author: TEAGUE, Judge.

text:
    William Edward CORTEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 026-84.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 17, 1984.
    Albert A. Pena, III, Corpus Christi, for appellant.
    William B. Mobley, Jr., Former Dist. Atty., Grant Jones, Dist. Atty., Elaine W. Stone, Jack E. Hunter and Jeffery A. Bab-cock, Asst. Dist. Attys., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before the court en banc.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

A jury convicted William Edward Cortez, the appellant, of committing the offense of murder on an indictment which charged him with committing the offense of capital murder. Punishment was assessed by the jury at life imprisonment in the penitentiary. In an unpublished opinion, the Corpus Christi Court of Appeals affirmed the trial court’s judgment and sentence. Cortez v. State, (No. 13-82-204-CR, October 27, 1983).

The record reveals that this trial was appellant’s second trial. The first conviction he sustained was reversed by this Court because the trial court erroneously admitted into evidence a “pen packet” from the State of Florida. See Cortez v. State, 571 S.W.2d 308 (Tex.Cr.App.1978).

We granted the appellant’s petition for discretionary review to make the determination whether the court of appeals correctly decided appellant’s contention that the trial court committed reversible error when it overruled appellant’s objection to the following portion of the closing jury argument that was made by the prosecuting attorney at the punishment stage of the trial: “You have a chance right now to cut this cancer cell out of this society, and hopefully save it. It is up to you twelve people. Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life [imprisonment].” [Emphasis Added].

The State concedes that “discussions by a prosecutor which invoke the people of the county” closely resemble someone “tipto-ing in a mine field,” Edwards v. State, 660 S.W.2d 622, 626 (Tex.App. — Corpus Christi 1983), P.D.R. refused, but asserts that the above argument was not a call to the jury to heed the demands, desires, or expectations of the community, but, instead, was a “plea for satisfaction to the people of their community; thus, it was a permissible call for recompense, and was not an objectionable warning to satiate the desires or wishes of those persons.” The State also urges that the argument was invited by the argument that counsel for appellant made. After having carefully read the argument that was made by defense counsel, we quickly reject the latter contention because we conclude that the above argument the prosecuting attorney made was not invited by defense counsel’s argument.

The court of appeals held that the above argument “was merely a suggestion of what penalty would be suitable and was therefore within the bounds of a proper plea for law enforcement.” We find that we are unable to agree with this holding because, properly construed, the above argument represents nothing less than what appears to us to be an attempt by the prosecuting attorney to side step past decisions of this Court which have disapproved similar type arguments.

It has long been the law of this State that the law provides for, and presumes, that the accused person will receive a fair trial, and a fair trial cannot be had if it is not free from improper jury argument. Richardson v. State, 257 S.W.2d 308 (Tex.Cr.App.1953). Furthermore, an accused person is entitled to have his guilt or punishment determined without reference to any outside influence. Palmer v. State, 184 S.W.2d 471 (Tex.Cr.App.1945); Davis v. State, 55 S.W. 340 (Tex.Cr.App.1900). Over fifty years ago, this Court stated the following: “Constitutional guaranties have been found necessary to protect the liberty of men from the hasty judgment of the multitude. To more effectually do this, there has been written into our organic law a guaranty that the accused shall be confronted with the witnesses against him. He must, and can only, be convicted [or punished] by testimony coming from the witness stand in open court, where he may have the privilege of cross-examination and of offering rebuttal testimony. Such a rule has been evolved from the wisdom of centuries, and to ask a jury to find the defendant guilty [or to assess a particular punishment] because their neighbors desire it is to ask them to violate this fundamental right which belongs to every man.” Haz-zard v. State, 15 S.W.2d 638, 640 (Tex.Cr. App.1929).

Thus, jury argument by a prosecuting attorney that is designed to induce the jury to convict the defendant or assess him a particular punishment because “the people” desire such is improper jury argument. This type argument is manifestly improper, harmful and prejudicial to the defendant and will not be countenanced by this Court. Whenever a prosecuting attorney tells a jury that the people of the community where the crime was committed wants an accused person convicted or assessed a particular punishment, he is not only injecting a new and harmful fact into evidence, which had no place there originally, but he is conducting his case along lines never contemplated by the framers of our constitution.

In the past, this Court has disapproved the following arguments: “The people of De Soto are asking the jury to convict this defendant.” Cox v. State, 247 S.W.2d 262 (Tex.Cr.App.1952). “The people of this community expect you to put this man away, and the only way you can do it is to send Willie Porter to the electric chair.” Porter v. State, 226 S.W.2d 435 (Tex.Cr.App.1950). “I tell you, the people of Matagorda and Jackson counties are expecting you to do your duty in this case and assess the defendant’s punishment at death.” Peysen v. State, 124 S.W.2d 137 (Tex.Cr.App.1939). “Look at this courtroom — it is crowded with Polk County people, demanding the death penalty for Bob White.” White v. State, 117 S.W.2d 450 (Tex.Cr.App.1938). “The people are present in this courtroom to see that this defendant gets punished.” Cleveland v. State, 130 Tex. Cr.R. 357, 94 S.W.2d 746 (Tex.Cr.App.1936). “The eyes of Commanche County are upon you — look at this crowd in this courtroom, and a crowd has been here all during this trial. The will and wish of every law abiding citizen of Commanche County wants a verdict of death.” Hazzard v. State, supra. “The people of Nueces County expect you to put this man away.” Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527 (1961). “There are over a million people that stand between him and the penitentiary. They’d want him to go there if they knew what he did.” Prado v. State, 626 S.W.2d 775 (Tex.Cr.App.1982). “The jury ought to convict the defendant because the people of Denison desire it.” Woolly v. State, 93 Tex.Cr.R. 384, 247 S.W. 865 (Tex. Cr.App.1923). The above arguments have been disapproved by this Court because the effect of the language used was to ask the jury to convict or punish the defendant upon public sentiment or desire rather than upon the evidence that the jury had received.

Is there any real difference in meaning between the statement the prosecuting attorney made in Pennington v. State, supra, “The people of Nueces County expect you to put this man away”, and the statement that the prosecuting attorney made in this cause, “Now, the only punishment that you can assess that would be any satisfaction at all to the people of [Nueces] county would be life”? We hold that in substance all the prosecuting attorney has done in this instance is to rephrase, by transposing and substituting different words which have virtually the same meaning, that which this Court has in the past disapproved. We find that the argument that was made in this instance represents nothing more than to put new garb on an old emperor, i.e., the transposition of words, and the use of the word “satisfaction” rather than “expect,” did not cause the above statement to have a different meaning than the statement that was made in Pennington v. State, supra.

We believe that a community which will not be satisfied with anything but the maximum penalty for the offense for which the defendant was convicted, as the prosecutor argued here without any evidentiary support, is a community that “wants,” “desires,” “requires,” and “expects” the jury to return that penalty. The prosecuting attorney’s argument was clearly improper. Also see Curtis v. State, 640 S.W.2d 615 (Tex.Cr.App.1982); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973); Jones v. State, 205 S.W.2d 590 (Tex.Cr.App.1947); Kelley v. State, 79 Tex.Cr.R. 402, 185 S.W.2d 570 (Tex.Cr.App.1916).

We hold that the prosecuting attorney’s argument did not ask the jury to be the voice of the community, but, instead, asked the jury to lend its ear to the community. In this he erred by making such argument and the trial judge erred in overruling appellant’s objection to the argument.

Appellant’s first ground of error is sustained. The judgment of the court of appeals is reversed and the cause is remanded to the trial court.

ONION, P.J., and CAMPBELL, J., concur.

McCORMICK and W.C. DAVIS, JJ., dissent.


source: Caselaw Access Project

author: CAMPBELL, Judge. TEAGUE, Judge,

license: Public Domain

text:
    Monty Charles PICHON, Appellant, v. The STATE of Texas, Appellee.
    No. 64137.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 14, 1984.
    Rehearing Denied Feb. 6, 1985.
    Albert S. Low, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Michael K. Aduddell and Larry Knapp, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before the court en banc.
   OPINION

CAMPBELL, Judge.

The appellant was convicted in the trial court, after separate jury trials, of committing the offenses of possession of methamphetamine, trial court Cause No. 291,321, for which punishment was assessed by the trial court at three and one-half (3½) years confinement in the Texas Department of Corrections, and aggravated robbery, trial court Cause No. 291,302, for which punishment was assessed by the trial court at eighteen (18) years confinement in the penitentiary.

