Woodard, Robert Lee

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,080

ROBERT LEE WOODARD, Appellant

v.

THE STATE OF TEXAS

APPEAL FROM

HARRIS COUNTY

Womack, J., delivered the opinion for an unanimous Court.

The appellant was found guilty of the capital murders of Thankachen Mathai and

Achamma Mathai, who were husband and wife. He was sentenced to death on March 8,

2001. On appeal, he presents six points of error about the trial on the issue of guilt, and five

more points about the punishment stage.

The Mathais owned and operated a convenience store in Houston. On the night of

February 12, 2000, Thankachen was working at the store, and Achamma had brought him

dinner. Between 10 and 11 p.m., Cory Calloway bought gasoline from the store's pumps for

his 1989 Lincoln. Leaving the engine running at the gas pumps, Calloway went to a pay

telephone at the side of the building.

While Calloway talked on the phone, Garvina Sadiki came in the store to buy

merchandise. As Sadiki paid for her items, a man dressed in a hooded jacket entered the

store with a gun in his hand. The man fired a shot and said, "This is a robbery. Don't anybody

move."

The robber ran behind the counter where Thankachen and Achamma stood, and

ordered Thankachen to open the register. He ordered Sadiki not to look at him, and she

obeyed. When Thankachen could not get the register open, the robber shot him. The man

then ordered Achamma to open the register and threatened to shoot Thankachen again if she

did not. Achamma cried and screamed, begging the man not to hurt them. As she fumbled

with the register, the man pointed the gun toward Thankachen and fired another shot.

Hearing police sirens, the robber cursed and ran from behind the counter to the front

door only to discover that it had been locked. The man screamed for Achamma to open the

door. Sadiki heard the lock open, and she saw the man push open the door. Then the robber

returned to the counter where Achamma and Sadiki were standing. He backed up to Sadiki,

keeping his face hidden, and demanded her keys. Sadiki handed the man her keys. The man

said to Achamma, "Bitch," and he shot her in the head. He then ran out the front door.

Outside the store, Calloway was still talking on the telephone. He heard the gunshots

and then "a loud bust through the door." He looked up and saw a person wearing a hooded

sweater run toward his Lincoln. Calloway ran toward the man, who pointed a gun at him.

Calloway retreated to safety, and the man drove away in Calloway's Lincoln. Calloway went

in the store and called for help.

Police officers arrived quickly. Achamma was already dead. Thankachen died shortly

after being taken to a hospital. I. Guilt-stage Issues

The appellant's complaints include (A) two points about illegal search and seizure,

(B) two points about improper identification procedures before trial, (C) a point about

improper identification procedures during trial, and (D) a point about the court's charge.

A. Search and Seizure

1. Identifying the Appellant's Complaints

We must specifically identify the appellant's complaints about search and seizure,

because the facts and the law will require different treatments of the several complaints.

We find that, within his first two points, the appellant presents nine complaints.

The first point of error in the appellant's brief is that the "trial court erred in denying

the appellant's motion to suppress the appellant's arrest in violation of" Article I, Section 3

of the Texas Constitution and Articles 14.04 and 38.23 of the Code of Criminal

Procedure. (1) The second point, which complains of the same error, is different only in that it

invokes the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. (2)

The motion to which the points refer was the appellant's "Motion to Suppress the

Arrest and Search of Defendant." (3) The title of his motion cannot be taken literally. A court

could not have suppressed the arrest and the search of the appellant, which were performed

months before the motion was filed. It could have "suppressed," by ruling inadmissible,

evidence that was obtained as a result of an illegal arrest or search. The texts of the motion

and the brief, and the record of the proceedings before and during the trial, make it clear

enough that these points complain of the admission of such evidence.

