concluding that Article 1.141's requirements were met when waiver showed that defendant was represented by counsel, understood his rights, and waived prosecution by indictment
How later courts described this case
- concluding that Article 1.141's requirements were met when waiver showed that defendant was represented by counsel, understood his rights, and waived prosecution by indictment
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
The majority makes the following holdings:
... The circumstances presented in the record before us reveal that the pre-trial identification process was not so imper-missibly suggestive as to give rise to a substantial likelihood of misidentification. Furthermore, the record reveals clear and convincing evidence that the prosecutrix’s in-court identification was of independent origin. It follows, therefore, that the prosecutrix’s in-court identification of appellant is reliable.
The majority thus avoids reaching the primary issue in this cause, namely, whether hypnotically-induced testimony is admissible in Texas. See, however, Burnett v. State, 642 S.W.2d 765, 769 (Tex.Cr.App.1983), in which this Court implicitly joined the majority of the States that evidence obtained as a result of hypnosis should not ever be admissible evidence because it is scientifically unreliable.
Notwithstanding that I believe that the issue, whether evidence obtained as result of hypnosis should ever be permitted in Texas, should be addressed, I am unable to agree with the above statements the majority makes.
I find that appellant’s counsel, in his petition for discretionary review, has pointed out several facts which the majority apparently does not deem significant, although I do. I point out that the Hon. Hollis M. Browning, the assistant district attorney who filed the State’s reply brief to appellant’s petition for discretionary review, did not take issue with any statements of fact that appellant’s counsel presents in his brief. Because I find that appellant’s counsel has adequately set out in the petition for discretionary review he has filed facts which I believe show what is clearly wrong with the majority opinion, I take the liberty of copying much of what he has stated.
Deputy Barclay, whose hearsay testimony forms the sole basis for the conclusion that the prosecutrix had identified appellant a week after the offense and more than a month before she underwent hypnosis, testified that he showed the prosecutrix a stack of photos, out of which, Barclay said, she identified appellant’s photograph. However, Barclay made no report of the fact that the prosecutrix had either tentatively or positively identified appellant’s photograph. Although Barclay testified that he had talked with both the District Attorney and his first assistant about the prosecutrix’s identification, each of them denied any such conversation ever occurred, asserting that had Barclay told *939 them that the prosecutrix had positively identified appellant as one of her assailants, and the killer of her companion, charges would have been filed against appellant.
The prosecutrix herself testified that she could not remember when she first identified a photograph of appellant. ’She testified that it was Deputy Keesee, not Barclay, who showed her a stack of photographs a week after the offense. She also testified that she was not positive when she first saw appellant’s photograph. She testified: “He looked different in that picture.” It was an “old picture.” She testified she could not remember whether she saw the “old picture” when she was hypnotized or just after the time of the offense.
I find that appellant’s counsel has hit the nail on the head when he states the following: “The ‘old picture’ is the key, and when it is placed in context, it becomes obvious that while the prosecutrix may have been shown photographs prior to the hypnotic session (she says she was not), she made no identification until Sheriff McPherson showed her [appellant’s] photograph and told her he was the one that shot Robert [the prosecutrix’ male companion who was murdered]. Then she was awakened and shown another picture, and when she hesitated, someone said it was ‘just an older picture’ ... In other words, both photo display identifications occurred on May 18, in the context of the hypnosis session. The prosecutrix’ own testimony puts both identifications in that context, while her testimony that Deputy Keesee showed her the pictures a week after the offense, and that he laid them out on a table, contradicts Barclay’s testimony that he showed them, in a stack, as she sat on the front seat of a vehicle. Moreover, Barclay’s failure to produce a report of the identification impeaches his testimony that the identification occurred at all, and the testimony of the District Attorney and his first assistant, that Barclay never reported to them that the prosecutrix had made a positive identification of [appellant] destroys anything that might remain of his credibility.”
From the above, it should be obvious to anyone that the hypnotic session the prose-cutrix underwent clearly tainted her in court identification of appellant.
I must ask the majority: If what it states is actually what happened, namely, “Approximately one week after the incident, Deputy Barclay requested the prosecutrix to look through a group of pictures to determine if there was a photograph of either of the two men in the stack. She went through the stack and stopped at the appellant’s picture. She responded, ‘That’s him,’ or T think that’s him,’ ‘That looks like him,’ or words to that effect. The deputy then asked her, ‘What do you mean that looks like him?’ She answered, ‘That’s him.’ The deputy further inquired, ‘Are you positive?’ She said, ‘I’m almost positive,’ ” then pray tell, why did the authorities of Lubbock County go to the expense, time, and trouble to obtain the services of a self-taught hypnotist from another county?
If one goes solely by the record, but because of the many, many discrepancies and contradictions, if not downright falsehoods in his testimony, I find it difficult that anyone, much less a majority of this Court, would put any stock whatsoever in Barclay’s testimony. In the trial, Barclay’s testimony was reduced to the equivalent of zero evidence. Therefore, it was not entitled in the trial court, nor is it entitled in this Court, to any weight whatsoever. The majority opinion does a disservice to honorable and professional law enforcement personnel of this State by relying upon Barclay’s testimony in order to sustain the appellant’s conviction.
For the above and foregoing reasons, I respectfully dissent.