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    Charles SLOAN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 28, 1978.
    Certiorari Denied by Supreme Court July 2, 1979.

      Charles R. Ray, Barrett, Lenahan, Knif-fen & Ray, P. C., Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Elmer Davies, Dist. Atty. Gen., Franklin, for appellee.
    FRANK F. DROWOTA, III, Special Judge.
   OPINION

The main issues in this case of armed robbery center around alleged suggestiveness in the procedures used in the identification of the defendant, Charles Sloan. We find that the identification procedures were so suggestive that they gave rise to a very substantial likelihood of irreparable mis-identification, that the in-court identification should therefore have been excluded, and that there was no other evidence sufficient to convict defendant; and on this basis we hold that defendant’s conviction should be reversed.

Defendant Charles Sloan’s trial and conviction arose out of an indictment presented by the Williamson County Grand Jury in September of 1975, charging defendant with the armed robbery of the Goose Creek Inn on May 30,1975, in which $1,475.00 was taken. The trial began on September 17, 1977, after a two year period during which several continuances were requested by and granted both the State and defendant. On September 20, 1977, defendant was found guilty of the offense of armed robbery and sentenced to ten years in the Tennessee State Penitentiary. In October, 1977, defendant moved for a new trial and on December 8, 1977, an order overruling the motion and granting an appeal was filed. Pursuant to this order defendant filed his bill of exceptions and appealed his conviction to this Court.

FACTS

The robbery for which defendant was convicted occurred in the early morning hours of May 30,1975. Mrs. Evelyn Bullard and Mr. Tom Wagner were at work in the Goose Creek Inn front office when two men entered, ostensibly to take a room. One of the men, not the one alleged to be the defendant, had come in earlier and asked about prices. While the other man was apparently filling out the information card for a room, the man alleged to be the defendant pulled a gun and one or the other of the men informed Mr. Wagner and Mrs. Bullard that they “wanted their [the Inn’s] money.” There is some discrepancy in the testimony of the two victims as to what happened next, whether the robbers first took the money from the cash register or just asked about a safe, only to be told there was none. In any event, shortly after entering the Inn, the two men went with the victims into the back room where they tied the victims up on the floor and took some money from a locked desk drawer which they forced open. The total time the robbers were in the Inn was about 10 to 20 minutes, according to the victims’ testimony. Mrs. Bullard testified that the man alleged to be the defendant did most of the talking; Mr. Wagner testified that the other man talked most, that the man with the gun talked “hardly at all.” There were several other inconsistencies in the victims’ accounts of the incident. It should be noted that Mrs. Bullard testified for the State, Mr. Wagner for the defense.

After the robbers left, Mrs. Bullard got herself free and called the Williamson County Sheriff’s office and the manager of the Inn. Mr. Fleming Williams, who was Sheriff at the time of the robbery, testified that Mrs. Bullard’s call came at a little before 2:00 a. m. This testimony, along with that of the two victims, puts the time of the robbery at approximately 1:30-1:45 a. m. When the Sheriff arrived, Mr. Wagner was upset; there is some difference between the testimony of Sheriff Williams and Deputy Donald Robinson, a defense witness, as to whether Mrs. Bullard was also upset. The Sheriff described her as calm; Deputy Robinson said she was no less frightened and nervous than was Mr. Wagner. According to Mr. Wagner’s testimony, Mrs. Bullard broke down and cried after it was all over. Mrs. Bullard denied this.

Both Mrs. Bullard and Mr. Wagner gave fairly complete descriptions of the two men to the Sheriff. The man alleged to be the defendant was described by Mr. Wagner as being “a white male, 5'10" or 5'11", 160 — 165 lbs., late teens or early twenties, long medium dark hair below ears and above shoulders, greasy or slick looking, blue jean pants,” and as not having a southern accent. Mrs. Bullard described him as being “5'8" to 5'9", 135-140 lbs., 17 to 20 years old, light brown hair, thin-type hair, hair receded slightly, hair approximately down to bottom of ears, big round eyes, oval type face, southern talk, sport shirt, long sleeves.” She later testified that he was taller than she and did not wear glasses.

Sheriff Williams conducted an investigation, in the course of which he learned that a young man who subsequently turned out to be Charles Sloan was at the Hagermon Truck Stop, across Interstate 65 from the Goose Creek Inn, the night of the robbery. At trial Larry Martin, a truck stop attendant, testifying for the defense, said that Sloan had come into the truck stop sometime between 1:30 and 2:00 a. m. the morning of May 30,1975, gotten gasoline for his car, spent 15 to 20 minutes browsing in the gift shop at the truck stop, and then left without paying for the gasoline. Martin described Sloan’s appearance at that time as being “5'6" to 5'7", 140 lbs., brown hair over his ears,” and as wearing blue jeans and a red shirt like a football jersey with his name across the back of it. He said that Sloan was alone in the truck stop. He also said that Sloan wore glasses.

Sheriff Williams located Sloan by tracing his license plate number, which one of the attendants had copied as he left the truck stop. On the afternoon of May 31st, the day after the robbery, Sheriff Williams and a Lt. Easley visited the Sloan home and found only defendant’s mother at home. After talking with the very frightened Mrs. Sloan, the two officers left with a photograph of Charles Sloan. The trial court later suppressed this photograph as being illegally seized, because Mrs. Sloan did not give her permission for the officers to take it, that she was rather frightened into merely submitting to their taking of it.

On the evening of May 31, Sheriff Williams again interviewed Mrs. Bullard, and showed her an array of seven photographs, six mugshots and the photograph of defendant Sloan, which is best described as a professionally-taken color portrait of Sloan in a Navy uniform. Mrs. Bullard picked Sloan’s picture and one of the mugshots as having certain facial features like the robber who had the gun. She told the Sheriff during this interview that the man with the gun had protruding teeth.

Two days later, at a lineup in which Sloan voluntarily participated, Mrs. Bullard identified Sloan as being the robber with the gun. She admitted, at a hearing held May 21,1976, on defendant’s motions to suppress the photograph, lineup, and any in-court identifications, that she said “something like” the words: “number four looks more like him than any of the others.” At trial, the Sheriff testified that she said “number four looks like the one” or “just like the one.” After this, according to both the Sheriff’s and Mrs. Bullard’s testimony at trial, the Sheriff told her that Sloan had been in the area the night of the crime. Defendant alleges that only after hearing this statement did Mrs. Bullard become definite in her identification. At trial, Mrs. Bullard was insistent that she was positive from the start in her identification. Mr. Wagner, who had not seen the photographic array, could not identify anyone in the lineup. Sloan was the only one from the array of photographs, and the only one with protruding teeth, in the lineup.

At trial, no other evidence besides Mrs. Bullard’s eyewitness identification connected Sloan to the robbery. No gun or money was ever found; neither was anyone alleged to be the other robber ever found. The prosecution’s only witnesses were the Goose Creek Inn’s accountant, who testified as to the amount of money taken in the robbery; the Sheriff; and Mrs. Bullard. The defendant called as witnesses Larry Martin, from the truck stop; Tom Wagner, the other victim; Deputy Donald Robinson; defendant’s father Walter Sloan; and two character witnesses, a neighbor and defendant’s former employer.

A part of the testimony that is of interest to the Court, although it is not at issue in this case, involves the motivation of the Sheriff in the prosecution of the defendant. Walter Sloan testified that, while his son was voluntarily having himself fingerprinted at the jail, he (Walter Sloan) asked the Sheriff whether he really thought he had the right man, to which Sheriff Williams responded: “your son is the only suspect that I have and I intend to send somebody to the penitentiary.” Sheriff Williams in his testimony denied saying anything like this.