The appellant's brief specifies three kinds of evidence: "As a result of the

appellant's arrest, the State was able to introduce at trial [1] evidence that was seized from

apartment 414 (R. XXV, 112-113; State's Exhibit 111) as well as [2] the line-up (State's

Exhibit 4) and [3] Calloway's 'strong tentative' identification." (4)

Therefore, we can tell that the appellant's first two points comprise nine complaints

about the admission of evidence. Point one has six complaints, three of which are that the

admission of each kind of evidence was contrary to the state constitution, and three of

which are that the admission of each kind of evidence was contrary to state statutes. Point

two presents three complaints, which are that the admission of the three kinds of evidence

violated the federal constitution.

2. Inadequate Briefing

The appellant's brief presents and argues points one and two together. (5) The argument

is that the arrest of the appellant without warrant violated Article 14.04 of the Code of

Criminal Procedure. The argument has no discussion or citation of either the state

constitution or the federal constitution. We hold that the three state-constitutional

complaints in point one and the three federal complaints in point two are inadequately

briefed.

Appellate complaints that purport to be based on both state law and federal

constitutional law are not rare. We have held more than once that the mere invocation of a

provision of the state constitution is not enough; the appealing party must present an

argument, supported by authority, that explains why each constitution has been violated. (6)

An appealing party is obliged to present argument and authority for complaints that the

federal constitution was violated as well as for complaints that are based on state law. (7)

The appellant has presented neither argument nor authority to support the nominal

complaints in point one that the denial of his motion violated the state constitution or the

complaint in point two that the ruling violated the Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution. Therefore, we hold that the six

constitutional complaints in points one and two are inadequate for review. Point of error

two is overruled.

3. Facts relevant to Point One

We shall turn to the portion of point one that complains that, under state statutes, the

trial court erred by admitting three types of evidence: (1) "evidence that was seized from

apartment 414," (2) "the line-up (State's Exhibit 4)," and (3) "Calloway's 'strong tentative'

identification."

About a day and a half after the Mathais were murdered and Calloway's automobile

was stolen, someone reported to police that the automobile was parked at an apartment

complex several miles from the crime scene. Police seized the vehicle.

Five days after the crime, an individual gave investigators information that they used

to get a warrant to search an apartment near the place where the stolen automobile had been

found. In the apartment, they found property that had been taken from Calloway's

automobile. At the apartment were three people (one of whom was the appellant's brother)

who said the appellant told them he had shot and killed some people at a store and stolen a

customer's car. They said that the appellant had brought stolen property with him, and that

he had asked one of the occupants to hide his gun for a few days. The appellant's brother

told investigators where the appellant lived.

While the investigators were preparing an affidavit for a warrant to arrest the

appellant, other officers kept a watch on the apartment building where the appellant lived.

After midnight, the officers saw the appellant walking near the apartment building, and they

seized him. They had no warrant, and the investigators abandoned their efforts to get a

warrant when they heard that the appellant had been arrested.

The appellant gave the officers written consent to search the apartment, which was

the "apartment 414" to which his brief refers. The officers went to the apartment, where

Andrea Nero opened the door. She said it was her apartment. Officers testified that she and

the appellant lived there together. She consented to the search, and she added her signature

to the written consent that the appellant had signed. In the apartment, the officers found a

"gym bag" or "canvas bag" that contained a box of ammunition, which was admitted in

evidence as State's Exhibit 111. (8) Also in the bag were clothing, a camera and film, two

telephones, some jewelry, and "some I.D. cards attached to a neck strap and had Reginald

Willis and looked like an I.D. number of some type on each card." (9)

Later that day, investigators put the appellant in a lineup for viewing by Garvina

Sadiki and Cory Calloway, the customers who were at the store during the robberies and

murders. State's Exhibit 4 was a copy of a videotape recording of the lineup, which was

shown to the jury.

Calloway testified on direct examination that he recognized the appellant in the

lineup, and that he told a police investigator that he "strongly agreed" that the appellant was

the person who stole his automobile. He requested to see the appellant in a hood, because

the person who stole his car was wearing a hooded sweatshirt, but the police could not find

one to put on the people in the lineup. On cross-examination, Calloway testified that he told

the police officer, "I was strongly tentative. … I said I would be 100 per cent sure if I see

the hood," that "I strongly believed that it was" the appellant, and that "I would be more sure

if I had the hood. … But that's what I meant by saying positive, is being strongly tentative

about it. The only reason I had doubt was the hood."

