WITHDRAWN
IN THE
TENTH COURT OF APPEALS
No. 10-91-120-CR
No. 10-91-121-CR
JAMES ELLIS CHANDLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court Nos. 18,251 & 18,252
O P I N I O N
Juries convicted James Chandler in separate trials of aggravated robbery and robbery and assessed him a life sentence for each offense. His appeals are consolidated for disposition as they each assert essentially the same complaints. Chandler complains about a "tainted" in-court identification, the admission of testimony relating to a prior conviction, the admission of an extraneous offense during the guilt phase and evidence of unadjudicated offenses at the punishment stage, the denial of a continuance, and the charge on the burden of proof. We will remand for a new punishment hearing in one cause and reverse and remand for a new trial in the other.
The grand jury indicted Chandler for the armed robbery of a One Stop Grocery store clerk that occurred on September 21, 1990, and for the September 25 armed robbery of the clerk of the Corner Store. Both crimes occurred in Waxahachie. Each indictment also alleged two prior felony convictions for enhancement: possession of a controlled substance and murder. Chandler was convicted of robbery for the September 25 offense and aggravated robbery for the September 21 crime. The juries that convicted him assessed a life sentence in each trial.
IDENTIFICATION
Kathy DeFore and Betty Wade, the victims of the two robberies, both identified Chandler in a photo array and in a "live" lineup. Following a suppression hearing, the court later ruled that the lineup identification was inadmissible. However, DeFore and Wade made an in-court identification of Chandler as the person who robbed them. Each testified that their in-court identification was based solely on having observed him during the robbery and was not affected by either the pretrial photo array or lineup.
In his first common points, Chandler asserts that the court erred in allowing the robbery victims to make an in-court identification of him over his objection. He argues that DeFore's and Wade's identifications were tainted by the inadmissible lineup because, after identifying him in such a lineup, they would base their in-court identifications on the lineup rather than on an independent identification of him at the time of the offense. Their descriptions of the robber were flawed, he says, because they were in a state of excitement during the robberies and because the robbery episodes only lasted for 30 seconds. He points out that the victims never mentioned the tear-drop tattoo near his eye and described him as being shorter and thinner than he really is.
The State counters these arguments, however, by pointing out that DeFore and Wade accurately describe Chandler by hair length, glasses, baseball cap, and unshaven appearance, that they never identified any person other than him as the robber, that they each had adequate time under good lighting conditions to observe him up close during the offense, and that they identified him in a photo array only two or three days after the robberies took place.
A court should consider several factors when determining the admissibility of in-court identifications when an inadmissible out-of-court identification has occurred: (1) the witness's prior opportunity to observe the alleged criminal act; (2) whether there is a discrepancy between any pre-lineup description of the criminal and the defendant's actual description; (3) any identification of the defendant prior to the lineup by another person; (4) the identification by picture of the defendant prior to the lineup; (5) failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 1940 (1967). The Court in Wade noted the probability that, once the accused is identified from an inadmissible out-of-court identification, the identifying witness is unlikely to go back on his word in making an in-court identification. Id., 388 U.S. at 229, 87 S. Ct. at 1940. However, even if the pretrial identification is inadmissible, that does not make the in-court identification inadmissible per se. Id. 388 U.S. at 240 n. 32, 87 S. Ct. at 1939 n.32.
"A defendant who contends on appeal that a trial court erred in allowing an in-court identification of him by a complaining witness has a difficult and heavy burden to sustain, for unless it shows by clear and convincing evidence that a complaining witness' in-court identification of a defendant as the assailant was tainted by improper pre-trial identification procedures and confrontations, the in-court identification is always admissible." Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982). Considering all the evidence, Chandler has failed to meet his burden of showing by clear and convincing evidence that the in-court identifications were tainted by improper pre-trial identification procedures. Point one is overruled in each cause.
Chandler asserts in each of his second points that the court erred in overruling his objection to evidence of a pretrial photographic identification and in admitting the in-court identifications. He argues that the in-court identification was tainted by the photographic identification.
On the day of the robberies, the victims were shown a photo array of five or six males, but they could not make an identification of the robber. A few days later, however, the victims picked Chandler's photo out of a second array of five to six males. Chandler contends the second array was impermissibly suggestive because his photo stood out as having a different background and because it obviously appeared to be a jail "mugshot." The State argues, however, that any differences in the photographs were minimal and that all photographs were of white males of Chandler's approximate age.
A two-step analysis is used to determine the admissibility of an in-court identification based on a photographic identification. First, the trial court must determine whether the pretrial procedure is impermissibly suggestive. Herrera v. Collins, 904 F.2d 944, 946 (5th Cir. 1990). Second, it must determine from the totality of the circumstances whether the suggestiveness, if any, leads to a substantial likelihood of irreparable misidentification. Id. Thus, a conviction based on an in-court identification following a suggestive pretrial photographic identification will be set aside only if the nature of the photographic identification procedure gives rise to a very substantial likelihood of irreparable misidentification. Id. at 384. Once an out-of-court procedure is determined to be impermissibly suggestive, the court is to consider the Wade factors to determine if this suggestiveness leads to a substantial probability of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 381-82, 34 L. Ed. 2d 401 (1972).
The photographic array that Chandler attacks as impermissibly suggestive contains pictures of virtually the same size, with the subjects in similar poses, and none with striking differences in personal appearance, dress or age. The officer presenting the photo array and the victims all testified that the officer did not attempt to influence the identification of Chandler from the array. Based on the evidence, the court could have reasonably found that Chandler's photo and the array were not so impermissibly suggestive as to lead to a very substantial likelihood of an in-court misidentification. Accordingly, we cannot say that the court abused its discretion when it admitted the in-court identifications. Both second points are overruled.