The fact that defendant Sloan was at the truck stop the night of the crime the State attempted in its closing argument to present as corroboration of the eyewitness evidence. The State’s theory was that the time periods testified to by the various witnesses were vague enough to have allowed Sloan to wait at the truck stop until the other man “cased the joint” across the highway at the Inn. Defendant on the other hand attempted to use Sloan’s being at the truck stop at approximately the same time the robbery took place as an alibi, emphasizing as well the fact that Sloan had on a red jersey with his name on it while at the truck stop. Defendant suggests in one assignment of error that had the trial taken place earlier than two years after the crime, defendant’s alibi would have been stronger; that the memories of the witnesses at the truck stop had faded by the time of the trial.

Before trial, defendant moved that the photograph of him in his Navy uniform be suppressed because it was illegally seized, and that the lineup identification and any in-court identification based on the illegally seized photograph be suppressed as the “fruits of the poisonous tree.” He also moved that any in-court identification of him be suppressed as being fatally affected by the photographic identification procedure which was so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification.

The trial court suppressed the photograph as being illegally seized, but refused to suppress the lineup identification. By implication, the trial court considered the arguments on the fruit of the poisonous tree and the suggestiveness of the identification procedures to be without merit.

ASSIGNMENTS OF ERROR

Defendant has filed eleven assignments of error. In the one we think is his strongest, he contends that the pre-trial identification procedures used with the eyewitness, Mrs. Bullard, were so suggestive that the admission of her in-court identification denied him due process of law. Defendant also assigns as error the refusal of the trial court to suppress the lineup and in-court identifications as the “fruit of the poisonous tree” of an illegally seized photograph of defendant which the trial court did suppress. Defendant claims in another assign^ ment that, in order to show the suggestiveness of the identification procedure, he would have had to waive his Fourth Amendment right to have the illegally seized photograph suppressed, and that being so forced to choose between his Fourth and Fifth Amendment rights is reversible error. In yet another, defendant asks this Court to adopt a new evidentiary rule which would demand corroboration in cases where the eyewitness was not previously acquainted with the defendant and where the identification procedures were unduly suggestive. We think these assignments merit discussion, and as we have indicated, we find that the first compels a reversal of defendant’s conviction.

Defendant’s other assignments of error and our findings regarding them are as follows: That defendant was denied a speedy trial is an argument without merit in this case because defendant was responsible for much of the delay. Even though defendant moved to dismiss on the basis of a denial of speedy trial in May of 1976, five months after the original trial date, we note that defendant’s counsel requested two of the five continuances granted in this case which accounted for approximately twelve months of the total twenty-one month delay from the date for which trial was originally set (December 19, 1975) until the date trial actually commenced (September 17, 1977).

We find defendant’s assignment that the trial court erred in not charging the jury with a requested instruction regarding eyewitness identifications to be harmless error.

We find that the trial court’s overruling defendant’s motion for a mistrial when the State interjected proof of other crimes to have been harmless error and in any event to have been cured by the court’s instruction to the jury to disregard that evidence.

We find no merit in defendant’s assignments regarding the State’s allegedly prejudicial and not bona fide redirect testimony, the witness having been seated at counsel table, the State’s allegedly inflammatory rebuttal argument, and the failure to in-elude a charge on attempt to commit armed robbery.

I.

Let us first consider defendant’s argument that the identification procedures used in this case were so suggestive that he was denied due process of law. This court has recognized that

[a] violation of due process may occur in a suggestive identification procedure even in the earliest stages of a criminal investigation. In deciding whether or not there has been a violation, the court must view the “totality of the circumstances.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Due process has been violated if the court finds that the identification procedure was so suggestive as to give rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Such a finding would require exclusion of a subsequent in-eourt identification by the same witness. .
In [Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)] the U.S. Supreme Court described in detail the approach to be taken in measuring out-of-court identification procedures.against due process requirements. The Court set out five factors to be considered in determining whether an identification is reliable enough to withstand a due process attack despite suggestiveness in the procedure employed. These factors are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty of the witness at the confrontation, and the length of time between the crime and the confrontation. The degree of reliability in the identification itself, as indicated by these factors, is to be assessed in light of the suggestiveness of the identification procedure and the totality of the circumstances to determine whether a violation of due process has occurred.

Proctor v. State, 565 S.W.2d 909, 911-912 (Tenn.Cr.App.1978).

The United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), reaffirmed the Simmons-Stovall-Neil approach, noting that “reliability is the linchpin.”

In the case before us the last of the Neil factors can be dealt with quite simply, as the photographic identification took place a day and a half after the crime, the lineup two days after that. How the other four factors apply to this case is not so easily determined. There are differences in the testimony of the two victims as to how long a period they had to view the robbers and how well they could actually see them; for at least part of the time they were tied up on the floor with little if any view at all of the two men. Regarding the witness’s degree of attention, there are also discrepancies, alluded to above, among the testimony of the victims, the Sheriff, and Deputy Robinson as to how calm or upset Mrs. Bullard was. She herself admitted at trial during cross-examination that she had been upset and that she had tried to “purge” the event from her mind.

Defendant and the State disagree as to the accuracy of Mrs. Bullard’s prior description of the robber. Defendant Sloan was apparently not so heavy at the time of the crime as Mrs. Bullard’s description portrayed the robber; Mrs. Bullard also testified that the robber was taller than she, though in actuality defendant Sloan is the same height she is. The State argues that the differences in Mrs. Bullard’s description and an accurate description of Sloan at the time of the robbery are not great. Defendant on the other hand makes a great deal of the fact that Mrs. Bullard never explained the height discrepancy. Defendant also emphasizes that Mrs. Bullard’s description of the robber was different from Mr. Wagner’s and Larry Martin’s.

The Neil factor which presents the most difficulty in this case is the level of certainty of Mrs. Bullard at the confrontation. It seems very likely that her level of certainty increased because of certain elements of the procedures alleged to be suggestive. While she did not specifically identify anyone in the photographic array, she did pick out defendant’s photograph (and one other) as having certain features like one of the robbers. The evidence is unclear as to her level of certainty at the lineup. While at trial she testified that she was “humanly certain” of her identification of Sloan at the lineup, her testimony at trial differed in some important respects from her testimony at the hearing on the motion to suppress, held more than a year earlier. These discrepancies are discussed above, in the “Facts” Section of this opinion. She seemed far more certain at trial, even though trial was held over two years after the lineup. We do not doubt her sincere belief in her certainty; such sincere belief, however, is no guarantee that she was not influenced in subtle ways by suggestive elements in the identification procedures which took place so long before.

It is evident that there are varying levels of doubt as to the reliability of the identification procedures in question under four of the five Neil factors. We must now assess this doubtful degree of reliability in light of the suggestiveness of the identification procedures and the totality of the circumstances to determine whether a violation of due process occurred.

There were questionable elements in both the photographic and the lineup identification procedures. Defendant asserts that the photographic identification procedure was suggestive in that the photograph of defendant was emphasized by the fact that it was a portrait of him in a Navy uniform, and the other photographs were mugshots. The fact that a photograph is “in some way emphasized” may indicate that the identification procedure is improperly suggestive. Simmons, supra 390 U.S. at 383, 88 S.Ct. 967.

Defendant further submits that Sheriff Williams’ statement to Mrs. Bullard at the lineup that Sloan had been in the area the night of the crime made the lineup identification procedure suggestive. Defendant’s theory is that the suggestive photographic identification procedure put his face in Mrs. Bullard’s mind and led to Mrs. Bullard’s tentative identification of him at the lineup; that the Sheriff’s statement at the lineup bolstered her tentative identification and made it a positive one; and that the in-court identification was so fatally affected by these elements of suggestiveness that its admission into evidence denied him due process of law.

The United States Supreme Court in Simmons pointed out that “[rjegardless of how the original misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Simmons, supra at 384, 88 S.Ct. at 971. The court has also noted, in United States v. Wade, 388 U.S. 218, 228-229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that

[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: “What is the worth of identification testimony even when uncontradict-ed? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances . . ” A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to the witnesses for pretrial identification. A commentator has observed that “[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.” . . . Suggestion can be created intentionally and unintentionally in many subtle ways. .
Moreover, it is a matter of common experience that, once the witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.