A police investigator who conducted the lineup gave similar testimony about

Calloway's identification of the appellant at the lineup.

4. Mootness of Complaint About Admission of Evidence Seized from Apartment 414

The appellant complains that the trial court erred in admitting the evidence seized

from Apartment 414. This evidence was the box of ammunition that officers found in the

apartment. The appellant argues that it was illegally obtained, because it was found during a

search to which he consented after being illegally arrested. The State argues that the illegal

arrest did not taint the appellant's consent.

The issue of the validity of the appellant's consent is moot. Andrea Nero's consent

to search her apartment was sufficient authority for the officers' search. Insofar as point

one complains of the admission of the box of ammunition on state-law grounds, it has no

merit.

5. Failure to Object to Admission of Calloway's Identification

The appellant also complains that the trial court erred in admitting Calloway's

identification of him. However, the appellant made no objection at trial to Calloway's

testimony about his identification of the appellant in the lineup or to the police

investigator's testimony about Calloway's identification of the appellant in the lineup. Rule

of Evidence 103(a) says, "Error may not be predicated upon a ruling which admits …

evidence unless … a timely objection or motion to strike appears of record, stating the

specific ground of objection, if the specific ground was not apparent from the context."

Therefore, error may not be predicated on the admission of that testimony.

6. Admission of the Line-Up (State's Exhibit 4)

The only one of the appellant's nine complaints in points one and two that was

preserved in the trial court and properly presented for appellate review in this Court is that

the videotape recording of the lineup was admitted in violation of state statutes.

The officers seized him illegally, the appellant says, because they did not satisfy two

requirements of Article 14.04 of the Code of Criminal Procedure for an arrest without

warrant: that the persons who gave information to the police be credible and that the

suspect be about to escape. (10) By this illegal arrest, he says, the State obtained the videotape

recording of the lineup.

The State argues that the arrest was authorized by Article 14.04: "Not only did

officers have probable cause to arrest appellant but appellant was about to escape so that

there was no time to procure a warrant." (11) The State sets out the evidence of probable cause,

and continues:

Officers then began preparing an arrest and search warrant. Meanwhile, other

officers went to conduct surveillance at appellant's apartment. Between 1:15

a.m. and 1:30 a.m., officers observed a person fitting appellant's description

leaving the vicinity of Apartment 414 at 11700 Bissonnet, and proceed down

the sidewalk at a steady pace. Sgt. Welch approached appellant, identified

himself as a police officer, and asked appellant his name. Appellant stated his

name was Robert Woodard and produced his driver's license. Sgt. Welch

placed appellant under srrest and put him in his police car. Sgt. Welch advised

appellant he was under arrest for capital murder and gave him his Miranda

warning. (12)

These facts do not show, and the State does not attempt to explain how a court could

find, that the appellant was about to escape. The State's brief continues by assuming that the

arrest was illegal, (13) and we hold that it was illegal in that it was not authorized by Article

14.04 of the Code of Criminal Procedure.

Evidence obtained in violation of the laws of the state may not be admitted in

evidence against the accused on the trial of a criminal case. (14)

There was no evidence that the illegal arrest of the appellant was ever cured or that

his detention at the time of the lineup was made legal by authority of a magistrate. The

police investigators testified that they abandoned their efforts to obtain a warrant when they

heard that the appellant was arrested without warrant. There was no evidence that the

appellant was taken before a magistrate, (15) or that his detention at the time of the lineup was

under the authority of a magistrate rather than whatever authority an officer might have to

arrest without a warrant. (16)

We hold that the trial court erred in admitting State's Exhibit 4, the videotape

recording of the lineup that followed the illegal arrest of the appellant.