Although there was an order entered to consolidate the above-styled causes, through administrative error, trial court Cause No. 291,321 was not retained by this Court, but was instead transferred to the Corpus Christi Court of Appeals.

On June 30, 1982, the Corpus Christi Court reversed the conviction in 291,321 and remanded it for a new trial. Neither the State nor the appellant petitioned this Court for discretionary review, and the decision in that cause became final. The opinion of the Corpus Christi Court, however, does not implicate nor affect the appellant’s conviction for aggravated robbery.

Thus the appeal that appellant brings to this Court is from his conviction for aggravated robbery in trial court Cause No. 291,-302. Appellant challenges the sufficiency of the evidence to support the conviction, and in two grounds of error, alleges that the trial court erred in admitting into evidence certain lineup and in-court identification testimony of the victim and two police officers, in violation of appellant’s rights under the state and federal constitutions. We disagree and affirm.

Viewed in a light most favorable to the verdict, the record reflects that the victim Barbara Kramen, on the morning of January 12, 1979, was walking across the parking lot of her apartment complex when she noticed the appellant sitting on some steps. Ms. Kramen testified that the appellant appeared to have been drunk or hungover and she walked right past him. The victim stated that, as she was putting things into her Corvette automobile, the appellant suddenly came up by her side and told her to “Drop everything, Babe, and give me the keys.” She testified that the appellant had his left hand in his pocket and his right hand contained a black revolver, which to her appeared to be a .38 caliber weapon. She gave the appellant her keys and testified that he climbed into her car, backed out of her parking space and left the apartment complex.

The victim further testified that she immediately contacted the police, gave them a detailed description of her assailant, and “pressed charges.” She testified that approximately ten days to two weeks after the robbery, she was asked to view a lineup conducted at the downtown police station. She stated that she was immediately able to identify the person who had robbed her, and she testified she was also able to identify a picture of the appellant as the person who took her car.

A neighbor of the victim, a Mr. Robert Perris, testified that he saw a man getting into the victim’s car on the morning of the robbery, and although he could not identify the assailant, the description that he gave to the police matched the description given by the victim. The evidence to support the jury’s finding of guilt is clearly sufficient. Appellant’s ground of error number three is therefore overruled.

Appellant’s grounds of error number one and two may be grouped together, and the issue, reduced to its elemental form, is set out thusly: Can a defendant’s face be tainted and suppressed in a criminal case, in the same way that inanimate evidence, say the product of an unreasonable search, such as a weapon or contraband, be tainted and suppressed?

The facts presented in United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) are virtually indistinguishable from the facts in the instant case.

In Crews, after she had been accosted and robbed at gunpoint by a young man in the women's rest room on the grounds of the Washington Monument, the victim reported the incident to the police. Several days later, after two other incidents of robbery and assault in the rest room had occurred, United States Park Police, who were aware of the rest room incidents and the similar descriptions of the robber which all three victims of the rest room incidents had given to the police, questioned a young man whom they observed in the area of the rest rooms at the Washington Monument, and, after learning the young man’s name, his age, and that he was not in school because he had just “walked away,” the officers allowed him to leave, but shortly thereafter detained him when a tour guide, in response to a request by one of the officers, identified the man as one he had seen hanging around the area of the Monument on the date of the first robbery. The officers then summoned a detective who was investigating the rest room robberies.

Upon arriving at the scene the detective attempted to take a photograph of the man which could be displayed to the victims of the robberies, but weather conditions thwarted his efforts. Thereafter, the man was taken into custody, ostensibly because he was a suspected truant, and transported to police headquarters, where the police briefly questioned him, obtained a photograph of him, telephoned his school, and then released him, without ever charging him with an offense during his detention of approximately one hour. The following day, the victim of the first robbery identified the photograph of the man as being the one whom had robbed her, and thereafter, at a lineup, the woman again positively identified Crews as the robber.

Prior to trial for armed robbery, Crews moved to suppress all identification testimony, contending that his detention on the truancy charges had been merely a pretext to allow the police to obtain evidence for the robbery investigation. The trial court ruled that the detention constituted an arrest without probable cause, and, held that the products of such arrest, namely the photographic and lineup identifications, could not be introduced at trial, but with respect to the victim’s ability to identify the defendant in court, the trial court ruled that an in-court identification (emphasis added) of the defendant by the victim at trial would be admissible. Crews was then convicted of armed robbery on this victim’s testimony. On appeal, the District of Columbia Court of Appeals reversed the conviction, holding that the in-court identification testimony should have been excluded as a product of a violation of the defendant’s Fourth Amendment rights. The Supreme Court then granted certiorari on the government’s petition.

Justice Brennan, writing for a majority of the Supreme Court, found the application of the “fruit of the poisonous tree” doctrine by the Court of Appeals to be misplaced. Justice Brennan observed:

“A victim’s in-court identification of the accused has three distinct elements. First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender. In the present case, it is our conclusion that none of these three elements ‘has been come at by exploitation’ of the violation of the defendant’s Fourth Amendment rights, [citation omitted.]
“In this case, the robbery victim’s presence in the courtroom at respondent’s trial was surely not the product of any police misconduct. She had notified the authorities immediately after the attack and had given them a full description of her assailant. The very next day, she went to the police station to view photographs of possible suspects, and she voluntarily assisted the police in their investigation at all times. Thus this is not a case in which the witness’ identity was discovered or her cooperation secured only as a result of an unlawful search or arrest of the accused. Here the victim’s identity was known long before there was any official misconduct, and her presence in court is thus not traceable to any Fourth Amendment violation, (emphasis added.)
“Nor did the illegal arrest infect the victim’s ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber. No part of this process was affected by respondent’s illegal arrest. In the language of the 'time-worn metaphor’ of the poisonous tree, Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008 [2010], 20 L.Ed. 1047 (1968), the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.”

In the case at bar, the victim was robbed some eight days prior to the appellant being detained and illegally (emphasis added) arrested on unrelated charges. The victim immediately notified police of the robbery and gave them a highly-detailed description of the perpetrator. Additionally, the victim testified at trial that her encounter with the appellant lasted a full five minutes, and she testified she would “never forget” his face. Corroborating and buttressing the testimony of the victim was her neighbor, who, although unable to identify the appellant, gave a detailed description of the assailant that matched the description given by the victim. Given these facts, it is indeed difficult to distinguish the instant case from United States v. Crews, supra, and its holding.

It is of particular interest to note that the same District of Columbia Court of Appeals, albeit with a different composition, that reversed Crews’ conviction, made the following observation twenty years ago in another case with regard to the suppression of eyewitness testimony:

“Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of any eyewitness to a crime because of the circumstances in which his existence and identity were learned
“Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellants, such as the victim’s watch, was suppressed along with the confessions. But a witness is not an inanimate object which, like contraband narcotics, a pistol or stolen goods, ‘speak for themselves.’ The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.” Smith and Bowden v. United States, 324 F.2d 879 at 881. (D.C.Cir. 1963.)

Decided shortly after Smith and Bowden, supra, was, of course, the Supreme Court case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Wong Sun, supra, articulated the guiding principle for determining whether evidence derivatively obtained from a violation of the Fourth Amendment is admissible against the accused at trial:

“The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.” 371 U.S. at 484 [83 S.Ct. at 416],

This premise is recognized by Justice Brennan in Crews, when he observes:

“This is not to say that the intervening photographic and lineup identifications— both of which are conceded to be suppressible fruits of the Fourth Amendment violation — could not under some circumstances affect the reliability of the in-court identification and render it inadmissible as well.” 445 U.S. at 472, 100 S.Ct. at 1250.

Significant to the disposition of the instant case, however, Justice Brennan continues to expound within the very same paragraph in Crews as enumerated ante:

“But in the present case the trial court expressly found that the witness’ courtroom identification rested on an independent recollection of her initial encounter with the assailant, uninfluenced by the pretrial identifications, and this determination finds ample support in the record. In short, the victim’s capacity to identify her assailant in court neither resulted from nor was biased by the unlawful conduct committed after she had developed that capacity.” 445 U.S. at 473,100 S.Ct. at 1251.

In the case sub judice, although the trial court did not make express findings as in Crews, the judge held an exhaustive pretrial hearing, and then, although concluding that appellant had been arrested without probable cause, overruled appellant’s precisely worded motion to suppress the identification. Additionally, the record very graphically supports the conclusion that the victim’s in-court identification of the appellant was untainted by any police misconduct.