Were we dealing in this case with a situation where either the photographic identification or the lineup identification had some element of suggestiveness, and the other were free of it, we would not be so troubled by this case. Here, however, both of the only two pre-trial identification procedures arguably have serious elements of suggestiveness, and only one of the two eyewitnesses to the crime has identified the defendant.

Moreover, the State produced no definitive evidence at trial to corroborate the eyewitness testimony of Mrs. Bullard. The Sheriff testified that he had received information which through further investigation led to .the fact that defendant was at a truck stop near the Goose Creek Inn the night of the robbery. The State did not present as a witness any employee of the truck stop. It did attempt during cross-examination of defense witness Larry Martin to get Martin to admit that he could have been wrong in testifying that Sloan came in at 1:30 and stayed 15 to 20 minutes. Martin conceded that he “couldn’t swear” after two years as to the exact times, but stuck to his former testimony. The State in closing argument proposed its theory of Sloan waiting at the truck stop while the other robber “cased the joint,” but offered no hard proof of this; indeed, the evidence as to the time factor seems clearly to contradict this theory. Defendant never denied being at the truck stop; he rather used his presence there as an alibi. He claims that he could not have been at the truck stop at 1:30 a. m. on May 30, 1975, wearing a red jersey with his name on it and also have been robbing the Goose Creek Inn in a “sport shirt.”

A comparison of this case with others involving the issue of suggestive identification compels our conclusion that defendant’s conviction must be reversed, because the likelihood of irreparable misidentification in his case was clearly “very substantial,” and there was no evidence upon which to convict him apart from the eyewitness identification of Mrs. Bullard.

Stovall and Neil both involved what is called a “show-up,” in which the suspect is shown to the witness alone rather than in a group or lineup. In both, the court upheld the procedure. In Stovall, however, the court stressed the necessity of the procedure used: the only witness to a murder was in the hospital and in danger of dying at any moment; the only reasonable way to get an identification was to bring the accused to the hospital room. Stovall, supra, 388 U.S. at 302, 87 S.Ct. 1967. In Stovall, there was also corroborating physical evidence — a shirt and keys belonging to the accused were found at the scene of the crime. Stovall, supra at 295, 87 S.Ct. 1967.

Neil was a rape case; the court pointed out that the victim “was no casual observer, but rather the victim of one of the most personally humiliating of all crimes.” Neil, supra, 409 U.S. at 201, 93 S.Ct. at 382-383. Jn that case, the victim had also made no previous identification at any of several showups, lineups and photographic showings.

Banks v. State, 556 S.W.2d 88 (Tenn.Cr.App.1977) and Forbes v. State, 559 S.W.2d 318 (Tenn.1977) were also rape cases. In Banks, the court found that the Neil 5-fac-tor test was met and did not go into the suggestive elements of the lineup. In Forbes, the victim identified her assailant at a hospital where he was a patient rather than at a proper lineup, but this procedure was held to be otherwise nonsuggestive and necessary under the circumstances.

In Simmons, photographic identifications were upheld. However, several witnesses identified that defendant, and there was no evidence that the photographs of the defendant were in any way emphasized, unlike in the instant case.

In Bennett v. State, 530 S.W.2d 511 (Tenn.1975) suggestive identification procedures similar to those in this case were upheld, but there was “substantial other testimony to validate the identification of the defendant.” Bennett, supra, at 515. In Bennett, defendant was accused of armed robbery and rape. The crimes occurred in a motel room. One week after the crime, the defendant was found attempting to enter an adjoining room armed with a pistol of the same caliber used to inflict a wound in the earlier crime.

The allegedly suggestive identification in Rippy v. State, 550 S.W.2d 636 (Tenn.1977), a murder case, took place not at the initiation of the police or the prosecutor, but rather was requested by the surviving victim to “ease his mind” and played no part in the prosecution.

In Manson v. Brathwaite, supra, the individual who identified the defendant by viewing a single photograph was a policeman, a “trained observer” who had given a detailed description of the defendant; there was no claim the physical characteristics of the defendant did not coincide with the observer’s description.

There was some indication that the defendant’s photograph was emphasized in a photographic showing (he was the only one with gray hair and was wearing a parka) and that the identification procedure was therefore suggestive in Saville v. U. S., 400 F.2d 397 (1st Cir. 1968), cert. den. 395 U.S. 980, 89 S.Ct. 2137, 23 L.Ed.2d 768 (1968). However, the suggestive identification was corroborated by that of other witnesses, there was other testimony on the defendant’s knowledge and intent, and there was nothing in that ease “to suggest that the verdict of guilty . . . was in any way induced by the evidence [based on the suggestive identification.]” Had the verdict depended on this evidence, two of the three judges who heard the case suggested in a concurring opinion that they might not have affirmed the conviction under the Simmons test. Saville, supra at 399-400.

The court in United States v. Trivette, 284 F.Supp. 720 (D.C.D.C.1968) granted defendant's motion to suppress a witness’s in-court identification because the identification procedure, involving the showing of slides accompanied by suggestive comments by police, was impermissibly suggestive. The witness in Trivette, while observing the slides of different people, among whom was the suspect, “shrank” as one slide appeared. The policeman showing the slides asked, “Is that the man?” and the witness replied that it was. The policeman then told her that the man she identified had also been identified by another witness. Later, the defendant was brought alone, in the custody of a policeman, through a room in which the witness was sitting and she again identified him; no lineup was held. The court held that there was “substantial doubt as to the validity of the identification process” because of the combination of the suggestive elements in the two identifications, that the show-up therefore deprived the defendant of due process of law, and that any in-court identification based on that show-up must be suppressed. Trivette, supra at 722.

The Trivette case illustrates the somewhat complicated and confusing nature of the whole issue of suggestive identification. For the court there seemed to be saying that if the State could show that the identification had an independent origin, i. e. if the witness could have identified the defendant in court solely on the basis of her viewing of him at the time of the crime, without the benefit of the photographic identification or the show-up, then the in-court identification should have been allowed. The court found however, that even a full lineup with counsel at that point could not have provided such a showing of independent origin, because the suggestiveness of the procedures already used was so great, and because the witness herself was hesitant in saying she could have identified the defendant in court without benefit of those procedures.

The Trivette court essentially confuses Wade, supra, which dealt with the “fruit of the poisonous tree” doctrine, and Simmons, which test has been set out above, but purports to be basing its holding solely on Simmons. The use of the words “likelihood of irreparable misidentification” by the court in Simmons indicates that there is no way that a possible pre-trial misidentification once made, which meets the test the court set out, can be repaired, or that it can possibly be of independent origin.

Thus the Trivette court adds an unnecessary step to the Simmons test. Defendant as well (to his own possible detriment) confuses the analysis of Wade, supra and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) with the Stovall-Simmons-Neil-Manson analysis. Wade and Gilbert had to do with lineup identifications which were constitutionally unsound because of the lack of counsel; in-court identifications based on such lineup identifications are not admissible if tainted under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962). (This test is set out below in Section II.) In-court identifications which are of independent origin are not so tainted under this analysis.

The Stovall-Simmons-Neil-Manson test has been set out above and refers to identifications which may deny due process because of their suggestiveness. Once the test has been met, there is no question as to independent origin of the in-court identification — it is automatically excluded.

Defendant’s case is easily distinguishable from cases in which allegedly suggestive identification procedures were upheld: in his case the suggestive elements were not made necessary to any special circumstances, nor was there any corroboration of the eyewitness identification; his is not a rape case with its very special circumstances. Viewing the totality of the circumstances in this case, we find that the identification procedures used were so suggestive that they gave rise to a very substantial likelihood of irreparable misidenti-fication. Thus the Stovall-Simmons-Neil-Manson test has been met and we must find that the in-court identification of Sloan by Mrs. Bullard should have been excluded. Since there was no other evidence sufficient to convict defendant, this is a sound basis for a reversal.