7. Harm

We must consider the harm of the error in admitting the videotape recording of the

lineup. An appellate court judges the harm of admitting evidence that was obtained in

violation of a statute like Article 14.04 of the Code of Criminal Procedure by the standard

of Rule of Appellate Procedure 44.2(b): "Any other [that is, other than constitutional]

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded." Under that rule, an appellate court may not reverse for non-constitutional

error if the court, after examining the record as a whole, has fair assurance that the error

did not have a substantial and injurious effect or influence in determining the jury's

verdict. (17)

Here, the erroneously admitted evidence was a videotape recording of a lineup. The

other evidence that was admitted without a finding of error in this appeal included oral

testimony about the lineup, testimony about the identification of the appellant at the lineup,

and an in-court identification of the appellant by one of the witnesses who viewed the

lineup. Considering this evidence, as well as the other properly admitted evidence of guilt

and the other aspects of the trial, we hold that the erroneous admission of State's Exhibit 4

was harmless. Point of error one is overruled.

B. Identification

1. Before Trial

In his third point of error, the appellant complains that "[t]he trial court erred in

denying the appellant's motion to suppress identification by Cory Calloway in violation of

the Fifth and Fourteenth Amendments of the United States Constitution." (18) The fourth

point, which complains of the same error, is different only in that it invokes Article 38.23

of the Code of Criminal Procedure and Article I, Sections 10 and 19 of the Texas

Constitution. (19) In both these points, the appellant complains that "the combination of seeing

the appellant in a live lineup that contained dissimilar individuals, viewing a photospread of

the appellant sometime during the investigation (State's Exhibit 2), then seeing that

individual in court while wearing a hooded garment--without any other individuals to

compare him to--created an [ sic ] with respect to Calloway an impermissibly suggestive

identification procedure that violated the appellant's rights." (20)

The appellant's brief presents points of error three and four together. He fails to

distinguish between federal protections and those afforded by state law. Therefore, we will

discuss the points together; we need not determine whether the state constitutional

protections are more expansive than that afforded by the federal constitution. Heitman v.

State, 815 S.W.2d 681 (Tex. Cr. App. 1991).

In reviewing whether an identification procedure was so impermissibly suggestive as

to give rise to a very substantial likelihood of misidentification, we look to the totality of

circumstances surrounding the identification to determine if the procedure was

unnecessarily suggestive. Webb v. State, 760 S.W.2d 263, 269 (Tex. Cr. App. 1988). An in-court identification that has been tainted by an impermissibly suggestive pretrial

identification is inadmissible. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Cr. App.

1998). A two-step analysis is applied in determining whether an in-court identification has

been tainted: (1) whether the out-of court identification procedure was impermissibly

suggestive, and, if suggestive, (2) whether that suggestive procedure gave rise to a

substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S.

377, 384 (1968). The appellant bears the burden of establishing that the pretrial

identification procedure was impermissibly suggestive and that the in-court identification

is unreliable. Delk v. State, 855 S.W.2d 700, 706 (Tex. Cr. App. 1993) .

The appellant contends that the identification was impermissibly suggestive based on

the combination of three factors: (1) seeing the appellant in a live lineup with dissimilar

individuals, (2) viewing a photospread of the appellant during the investigation, and (3) then

seeing that individual in court wearing a hooded garment without other individuals for

comparison.

Though it is good practice that the individuals in a lineup be as similar as possible, a

pretrial identification procedure is not impermissibly suggestive simply because the lineup

members are not identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Cr.