The concurring opinions filed by Justices Powell and White in Crews — opinions joined respectively by Justice Blackmun and by Justice Rehnquist and Chief Justice Burger, bring us closer to a resolution of appellant’s first two grounds of error and to a resolution of the query posed at pg. 423 ante, viz:

“We held in Frisbie v. Collins [citation omitted], ‘that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction’ unlawfully. A holding that a defendant’s face can be considered evidence suppressible for no reason other than that the defendant’s presence in the courtroom is the fruit of an illegal arrest would be tantamount to holding that an illegal arrest effectively insulates one from conviction for any crime where an in-court identification is essential. Such a holding would be inconsistent with the underlying rationale of Frisbie from which we have not retreated.” [citations omitted] 445 U.S. at 478, 100 S.Ct. at 1253.

We find the instant case is settled by Justice Brennan’s majority opinion in Crews, and perforce the victim’s in-court identification of the appellant had no causal relationship to the illegal arrest, nor was there any primary taint under Wong Sun, supra. We further specifically adopt Justice White’s reasoning in Crews, and hold that a defendant’s face cannot be a suppressible fruit of an illegal arrest. Appellant’s first two grounds of error are overruled.

The Judgment of the trial court in Cause No. 291,302 is affirmed.

CLINTON, J., dissents.

TEAGUE, Judge,

dissenting.

Monty Charles Pichón, appellant, was convicted in the trial court after separate jury trials of committing the offenses of possession of methamphetamine, for which punishment was assessed by the trial court at three and one-half (3V2) years’ confinement in the penitentiary, and aggravated robbery, for which punishment was assessed by the trial court at eighteen (18) years’ confinement in the penitentiary.

Thereafter, he appealed both causes to this Court. On October 3, 1980, this Court ordered the two causes consolidated. However, see 1981 TEX.GEN.LAWS, ch. 291, sec. 149 at 820, effective September 1, 1981, where the legislature provided therein that a certain number of non-death penalty cases then pending in this Court would be transferred to the various intermediate courts of appeals of this State. Section 149 of the 1981 amendatory act specifically provided that this Court would retain at least 1,800 of these cases and the remainder would be transferred to the intermediate courts of appeals. Also see Art. 44.34, Y.A.C.C.P. These transfers have taken place. However, through administrative error, appellant’s companion case, which concerned his conviction for possession of methamphetamine, and which had been ordered consolidated with this cause, was not retained by this Court; instead, it was transferred to the Corpus Christi Court of Appeals.

On June 30, 1982, the Corpus Christi Court of Appeals, in an unpublished opinion, held that because appellant’s arrest was illegal, the methamphetamine that had been seized from his person as an incident to the arrest should have been suppressed by the trial court and not admitted into evidence during his trial for possession of methamphetamine. It then ordered appellant’s conviction for possession of methamphetamine reversed. Neither the State nor the appellant petitioned this Court for discretionary review. Thus, the decision of the court of appeals has now become final. Because I agree with the reasons stated and the result the court of appeals reached in its opinion, I will adopt its opinion and attach it to this opinion as an appendix.

'I hasten to point out that the opinion of the court of appeals does not directly implicate appellant’s conviction for aggravated robbery, which is the conviction in this cause. The validity of that conviction is what this Court must decide in this cause.

I will commence my discussion of the facts of the case at the point where the court of appeals terminated its discussion of the events in question.

As a result of appellant’s illegal arrest by Houston police officers, he was taken to the station-house where he was thereafter interrogated by the arresting officers. The record is clear that prior to the interrogation the arresting officers did not administer to appellant the Miranda warnings, nor did they take him before a magistrate to receive same.

The arresting officers informed appellant that the only way he could clear himself of any involvement in the murder of John David Tedesco was to take and pass a polygraph examination. Appellant refused to take the test and requested the assist-anee of an attorney, which request was ignored by the officers. The interrogation, however, was terminated until the next day when appellant was again interrogated, but this time by different police officers. They also urged appellant to take the polygraph examination. Appellant again refused.

These officers also did not give appellant the Miranda warnings, take him before a magistrate, or provide him with the assistance of counsel which he had requested.

The record reflects that on the third day' after his illegal arrest, appellant was again interrogated by the arresting officers, who again told him that if he took and passed a polygraph examination, that would relate to the murder of Tedesco, he would be released from custody on that charge. However, appellant was also told that if he took the examination, he had to answer each question asked by the polygraph examiner with absolute truthfulness. Appellant finally agreed to take the test.

However, prior to appellant taking the test, he was not administered the Miranda warnings, taken before a magistrate, or provided with the assistance of counsel by either the arresting officers or the polygraph examiner, who was also a Houston police officer.

The polygraph examiner not only asked appellant questions about the murder of Tedesco, he also asked appellant questions that related to the theft of an automobile which gave rise to the prosecution at bar. Appellant admitted to the examiner that he had committed the theft of an automobile.

Appellant passed the polygraph examination, as it related to the murder of Tedesco, and he was never accused of playing any part in that murder. However, appellant, together with the information obtained from the admissions he had made during the polygraph examination, that related to the theft of an automobile, were turned over to robbery detectives of the Houston Police Department, who soon matched up the admissions with the reported theft of an automobile that had been made by the complaining witness in this cause, which theft the complainant stated to the police had occurred at gunpoint, thus making the offense aggravated robbery.

Thereafter, robbery detectives contacted the complainant and requested that she come to the station-house to view a lineup. She did, and subsequently identified appellant in a lineup as the person who had taken her automobile at gunpoint.

The evidence in this cause is undisputed that the incriminating statements which appellant made that related to the theft of an automobile occurred when he had not been given the Miranda warnings by any police officer or a magistrate. Nor was he provided with the requested assistance of counsel after he was illegally arrested.

Appellant contends on appeal that the complaining witness should not have been permitted to testify in this cause because but for the incriminating statements he made to the police about the theft of an automobile he would not have been linked or connected to the offense that the complaining witness had previously reported to the police.

The State counters in its brief that the fact appellant was illegally arrested is for naught in his claim that the complainant should not have been permitted to give testimony in court because the record is clear that notwithstanding appellant might have been illegally arrested, he consentually participated in the lineup where he was identified by the complaining witness. The State also argues that because the complaining witness’ in court identification was based upon her independent recollection of appellant stealing her automobile at gunpoint, this renders the fact that appellant was illegally arrested immaterial and irrelevant. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Jackson v. State, 628 S.W.2d 446 (Tex.Cr.App.1982); Turner v. State, 614 S.W.2d 144 (Tex.Cr.App.1981); Wyatt v. State, 566 S.W.2d 597 (Tex.Cr.App.1978); Johnson v. State, 496 S.W.2d 72 (Tex.Cr.App.1973); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972); Lujan v. State, 428 S.W.2d 336 (1968), which hold that standing alone, the fact that a defendant has been illegally arrested will not cause evidence going to either an out of court identification or an in court identification of the defendant to become inadmissible evidence. The majority of this Court erroneously “buys” the State’s argument.

In this instance, the issue is not the complainant’s ability or capability to identify her offender, but, instead, is whether appellant was linked or connected with that crime solely because of the incriminating statements he made after he was illegally arrested.

It should therefore be obvious that the State and the majority fail to make the following distinction. Where an accused has been unlawfully arrested and thereafter voluntarily participates in a lineup at which he is identified by a State’s witness, the admissibility of an in court identification of the witness depends upon what occurred out of court regarding the identification. However, where an accused has been unlawfully arrested and, without first being administered the Miranda warnings, thereafter makes incriminating statements to the police, which statements cause him to become linked or connected with a reported crime, this may cause the in court testimony of the witness to become inadmissible evidence.

This Court has repeatedly held that if a State’s witness would not have surfaced or been discovered absent the illegal interrogation of the accused, then the testimony of the witness is the fruit of the illegal interrogation and becomes inadmissible evidence. The question in that instance is whether, in the normal course of the investigation, would the existence of the witness have been inevitably discovered absent the illegal interrogation of the accused? See Vanderbilt v. State, 629 S.W.2d 709, 722 (Tex.Cr.App.1981); McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1979); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973); Ex parte Parker, 485 S.W.2d 585 (Tex.Cr. App.1972); Noble v. State, 478 S.W.2d 83 (Tex.Cr.App.1972); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969). Also see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1962), and Nix v. Williams, — U.S. -, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Also see Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In this instance, we have the converse of the above situation.