We wish to emphasize that we in no way intend to imply any purposeful wrongdoing on the part of the police in this case. As the court in Wade commented, “We do not assume that these risks [of misidentification and resultant miscarriage of justice] are the result of police procedures intentionally designed to prejudice an accused. Rather we assume they derive from the dangers inherent in eyewitness identification and the suggestibility inherent in the context of pretrial identification.” Wade, supra, 388 U.S. at 235, 87 S.Ct. at 1936.

It is because of these dangers that police departments must be especially careful in cases of this sort. Increased attention to such matters should not hamper the police in their task of bringing criminals to justice; rather it should improve their level of efficiency in accomplishing this goal.

II.

Defendant alternatively argues that the lineup and in-court identifications should have been suppressed as the “fruit of the poisonous tree” of the illegally seized photograph. He alleges that the illegally seized photograph led to the partial identification of him by Mrs. Bullard, which in turn led to the lineup identification.

In Wade the lineup identification was held to be illegal because of the absence of counsel. The court held that the proper test to use to determine whether the in-court identification was admissible was that set out in Wong Sun : “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wade, supra at 241, 87 S.Ct. at 1939. (Wong Sun, supra 371 U.S. at 488, 83 S.Ct. 407.) In Wade, the court vacated the conviction “pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error . . and for the District Court to reinstate the conviction or order a new trial.” Wade, supra 388 U.S. at 241-242, 87 S.Ct. at 1940.

In defendant’s case, the illegality analogous to the lineup held without counsel in Wade was the wrongful seizure of his photograph. The hearing on defendant’s motion to suppress the photograph included arguments and evidence on whether the lineup identification arose out of the photographic identification. The judge held by implication that it did not. We doubt, however, that the Sheriff would have held the lineup if Mrs. Bullard had not picked out the photograph of Sloan as being similar in certain characteristics to one of the robbers. At the aforementioned hearing, this question was not put directly to the Sheriff. Defendant’s attorney did ask him if Mrs. Bullard had identified Sloan as a possible suspect, to which he responded negatively. Mrs. Bullard, however, later in the hearing, admitted that she had picked defendant’s photograph and one other as having certain features (mouth and teeth in defendant’s case) like one of the robbers. She claimed that having seen the photograph of defendant had no effect on her identification of him in the lineup.

Again, we do not doubt Mrs. Bul-lard’s veracity. But we recall Justice Harlan’s statement in Simmons, supra that once a witness has seen a photograph, that image, rather than that of the person actually seen, is apt to be retained in the mind, thus “reducing the trustworthiness of subsequent lineup or courtroom identification.” Keeping in mind this admonition, together with the likelihood that the Sheriff would not have held a lineup had defendant’s photograph been totally ignored by Mrs. Bul-lard, and the fact that the photograph was suggestively emphasized by its being the only one that was not a mugshot, we find it highly improbable that the lineup and courtroom identifications were come at by means “sufficiently distinguishable to be purged of the primary taint.” We think defendant’s argument that the lineup and courtroom identifications of him by Mrs. Bullard were the “fruits of the poisonous tree” and should have been suppressed has merit.

III.

In Manson, the Supreme Court stated that if the identification procedures are not held under the “totality of the circumstances” test to be so suggestive as to deny due process of law, then the jury must weigh the evidence on the suggestiveness of the evidence. Manson, supra 97 S.Ct. at 2254. The court in Simmons had also pointed out that the dangers of photographic identification procedures, i. e. convictions based on misidentifications, may be “substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.” Simmons, supra 390 U.S. at 384, 88 S.Ct. at 971. In this ease, even though the possible suggestiveness of the lineup procedure, including the Sheriff’s comment, was exposed to the jury, that of the photographic identification was not, as it was suppressed as being illegally seized.

Defendant assigns as error the fact that, to prove to the jury the suggestive nature of the whole identification procedure, he would have had to waive his Fourth Amendment right to have the photograph excluded. He bases this assignment on the holding in Simmons that the defendant in that case should not have been forced to choose between two constitutional rights. In Simmons, the issue was whether or not that defendant’s testimony in support of a motion to suppress evidence might be used to incriminate him later. The court held that it could not be so used, that “In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.” Simmons, supra at 394, 88 S.Ct. at 976.

Whether or not we deem it wise of defendant not to waive his Fourth Amendment right and thus make an effort to prove to the jury that the identification procedures were suggestive, it is clear that he would have had to so waive this right to prove his point, and in this sense, he was forced to choose between his Fourth Amendment right to be free from illegal seizure and his Fifth Amendment right to due process of law. The validity of a reversal on this point need not, of course, be considered, because of our finding that the identification procedures used in this case were so suggestive that they constituted a violation of defendant’s right to due process of law.

IV.

In another assignment of error, having to do with suggestive identification, defendant proposes to this Court a new evidentiary rule which would require independent corroborating evidence in cases where the eyewitness was .not previously acquainted with the accused, and the identification is tainted by undue suggestiveness. (He is unclear, however, as to what would constitute “undue suggestiveness.”)

Defendant draws an analogy to the rule that requires independent corroboration of accomplices’ testimony. The State points out that the accomplice rule exists because of the motivation an accomplice may have to be less than truthful and to try to incriminate another to escape punishment himself. A non-accomplice eyewitness is not subject, the State argues, to the same lack of reliability.

While it is true that an eyewitness may not be motivated to be untruthful, there are serious dangers of miscarriage of justice in cases where defendants are convicted solely on one eyewitness’s testimony. As we have seen, the United States Supreme Court has recognized these dangers. An eyewitness may well believe that he or she has correctly identified an accused as the perpetrator of a crime, and be wrong. This is more likely to happen where the eyewitness was not previously acquainted with the defendant and where there has been some element of suggestiveness in the identification procedure(s).

This Court nevertheless believes that conscientious and consistent application of the Stovall-Simmons-Neil-Manson test for suggestive identification set out in part I above is adequate protection against these dangers, the gravity of which we well recognize.

CONCLUSION

We find that the procedures used in the identification of defendant Charles Sloan were so suggestive that they gave rise to a very substantial likelihood of irreparable misidentification and that the in-court identification of him by Mrs. Evelyn Bullard should have therefore been excluded. Since there was no other evidence upon which defendant could have been convicted, we hold that his conviction is reversed.

When a reversal is on the basis of insufficient evidence to support a verdict, the reviewing court must direct a judgment of acquittal, rather than order a new trial. Otherwise, the Double Jeopardy Clause of the United States Constitution would be violated. This was the holding of the United States Supreme Court in Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, decided the same day, the court held that this principle applies to state criminal proceedings.

Our reversal of defendant’s conviction is clearly based on insufficient evidence to support a verdict, and we therefore remand this cause to the Williamson County Criminal Court for entry of a judgment of acquittal. Costs incurred on appeal are assessed against the State.

BYERS, J., concurs.

GALBREATH, J., did not participate.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    Clyde E. HAMMONDS, Appellant, v. CALHOUN DISTRIBUTING COMPANY, INC., Appellee.
    No. 8640.
    Court of Civil Appeals of Texas, Texarkana.
    April 24, 1979.
    Rehearing Denied June 26, 1979.

      Wilson F. Walters, Denison, for appellant.
    Robert Minshew, Sherman, for appellee.
   RAY, Justice.

This is a summary judgment case. Clyde E. Hammonds (Hammonds), appellant (plaintiff), brought suit against appellee (defendant), Calhoun Distributing Company, Inc. (Calhoun), seeking damages for the breach of an oral lease and wrongful eviction. Summary judgment was rendered in favor of Calhoun and Hammonds has perfected his appeal. Appellant submits one point of error for our consideration.

