BENJAMIN KNIGHTEN BURCH, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00304-CR
 
BENJAMIN KNIGHTEN BURCH,                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS AND BURNETT
OPINION BY JUSTICE THOMAS
JUNE 26, 1989
        Appellant, Benjamin Knighten Burch, appeals a conviction for aggravated robbery wherein the jury assessed punishment of thirty years' confinement. In four points of error, Burch contends that: (1) the in-court identification was tainted by the out-of-court identification procedures; (2) he was not permitted to develop fully his defensive theory of the case; (3) the trial court erred in permitting the prosecutor to comment on his post-arrest silence; and (4) the State's closing argument injected new facts into the trial. We find no merit in Burch's arguments and, accordingly, affirm the trial court's judgment.
FACTUAL BACKGROUND
        Frederick Newhouse, complainant, was robbed at an intersection in East Dallas. According to Newhouse, he was en route to his home when his pickup truck stalled at a traffic signal. As Newhouse attempted to start his truck, a man, later identified as Burch, and a woman walked up. Burch put a pistol to Newhouse's head and demanded money. After Newhouse gave his wallet to the woman, she removed all of the cash and tossed the wallet back into the truck. As they were running away, Burch turned and fired at Newhouse. Newhouse watched as Burch and the woman ran toward a nearby apartment complex. He observed Burch go into an apartment and turn on a light. Newhouse drove to a 7-Eleven convenience store in order to summon the police.
        After recounting the incident to the police and giving a description of Burch, Newhouse directed the officers to the apartment complex. Burch was identified by Newhouse and arrested at that time.
IN-COURT IDENTIFICATION
        In the first point of error, Burch contends that the in-court identification was impermissible because the pretrial identification was unduly suggestive. Burch bases his argument upon the fact that at the time Newhouse identified him: (1) he was in police custody; (2) he was alone; and (3) he was being offered as the perpetrator of the offense.
        The admission of evidence of a one-man showup without more does not violate due process. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. 1982) (on reh'g) (citing Neil v. Biggers, 409 U.S. 188 (1972)). Whether a one-man showup violates due process depends upon the totality of the circumstances surrounding it. Garza, 633 S.W.2d at 512. Even if an identification procedure is suggestive and unnecessary, the admission of identification testimony does not violate due process so long as the identification possesses sufficient aspects of reliability. Id. at 513. Various factors are to be considered, including: (1) the opportunity to view the accused; (2) the degree of the witness's attention; (3) the accuracy of the description given; (4) the witness's level of certainty; and (5) the time between the crime and the confrontation. Garza, 633 S.W.2d at 513. See also Hudson v. State, 675 S.W.2d 507, 510 (Tex. Crim. App. 1984); Jackson v. State, 682 S.W.2d 692, 695 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd); Bowser v. State, 647 S.W.2d 325, 326 (Tex. App. -- Corpus Christi 1982, no pet.).
        At the identification hearing, Newhouse testified that he had eye contact with Burch, even though it was very brief. The robbery occurred in a well-lighted intersection. Newhouse gave a detailed description of Burch as well the weapon used in the robbery. Newhouse had the opportunity to watch Burch run to the apartment complex and into a particular apartment. The police were immediately led to the complex where Newhouse directed them to a specific apartment. One of the police officers first observing Burch recognized that he matched the description given by Newhouse. The entire scenario from robbery to arrest was approximately fifteen minutes in duration. Newhouse never wavered in his identification of Burch as the assailant. Furthermore, Newhouse testified that his identification was based upon his observations at the time of the robbery. We conclude that the in-court identification possesses sufficient aspects of reliability to remove the taint of any unduly suggestive pre-trial identification. We, therefore, overrule point one.
EXCLUSION OF DEFENSIVE EVIDENCE
        In the second point of error, Burch asserts that the trial court abused its discretion in excluding evidence he attempted to adduce from the police officer concerning prostitution in the neighborhood and the crimes relating thereto. Burch contended at trial that Newhouse had been in his apartment earlier in the evening with a prostitute, Lynn, and her pimp, Cliff. According to Burch, Newhouse and Lynn got into an argument over money. When Newhouse was asked to leave, he responded that he would come back with his gun. Burch told Newhouse to call the police if he thought that Lynn had cheated him out of money. The testimony upon which Burch bases this point of error is as follows:
 
 
        DEFENSE COUNSEL: Officer Rigney, isn't it true you have worked in this area for some time?
 
        WITNESS: Yes, sir, it is.
 
        DEFENSE COUNSEL: And you're familiar with the area, aren't you?
 
        WITNESS: Yes, sir.
 
        DEFENSE COUNSEL: As are -- are the officers that were with you at this time, had they been in that area a while, too?
 
        WITNESS: Yes, sir.
 
        DEFENSE COUNSEL: Isn't it true there's a lot of prostitution in this area --
 
        WITNESS: Yes, sir.
 
        DEFENSE COUNSEL: -- a lot of streetwalkers, that sort of thing?
 
        WITNESS: Yes, sir.
 
        DEFENSE COUNSEL: And isn't it true that y'all have to contend with things that arise out of that activity that aren't necessarily prostitution?
 
        STATE'S COUNSEL: Your Honor, I'm going to object to this line of questioning as being irrelevant.
 