The record is clear that the original investigation by homicide officers of the Houston Police Department was for the purpose of ascertaining the safety of another person; not the aggravated robbery of the complainant. The investigation by the homicide officers was related solely to the murder of Tedesco. But for appellant’s incriminatory statements, it never touched upon the auto theft or the aggravated robbery of the complainant, nor, but for appellant’s incriminating statements, was appellant ever shown to be connected or linked with the offense at bar.

The link between the appellant and the aggravated robbery of the complainant came about only after appellant’s constitutional and statutory rights had been violated by the police. I would hold that the in court testimony of the complainant — of which her in court and out of court identification testimony was a part thereof — was the fruit of appellant’s illegal arrest, detention, and interrogation by the police, and thus was inadmissible evidence at his trial for the aggravated robbery of the complainant. The trial court should have granted appellant’s motion to suppress the in court testimony of the complainant. It erred by not granting the motion. Gregg v. State, 667 S.W.2d 125 (Tex.Cr.App.1984);

Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App.1983); Hudson v. State, 662 S.W.2d 957 (Tex.Cr.App.1984).

In making this holding, I wish to emphasize the following: This is not a case where the complaining witness’ in court identification and in court testimony were in no way related to or connected with appellant’s illegal interrogation by the police. Instead, in this instance, the illegal interrogation was the thing that caused appellant to be linked or connected to the offense previously reported to the police by the complaining witness. Cf. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Wyatt v. State, supra. “[T]he exclusionary sanction applies to any ‘fruits’ of a constitutional violation — whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention.” United States v. Crews, supra, 445 U.S. at 470, 100 S.Ct. at 1249, 63 L.Ed.2d at 537. In this instance, the statements the police obtained from appellant as a result of his illegal interrogation were the direct “fruit” of a constitutional violation; the in court testimony of the complainant was the indirect “fruit” of that constitutional violation, and should have been suppressed by the trial court.

I have also carefully searched the record to see whether, in the normal course of the investigation of the aggravated robbery of the complainant, any link or connection between appellant and the aggravated robbery would have been inevitably discovered by the police. My search, however, has been in vain. Outside of appellant’s incriminatory statements he made to the polygraph examiner, which information was turned over to robbery detectives who were investigating the aggravated robbery offense involving the complainant, I have found no evidence that would have established a link or connection between appellant and the aggravated robbery of the complainant.

For all of the above reasons, I respectfully dissent to the failure of this Court to reverse the judgment of conviction.

APPENDIX

(NUMBER 2277cr)

NUMBER 13-81-266-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

MONTY CHARLES PICHON, Appellant, V. STATE OF TEXAS, Appellee.

* $ * * * *

On appeal from the 182nd District Court of Harris County, Texas.

* * * * * *

Before Gerald T. Bissett; Norman L.

Utter; and Noah Kennedy, J.J.

******

OPINION

Appeal is perfected from conviction for possession of methamphetamine for which punishment was assessed at three and one half years. Appellant’s single ground of error complains of the admission into evidence of the substance seized from him at the time of his arrest, and of testimony as to th'e chemical analysis of that material, his contention being that such was tainted by the illegality of the arrest itself. We agree.

The facts contained in the following recitation were developed at the hearing on appellant’s motion to suppress the evidence. On January 20, 1979, Detectives Kent and Yanchak of the Houston Police Department, Homicide Division, became involved in the investigation of the recent murder of one John David Tedesco, who had been bludgeoned to death. Detectives Kent and Yanchak were approached at approximately 5:30 to 5:45 p.m. on that day by Detective Donovan who told them that two persons, a Mr. Richard Gordon and a Ms. Vicki Sue Gowen, had come to his office with information regarding the Ted-esco murder. Mr. Gordon and Ms. Gowen related that a woman named Carol Dorrity had told them that she had witnessed her boyfriend, a man named “Monty,” beat Tedesco to death; that Carol Dorrity had taken a cab out to see “Monty”; and that they (Gordon and Gowen) were afraid for her life. Mr. Gordon and Ms. Gowen had no personal knowledge of the crime, and their feelings of concern regarding Carol Dorrity’s potential danger were pure speculation on their parts.

Based on this, Detective Donovan was able to get an address from the Yellow Cab Company. He then dispatched Detectives Kent and Yanchak to that address to see if they could find Ms. Dorrity and to see if she was, in fact, in any danger. Upon arriving at the address given, the two officers discovered it to be a trailer park. However, when they saw a cab leaving the trailer park, they stopped it and questioned its driver and occupant. Based on information derived thereby, they proceeded to Trailer No. 130. Detective Kent knocked at the front door. When appellant answered, Detective Kent identified himself and asked appellant for his name. When appellant responded, he was immediately placed under arrest for suspicion of murder and frisked, first by Detective Kent, then by Detective Yanchak. The second search produced the substance here in issue.

If appellant’s arrest was unlawful, so too was the search incident to it, and the fruits thereof must be excluded. Wong Sun v. United States, 371 U.S. [471], 473, 484, 83 S.Ct. 407, 416 [9 L.Ed.2d 441] (1963); Irvin v. State, 563 S.W.2d 920, 924 (Tex.Crim. App.1978). We are here concerned with the instances in which one is subject to arrest without a warrant as set out by Articles 14.01 through 14.04 of our Code of Criminal Procedure. If the situation claimed to authorize an arrest without a warrant does not come squarely within one of the classifications therein, authority does not exist. Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214, 216 (1943). See United, States v. Hall, 468 F.Supp. 123, 131 n. 16 (E.D.Tex.1979).

We limit our discussion to Article 14.04, supra, since there is no evidence whatever that the facts as they existed at the time of appellant’s arrest fell into a category provided for by Articles 14.01, 14.02, or 14.-03.

Article 14.04 reads:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.” (Emphasis supplied.)

We find the record to be totally devoid of evidence that appellant was about to escape. Ward v. Texas, 316 U.S. 547, 552-53, 62 S.Ct. 1139, 1142 [86 L.Ed. 1663] (1942); Green v. State, 594 S.W.2d 72, 74 (Tex.Crim.App.1980). No representations to that effect were made by either Mr. Gordon or Ms. Gowen to Detective Donovan. Indeed, the testimony was to the effect that Mr. Gordon had initially called the police for the purpose of passing on the statements made to him by Ms. Dorrity on January 19, the day before he came in to make a statement. Similarly, there is no evidence to support a reasonable conclusion on the part of the arresting officer, Detective Kent, that appellant was about to flee, and no such suspicion on his part was claimed. In this the case at bar is readily distinguishable from Tarpley u State, 565 SW-2d 525 (Tex.Crim.App.1978), relied upon here by appellee. That case was replete with evidence upon which a belief that the arrestees were preparing to escape could be based. Id. at 530.

We hold that the evidence does not demonstrate the existence of circumstances justifying the warrantless arrest of appellant, and that the fruits of the search incident thereto should have been excluded upon appellant’s motion. The conviction is REVERSED and the cause REMANDED.

NOAH KENNEDY

Associate Justice

Opinion not to be published. Tex.Cr. App.R. 207

Opinion delivered and filed this the 30th day of June, 1982.

      . For a more detailed discussion of the facts surrounding appellant’s arrest and interrogation, see Judge Teague’s dissenting opinion.

      . A copy of which is attached hereto.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The importance of an accused person receiving the Miranda warnings lies in the fact that if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated in Miranda v. Arizona, supra, his responses become inadmissible evidence at his trial. In Berkemer v. McCarty, — U.S.-104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court recently reaffirmed what it had stated in Miranda v. Arizona, supra, regarding the police warning a suspect who is in their custody prior to any questioning by them.

      . Article 14.01 permits a warrantless arrest by an officer when an offense is committed in his presence or within his view.

      . Article 14.02 authorizes a warrantless arrest upon the verbal order of a magistrate when a felony or breach of the peace has been committed in the presence of or within the view of the magistrate.

      . Article 14.03 licenses a warrantless arrest by an officer under two circumstances: First, when the arrestee is found in a suspicious place under suspicious circumstances. Here, appellant was in his living room. Second, when the officer has probable cause to believe that the arrestee has committed an assault upon a person and there is an immediate danger that such offense will be repeated. Here, the informants’ fears for the well-being of Ms. Dorrity were admittedly founded upon pure speculation which, of course, cannot form the basis for probable cause. See Leighton v. State, 544 S.W.2d 394, 397 (Tex.Crim.App.1976); Talbert v. State, 489 S.W.2d 309, 311 (Tex.Crim.App.1973).


author: McCORMICK, Judge.

text:
    Peter Hunt COE, Appellant, v. The STATE of Texas, Appellee.
    No. 64125.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Rehearing Denied Feb. 6, 1985.