Appellant asserts that the trial court erred in granting the summary judgment because there are fact issues concerning whether or not there was a valid contract and whether or not the eviction was wrongful.

On July 14, 1976, Hammonds purchased the contents of a Mobil service station in Denison, Texas, from T. K. Rainey. The service station was owned by Calhoun. Hammonds states that he had an oral agreement with Calhoun to take over and run the station and to pay Calhoun for the Mobil products furnished, and Calhoun was to pay him a commission of 3<p per gallon on gasoline. Calhoun refused to enter into any written agreement. Hammonds cleaned up the premises and started operating the station. On August 13, 1976, Hammonds asserts that he was ordered to be out of the station by the following Monday morning.

Hammonds insists by his pleadings that he had an oral agreement beginning on July 14,1976, which was to continue for the rest of his working life expectancy, that is, for at least seven years. He further states that his services in cleaning up the station were worth $1,575.00, plus $150.00 for the use of his truck to haul away rubbish. Hammonds has sought damages for breach of contract only for lost earnings, clean up costs, punitive damages and attorney’s fees. Appellant tendered into court $3,579.80 that had been in his possession which was owed to Calhoun.

Appellee, Calhoun, excepted to Ham-monds’ pleadings on the ground that the pleadings failed to set out any contract, written or oral, express or implied and answered that attorney’s fees are not allowed for breach of contract and that any oral agreement violates the statute of frauds. Calhoun moved for a summary judgment on the grounds that Hammonds’ petition failed to state a cause of action and there was no genuine issue of material fact. The summary judgment evidence consists of five depositions.

Hammonds’ judicial admissions in his pleadings that he had an oral agreement with Calhoun which he asserts was to be for his working life expectancy of seven years brings the contract within the provisions of the statute of frauds, Tex.Bus. & Comm. Code Ann. Sec. 2.201 and Sec. 26.01. Ham-monds’ suit is based upon an alleged breach of an oral lease agreement and an oral sales agreement.

SALES

Although appellant’s amended petition places no dollar value on the amount of gasoline sold, it would be undisputed that the sale would have been for more than $500.00 since appellant asserts a commission due him in the sum of $476.22 for one week (at 3<t per gallon commission).

Tex.Bus. & Comm.Code Sec. 2.201 provides, in pertinent part, the following:

“(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. ...”

Appellant’s judicial admissions place his alleged sales agreement within the terms of Sec. 2.201.

LEASE

Tex.Bus. & Comm.Code Sec. 26.01 provides, in pertinent part, the following:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged
(b) Subsection (a) of this section applies to
(5) a lease of real estate for a term longer than one year;
(6) an agreement which is not to be performed within one year from the date of making the agreement;

Appellant asserts that a fact question exists as to whether or not there was a valid lease agreement. If there was no contract, appellant could not recover. There can be no recovery under the contract asserted by appellant because recovery is barred by the statute of frauds, Tex. Bus. & Comm.Code Ann. Sec. 2.201 and Sec. 26.01, supra. Whether an oral contract was in fact made is not a material issue of fact which would preclude the entry of a summary judgment since the oral contract alleged by appellant if entered into by the parties was unenforceable as a matter of law because it violated the statute of frauds. Womack v. Worthington, 561 S.W.2d 564, 567 (Tex.Civ.App. Fort Worth 1978, writ ref d n.r.e.).

Part performance is an exception to the statute of frauds. Where a sale of realty is involved, part performance is a stringent requirement consisting of three essential elements:

1. Payment of consideration;
2. Possession by the vendee of the realty; and
3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced.

Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921).

The same rule applies to the lease of realty. Darden v. Sullivan, 374 S.W.2d 942 (Tex.Civ.App. Waco 1964, no writ).

The judicial admissions and evidence make it clear that Calhoun has established its defense of the statute of frauds as a matter of law. In such a situation in a summary judgment proceeding the burden is not on Calhoun to negative Hammonds’ assertion of part performance. Hammonds is asserting part performance in an effort to avoid the statute of frauds defense which has been established by Calhoun as a matter of law. The burden was therefore upon Hammonds, once Calhoun had established its statute of frauds defense, to show that a material issue of fact existed concerning his plea of part performance. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972). Payment of consideration for the oral lease was one of the three essential elements required to avoid the application of the statute of frauds. Hammonds failed to offer summary judgment evidence that he paid consideration for the lease. Further, Hammonds failed to raise a fact issue that he made valuable and permanent improvements upon the land of Calhoun with Calhoun’s consent. We therefore hold that Ham-monds did not bring himself within an exception to the application of the statute of frauds.

The judgment of the trial court is affirmed.


author:
SPURLOCK, Justice. MASSEY, Chief Justice,
      HUGHES, Justice, SPURLOCK, Justice.

text:
    In the Interest of an UNNAMED CHILD.
    No. 18175.
    Court of Civil Appeals of Texas, Fort Worth.
    May 24, 1979.
    Rehearing Denied June 14, 1979.
    May & Herridge, and Kenneth A. Her-ridge, Dallas, for appellant.
    Wynn, Brown, Mack, Renfro & Thompson, and William M. Schur, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

The paternal grandparents of an unnamed child appeal from a summary judgment denying all relief requested in their petition for adoption. The sole question presented is whether the grandparents have standing to petition for adoption of the child. We conclude they have standing. The transcript does not reflect whether the child was or was not represented in the trial court by a guardian ad litem.

We reverse and remand.

On July 24, 1978 an unnamed child was bom in Tarrant County, Texas. The parties in this case have admitted that the biological father of the child was Chris Wilson. Wilson was never married to the child’s mother and he did not legitimate the child. Wilson died on June 1, 1978. On July 28, 1978 the parental rights of the mother were terminated by a decree of the 324th district court. The Edna Gladney Home was appointed managing conservator of the child. The child has been and continues to be under the direction of the home.

It appears that Chris Wilson was the only child of appellants, James Wilson and wife, Evelyn. He was 18 years of age when he died. The Wilsons, grandparents, filed a petition for adoption of the child. They admit that a factor in their desire to adopt the child is that their blood line will end if they cannot adopt the child. The home has refused to consent to the adoption. Wilsons have alleged that the home has withheld its consent without good cause and that it is in the best interest of the child to be adopted by them. Their petition requests the court to waive the requirements that the child reside with them for six months and that the managing conservator consent to the adoption.

The home moved for summary judgment. It claimed the Wilsons are legal strangers to the child. The Wilsons admit they have no legal relationship with the child. Further, the home claims the Wilsons have never expressed any interest in adopting any child prior to this action, nor have they ever even seen the child in question. The home concludes the Wilsons lack standing to petition for adoption of this child.

The Wilsons filed affidavits in opposition to the motion for summary judgment. They filed one detailed affidavit signed by Julie Ann Strickland in which she stated that Chris A. Wilson was the father of the baby. Stated in summary form, she testified by affidavit that both grandparents agreed that whatever she decided to do with baby they would assist her. She and Chris discussed putting the child up for adoption with the Edna Gladney Home. Prior to June 1,1978 Chris pleaded with her to marry him and have them keep the baby. She at first refused and then decided that she would marry him and keep the baby. Chris died shortly thereafter. She then stated that she visited personally and by telephone with Evelyn and James Wilson and they finally decided that Mr. and Mrs. Wilson should adopt the child. She then at length testified that while in an emotional state she had signed some papers but did not know what they were. She then testified that she revoked any consent she may have made and she either wants her baby back or requests the court to permit Mr. and Mrs. Wilson to adopt the baby.

The trial court sustained the home’s motion for summary judgment. It rendered a judgment denying the adoption and all other relief requested by the Wilsons.

