Townsend v. State ( 1993 )

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 identifications 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.

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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.

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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.

Q. 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.

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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. Yes, he had tattoos covering most of his arms, from what I could see.

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[By Prosecutor]: I am going to ask the Defendant to roll up his sleeves and show the witness his tattoos and see if she can identify them.

[The Court]: Okay. If you will stand up and roll up your sleeves for the purposes of this hearing.

A. Yes, that looks like the tattoos that were all over the person who robbed me.

Q. [By Prosecutor]: One more question. The photo spread that you saw and the lineups did not show the Defendant’s arms; is that correct?

A. Correct. No, I didn’t see any part of his body. All I saw was his face in the lineup. He had his arms completely covered up.

Q. So your prior ideñtification, including that took place in the courtroom today earlier, were based on his facial features and not his tattoos, is that correct?

A. Correct.

For the sake of argument, we assume, without deciding, that appellant’s arrest was illegal, and that the out-of-court photographic and lineup identifications should have been suppressed. as tainted fruit of the illegal arrest. Even so, we are faced with a record that shows the two eyewitnesses to the aggravated robbery had an independent recollection of their encounter with appellant, based on their clear, unobstructed view of appellant during the robbery. The evidence clearly supports the conclusion that the eyewitnesses’ current, in-court identification was uninfluenced by the out-of-court identifications. The trial court did not err in ruling the in-court identifications would be admissible. Pichon v. State, 683 S.W.2d 422, 425-26 (Tex.Crim.App.1984); Taylor v. State, 693 S.W.2d 4, 5-6 (Tex.App.—Beaumont 1985, pet. ref’d). As noted earlier, appellant moved to suppress both the in-court identifications and the out-of-court identifications. The trial court overruled both motions, and appellant then entered his plea. On appeal, appellant complains only about the ruling on the admissibility of the out-of-court identifications, presumably because the law is clear that the in-court identifications were properly allowable under Pi-chon and Taylor. Due to the nature of the available in-court identification testimony, we cqnclude, beyond a reasonable doubt, based on the specific record before us, that any error by the trial court in overruling appellant’s motion to suppress the out-of-court identifications did not constitute reversible error under Tex.R.App.P. 81(b)(2).

Accordingly, we overrule appellant's points of error one and two.

Appellant asks us to consider his third point of error only in the event we do not reach the merits of his first two points of error. Having reviewed his first two points of error, it is not necessary to reach his third point of error, and we decline to do so.

We affirm the judgment.

WILSON, J., dissenting.