App. 1985). The appellant argues that the lineup individuals had dissimilar facial hair and

hair lengths. We hold, however, that these differences did not render the lineup

impermissibly suggestive. (21)

The appellant also complains that "the repeated showing of the appellant's picture

was suggestive." (22) On February 18, 2000, Calloway viewed the lineup in which he made a

strong tentative identification of the appellant, qualified only by the fact that he wished he

could see the individuals in the lineup wearing hoods on their heads, as did the suspect on

the night of the robberies and murders. Approximately one month later, Calloway viewed a

photospread in which all the individuals appeared to be wearing hoods. Calloway positively

identified the appellant. Because Calloway had previously identified the appellant, viewing

another display was not impermissibly suggestive. (23)

Finally, the appellant claims the identification was unduly suggestive because

Calloway saw the appellant wearing a hooded garment at trial and "there was no one else

donning a similar garment." (24) The appellant complains of Calloway's identification of the

appellant during trial; however, Calloway had already identified the appellant, both in a

pretrial lineup and during trial without a hood. Therefore, Calloway's in-court identification

of the appellant while wearing a hood could not have affected Calloway's previous

identification of the appellant. Furthermore, the appellant's points of error relate to his

motion to suppress, a pretrial motion. The trial court could not have erred in denying the

motion based on a fact that had not yet occurred -- that the appellant would put on a hooded

garment during trial.

The appellant's points of error three and four are overruled.

2. During Trial

In his fifth point, the appellant complains that "the trial court abused its discretion in

allowing the State to conduct an in-court demonstration that required the appellant to put on

a hooded sweatshirt during the testimony of Cory Calloway." (25) In particular, the appellant

argues that the trial court erred in "forcing the appellant to put on the hooded garment in the

absence of others similar to the appellant being required to don the same sort of

garment. " (26) Absent a foundation for the demonstration, according to the appellant, the trial

court should have excluded the evidence.

It has been held proper during a trial to require the defendant to stand, put on a hat,

remove his glasses or make a footprint--all for the purpose of identification. See Taylor v.

State, 464 S.W.2d 410 (Tex. Cr. App. 1971). Point of error five is overruled. C. Charge

The sixth point of error in the appellant's brief is that "the trial court erred in failing

to submit a jury instruction that Reginald Willis was an accomplice witness as a matter of

law." (27) The appellant claims that "the trial court merely instructed the jury that the question

of whether Reginald was an accomplice [was] a fact question[,]" and that it should have

"submitted an instruction that he was an accomplice as a matter of law." (28)

An accomplice witness is an individual who participated with the defendant before,

during, or after the commission of the crime for which the defendant is on trial.

McFarland v. State, 928 S.W.2d 482, 514 , cert. denied, 519 U.S. 1119 (1997).

The participation must involve some affirmative act committed by the witness to promote

the commission of that offense. Id.

In order to be an accomplice as a matter of law , the witness must be susceptible to

prosecution for the offense with which the accused is charged. Id . Only when there exists

no doubt, or when the evidence clearly shows, that a witness is an accomplice witness as a

matter of law is the trial judge under a duty to so instruct the jury. Blake v. State , 971

S.W.2d 451, 455 (Tex. Cr. App. 1998). When there is a conflict in the evidence, or a doubt

or a question as to whether a witness is an accomplice witness, it is proper to submit the

question as a fact issue to the jury. Harris v. State, 738 S.W.2d 207, 216 (Tex. Cr. App.

1986).

Here, Willis testified that the appellant told him that he had committed the robbery,

stolen Lotto tickets, shot someone, robbed a man of his car, and then went to Willis's

house with the stolen goods. Willis saw the appellant with a gun and heard the appellant say

that he wanted to get rid of it. A witness is not an accomplice witness merely because he

may have known of an offense and did not disclose it, or even if he concealed it.

McFarland , 928 S.W.2d at 514 . Willis took and sold some of the stolen items and cashed

the stolen Lotto tickets; various items stolen from the car were recovered from Willis's

apartment. However, complicity with an accused in the commission of one offense does

not make that witness an accomplice in a different offense. Id .

Although the testimony implicated Willis as possibly having some role after the

robbery and murder, the evidence is insufficient to have placed the judge under a duty to

instruct the jury that Willis was an accomplice to the murder as a matter of law. Point of

error six is overruled.

II. Punishment-stage Issues

The appellant's complaints include (A) two points about victim-impact evidence, and

(B) three points about the mitigation special issue.