The home admits that, if the Wilsons have standing to petition the court for adoption, there are numerous fact questions to be resolved. As authority for its conclusion that the Wilsons lack standing, the home cites Lutheran Social Service, Inc. v. Farris, 483 S.W.2d 693 (Tex.Civ.App. — Austin 1972, writ ref’d n. r. e.). There the adoption agency specially excepted to a couple’s petition for adoption of a child of which the agency was managing conservator. Exception was made because the petition failed to allege that the consent of the agency had been obtained. The court held the agency’s consent was necessary and that the trial court should have sustained the exception. We note this case was decided before the effectiveness of the Texas Family Code.

Tex. Family Code Ann. § 16.05 (1975), provides that if a managing conservator of a subject child has been appointed, consent of the managing conservator is required for adoption unless the managing conservator is the petitioner for adoption. However, § 16.05(d) provides that if the court finds the managing conservator’s consent is refused, or has been revoked without good cause, the court can waive the requirement. Here the Wilsons have alleged that consent has been withheld without good cause.

The home urges that the Wilsons lack standing to petition for adoption because they are legal strangers to the child. We conclude this contention is without merit and begs the question. The express purpose of the statutory scheme of adoption is to create a parental relationship with the rights, powers, and responsibilities pertaining thereto between persons who prior to the adoption were generally legal strangers. We fail to discern how the fact the Wilsons are legal strangers, although blood kin to the child, disables them from petitioning for adoption. Tex. Family Code Ann. § 16.02 (1975), provides that any adult is eligible to adopt a child who is eligible to be adopted. Therefore, we conclude the fact that the Wilsons are legal strangers does not mean as a matter of law they are precluded from petitioning the court for adoption.

Although the Wilsons admit they have no legal relationship with or rights to the child, we recognize that a blood relationship exists between the Wilsons and the child. While we do not hold that this relationship gives the Wilsons any legal rights or interest, we note they have an interest in this particular child as a natural guardian. Lamar v. Micou, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94 (1885). Since a legal relationship is not a requirement for standing to petition for adoption in this case, we hold the Wilsons have standing to petition the court for adoption. The trial court erred in rendering the summary judgment against them.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

MASSEY, C. J., concurs.

HUGHES, J., dissents.

MASSEY, Chief Justice,

concurring.

Any decision of the controlling factor whether adoption of a child by prospective adoptive parents would be in best interests of the subject child, would raise the question: “Compared to its interests if not adopted at all or if adopted by other prospective adopted parents?”

Our public policy is committed to the proposition that under circumstances such as those presented to the court that to be adopted by proper adoptive parents is to the greater interest of the child than not to be adopted at all. Thereby part of the question posed is answered. (This is the ordinary adoption case.) However, as applied to the remaining part the question would be upon the matter of which pair of competing prospective adoptive parents should be preferred, in the best interest of the child.

Under our practice the adopted child may not in later years open the files to undertake research upon his ancestry in the event he might desire to do so. At least there is impediment to be overcome for him to look into the files. Indeed, even if they be opened it would be a rare case where the research would be successful. The writer, whose hobby is ancestral research, receives correspondence from all over the United States from persons who were adopted as children and thus found themselves hampered.

Since the publication of the Alex Haley book Roots, there has been tremendous stimulus for persons seeking to ascertain when their immigrant ancestors came to America, from where, and even into family well-springs in foreign countries.

Whether to be enabled to do so, or even be able to make the attempt, be in the interest of an adopted child may be a question to be decided by the trial court. Under circumstances of this case, I believe it to have arisen as a question. Of course there might be provision by the court in preservation of the ability of the child to make research, should in later years he might so desire, though permitted to be adopted by a couple other than his blood kindred.

HUGHES, Justice,

dissenting.

I respectfully dissent to the reversal of the judgment of the trial court in this matter and would affirm its action for the following reasons:

1. A suit for adoption of a child may not be filed or prosecuted by any individual who is not a “person with an interest in the child” within the meaning of Tex. Family Code Ann. § 11.03 (1975).

2. The paternal grandparents of an illegitimate child who has not been legitimated by the child’s biological father are not by virtue of their blood relationship alone “person(s) with an interest in the child” within the meaning of Tex. Family Code Ann. § 1103 (1975).

3. A grandparent may not seek access to his or her grandchild pursuant to Tex. Family Code Ann. § 14.03(d) (Supp. 1978-79), after the parent-child relationship between the child’s last surviving parent and the child has been terminated by judicial decree appointing as the child’s managing conservator a licensed child-placing agency and authorizing placement of the child for adoption by that agency.

4. Blood relatives of a child who have not established a court-ordered relationship with the child prior to rendition of judgment terminating the parent-child relationship between the child and the child’s living parents are not by virtue of their blood relationship alone “person(s) with an interest in the child” within the meaning of Tex. Family Code Ann. § 11.03 (1975).

5. Persons who are not “person(s) with an interest in the child” within the meaning of Tex. Family Code Ann. § 11.03 (1975), do not have standing to request a court to order placement of the child in their home by a licensed child-placing agency or to seek judicial review of a decision by the agency not to place such child in their home.

I view the holding in Lutheran Social Service, Inc. v. Farris, 483 S.W.2d 693 (Tex.Civ.App. — Austin 1972, writ ref’d n. r. e.) as the proper authority in this case and feel that the preservation of the integrity of the agency adoption process should be paramount.

OPINION ON MOTION FOR REHEARING

SPURLOCK, Justice.

On motion for rehearing the Edna Glad-ney Home claims that by failing to discuss the relationship of § 11.03 and § 16.02 we admit commission of'“one of the classical errors of statutory construction: attempting to determine the meaning of one sentence of a statute without regard to the legislative intent revealed in the statute as a whole”. It is true that there is no direct reference or citation to § 11.03. However, we thoroughly considered the entire scheme of adoptions and suits affecting the parent-child relationship prior to rendition of our judgment.

The home correctly states the general rule of § 11.03 that persons having an interest in a child may file suit to affect the parent-child relationship. The home points out that no exception to the general rule of § 11.03 is stated in § 11. Its position is that because there is no express exception § 11.03 has not been nor may be modified by any other provision of the code. We do not agree. We referred to standing to bring a petition for adoption. By that reference we contemplated that the general rule of § 11.03 was modified by the specific statutory provisions relating to adoption, particularly § 16.02. We noted that the statutory scheme for adoptions is for the purpose of creating a parent-child relationship between those who were previously legal strangers. We fail to see how this purpose is best served by denying access to the courts to those who are legal strangers. § 16.02 makes any adult eligible to adopt. Further, § 16.05(d) provides that the consent of the managing conservator to an adoption may be waived by the court under certain circumstances.

Coupled together it is our opinion that the specific provisions relating to adoption modify the general rule of § 11.03. It is nonsensical to make any adult eligible to adopt and to provide that consent of the managing conservator may be waived by the court, and then to deny enjoyment of these provisions by holding that legal strangers cannot maintain a suit to adopt. It is well settled that the best interest of the child is of utmost importance. The home’s position is that licensed adoption agencies shall be the final judges of the best interest of the child. It is our opinion that the legislature has vested the courts of this state with this power and responsibility.

Finally the home claims that the fact that it has vested prospective adoptive parents with possession of a child gives the prospective adoptees a “legally cognizable interest”. We know of no requirement that an adoption agency participate in every adoption. § 16.02 states that any adult is eligible to adopt. Therefore we fail to discern how placement of a child by the home legally vests an interest in the possessors of the child and disqualifies all others. It is the best interest of the child with which we are concerned. It is our opinion that access to the courts of this state will best serve this goal.

Motion for rehearing is overruled.

HUGHES, J., dissents without further opinion.

       All statutory references are to Tex. Family Code Ann.


author: O’QUINN, Justice.

text:
    ANDERSON MACHINERY COMPANY, v. Robert Lee HARBER.
    No. 12850.
    Court of Civil Appeals of Texas, Austin.
    Aug. 1, 1979.