UNADJUDICATED ACTS
The indictment charging Chandler with the September 25 robbery went to trial first. Betty Wade, the victim in the September 25 offense, identified Chandler as the robber during the guilt-innocence stage. Kathy DeFore, the victim of the September 21 robbery, testified over defense objections during the punishment phase that Chandler also robbed her on September 21, describing the details of the prior robbery. Of course, Chandler's guilt for the September 21 robbery had not yet been adjudicated. Over Chandler's objection, the court also allowed Wanda Thompson, whom Chandler had robbed in Anderson County on September 24, 1990, to identify him as the robber and to relate the details of that offense. Thompson said she was afraid that Chandler was going to kill her in the September 24 robbery. The Anderson County offense had not yet been tried and thus also was unadjudicated.
In the separate trial for the September 21 robbery, Kathy DeFore testified on guilt that Chandler robbed her on that date. Over an extraneous-offense objection, the court also allowed Betty Wade to testify during the guilt phase that Chandler had robbed her on September 25. Wade described the details of that offense. Chandler's conviction for the September 25 robbery was being appealed when the second case was tried, and thus his guilt for the September 25 offense was not yet finally adjudicated.
In common third points, Chandler contends the court erred in admitting evidence of unadjudicated offenses during punishment. Unadjudicated acts of misconduct are not admissible during the punishment phase of non-capital offenses. Grunsfeld v. State, No. 1037-91, slip op. at 2 (Tex. Crim. App. October 28, 1992); Blackwell v. State, 818 S.W.2d 134 (Tex. App.—Waco 1992). Therefore, the court erred when it allowed DeFore and Thompson to testify in the trial of the September 25 robbery about two prior robberies, both of which were then unadjudicated acts of misconduct on Chandler's part.
Wade, the victim in the September 25 robbery, testified during the second trial for the September 21 robbery, but her testimony was admitted during the guilt-innocence phase. Chandler correctly cites to the statement of facts of the guilt stage where his objection is located and Wade's testimony is reflected, but he frames his point of error as a complaint that Wade's testimony was improperly admitted on punishment. We will treat his point substantively as alleging error in admitting Wade's testimony on guilt, which is consistent with references to the record and the substance of the argument under the point. See Tex. R. App. P. 74(d), (p).
Extraneous offenses, whether or not finally adjudicated, are inadmissible on guilt unless they have a relevancy apart from purportedly showing the propensity of the defendant to act in conformity with a particular character trait. Tex. R. Crim. Evid. 404(a), (b); Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). Evidence that Chandler had committed the September 25 robbery had no relevancy apart from showing his propensity to commit armed robberies. Thus, the court erred when it allowed Wade to testify about Chandler's having robbed her four days after robbing DeFore. See id.
Applying the criteria for determining whether the errors were harmless, we cannot conclude beyond a reasonable doubt that the error during the punishment phase of the trial of the September 25 robbery did not contribute to Chandler's punishment. See Tex. R. App. P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Although the jury had before it evidence that Chandler had committed two prior felonies—possession of a controlled substance and murder—one simply cannot conclude beyond a reasonable doubt that the jury in determining punishment would have ignored and been unaffected by evidence he had been recently involved in a robbery spree.
The second error occurred during the guilt phase of the trial of the September 21 offense. Again, using the guidelines in Harris for determining harmless error, we cannot conclude beyond a reasonable doubt that evidence of the September 25 robbery did not contribute to either Chandler's guilt or punishment. See id.
We sustain the third point in both causes. Chandler also complains in his fourth points that the court improperly admitted State's exhibit number four, a pen packet, during the punishment stage over his objection that it contained references to non-final extraneous offenses. These complaints are not reached because of our disposition of the third points.
REFUSAL OF CONTINUANCES
In a fifth point in each cause, Chandler complains that the court erred when it denied his motion for a continuance and required him to proceed to trial without a material witness who was unavailable. "The granting or denial of a motion for continuance is vested in the sound discretion of the trial court, and reversal of a judgment is justified only when it is shown [that] the trial court has abused its discretion." Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1983). Apparently, the unavailable witness would have testified that another individual matched Chandler's physical description. The court did not abuse its discretion when it refused to grant a continuance to find and produce such a witness. Point five is overruled in both causes.
In his sixth points, Chandler complains that the court erred in denying his motion for a continuance and requiring him to proceed to trial the day after the court ruled on his pretrial discovery motion. We overrule these points for the reasons given in connection with point five.
BURDEN OF PROOF
Chandler's final complaint is that the court failed to instruct the jury on the burden of proof. However, the record reflects that the court included the standard instruction on the burden of proof and properly applied that burden to the facts in each charge on guilt-innocence. We overrule point seven in each cause.
DISPOSITION
Reversible error having occurred during the guilt stage of Cause No. 91-120-CR, we reverse the judgment in its entirety and remand that cause for a new trial. Finding no error during the guilt stage of Cause No. 91-121-CR, but concluding that reversible error occurred during the punishment portion of the proceeding, we affirm the conviction in that cause but remand for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 1993).
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Cause No. 91-120-CR reversed and remanded
Cause No. 91-121-CR remanded for new punishment
hearing
Opinion delivered and filed February 3, 1993
Do not publish
[OPINION WITHDRAWN 2-10-93]