      Robert Tarrant, Donald Ervin, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Gene Nettles, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before the court en banc.
   OPINION

McCORMICK, Judge.

Appellant was convicted of aggravated robbery. Punishment, enhanced by a prior conviction, was assessed at sixty-three years.

In his first ground of error appellant contends that the trial court erred in overruling his motion to suppress evidence in that his arrest was predicated upon mere suspicion, rather than probable cause.

Officer W.E. Spies of the Village Police Department testified that he was on patrol around noon on February 12, 1979, when he received a radio broadcast from his dispatcher concerning the commission of a burglary at 11918 Doncaster. The homeowner had returned home shortly before noon to find his home being burglarized. The door knob to the home had been pried off and marks left at the scene indicated the use of channel-lock pliers. The burglar had been scared off and the homeowner reported seeing a well-dressed white male of average height and build, in his mid-twenties to early thirties, drive away from the scene in a two tone blue Ford Thunderbird, with fancy wheel covers and with red paper buyer’s tags in the left rear window. Around 2:15 that afternoon, Officer Spies saw a car matching that description parked in the driveway of 260 Hedwig Road, some two and a half miles from the scene of the earlier burglary.

As Officer Spies watched he saw an individual matching the description set out above and later identified as the appellant get out of the Thunderbird, walk to the front door of the house and knock. The individual then walked to the south corner of the house and looked back. Upon seeing Officer Spies watching him, appellant returned to the front door and resumed his knocking. Realizing that the individual and the car matched the description he had earlier received, Officer Spies pulled his patrol car up into the driveway behind the Thunderbird. As Spies got out of his car appellant walked over to him. Spies asked appellant if he lived there. Appellant replied that he did not and he pulled out a business card, gave his name and said he was trying to see about doing some landscaping work at the house. Officer Spies thought this was strange in that the yard was already in the process of being landscaped. Officer Spies looked into the Thunderbird and lying in plain view was a pair of channel-lock pliers, a bank bag and a type of club. Spies called his dispatcher and checked appellant’s name. This check revealed that appellant had a lengthy criminal record and was currently on parole. At that point, Spies placed appellant under arrest for suspicion of burglary and for carrying a club.

The arresting officer, a veteran of twenty-eight years on the police force, at the time of his sighting of appellant had specific and articulable facts when taken with rational inferences from those facts which clearly warranted him in stopping and inquiring of appellant. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983). The officer’s conversation with appellant, combined with the facts and information already known to the officer, his observation of the channel-lock pliers lying in plain view in appellant’s car, and the information regarding appellant’s criminal history warranted the officer in believing that appellant had committed the earlier burglary. Hawkins v. State, 660 S.W.2d 65, 70 (Tex.Cr.App.1983); Marrs v. State, supra. Furthermore, the observation of the club, described by the officer as a tire tool from which the round end had been removed and which was wrapped with tape, warranted the officer in arresting appellant for the offense of carrying a club. V.T.C.A., Penal Code, Section 46.02; V.T. C.A., Penal Code, Section 46.01. We find probable cause existed for arresting appellant. This ground of error is overruled.

Next, appellant contends that because his arrest was illegal the trial court erred in admitting into evidence the channel-lock pliers and the bank bag which were seized without a search warrant. As noted above, appellant’s arrest was not illegal. Furthermore, both the channel-lock pliers and bank bag were in plain view and thus subject to seizure under the rule espoused in Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971). Finally, as to the channel-lock pliers, they were never admitted into evidence during the trial of this cause. Appellant’s second ground of error is overruled.

In his third and fourth grounds of error appellant argues that the court erred in overruling his motion to suppress the identification of appellant. The record shows that after the arresting officer seized the items lying in plain view in appellant’s car, one of which was the bank bag, he opened the bank bag and found a pair of sunglasses, a black wig and a .357 Magnum. These items tied appellant to the instant offense, the robbery at a theater. Two theater employees, Jeff Norman and John Hinojosa, were summoned to the police department to view a lineup. Before the lineup began, Norman and Hinojosa were shown the black wig, the sunglasses, the gun, a couple of bank bags, some makeup and two cotton gauze pads. The officers asked the two employees if they could identify the items and both employees identified the sunglasses, the wig and the gun as being used in the robbery.

Evidence from both the pretrial hearing and the trial showed that both Norman and Hinojosa thought they recognized appellant when they first saw him in the lineup. However, at the request of Norman, all the people in the lineup put on the wig and the sunglasses. Both Norman and Hinojosa testified that after seeing appellant in the wig and the sunglasses, they became positive in their identification. Officer M.D. Beale, the Houston police department detective who conducted the lineup testified that bboth Hinojosa’s and Norman’s identifications were not positive but were “strong tentative.”

Appellant argues that the wig and sunglasses were illegally seized from the bag and had they not been used at the lineup, the witnesses would not have been able to identify him. Thus the witnesses’ identification of him was “fruit of the poisonous tree” and should not have been admissible.

As we held above, the seizure of the bag which contained the items was proper. Thus the issue to be resolved is whether the officer should have opened the bag and seized the items contained therein. Recently, in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502, 514 (1983), the Supreme Court wrote:

“As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132,162 [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 [69 S.Ct. 1302, 1311, 93 L.Ed. 1879] (1949).” Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502, 514 (1983).

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court held that police officers who have probable cause to believe that contraband is contained somewhere in an automobile “may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched.’ ” 102 S.Ct. at 2157. In Ross, the Supreme Court approved the officer’s search of a closed brown paper bag and a zippered red leather pouch which they found in the trunk of Ross’ car.

Applying these considerations to the instant case, we find that under the circumstances a reasonable man could have believed that the bag might have contained evidence incriminating appellant in the burglary that had occurred earlier in the day. The fact that the items found in the bag incriminated appellant not as to the burglary but as to the instant offense does not in any way negate the lawfulness of the opening of the bag and the seizure of its contents. Esco v. State, 668 S.W.2d 358 (Tex.Cr.App.1984, No. 61,501, May 2, 1984) (opinion on rehearing). Because we have found the seizure of the items in the bag was lawful, we also find that the use of some of those items, that is the sunglasses and the wig, in the lineup did not in any way taint the witnesses’ identification of appellant. Both witnesses testified at trial that their identifications of appellant were based upon their observations of appellant on the day of the offense. There is nothing in the record to suggest any type of suggestive procedures that would have unfairly aided the witnesses in identifying appellant as the individual who committed the instant offense. Appellant's third and fourth grounds of error are overruled.

In his fifth ground of error, appellant argues that the trial court erred in not granting a mistrial when defense counsel asked the officer who conducted the lineup if the two witnesses had made a positive identification of appellant and the officer gave the following answer:

“A. No, sir; they were the other complaining witnesses in the other robberies.
MR. TARRANT: I ask for a mistrial.
THE COURT: Overruled.”

Pursuant to defense counsel’s request, the trial judge then instructed the jury to disregard the officer’s statement.

Although the proper method of preserving error in a situation such as this is to (1) make an objection; (2) request an instruction to disregard; and (3) make a motion for a mistrial, the method employed by counsel will be deemed sufficient in the instant case. Koller v. State, 518 S.W.2d 373, 375 (Tex.Cr.App.1975).

“It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. E.g., Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.); Christiansen v. State, 575 S.W.2d 42 (Tex.Cr.App.); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.). While there are numerous exceptions to this general rule against the admission of evidence of extraneous offenses, see, e.g., Albrecht v. State, supra, we find it unnecessary to consider their applicability to the instant case. Error in the admission of improper testimony is usually cured by the trial court’s instruction to the jury to disregard, ‘except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.; E.g., Campos v. State, 589 S.W.2d 424 (Tex.Cr.App.); Evans v. State, 542 S.W.2d 139 (Tex.Cr.App.); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.). Thus, testimony referring to or implying extraneous offenses allegedly committed by the defendant may be rendered harmless by the trial court’s instruction to disregard. Campos v. State, supra; Evans v. State, supra. Any error resulting from the testimony complained of was rendered harmless by the trial court’s action in ultimately sustaining the objection and instructing the jury to disregard. See generally C. McCormick & R. Ray, Texas Law of Evidence, Sec. 29 (3rd ed. 1980).” Thompson v. State, 612 S.W.2d 925, at 928 (Tex.Cr.App.1981).

We find that the court’s instruction to disregard cured any error accruing from the officer’s answer. This ground of error is overruled.