      Marcus B. Davidson, Wentworth, Levy & Davidson, San Antonio, for appellant.
    John Michael English, Murphree, Scanio & Chafin, San Marcos, for appellee.
   O’QUINN, Justice.

The controlling issue in this appeal involves the doctrine of failure of consideration under a conditional sales contract and security agreement pertaining to sale of a heavy duty machine to be used by the purchaser in construction of rural roads and earthen tanks.

Appellee Robert Lee Harber entered into agreement to purchase from Anderson Machinery Company in April of 1974 the machine described as Hancock Model 192 Elevating Motor Scraper.' Shortly thereafter Anderson Machinery assigned the contract and security agreement to Allis-Chalmers Credit Corporation. Harber made down payment of $8,637.00 on the purchase price of $51,999.00 and agreed to pay the balance in thirty-six monthly installments of $1,204.50 each.

The record shows that the Hancock Motor Scraper developed repeated malfunctions within two days following delivery to Har-ber, which continued until after two monthly payments, when Harber ceased to make payments and the machine was repossessed in September of 1974. Allis-Chalmers sold the machine to Anderson Machinery for $25,000 in October of 1975 and brought suit against Harber for a deficiency of $9,755.34. Harber made Anderson Machinery a third party defendant alleging total failure of consideration.

Upon findings of a jury that there had been a failure of consideration, that the market value of the machine when repossessed was $20,000.00, and that reasonable attorney’s fees for Allis-Chalmers were $1,463.30, the trial court entered judgment for Allis-Chalmers against Harber for $9,755.34, with attorney’s fees of $1,463.30, and further that Harber recover from Anderson Machinery the sum of $11,218.64.

Anderson Machinery appealed and brings three points of error. Appellant contends (1) that there was no evidence to support a finding of total failure of consideration, (2) no evidence to support a finding of partial failure of consideration, and (3) that the trial court erred in overruling motion for new trial because there was “factually insufficient evidence” to support the jury finding of a failure of consideration.

Appellee Harber counters, in addition to his counterpoints, with cross points contending (1) that Anderson Machinery has not preserved,for appellate review the inquiry under special'issue one as to total failure of consideration and (2) that appellant failed to bring to this Court the question of partial failure of consideration.

Although we agree with appellee that appellant failed to preserve the question of total failure of consideration by adequate objection to the court’s charge, nevertheless the point was preserved by appellant in the third party defendant’s motion for “judgment non obstante veredicto and mistrial because of conflicting findings.” Motion for judgment notwithstanding the verdict is one of four procedural bases for preserving “no evidence” points of error. State Reserve Life Insurance Company v. Ives, 535 S.W.2d 400, 404 (Tex.Civ.App. Fort Worth 1976, no writ), citing authorities and quoting the rule stated in Calvert: “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Review 361, 362 (1960).

Insofar as special issue one is construed to inquire as to total failure of consideration, we must sustain appellant’s point of error on the basis that Harber failed to present any evidence that the Hancock Scraper was worthless and totally without value at the time of delivery by Anderson Machinery. Harber admitted that he had used the scraper for about 500 work hours, and that although he made a living using the machine, it was in spite of the machine and not because of it. Troublesome as the machine proved to be, with excess oil pressure, faulty brakes, malfunctions in transmission gears, hoses, steering apparatus, and the hood latch, resulting in fifteen work orders for repairs, Harber conceded that some use was obtained from the scraper.

To prove total failure of consideration, there must be evidence that the machine was worthless at the time of purchase. Chilton v. Jennings, 178 S.W. 563 (Tex.Civ.App. Fort Worth 1915, no writ). This Court dealt with the question in Allison Ranch Co. v. Angelo Auto Electric, Inc., 145 S.W.2d 645, 648 (Tex.Civ.App. Austin 1940, writ dism’d), in which it was stated, “The rule is settled that if machinery is sold for a particular purpose, and it will not perform any of its functions, the buyer may set up total failure of consideration as defense . . to a suit for purchase price of the machinery, “but if it only performs them badly the remedy is to recover for a partial failure of consideration, showing clearly the extent of same. * * * When a buyer relies upon the defense of failure of consideration he must make out his defense in accordance with the usual rules. That is, if the buyer has made any use of the machinery, he may not contend that there is a total failure of consideration.” See also Advance-Rumely Thresher Co. v. Higgins, 279 S.W. 531 (Tex.Civ.App. Amarillo 1926 writ dism’d); Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97 (1942); Reed v. Buck, 370 S.W.2d 867, 874 (Tex.Sup.1963).

Appellee Harber argues that total failure of consideration exists, even though the scraper had some value, because the harm and detriment the machine caused Harber outweighed its value. We find no support for this contention in decisions on the question, and hold that finding of total failure of consideration under the facts of this case would have no support in the evidence.

Under its second point of error Anderson Machinery contends that “there was no evidence to support a finding of partial failure of consideration” under special issue one inquiring, “Do you find . . . that there was a failure of consideration . .” for the sales contract? As pointed out earlier Harber pleaded total failure of consideration. Anderson Machinery concedes it is settled that a plea of total failure of consideration includes and permits proof of partial failure of consideration. Brantley v. Thomas, 22 Tex. 270, 275 (1858); Gutta Percha & Rubber Manufacturing Co. v. City of Cleburne, 102 Tex. 36, 112 S.W. 1047, 1048 (1908); Milner v. Boswell, 377 S.W.2d 763, 764 (Tex.Civ.App. Fort Worth 1964, no writ).

We conclude that there is some evidence to support a finding of partial failure of consideration. It is without contradiction that when delivered the Hancock Scraper had eight work hours on its register and that when the scraper was repossessed about five months later the machine had only 502 to 504 work hours on it. Work hours on equipment of this type are automatically recorded when the machine is in actual operation, in a manner similar to the register of miles travelled on the odometer of a motor vehicle used on public highways.

By comparison, it was shown at trial that other scrapers used by Harber would add nine to ten hours daily, for seven days a week, during favorable work seasons, as from April through August, about the period Harber had possession of the Hancock Scraper. Harber testified that in such a season other scrapers would earn $4,000 per month, at an hourly earning of $25 to $30, and that other scrapers at the height of the work season would register seventy to eighty hours per week. For the five months Harber had possession of the Hancock Scraper it compiled an average of only 100 work hours per month, or an average of only about 25 work hours per week.

The performance of the Hancock Scraper repeatedly was interrupted by breakdowns and repairs. Harber testified that he signed at least fifteen work orders, covering repairs and replacement of parts, during the five months he tried to use the machine. The first malfunction involved the hydraulic system, an essential part of the machine’s operation. Malfunctions thereafter occurred in the system of about 25 hoses on the machine, in the steering arms, the automatic transmission, oil pressure, the tires, the brakes, and also in the hood which could not be opened for necessary daily checks on water and oil.

Despite basic alterations made in the hydraulic system of the machine, by mechanics sent to make repairs, the scraper failed to perform the work produced by similar scrapers, and Harber permitted the equipment to be repossessed after less than 500 work hours.

Harber testified that the Hancock Scraper would not “pull up hills,” and in summary he found it a “lemon” and “worthless.” When asked if the machine was still operable during the time he had it, Harber answered, “If you call cranking it up and trying to make a dollar with something that won’t produce . . . Yes, it would operate.”

Essentially, Harber’s testimony indicated that the Hancock Scraper could not produce enough to pay for itself, while his other scrapers could produce $4,000 per month, and by the time the machine was repossessed Harber had the down payment and two monthly payments invested in the scraper, or a total of $11,046.00. Because the machine would not produce as the other scrapers were producing, at an average earning of $4,000 per month, during the five months Harber tried to operate the Hancock Scraper the cost to him was about $20,000.00. The jury, in response to special issue two, found the market value of the machine at the time of repossession to be $20,000.00. Anderson Machinery argues on appeal, “The undisputed evidence shows . that it [the Hancock] had a material value of over $20,000.00 . . . ” After repossession, the Hancock Scraper was held more than a year, during which it was widely advertised for sale, and finally was bought by Anderson Machinery for $25,-000.00.

