrontation.  Neil v. Biggers, supra at 199; Garza v. State, supra at 513. 

In this case, the complainant indicated that the person who robbed him was standing no more than a foot from his face.  He said that he got a good look at him and that the area was lit well enough because there was a street light fairly close by.  The complainant gave a detailed description of the man who assisted in the robbery, describing him as a Hispanic male in his teens, approximately 5' 6" tall, 160 to 170 pounds, with brown hair.  The record does not reflect the extent to which Monroe meets that description.  Officer Andrew Boettcher of the Abilene Police Department testified that the complainant identified Monroe without any hesitation, only asking him to remove his hat. The complainant testified that there was no question in his mind that Monroe was the same person he had seen the night of the robbery.  As previously noted, the complainant testified that his identification of Monroe at the scene probably occurred 45 minutes or less after the robbery.  We would also note that the trial court had before it Monroe=s written statement in which he admitted taking part in the robbery.  Considering all the circumstances, we conclude that there was not a very substantial likelihood of irreparable misidentification.  We overrule point two.

Monroe argues in point three that the trial court erred by overruling his motion for new trial because the State=s attorney said in final argument that Monroe=s witnesses never informed the proper authorities regarding their personal knowledge of Monroe=s involvement in the crime.  He insists that an affidavit attached to his motion shows that approximately three months prior to trial a defense investigator informed the State regarding the defense witnesses= personal knowledge.  In the affidavit attached to Monroe=s motion for new trial, Jerry Martinez, a private detective assigned to assist in Monroe=s defense, said that he met with Joel Wilks, an assistant district attorney on a date approximately three months prior to the trial.  Martinez said that, at the meeting, he questioned Wilks regarding the involvement of one Laura Simons in the robbery.  Martinez stated that he advised Wilks that he had received information that Simons was present during the robbery.  He indicated that he also informed Wilks that Monroe was denying that Rafael Corrales was involved in the robbery. 

Martinez=s affidavit, which was attached to Monroe=s motion for new trial, was not introduced into evidence and, therefore, is not evidence in this case.  Martins v. State, 52 S.W.3d 459, 468 (Tex.App. - Corpus Christi 2001, no pet=n). Consequently, there is no evidence in the record that supports this point.  We overrule point three.

The judgment of the trial court is affirmed.

PER CURIAM

January 31, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, J., and

McCall, J., and Hill, J.^[2]

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

^[2]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.