In his sixth ground of error, appellant argues that the trial court erred in admitting into evidence a “pen packet” when the State failed to give notice as required by “Article 3731A of the Code of Criminal Procedure.” We would initially point out that this article is not found in the Code of Criminal Procedure but may be found in the annotated civil statutes. See Article 3731a, V.A.C.S.

The record shows that on April 18, 1979, appellant was indicted in Cause No. 294,741 for the instant offense. This indictment also contained an enhancement paragraph alleging a previous conviction in Cause No. 157,137. Defense counsel Bob Tarrant prepared to defend appellant under that indictment. However, on June 1,1979, appellant was reindicted under a new cause number, Cause No. 296,696. This new indictment substituted a new enhancement paragraph alleging a prior conviction in Cause No. 193,968. Appellant’s counsel was unaware of this new indictment. On June 15, 1979, while Bob Tarrant was out of the country, his law partner, Don Ervin, was somehow informed of this new indictment. He was instructed to appear with appellant for arraignment and did so. When Tarrant returned, Ervin neglected to tell him about the new indictment. Thus Tarrant appeared for trial on June 18, 1979, announced ready and tried the guilt-innocence phase of the trial without realizing the existence of the new indictment. Only when he attempted to present a motion to quash the enhancement paragraph alleging the prior conviction in Cause No. 157,137, was he informed that his client had been reindicted with a new enhancement paragraph. Tarrant immediately pled surprise under “Article 3731A of the Code of Criminal Procedure” and moved the trial court to prohibit the State from introducing the pen packet containing evidence of that prior conviction because they had failed to give him the requisite notice. The trial court held that since Tarrant could not tell the court on what basis he was surprised that he would deny Tarrant’s motion. He then instructed the State to give Tarrant a copy of the pen packet and Tarrant was given forty-five minutes to study its contents. The punishment phase of the trial was then held and the pen packet was introduced into evidence over Tarrant’s objection.

The pen packet is before us and we find that it contains not only the judgment and sentence from Cause No. 193,968 but also judgments and sentences from Cause Nos. 157,137, 193,969, 193,572 and 193,571.

This Court addressed this same contention in Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App.1977):

“Even though a copy of an official record is not delivered to the appellant a reasonable time before trial, the exhibit is nevertheless admissible in the absence of unfair surprise. Sierra v. State, 476 S.W.2d 285 (Tex.Cr.App.1971), and cases cited therein. The appellant did not offer any evidence that he was unaware of the prior conviction. As was stated in Sierra v. State, supra, ‘It is difficult for members of the Court, without evidence to the contrary, to conclude that counsel and appellant did not know that appellant had been previously convicted of a felony offense ... ’ In the absence of a finding of unfair surprise or evidence establishing the same, no error is shown. Tatum v. State, 505 S.W.2d 548 (Tex.Cr.App.1974).”

The Court further found in Gollin that since the prosecutor some seven days before Gollin’s trial showed one of Gollin’s defense attorneys a copy of Gollin’s criminal history record, Gollin was not injured by the failure of the State to give notice under Article 3731a(3). V.A.C.S. that a copy of Gollin’s penitentiary records was going to be introduced into evidence.

Article 37.07, Section 3, V.A.C. C.P., provides that during the punishment phase of a trial the prior criminal record of the defendant may be introduced into evidence. One of the customary means of introducing that criminal record has been by the use of certified copies of prison records. Denham v. State, 428 S.W.2d 814, 816, 817 (Tex.Cr.App.1968), and cases cited therein. Thus, it would seem that in the instant case defense counsel was put on notice that appellant had a prior criminal record by virtue of the fact that the first indictment in Cause No. 294,741 contained an allegation of a final prior conviction and that the State would endeavor to try to introduce appellant’s criminal record into evidence. The burden of investigating the extent of appellant’s prior criminal record thus fell on the defense attorney.

Having reviewed the particular facts of this case, we are compelled to find that the appellant was not unfairly surprised by the introduction of these records. See also: Sierra v. State, 476 S.W.2d 285, 288 (Tex.Cr.App.1971); Smith v. State, 439 S.W.2d 834, 835 (Tex.Cr.App.1969).

In his final ground of error, appellant complains that the prosecutor acted in bad faith when he allowed the two identification witnesses to testify that they could positively identify appellant when he knew in fact that the witnesses had only made tentative identifications. Appellant further argues that the prosecutor’s bad faith combined with his objections to defense counsel’s questions concerning the lineup in effect amounted to the withholding of exculpatory evidence. Thus, he argues that the total effect of this prosecutorial misconduct can only be remedied by a new trial. Appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for the proposition that it is reversible error for the prosecution to either actively suppress or inadvertently fail to disclose evidence which might exonerate or be of material value to the accused.

The record shows that after the two identification witnesses had testified that they positively identified appellant after seeing him in the wig and sunglasses, the State rested. The defense then put Detective M.D. Beale on the stand. Beale testified that he conducted the lineup at which the two identification witnesses identified appellant. On direct examination Beale testified that because neither witness could say he was absolutely certain about appellant’s identity, Beale noted in his report that the identifications of appellant were “strong tentative.” On cross-examination, Beale testified that although the witnesses told him they were sure about appellant’s identity, he himself interpreted their identifications to be “strong tentative.”

In determining whether reversible error has occurred, this Court looks to three factors: (1) the suppression of such evidence by the prosecution after a request by the defense, (2) the evidence’s favorable character for the defense, and (3) the materiality of the evidence. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980). In applying these factors, we find that there was no suppression of evidence by the prosecution.

Initially, we note that there was never a suppression of any material by the prosecution. The court conducted a pretrial hearing on the appellant’s motion to suppress the identification testimony. Only the two identification witnesses testified on behalf of the State. The appellant called no witnesses nor requested the State to provide any additional information regarding the lineup. At trial, the State again called the two identification witnesses to the stand. During the presentation of his case, appellant called Detective Beale. There is nothing in the record to even suggest that the prosecutor engaged in any attempts at keeping Detective Beale’s impressions of the lineup from the knowledge of appellant.

Furthermore, it is not readily apparent to us how favorable Detective Beale’s testimony was to appellant. His testimony, which the jury was allowed to hear, merely reinforced the witnesses’ testimony that they told him that they were sure in their identifications of appellant. Detective Bea-le testified that it was his own interpretation of what the witnesses told him that caused him to note on his report that the identifications were “strong tentative.”

There is no need to discuss the third factor, materiality, in that the jury was allowed to hear the evidence. As we have stated many times, the credibility of the witnesses is for the finder of fact to decide. Minx v. State, 615 S.W.2d 748 (Tex.Cr.App.1981). We must assume from their verdict that the jury thought that the witnesses’ identifications of appellant were sufficient to warrant his conviction for the offense.

In summary, we find that the prosecutor did not act in bad faith and did not attempt to suppress exculpatory evidence. The jury was allowed to hear the evidence which appellant maintains was exculpatory and still voted to convict appellant. We find no error.

The judgment is affirmed.

CLINTON, J., dissents.

TEAGUE, J., concurs in the result.


text:
    Ex parte Charles Henry FOWLER.
    Nos. 69261, 69308.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Rehearing Denied Feb. 6, 1985.

      Charles Henry Fowler, pro se.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before the court en banc.
   OPINION

McCORMICK, Judge.

Before us are two post-conviction applications for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P., alleging the same grounds for relief.

In February, 1977, a jury found applicant guilty of five counts of theft. Applicant pled true to a single enhancement paragraph which alleged a prior federal felony conviction for bank robbery. The jury assessed punishment at fifteen years and a $1,500.00 fine on each count. This Court affirmed applicant’s convictions on October 17, 1979, in an unpublished, per curiam opinion. We have granted applicant’s pro se applications for writ of habeas corpus wherein applicant requests relief because the same prior felony conviction was used to enhance all five convictions.

The indictment charged applicant with five counts of theft of money of over two hundred dollars and under ten thousand dollars. Counts I and II alleged theft on or about April 30, 1976; Counts III through V alleged theft on or about April 23, 1976.

Theft of property within the preceding range was a third degree felony under V.T. C.A., Penal Code, Section 31.03(d)(4)(A) (1975). The court’s charge on assessment of punishment instructed that the jury could assess punishment within the second degree felony range, specifically, confinement for not less than two years nor more than twenty years and a fine not to exceed $10,000.00 as to each count of the indictment. See V.T.C.A., Penal Code, Sections 12.33 and 12.42(a) (1975).