A. Victim-impact Evidence The seventh and eighth points of error in the appellant's brief complain that "the trial

court abused its discretion in allowing victim-impact testimony from individuals not named

as complainants in the indictment," specifically, the convenience-store customers Garvina

Sadiki and Cory Calloway. The points differ only in that one cites the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution, and the other invokes Article I,

Sections 3, 10, and 19 of the Texas Constitution. The brief argues the points jointly.

When the State called the first of these witnesses, the appellant asked the trial court

to rule on three motions that he had filed two months previously. He said that the motions

had to do not only with the testimony of the two customers, but also with that of the

victims' daughter. On appeal, the daughter's testimony is not included in these points. The

court denied the motions. The customers testified briefly about the effect of the crime on

their lives. Their combined testimony occupies only four pages of the reporter's record.

It is a prerequisite to presenting a complaint on appeal that the record show that the

complaint was made to the trial court. Tex. R. App. P. 33.1(a)(1). The appellant has

identified, in his brief, the three motions by which he presented complaints to the trial

court. (29) They failed to preserve his points of error for our review.

The first of the three motions asked the court to hold Article 37.071 of the Code of

Criminal Procedure unconstitutional because it allowed the introduction and use of victim-impact evidence regarding the deceased victims and the impact the crime had on their

family. The second motion was a "motion in limine" that asked the court to instruct the

State and its witnesses not to refer to the "personal characteristics of the deceased or to the

emotional impact of the death of the deceased on friends and family." These motions did

not present the complaint that is now raised on appeal in points seven and eight, which has

to do with evidence of the impact of the crime on persons other than the deceased victims'

friends and family.

The third motion "requests that the State be required to detail, in writing, exactly

which witness will testify and the substance of the testimony regarding victim impact." It

also "requests that the Court conduct a pretrial hearing to evaluate each witness's testimony

and demeanor." Neither of these requests amounts to an objection to the customers'

testimony. They request only a written summary of evidence and a hearing.

The record also shows that, after the customers testified and before the victims'

daughter was called to the stand, the appellant's counsel agreed that he was satisfied with

the oral discussions he had with the prosecutor "without the need to insist on a written

synopsis." When the court asked if he needed to take up anything about the content of the

daughter's testimony, "since you've asked for a hearing," counsel said, "No, judge."

Because no objection was voiced to the customers' testimony and no objections

appeared in the motions the appellant asked the court to rule on prior to their testimony, the

appellant did not provide the prerequisite to presenting his complaint. Points of error seven

and eight are overruled.

B. Mitigation Special Issue

In points of error nine, ten, and eleven, the appellant complains about the mitigation

special issue at punishment. The ninth point of error in the appellant's brief is that

"especially after the Mosley decision declaring victim evidence admissible to 'rebut'

mitigation, and also in light of the Supreme Court's decision in Apprendi v. New Jersey,

the mitigation special issue at punishment is infirm as a matter of federal Eighth

Amendment constitutional law because it omits a burden of proof." (30) The tenth point of

error is different only in that the appellant argues the mitigation issue is infirm because "it

makes impossible any meaningful appellate review of the jury's determination." (31) In point

eleven, the appellant argues that "Art[icle] 44.251. . . requiring appellate review of

sufficiency of all capital punishment special issues, when interpreted in conjunction with

Art[icle] 37.071, Sec[tion] 2(e). . . , placing no burden of proof in the mitigation special

issue, is facially unconstitutional, violating the Eight Amendment to the United States

Constitution." (32)

We have previously rejected identical claims and decline to revisit these issues. See

Blue v. Smith , 125 S.W.3d 491, 500-01 (Tex. Cr. App. 2003) ; Jackson v. State, 33 S.W.3d

828, 840-41 (Tex. Cr. App. 2000) ; Tong v. State , 25 S.W.3d 707, 715 (Tex. Cr. App.

2000) . Points of error nine, ten, and eleven are overruled.

We affirm the judgment of the trial court.

En banc.

