# Hawkins v. State > Court of Criminal Appeals of Texas · March 27, 1974 · 509 S.W.2d 607 URL: https://www.frixlaw.com/law-library/cases/9769294 ## Case - **Full name:** Melvin DeWayne HAWKINS, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 27, 1974 - **Citations:** 509 S.W.2d 607; 1974 Tex. Crim. App. LEXIS 1588 - **Precedential status:** Published - **Opinion:** On rehearing by Green - **Judges:** Brown, Green - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769294 ## Opinion text ON APPELLANT’S MOTION FOR REHEARING GREEN, Commissioner. Appellant seeks our further consideration of certain of his grounds of error. The appellant says the pretrial photographic displays made by the police to the prosecutrix tainted her in-court identification. The appellant describes the identifications as follows: “The prosecutrix was subjected to four picture spreads. The first occurred two weeks after the offense . . . There were two pictures and she identified Paul DeGrate. There were three other picture spreads, each consisting of six pictures of the six Defendants She knew that the pictures were of the six Defendants in this cause . The prosecutrix could identify only three of the six, one of which was the Appellant . . .” Appellant relies on Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968) and Coleman v. State, 505 S.W.2d 878 (Tex.Cr.App.1974). In Simmons the Supreme Court said: “. . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 , 87 S.Ct. 1967, 1972-1973 , 18 L.Ed.2d 1199 , and with decisions of other courts on the question of identification by photograph.” In Coleman the photographs shown the witness were of one suspect only; namely, the defendant, and the witness testified that the officer at the time told her “That is the boy.” In the case before us the prose-cutrix and her companion were shown six pictures of different suspects and one of the three each complainant identified was appellant. Moreover, the witness in Coleman stated she could not say she would have been able to identify the defendant without having seen the photograph. There is no indication in the record before us that the complainants were ever doubtful in their identification of appellant. As stated in the original opinion, both complainants positively identified appellant in court from their observation of him at the time of the offenses. They stated the light was sufficient for them to observe his features. We hold, as we did in our original opinion, that the identification procedure was not impermissibly suggestive to the complainants as to which picture they should identify, nor did it result in a substantial likelihood of irreparable misidentification. Ward v. State, Tex.Cr.App., 505 S.W.2d 832 ; Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491 ; Benson v. State, Tex.Cr.App., 496 S.W.2d 68 . Furthermore, error, if any, in the photographic identification process was rendered harmless in light of the unchallenged testimony. of the State’s witness Lonnie Green and one of the co-defendants, Victor DeGrate, each of whom testified that he was present with appellant and that appellant was one of the men who participated in the robbery and the rapes. Langham v. State, Tex.Cr.App., 473 S.W. 2d 515 ; Mason v. State, Tex.Cr.App., 472 S.W.2d 787 ; Smith v. State, Tex.Cr.App., 450 S.W.2d 618 . Appellant also points to his contention on appeal that a portion of the prosecutor’s argument at the punishment stage was outside of the record and highly prejudicial. He complains because the original opinion *610 overruled this contention without any discussion of his ground of error. During his argument, the prosecutor mentioned that appellant was not eligible for consideration of probation by the jury, and that he did not prove his eligibility. He stated further: “You heard the other three Defendants get on the stand and tell you they had never been convicted of a felony. They do this in order to prove that they are fit subj ects for probation.” Appellant’s objection was: “Judge, I’m going to object to this, his going into forbidden grounds, and he knows it.” The court overruled this pbjection, whereupon the prosecutor resumed his argument as follows: “You will not — and I don’t believe there is a probation form in the verdict form for Hawkins, so you’re not to even — ” Appellant again objected on the ground that “this is illegal — ” whereupon the court sustained the objection and instructed the jury “to disregard all of this” but overruled a motion for a mistrial. The sole contention of appellant in his original brief and in his motion for rehearing as to this argument is that “the innuendo argument as to the prior convictions of appellant was wholly outside of the record and highly prejudicial and inflammatory.” This was a joint trial of four defendants. The other three defendants had each filed a motion for probation, and had each testified at the punishment stage so as to qualify for consideration of probation. The judge had instructed the jury on the requirements for probation. Appellant had not filed any such motion and had not testified. While it may be argued that the prosecutor’s statements may have been calculated to lead the jury to infer that appellant had been previously convicted of a felony, the statements, under the circumstances, do not reflect reversible error. They merely told the jury what it already knew from the evidence and the judge’s charge. The trial court’s instruction to the jury to disregard the prosecutor’s comments was sufficient to protect appellant’s rights. See Barrientez v. State, Tex.Cr.App., 487 S.W.2d 97 ; Terry v. State, Tex.Cr.App., 481 S.W.2d 870 . The motion for rehearing is overruled. Opinion approved by the Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769294. Public record. Not legal advice.