Prior to the 1979 enactment of V.T.C.A., Penal Code, Section 12.46, the same prior felony conviction could not be used twice for enhancement, except when it was first used under Section 12.42(a), (b), or (c), and then later used under Section 12.42(d). Ex parte White, 538 S.W.2d 417 (Tex.Cr.App. 1976); Misenheimer v. State, 560 S.W.2d 98, 99 (Tex.Cr.App. 1978). Under this former scheme, once an automatic life sentence was obtained, the same prior felonies were, in a sense, retired and became unavailable for enhancement. Ex parte Montgomery, 571 S.W.2d 182 (Tex.Cr.App. 1978).

This Court has granted relief in numerous pre-Seetion 12.46 eases where the same felony offense was employed to im-permissibly enhance multiple convictions. See Swoape v. State, 658 S.W.2d 600 ((Tex. Cr.App.1983); Ex parte Montgomery, supra, and cases cited therein. Enhancement of multiple convictions by the same prior felony is erroneous even though the primary offenses are separate causes tried together, Ex parte Williams, 571 S.W.2d 26 (Tex.Cr.App.1978); Misenheimer v. State, supra; Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App. 1976); or are counts contained within a multi-count indictment. Ex parte Mulchahey, 621 S.W.2d 602 (Tex.Cr. App. 1981); Swoape v. State, supra. In the preceding situations, the judgment in the cause or count entered first in time is properly enhanced. Absent evidence of record to the contrary, judgment in the cause with the lowest cause number or judgment on the first count of a multi-count indictment is presumed to have been entered first. See Sanchez v. State, 605 S.W.2d 261 (Tex.Cr.App. 1980).

Applying the foregoing to the case sub judice, we grant applicant partial relief. We presume that judgment was entered first as to count one. Therefore, relief is denied as to the conviction for theft as alleged in count I of the indictment. However, we find that applicant is entitled to relief on counts II through V. Since the jury assessed punishment, we are without authority to remand for a new punishment hearing alone. See Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968), and Articles 44.24 and 44.29, Y.A.C.C.P. Therefore, relief is granted as to counts II through Y. All other relief is denied.

      . Section 12.46, which became effective June 7, 1979, provides:
      “The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes.”


author: ONION, Presiding Judge. TEAGUE, Judge,

text:
    James W. PHILEN v. The STATE of Texas, Appellee.
    No. 66889.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 5, 1984.

      Thomas A. Dunn, Tyler, for appellant.
    Melvin D. Whitaker, Dist. Atty., Palestine, Robert Huttash, State’s Atty., Austin, for the State.
    Before the court en banc.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder. The jury assessed punishment at ten (10) years’ imprisonment.

On appeal appellant contends tbe trial court erred in overruling his motions to set aside the indictment for lack of a statutory speedy trial; that the court erred in overruling his special requested charge on self-defense and the right to shoot and continue to shoot so long as he was in danger; and that the court erred in admitting into evidence inflammatory and gruesome photographs of the body of the deceased.

The appellant was arrested on July 4, 1979, commencing the 120 day time period in which the State had to be ready for trial in a felony case. Article 32A.02, Secs. 1 and 2, V.A.C.C.P.; Lee v. State, 641 S.W.2d 533 (Tex.Cr.App.1982). Appellant made bail on July 6, 1979, and was subsequently indicted on August 23, 1979. He was arraigned on September 20, 1979, at which time the case was set for trial on October 1, 1979.

The docket sheet reflects that on October 1, 1979 (89th day after July 4th), the case was “Passed on motion of State because pre-trial motions have not been heard.” November 1, 1979 was the 120th day after July 4th. On November 19, 1979, the appellant filed his first motion to set aside the indictment for lack of a speedy trial under the Texas Speedy Trial Act (Article 32A.02, supra).

On November 26, 1979, the court conducted a hearing on said motion.

The district attorney, the only prosecutor for the 173rd District Court, testified he was ready for trial then (November 26th), and had been ready for trial within the 120 day period from July 4th. He acknowledged that he had not filed a formal announcement of “ready” at any time. The prosecutor explained that on October 1, 1979, he had announced “not ready” and requested a “continuance” or “pass” from the court because he was expecting some additional lab reports; that the appellant announced “ready” subject to a hearing on his pre-trial motions which could not be reached that date. He observed that the appellant did not oppose his motion to “pass” or object to the court’s action in granting the same.

The district attorney explained that there were three counties in the 173rd Judicial District, and that there were no criminal dockets set by the district court in Henderson County between October 1st and November 26th, and this was the first opportunity to announce ready in open court.

The prosecutor testified he had not subpoenaed the witnesses for trial in the instant case on November 26, 1979, because there were two cases, another murder case and a rape case, ahead of appellant’s case on the court’s docket, and the witnesses had been subpoenaed in those cases. He admitted he would have to “scramble” to get his witnesses if appellant’s ease went to trial, but he was “ready.” He listed the State’s witnesses, two of whom were in the courtroom, and stated he thought he could contact the others, but admitted that he did not know the physical whereabouts of a number of the witnesses at the moment.

The district attorney was the only witness at the hearing.

The court overruled the motion to set aside the indictment. When the attorneys informed the court they expected the trial to consume three or four days, the court detailed other settings in Anderson and Henderson Counties in the days to follow and explained the case could not be tried that week. The court offered to select a jury the next day and to commence trial the following Monday, or offered to reset the case for December 10, 1979. Appellant’s counsel stated he preferred the setting on December 10th and the case was reset for that date.

On December 10, 1979, the appellant filed a second motion to set aside the indictment for lack of a speedy trial. A hearing was conducted on that date. Much of the same matters were rehashed. Appellant elicited from the district attorney that he (D.A.) had not received until the week of December 3rd a letter report from the Department of Public Safety dated October 4, 1979. The district attorney stated the report had apparently been in the sheriff’s office, and despite inquiries, it had not been received by his office until the week of December 3rd. He explained that while the report was helpful, it was not essential to his being ready for trial.

The second motion to set aside the indictment was overruled.

It is settled that the Speedy Trial Act addresses itself to prosecutorial delay rather than to the judicial process as a whole. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979); Stringer v. State, 632 S.W.2d 340 (Tex.Cr.App.1982); Valadez v. State, 639 S.W.2d 941 (Tex.Cr.App.1982). Thus, the question of the preparedness of the prosecution does not encompass the trial court and its docket. Barfield v. State, supra. There is no requirement in the Speedy Trial Act that the State actually attempt to set a case for trial within the 120 day statutory limit for felony cases. Phillips v. State, 659 S.W.2d 415, 419 (Tex.Cr.App.1983). And the Act does not make it mandatory that a case be tried within the allowed period of time. Ostoja v. State, 631 S.W.2d 165 (Tex.Cr.App.1982); Phillips v. State, 651 S.W.2d 745, 746 (Tex.Cr.App.1983).

It is well established that if a defendant files his motion to set aside the indictment for failure to adhere to the provisions of the Speedy Trial Act the State must declare its readiness then and at times required by the Act. Such declaration is a prima facie showing the State is ready for trial as the statute requires, and such prima facie showing may be made at the hearing on the motion to set aside the indictment by a declaration that is ready then and has been ready within the statutory limits. Barfield v. State, supra. When this is done, the burden shifts to the defense to show otherwise. See Fraire v. State, 588 S.W.2d 789 (Tex.Cr.App.1979); Callaway v. State, 594 S.W.2d 440 (Tex.Cr. App.1980); Lopez v. State, 628 S.W.2d 82 (Tex.Cr.App.1982); Scott v. State, 634 S.W.2d 853, 854 (Tex.Cr.App.1982). Failure to overcome a prima facie case made by the State as to the speedy trial issue will justify a trial court’s denial of a defendant’s motion. Scott v. State, supra; Apple v. State, 647 S.W.2d 290 (Tex.Cr.App.1983).

On October 1st the appellant had not invoked the Speedy Trial Act nor could he in view of the time frame. The State announced “not ready” and the case was reset. At the hearing on appellant’s motion on November 26th the evidence was undisputed that there was no criminal docket in the district court in Henderson County from October 1st to November 26th. This delay was due to the trial court and its docket comprising three counties, and not attributable to the State. The prosecutor stated he was ready then (November 26th) and was ready within the statutory period of time. The appellant sought to show the State was not ready because it had not subpoenaed its witnesses for trial on November 26th. A claim that subpoenas have not been issued is insufficient to rebut the State’s announcement of ready. See Garcia v. State, 625 S.W.2d 831 (Tex.App.— Houston [14th Dist.] 1981) (review refused). The prosecutor stated he would have to “scramble” for his witnesses but he was ready. The appellant failed to overcome the prima facie case made by the State’s announcement of “ready.” The court did not err in overruling appellant’s first motion to set aside the indictment.