Delivered: October 20, 2004.

Do Not Publish

1. Brief, at 30.

2.

Id. , at 30.

3.

See ibid. (citing the page of the record where the motion appears.)

4.

Id. , at 30-31.

5.

See id. , at 30-37.

6.

See, e.g., Ex parte Hernandez , 953 S.W.2d 275, 286 (Tex. Cr. App. 1997) (court would

not consider appellant's "bare assertions, unsupported by argument, analysis, or authority," that if a

ruling did not violate the federal constitution, it did violate the state constitution); Ex parte Granger ,

850 S.W.2d 513 , 515 n.6 (Tex. Cr. App. 1993) (appellant did not properly present state-law claim

when he offered no authority or argument specific to the state constitution).

7.

Rhoades v. State , 934 S.W.2d 113 (Tex. Cr. App. 1996) (plurality opinion) (simple

declaration that ruling violated federal constitution, without argument or authority, was not sufficient).

8.

See 25 Reporter's Record ("RR") 112-13.

9.

See id. , at 136-39. An officer testified, "Correct," in answer to the question, "Two Aramark

employee I.D.'s for Reginald Willis and a temporary T.A.B.C. Commission I..D., right?" Id. , at 144.

10. Brief, at 33-37 (citing Tex. Code Crim. Proc. art. 14.04: "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").

11. Brief, at 15 (punctuation

sic ).

12.

Id. , at 16 (citations to record omitted).

13. "Even assuming, while not conceding, appellant's arrest were unlawful, appellant has neither

alleged nor demonstrated that appellant's illegal arrest tainted appellant's written consent to search."

Ibid.

14. Tex. Code Crim. Proc. art. 38.23(a) ("No evidence obtained by an officer or other person

in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or

laws of the United States of America, shall be admitted in evidence against the accused on the trial of

any criminal case").

15.

See Tex. Code Crim. Proc. art. 15.17(a) ("In each case enumerated in this Code, the

person making the arrest shall without unnecessary delay take the person arrested or have him taken

before some magistrate of the county where the accused was arrested…").

16.

Cf. Johnson v. Louisiana , 406 U.S. 356, 396 (1972) (constitutional validity of defendant's

arrest was beside the point when defendant was brought before a committing magistrate before lineup,

continued detention was under authority of this commitment, and lineup was conducted not by

exploitation of the challenged arrest but by means sufficiently distinguishable to be purged of the primary

taint).

17.

Garcia v. State , 126 S.W.3d 921, 927 (Tex. Cr. App. 2004); Motilla v. State , 78 S.W.3d

352, 355-58 (Tex. Cr. App. 2002); Johnson v. State , 967 S.W.2d 410, 417 (Tex. Cr. App.1998).

See King v. State , 953 S.W.2d 266, 271, 273 (Tex. Cr. App.1997).

18. Brief, at 37.

19.

Id.

20.

Id., at 41.

21.

Cf. Barley v. State, 906 S.W.2d 27, 33 (Tex. Cr. App. 1995) (discrepancy in heights of the

five participants of several inches did not render lineup impermissibly suggestive); Buxton, 699 S.W.2d

at 216 (discrepancy in heights, weight, and skin color of participants did not render lineup impermissibly

suggestive).

22. Brief

, at 43.

23.

Compare with Cantu v. State, 738 S.W.2d 249, 251-52 (Tex. Cr. App. 1987) (showing

of several photospreads on different occasions, each with picture of the appellant, is suggestive when

the witness had not previously identified the appellant) (emphasis added). Here, Calloway had

previously identified the appellant in the first lineup.

24.

Id., at 43.

25.

Id., at 45.

26.

Id., at 46 (italics in original).

27.

Id. , at 47.

28.

Id., at 48.

29.

Id. , at 53 (citing to pages 182, 116, and 177 of the "Tr[anscript]," which is now called the

Clerk's Record; see Tex. R. App. P. 34.1).

30.

Id. , at 57.

31.

Id.

32.

Id.