William Faye Hill v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-92-257-CR

WILLIAM FAYE HILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19,080-CR

O P I N I O N

Appellant attacks his October 5, 1992, conviction for burglary of the residence of Pam Ledbetter in Italy, Texas, for which a jury sentenced him to thirty-seven years in prison. He appeals on three points of error which assert that the trial court erred in overruling his objection to the introduction of a photo lineup and that the evidence is legally insufficient to support his conviction. We will affirm the judgment

IDENTIFICATION OF APPELLANT

Pamela Ledbetter testified that her home at the Italy Mobile Home Park had been burglarized on April 10, 1992, and that her television, stereo, and a jewelry box containing various pieces of jewelry had been taken. She further stated that no one had her permission to enter the trailer and remove items.

Luther Buchanan, chief of the Italy police department, testified that on April 10 a burglary had occurred at the Ledbetter home. Through Chief Buchanan the State introduced the photographs of the mobile home park and of Ledbetter's trailer. He identified twelve-year-old Monica Lambert as an eyewitness to the burglary. He stated that he had shown her two photo lineups the day following the burglary, April 11, and identified State's exhibit five as being one of them. Appellant objected to the photo lineup as State's exhibit five and to any testimony concerning the lineup on the grounds that the proper foundation had not been laid. Specifically, he objected that exhibit five did not include all of the photos that had been shown to Monica Lambert the day after the burglary. Appellant now argues on appeal that Lambert identified him in the courtroom based upon a lineup that was not adequately represented in court by State's exhibit five.

Lambert testified that the burglary had taken place at about six p.m. on August 10 during daylight/dusk and that three men had been involved. Only one trailer, belonging to the grandmother of co-defendant Bobby Duke, separated the Lambert and Ledbetter trailers. Lambert, who had seen Appellant earlier in the day, had a good opportunity to observe Appellant both before and during the burglary. She identified Appellant as one of the two men who had actually entered Ledbetter's trailer. She stated that she watched them as she stood in front of her trailer and that it was not yet dark. She testified that she had a clear view of the front door of the Ledbetter trailer and that she had seen Appellant and a "crippled man," the driver of the pickup in which the men had arrived, talking with some ladies at Ms. Duke's trailer before the burglary occurred.

Lambert identified Appellant in the first of two photo lineups shown to her the day after the burglary and again in the second photo lineup introduced as State's exhibit five during trial. She identified the photo lineup introduced at trial as one of the two lineups she had viewed the day after the burglary. She had already unequivocally identified Appellant in the courtroom, without objection, as one of the men she had seen entering the trailer and who had emerged carrying a television or a "little brown box" that he had placed in the back of the pickup.

The jury was aware through both Chief Buchanan's and Lambert's testimony that the photo lineup introduced in court was not the only lineup originally shown to her. However, Lambert had already successfully identified Appellant from the photo lineup the day following the burglary and neither error nor harm has been shown by the admission of the single photo lineup. Nothing in the record indicates that the photo array in the exhibit was suggestive or that either Lambert's pre-trial or in-court identification of Appellant was unreliable. See Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984); Ford v. State, 794 S.W.2d 863, 866 (Tex. App. El Paso 1990, pet ref'd).

Appellant also complains under point one that the photo lineup was suggestive because he was the only one pictured who had blonde or red hair. However, he did not move to exclude the photo lineup on this basis, nor did he object in any manner to Lambert's in-court identification of him, such as that it had resulted from an improper pretrial identification procedure. See Ford, 794 S.W.2d at 866; Holloway v. State, 691 S.W.2d 608, 615 (Tex. Crim. App. 1984). Thus, Appellant has waived this complaint. See Perry v. State, 703 S.W.2d 668, 673-74 (Tex. Crim. App. 1986). Point one is overruled.

LEGAL SUFFICIENCY OF THE EVIDENCE

Appellant's second and third points assert that the evidence is legally insufficient to support his conviction. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

In addition to Monica Lambert's testimony that Appellant entered Ledbetter's residence and removed items and the testimony of the victim herself, Bobby Duke testified that Mike Parker kicked in the door of Ledbetter's trailer and that Parker and Appellant then entered the trailer and loaded items into the back of the pickup. Duke further stated that he had helped Appellant pawn the stolen items in Dallas. Although Duke's testimony as an accomplice would not have been enough to support Appellant's conviction, Lambert's testimony corroborates Duke's testimony and, together, constitute legally sufficient evidence to support Appellant's conviction. See Matson, 819 S.W.2d at 843.

Although Appellant contends that the testimony of Lambert and of Duke was contradictory, the credibility of the witnesses was for the jury to resolve, and they were free to accept or reject all or part of a witness's testimony. See Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1979); Lafoon v. State, 543 S.W.2d 617, 620 (Tex. Crim. App. 1976).

Appellant further claims in point two that the identification evidence contained in State's exhibit five was the only evidence affirmatively linking him to the crime, aside from the "confusing" testimony of the eyewitness and the testimony of the co-defendant. However, as we have already held, State's exhibit five and the testimony related to it were admissible and, in any event, the evidence it contained was cumulative of Lambert's in-court identification of Appellant which was made without objection. Point two is overruled.

The judgment is affirmed.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 14, 1993

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