There was proof of the value of the Hancock Scraper contracted for and the service it ought to perform, and there was evidence as to its value at the time of repossession and when sold a year or more later. The cost, because of poor performance and failure to produce, to the buyer for the five months in his possession was before the jury. Even in the absence of more definite evidence the jury might have reached some conclusion as to the comparative values of the machine contracted for and the machine furnished. We conclude that such proof serves to meet the test required of the buyer claiming partial failure of consideration. Allison Ranch Co. v. Angelo Auto Electric, Inc., supra, 145 S.W.2d 648; Gutta Percha & Rubber Manufacturing Co. v. City of Cleburne, supra, 112 S.W.2d 1048.

We hold that the record contains some evidence to support a finding that there was a partial failure of consideration.

Anderson Machinery seeks under its third point of error to place before this Court the issue of factual sufficiency to support a jury finding of failure of consideration. Appellant bases the point on the trial court’s overruling of Anderson Machinery’s motion for new trial. Examination of the motion for new trial induces our conclusion that the only sufficiency of evidence question raised in the motion went to- total failure of consideration. We have already sustained appellant’s point that there was no evidence to support proof of total failure of consideration. Appellant has failed to place before this Court the issue of factual sufficiency to establish a partial failure of consideration.

On the basis of our holding that there was some evidence to support a finding of partial failure of consideration, we conclude judgment of the trial court should be affirmed.

Judgment of the trial court is affirmed.


author: MASSEY, Chief Justice.

text:
    Donald PACK, Appellant, v. Jack TAYLOR and Foster and Garrett, Appellees.
    No. 18160.
    Court of Civil Appeals of Texas, Fort Worth.
    June 7, 1979.
    Rehearing Denied July 5, 1979.

      Timothy E. Kelley, Dallas, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins, and Richard L. Griffith and Mark C. Hill, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

By this opinion we affirm a summary judgment for defendant.

For background information important to the issue here discussed, see opinions in Pack’s antecedent suit, viz: Pack v. City of Fort Worth, 552 S.W.2d 895 (Tex.Civ.App. —Fort Worth 1977), with writ ref’d n. r. e. and memorandum opinion by Supreme Court at 557 S.W.2d 771. Date of the Supreme Court’s order was November 2,1977.

From a time-table standpoint as applied to Pack’s antecedent suit we have: (1) injury date February 6, 1973; (2) suit filed against City of Fort Worth January 16, 1975; (3) summary judgment denying Pack any relief March 18,1976; (4) Court of Civil Appeal judgment in affirmance of trial court June 6, 1977; (5) Supreme Court’s order of November 2, 1977.

February 10, 1978 Pack filed the instant suit against Jack Taylor, et al., the attorney initially employed and that attorney’s employer law firm. Premise for such suit was the alleged malpractice of Taylor on or about March or April in 1974 in having informed Pack, his client, that no impairment to Pack’s contemplated suit against the city would result should he execute the release the city had tendered to him. Pack did sign the release on April 8, 1974. The events leading to such action and the advice given related thereto is a matter of dispute; but for summary judgment purposes we are bound to treat the situation with presumption that malpractice on the part of the attorney existed (whether it was or was not the fact).

(The instrument of release was the “Employees’ Retirement Fund of the City of Fort Worth Retirement Certificate” considered on Pack’s appeal when he lost his case against the city (552 S.W.2d 895). It had, incorporated therein, language susceptible to be construed as a release of the City of Fort Worth because of any and all claims because of injuries. From the earlier opinion of this court the construction given this instrument was that it was truly a release at law; and that Pack’s execution of the same, coupled with subsequent ratification through receipt of monthly pension checks, constituted the final settlement of claims arisen because of his injuries sustained February 6, 1973.)

The times for what is alleged to have been the acts or omissions constituting negligence of Taylor, not long prior to date Pack signed the release, coupled with the action thereby occasioned in signing the same on April 8, 1974, add two additional dates for consideration in addition to those listed in the third paragraph by numbers (1) to (5) inclusive.

As already stated the instant suit was filed February 10,1978. In testing application of the two-year statute of limitation (Tex.Rev.Civ.Stat.Ann. art. 5526 (1958) “Actions to be commenced in two years”), the determinative question is the proper date upon which the applicable limitation period began. Taylor, et al. as defendants to the Pack suit plead limitation; if Pack did not timely file his suit he was thereby foreclosed from prosecuting it. For purposes of summary judgment the burden was cast upon Taylor, et al. but in this case that is not a problem, the matters of importance being without dispute and so demonstrated by the record.

Pack seeks to disregard the times when he had his dealings with Taylor and was told it was all right to sign the release; and he also seeks to disregard the date of April 8,1974 when he signed it. His contention is that any applicable period of limitation could not have begun until there was a judgment of a court upon whether there had been a release of his claim. As herein-above noticed the trial court’s judgment was March 18, 1976 and Pack’s suit against Taylor was filed within the two-year period following. Pack contends that limitation actually did not begin to run until the action by the Supreme Court on November 2, 1977.

In malpractice actions against attorneys by their clients, absent contention of fraud or fraudulent concealment, the applicable period of limitation begins with date of “legal injury” which gives rise to the right to bring an action in tort; and, assuming that the date of “legal injury” is the same as that on which the alleged negligence or breach of duty by the attorney occurred, it begins to run at that time. The date of the “legal injury” is not the time it is discovered, or the date when actual damage is fully ascertained. The client’s “legal injury” has accrued when the force which produces the injury is wrongfully put in motion and has caused harm such that damages exist for which suit may be maintained.

On the foregoing see 54 C.J.S. Limitations of Actions § 168 (1948) (In General )-a. General Principles at 122; Atkins v. Crosland, 417 S.W.2d 150 (Tex.1967) as it modifies and qualifies Crawford v. Davis, 148 S.W.2d 905 (Tex.Civ.App. — Eastland 1941, no writ), the latter being a malpractice case against an attorney; Houston-American Finance Corporation v. Travis, 343 S.W.2d 323 (Tex.Civ.App. — Dallas 1960, writ ref’d n. r. e.); Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977); Hurbrough v. Cain, 571 S.W.2d 216 (Tex.Civ.App. — Tyler 1978, no writ), and Cox v. Rosser, 579 S.W.2d 73 (Tex.Civ.App. — Eastland, 1979).

Applying the appropriate test to the circumstances of the instant case it is to be observed that the “legal injury” done to the interest of Pack occurred when he acted upon that which he alleged to have been the earlier information and/or advice of Taylor and signed the release on April 8, 1974.

April 8, 1974, though later than that on which the alleged negligence or breach of duty by Taylor was alleged to have occurred, was that on which the force which produced Pack’s injury was put in motion as the result. It was on April 8, 1974 that Pack’s “legal injury” was sustained, and cause of action born, so that suit could have been properly brought, and it would accordingly be that date from which any applicable period of limitation would be computed. In other words, any period of limitation would be computed from the time when he could have brought the instant suit, not in November of 1977 when the Supreme Court refused his application for writ of error. Executive Com. of El Paso Cty. Repub. Pty. v. Karr, 521 S.W.2d 147 Tex.Civ.App. — El Paso 1975, no writ); and Godde v. Wood, 509 S.W.2d 435 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.).

Because of Tex.Rev.Civ.Stat.Ann. art. 5526 (1958) and the fact it was plead, the trial court did not err in rendering the summary judgment denying Pack the relief sought. Because of the applicability of limitation the judgment must be affirmed no matter what other complaint might be presented.

Others of the Pack points of error have nevertheless been examined; we hold them to lack merit. They are all overruled.

Judgment is affirmed.