Although there were other settings in two counties, the court offered to select the jury the next day (November 27th) and commence the trial the following Monday. Appellant’s counsel opted, however, for a resetting on December 10th. The Speedy Trial Act does not provide for dismissal because of delays in which the defendant has been a willing participant or that are attributable to the crowded docket of the court. See Cockrell v. State, 632 S.W.2d 664 (Tex.App. — Ft.Worth 1982). The delay between November 26th and December 10th was not attributable to the State.

Appellant’s second or amended motion sought to relitigate the speedy trial issue. The only new evidence at the hearing revealed that the district attorney had not personally received a D.P.S. letter report dated October until the week of December 3rd. The prosecutor denied this prevented him from being ready. This was not rebutted. The court did not err in overruling the second motion.

Next the appellant contends the trial court erred in overruling his objection to the court’s charge and his special requested charge on the right of self-defense, specifically the requested instruction that if he had the right to act in self-defense and open fire on the deceased, he had the right te continue shooting until all the danger of his life had passed.

Early on it was held that the necessity of such a charge in a given ease depends upon the facts and the manner in which the issues are submitted to the jury. Conn v. State, 158 S.W.2d 503 (Tex.Cr.App.1941); Boaz v. State, 89 Tex.Cr.R. 515, 231 S.W. 790, 794 (1920). See also Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967). And while the charge should normally be given if raised by the evidence, it was recognized that “[Sjome difficulty arises in making application of the rule under the facts of particular cases.” Key v. State, 192 S.W.2d 563 (Tex.Cr.App.1946).

Given the circumstances of the instant case, it is doubtful that appellant was entitled to the requested instruction under the cases decided while the former Penal Code was in effect. In Goodman v. State, 134 Tex.Cr.R. 280, 114 S.W.2d 885 (1938), the refusal to so charge was held not error where there was (1) no evidence that the defendant fired shots after the deceased fell, (2) no evidence that the combatants changed position, and (3) the shots were fired without any noticeable intermission, it being a continuous and rapid transaction. See also Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287 (1948); Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988 (1924).

In McElroy v. State, 455 S.W.2d 223 (Tex.Cr.App.1970), it was not error to refuse the charge where there was no showing that there were any shots fired after the deceased fell, no evidence that after the defendant began to fire that the parties materially changed positions and no evidence of continuing danger. Further, the evidence was undisputed the shots were fired in rapid succession. See also Mays v. State, 563 S.W.2d 260 (Tex.Cr.App.1978).

Appellant relies upon Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967), where it was held that the defendant may, under the facts of continuing danger and a change in the position of the parties, be entitled to such a charge or instruction though the shots are fired in quick succession.

Be that as it may, we need not belabor the facts of this case to determine the applicability of these cases decided under the former Penal Code. We observe that appellant’s objection and special requested charge apparently sought to invoke the law of self-defense regarding the right to shoot and continue to shoot as it existed under the 1925 Penal Code. No reference is made to the 1974 Penal Code and its provisions.

The Practice Commentary to V.T.C.A., Penal Code, § 9.32 (Deadly Force in Defense of Person), states in part:

“Section 9.32 restores the issue of excessive deadly force to Texas law: if the actor can protect himself short of killing, for example, he must do so on penalty of forfeiting his justification for the unnecessary portion of the deadly force used....
“Section 9.32(2) breaks sharply with Texas legal tradition by requiring a person to retreat before using deadly force if an ordinary person in the actor’s situation would have done so....”

In Sternlight v. State, 540 S.W.2d 704, 705 (Tex.Cr.App.1976), it was stated:

“One of the most drastic changes made in the new penal code is that before deadly force may be used in self-defense the actor (defendant) is required to retreat if a reasonable person in the actor’s (defendant’s) situation would have retreated. Y.T.C.A., Penal Code, Sec. 9.32(2).” See and cf. Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976).

In the instant case the court denied the special requested charge and instructed the jury in accordance with V.T.C.A., Penal Code, §§ 9.01(3), 9.32 and 9.33, and applied the law to the facts. The jury was instructed on the law of self-defense in part that: “When a person is attacked with unlawful deadly weapon, or he reasonably believes he is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack _” (Emphasis supplied.)

Viewing the instructions on the law of self-defense, the jury was instructed in effect that regardless of when or where the fatal shots were fired, the appellant should be acquitted if he was acting in self-defense. See Dominquez v. State, 532 S.W.2d 95 (Tex.Cr.App.1976).

The essence of the requested charge was repetitious in effect of that given in the main charge. When the charge refusal is substantially the same as that given by the court, no harm is shown. Aranda v. State, 506 S.W.2d 221, 225 (Tex. Cr.App.1974); Dominquez v. State, supra. Appellant’s rights were adequately protected.

The trial court did not err in overruling the objection and the special requested charge. See Stevens v. State, 671 S.W.2d 517 (Tex.Cr.App.1984).

Lastly the appellant complains that the trial court, over objection, admitted gruesome and inflammatory photographs of the deceased.

State’s Exhibit No. 4 was a photograph of the body of the deceased as it was found by the officers. No objections were made to the introduction of the exhibit. State’s Exhibit Nos. 6, 7 and 12 were also photographs of the deceased at the scene as viewed by the officers. No. 6 was a closeup of the wounds on the body, No. 7 was to show the distance of the body from the first landing on the stairs, and No. 12 was a view of the body from the front entrance of the house. The evidence reflected that in all the pictures the body had not been moved but was in the condition as found by the officers. Appellant objected to Exhibit Nos. 6, 7 and 12 on the grounds that they were inflammatory, prejudicial, cumulative, repetitious, etc. Appellant argues that after the introduction of Exhibit No. 4, the State’s action in introducing the other pictures was unnecessary and done to prejudice the jury.

It has been consistently held since 1972 that if a verbal description of the body and scene is admissible, a photograph depicting the scene is likewise admissible. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). See also Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981). There is nothing in the record to indicate the photographs were offered solely to inflame the minds of the jurors. The ground of error is overruled. Kelly v. State, supra, p. 182.

The judgment is affirmed.

CLINTON, J., concurs in the result.

TEAGUE, Judge,

dissenting.

I am compelled to dissent to the reasons the majority gives for overruling appellant’s contention that the trial court erred in refusing his requested charge that if he had the right to act in self-defense and open fire on the deceased, he had the right to continue shooting until all the danger to his life had passed.

Without stating why “it is doubtful that appellant was entitled to the requested instruction,” the majority concludes that the requested charge “was repetitious in effect of that given in the main charge [on self-defense],” thus enabling it to overrule appellant’s ground of error.

I will agree that where the evidence raises the defense of self-defense, and the trial court has correctly instructed the jury on the law of self-defense, counsel for the defendant is permitted to argue to the jury that the defendant had the right to continue shooting his adversary, though the mortal wound may have already been inflicted. However, I am unable to agree that such an instruction, standing alone, is sufficient to protect the right of the defendant to receive a fair trial in accordance with due process and due course of the law.

As we all know, jurors usually give great deference, as they should, to the remarks that a trial judge might make during the course of a criminal trial. When it comes to the jury charge, experience also teaches us that jurors invariably pay extremely close attention to what the trial judge states is the law of the case and the law as applied to the facts of the case. Without an instruction on the right to continue shooting, when the defendant had the right of self-defense to shoot in the first place, I believe that it is asking too much of a juror to depend upon what counsel for the parties might argue is the law. Furthermore, I believe it is reasonable to assume that the average person, though he might believe that the defendant had the right to shoot another person in self-defense in the first place, would probably question whether that right gives the defendant the additional right to continue shooting his aversary until the danger or apparent danger has ceased, or as long as it reasonably appeared to the defendant, as viewed from his standpoint at the time, that he was still in danger.

Therefore, I am unable to agree that such an additional instruction, on the right to continue shooting, is repetitious and unnecessary to protect the right of the defendant to receive a fair and impartial trial. I therefore respectfully dissent.

      . The prosecutor did not state on what date the State was actually ready nor was he asked.

      . Later testimony showed there were 15 or 20 cases set for November 26, 1979, and the appellant’s case was either sixth or seventh on the docket.

      . Simply because the record showed no announcement of "ready" by the State during the 120 day period does not prove that the prosecution was not ready for trial within that period. Prescott v. State, 649 S.W.2d 671 (Tex.App.— Corpus Christi 1983).