        THE COURT: Sustained.
        In order to be admissible, evidence must be relevant to a contested issue. See Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985); Johnson v. State, 651 S.W.2d 434, 436-37 (Tex. App.--Dallas 1983, no pet.); TEX. R. CRIM. EVID. 401, 402. Further, the determination of whether evidence is relevant to any issue in the case lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. See Johnson v. State, 698 S.W.2d at 161; Williams v. State, 535 S.W.2d 637, 639 (Tex. Crim. App. 1976); Nubine v. State, 721 S.W.2d 430, 432 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). We hold that the evidence sought to be admitted by Burch was irrelevant and, thus, properly excluded by the trial court. The second point is overruled.
 
STATE'S CLOSING ARGUMENT
        In the third and fourth points of error, Burch complains that the State's closing argument was an improper comment on his post-arrest silence and interjected new facts harmful to his defense. The specific statements complained of are as follows:
 
 
        STATE'S COUNSEL: All right. That's on one side. We've got Mr. Newhouse. It's like a popularity contest. You got Mr. Newhouse over here and you heard about him. And now you've got this guy, Benjamin Burch, Ben Burch, call me Ben Burch. What did he tell you? He told you a story that we all heard for the first time today.        
 
        DEFENSE COUNSEL: Objection, Your Honor. Arguing outside the record. Bolstering.
 
        THE COURT: Sustained.
 
                * * *
 
        STATE'S COUNSEL: Remember the police officer you heard from who took the stand, talked to you about what, the report, what happened when he came out to that scene? Did you hear anything about a prostitute?
 
        DEFENSE COUNSEL: Objection, Your Honor. Arguing outside the record.
 
                THE COURT: Overruled.
 
        STATE'S COUNSEL: Did you hear anything about Cliff or about Lynn? Did you hear anything from that police officer that would corroborate what this man told you?
 
        DEFENSE COUNSEL: Objection, Your Honor. Arguing outside the record.
 
        THE COURT: Overruled.
 
        STATE'S COUNSEL: Whose story would that police officer mirror? That man's.
 
        DEFENSE COUNSEL: Objection, Your Honor. That is bolstering.
 
        THE COURT: Overruled.
 
        STATE'S COUNSEL: We've heard it for the first time today. Since December 11, Benji over here was sitting, had to come up with something. And isn't it ironic that old Cliff is back there somewhere in the jail system --
 
        DEFENSE COUNSEL: Your Honor, I'll also argue that he is attacking the defendant's refusal to make a statement prior to his taking the stand.
 
        THE COURT: Overruled.
 
        STATE'S COUNSEL: Where is Cliff? I was like, like most of you, waiting for Cliff to come in here and tell us about this little episode. Where's Lynn? Sure like to hear from her. He had two months to come up with that story. His story has been consistent all along. So there --
 
        DEFENSE COUNSEL: Objection, Your Honor. Bolstering and outside the record.
 
        THE COURT: Overruled.
        Initially we note that in only one instance is the objection at trial the same as his contention on appeal. A point of error will not be considered if it does not comport with the objection at trial. Stringer v. State, 632 S.W.2d 340, 342 (Tex. Crim. App. 1982). Therefore, we will only consider the objection relating to the State's argument that Burch was asserting for the first time at trial that Cliff and Lynn were involved in this episode. Any impropriety in the other portion of the argument is waived by Burch's failure to make a proper, clear, and timely objection. Euziere v. State, 648 S.W.2d 700, 703-04 (Tex. Crim. App. 1983).
        Proper jury argument falls into one of four categories: (1) summation of the evidence; (2) a reasonable deduction from the evidence; (3) answer to the argument of opposing counsel; and (4) a plea for law enforcement. Good v. State, 723 S.W.2d 734, 735 (Tex. Crim. App. 1986); Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984). We hold that the argument does not improperly comment on Burch's post-arrest silence.
        The thrust of the State's argument was that Burch had not produced either of the two witnesses who could have corroborated his defensive position. If the language used in jury argument can reasonably be interpreted as commenting on the defendant's failure to produce testimony or evidence from sources other than himself, reversal is not required. Livingston v. State, 739 S.W.2d 311, 337-38 (Tex. Crim. App. 1987). The prosecutor specifically mentioned the witnesses who did not testify. These remarks did not "naturally and necessarily" refer to Burch's post-arrest silence nor were they "manifestly intended" to carry such an impression to the jury. See Losada v. State, 721 S.W.2d 305, 313 (Tex. Crim. App. 1986).
        In the final point of error, Burch asserts that the above-quoted portions of the argument injected harmful new facts into the trial which warrant a reversal. We disagree. Burch testified as to his version of the facts. Further, he testified that he had revealed the names and locations of the witnesses to his attorneys and an investigator. The State, on the other hand, commented that he had failed to present these witnesses to verify his story. This was obvious to the jury. We hold there is nothing manifestly improper, extreme, or harmful in the State's jury argument. See Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980). Finding no improper comment on Burch's post-arrest silence or interjection of harmful new facts, we overrule the third and fourth points of error.
        The trial court's judgment is affirmed.
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00304.F
 
 
File Date[01-02-89]
File Name[880304]