CRAIG v. STATE (1999)

OPINION

A jury found appellant, David Glenn Craig, guilty of aggravated sexual assault.   Although the indictment contained enhancement paragraphs for prior convictions, one for grand larceny and another for aggravated sexual assault, the trial court found true only the prior conviction for aggravated sexual assault, and sentenced appellant to life in prison.   We address:  (1) whether the trial court erred by refusing to instruct the jury to disregard testimony after the trial court sustained an objection to a question that called for an inadmissible response;  (2) whether a Crime Stoppers' presentation of appellant's photo on television constituted an unduly suggestive pretrial identification procedure;  and (3) whether the evidence establishing appellant's identification was legally and factually sufficient.   We affirm.

Facts

C.L. drove her minivan to a service station to buy a drink.   Her seven-month-old daughter was in the rear seat.   When C.L. returned to her minivan, appellant entered suddenly through the driver-side door. Appellant drove the minivan into a carwash stall behind the service station.   He threatened C.L. with a knife and sexually assaulted her.   He threatened to retaliate if she told anyone.

Several months latter, C.L. was watching the Crime Stoppers' portion of the televised evening news.   The report was about appellant.   When C.L. saw appellant's face, she was reduced to tears and became ill and vomited.   The next day, C.L. phoned Crime Stoppers and reported the sexual assault.

In-Court Identification

 Appellant argues in his second point of error that the trial court erred by denying appellant's motion to suppress C.L.'s in-court identification of him.   Appellant argues it was the product of an unduly suggestive out-of-court identification procedure, namely, C.L.'s viewing appellant's picture on the Crime Stoppers' portion of the evening news.

 When an accused complains that a pretrial identification was unduly suggestive, but the pretrial identification did not involve police action, “the constitutional sanction of inadmissibility should not be applied.”   See Rogers v. State, 774 S.W.2d 247, 260 (Tex.Crim.App.1989).   In Rogers, witnesses identified a capital murder suspect from a lineup.  Id. at 259.   The day before the lineup, the witnesses saw a picture of the suspect in a newspaper.  Id. The newspaper picture depicted the suspect's arrest.  Id. At trial, the witnesses identified the accused as the murderer.  Id. On appeal, the accused complained that the witnesses viewed the picture depicting his arrest.  Id. at 260.   The court noted that, as far as it could tell, the photograph was not part of a greater scheme by law enforcement officers to suggest to an otherwise unsuspecting audience that the accused committed the murder.  Id. The court held that in the absence of any official action contributing to the likelihood of misidentification, the constitutional sanction of inadmissibility would not be applied, regardless of the extent to which any witness's in-court identification might have been rendered less reliable by prior exposure to the picture.  Id.

In the present case, the record does not reflect that the Crime Stoppers' Report involved any police action, much less that it was part of a law enforcement scheme to produce a suggestive identification.   Therefore, following the rationale of Rogers, we conclude that the trial court properly denied appellant's motion to suppress.

We overrule appellant's second point of error.

The discussion of the remaining points of error does not meet the criteria for publication, and is thus ordered not published.  tex.R.App.P. 47.4.   We affirm the judgment of the trial court.

Refusal To Instruct Jury To Disregard

Appellant contends in his first point of error that the trial court erred by denying appellant's request for an instruction to the jury to disregard a witness's testimony, after the trial court sustained appellant's objection to the witness's testimony.   The disputed testimony involved statements by a defendant during a pretrial interview for the purposes of determining his indigence are inadmissible.   Appellant argues the statements are inadmissible.   See Tex.Code Crim.P.Ann. art. 26.04(f) (Vernon 1989) (statements elicited in determining defendant's indigence for appointment of counsel may only be used for that purpose;  only exception is to impeach defendant's testimony).

Appellant objected to testimony given by Pamela Lester, an employee with Harris County Pretrial Services.   Lester's job involves interviewing defendants for personal bonds by investigating their criminal backgrounds and verifying their social information with relatives and friends.   When appellant objected, Lester was testifying about a pretrial interview sheet that appellant completed prior to trial.   Appellant's objection was directed at Lester's testimony that appellant indicated on the sheet whether he owned a motor vehicle.   Specifically, appellant objected based upon the grounds that appellant's statements on the sheet were hearsay and were the result of a custodial interrogation during which appellant had not waived his rights.   The trial court sustained appellant's objection.   Appellant then requested that the trial court instruct the jury to disregard all of Lester's testimony up until the point of the objection.   The trial court denied appellant's request.

