(dissenting) :
I dissent. In this case of constitutional dimension all turns on the facts. No fact-finding court has yet found the facts. Nevertheless this court concludes that it really doesn’t make any difference.
The case is an anomaly, since it was tried after Wade and Gilbert but before Texas established in Martinez a recommended procedure for orderly presentation of evidence when an in-court identification is questioned on the basis of an allegedly improper lineup. The defense made no objection to the identification when made but instead pursued what, in the state of the law at that time, was a reasonable approach. Defense counsel cross-examined the victim, then called as witnesses officers who had knowledge of the investigation and the lineup. Once the facts were developed, the defense moved that the in-court identification be stricken because the lineup failed to comply with Wade and Gilbert. The court denied the motion without stating reasons.
No one knows why the motion to strike was denied. It may have been for the reason adverted to in the opinion of the Texas Court of Criminal Appeals, Lucas v. State, 444 S.W.2d 638, 641 (Tex.Cr.App.1969), that the defendant had failed to timely object to the identification when offered and had failed to show reasons for delaying his objection. If this was the ground it was an erroneous one. See Rivers v. United States, 400 F.2d 935 (5th Cir. 1968), holding an in-court identification issue to be plain error though not raised at all in the trial court. In the instant case the issue was presented to the trial court and at a time when the facts had been made known.
It may have been that the trial judge, without the guidance later to come from Martinez, and particularly because of the sequence in which the evidence was' developed, considered that the burden was on the defendant to establish that the counsel-less lineup1 tainted the in-court identification, rather than on the state to show that the in-court identification was free of taint. Or, if he considered the burden was on the state, he may not have applied the quantum of “clear and convincing proof.”
The Texas Court of Criminal Appeals sought to resolve the problem by reviewing the trial record and concluding that the in-court identification was of independent origin. The habeas court, without hearing, concluded that the Court of Criminal Appeals was correct and denied the writ. Now, in this court, my brothers affirm on the basis that they find sufficient evidentiary support for the Court of Criminal Appeals decision, and, by independent examination of the trial record, they find clear and convincing evidence that the in-court identification was of independent origin and that any error was harmless.
The record discloses why the appellant is entitled to have findings of fact made by a fact-finding court, rather than a series of reviews by reviewing courts, none of which knows why the in-court identification was admitted into evidence over defendant’s objection. The robbery was a brief encounter. There was one witness, the victim. The Court of Criminal Appeals correctly stated that the victim said he stood “face-to-*394face” with the robber. But the victim also testified twice — and we think some fact-finding court must consider — that the robber was “sideways” to him. The opportunity to observe was momentary. The victim testified that the robber presented a gun and demanded money, then in one movement turned him around and removed money from his back pocket, after which he was taken to the back of the store and struck over the head. The victim gave a description to police immediately after the robbery (after regaining consciousness and before being taken to the hospital with a head injury), which was consistent with the description given at trial. But the defendant is entitled to have the consideration of a fact finder addressed to the testimony of the witness that when he gave the description, “I didn’t fully have my senses,” that “I couldn’t be too sure [of the description],” and that “I was kindly, pretty well addled.” Detective Boyd testified, as the Court of Criminal Appeals noted, that while the four men in the lineup were not “exactly the same size” they were “pretty near the same age.” But some fact finder should consider also the equivocal testimony of the victim himself on this issue. The victim said that no one in the group came close to Lucas’s size, that one was a lot smaller than Lucas and one pretty close to Lucas’s size, that one was almost Lucas’s size and one not quite that heavy, and then concluded by describing them as of various sizes and weights.
These matters might be viewed as factual nit-picking in some other context. They are of substantial proportion where no court has found the facts, where it is possible that the trial court denied the motion to strike on grounds which if revealed would have been erroneous, and where a 50-year prison sentence teeters on the single fulcrum of an in-court identification by one witness, following a counsel-less lineup, the suggestiveness of which is in dispute. No factor demonstrates more clearly the need for proper fact finding at the proper level than that three appellate judges are unable to agree on whether the cold record shows in-eourt identification supported by clear and convincing evidence and error harmless beyond reasonable doubt.
For these reasons I dissent.
. For purposes of analysis I assume, as do the sel at the lineup. majority, that the defendant did not have coun-