Appellant's complaint on appeal does not comport with his trial objection.   At trial, appellant objected to a violation of his rights while under custodial interrogation.   On appeal, appellant complains that Lester was testifying about statements appellant made during a pretrial interview to determine his indigence, which would render Lester's statements inadmissible under article 26.04(f) of the Code of Criminal Procedure.   We observe that appellant was actually undergoing an interview bearing on the likelihood of his complying with conditions of a personal bond, pursuant to article 17.42, section 1 of the Code of Criminal Procedure.   In contrast to article 26.04(f), article 17.42 section 1 does not prohibit use of the information gained from the interview against the defendant.   See Tex.Code Crim.P. art. 17.42, § 1 (Vernon Supp.1999).   In any event, because his trial objection does not comport with his point of error on appeal, we conclude that appellant did not preserve his complaint for review.   See Massey v. State, 933 S.W.2d 141, 157 (Tex.Crim.App.1996).

We overrule appellant's first point of error.

Legal and Factual Sufficiency

Appellant argues in his third and fourth points of error that the State's evidence was legally and factually insufficient to support his conviction because the State did not rebut his defensive theories of mistaken identification and alibi beyond a reasonable doubt.   At the outset, we observe that although appellant characterizes mistaken identification and alibi as defenses, these are not defenses;  instead, these are defensive theories offered to negate the identity element of the charged offense.   See Giesberg v. State, 945 S.W.2d 120, 124 (Tex.App.-Houston [1st Dist.] 1996) aff'd, 984 S.W.2d 245 (Tex.Crim.App. Sept.30, 1998). We will therefore treat appellant's points of error as challenging the sufficiency of the evidence to prove identity.

A. Legal Sufficiency

We apply the usual standard for reviewing the legal sufficiency of the evidence to support a conviction.  Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App.1996).   The evidence viewed in the light most favorable to the jury's verdict is summarized above.   We conclude that this evidence is legally sufficient to support appellant's conviction.

We overrule appellant's third point of error.

B. Factual Sufficiency

We also apply the usual standard for reviewing the factual sufficiency of the evidence to support a conviction.  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).   Appellant challenged the victim's identification as mistaken and presented an alibi that when C.L. was sexually assaulted, appellant was at a prison halfway house, 32 miles away from the scene of the crime.

In addition to the evidence set out above, the State presented the testimony of Julie Bullion.   Bullion testified that in November 1996 appellant was in her truck with a rusty knife.   Bullion turned this knife over to police.   She identified a knife as being the same knife that appellant possessed in November 1996.   C.L. identified the same knife as the knife appellant used to threaten her.

Appellant presented evidence to establish an alibi.   The halfway house's pre-approval sheet reflected that on October 22, 1996, appellant had permission to leave the halfway house between 4:30 a.m. and 11:00 p.m. The resident sign-out sheet reflected that appellant signed out of the halfway house on October 22, 1996, at 9:30 a.m. and signed back in on October 23, 1996, at 3:30 a.m. Another halfway house document reflected that appellant's case manager called appellant's employer, Bonita House, and verified that appellant worked on October 22, 1996.   Further, Charles Sapp, the halfway house's supervisor testified that all of these documents accurately reflected his procedures at the time.

The State's rebuttal evidence brought into question the validity of the halfway house's record keeping.   The State cross-examined Sapp concerning his character for truthfulness.   Sapp admitted that he had been convicted of four armed robberies and possession of heroin in 1981, robbery in 1983, and delivery of a controlled substance in 1987.   He further testified that, when he was convicted in 1987, he used a false name and date of birth.

The State also suggested a possible motive for the halfway house to have changed its records to reflect that appellant was at the halfway house, when in fact he was sexually assaulting C.L. Specifically, because the halfway house's business was subject to a contract with the State, if word got out that the halfway house was not keeping track of its residents, the halfway house could lose its contract.   Further, although the halfway house's records reflected that appellant was at work on October 22, 1996, the operator of Bonita House, appellant's employer on that date, testified and produced records showing that appellant did not work that day.

We conclude that the jury's verdict was not so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.   Accordingly, we overrule appellant's fourth point of error.

Conclusion

We affirm the judgment of the trial court.

TAFT, J.