BILLY JAY HURTADO,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01152-CR
 
BILLY JAY HURTADO,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES HOWELL, BAKER AND OVARD
OPINION PER CURIAM
MAY 31, 1989
        Billy Joe Hurtado was convicted in a bench trial of the offense of burglary of a habitation. Punishment, enhanced by a prior conviction, was assessed at forty-five years' confinement. Appellant raises two points of error, claiming that: (1) the in-court identification of appellant by the complainant was tainted by an impermissibly suggestive pre-trial photographic lineup; and (2) appellant was deprived of due process when the trial court accepted appellant's plea of "true" to the enhancement allegations without admonishing him as to the range of punishment if the enhancement paragraphs were found to be true. We disagree; accordingly, we affirm the judgment of the trial court.
        Appellant first challenges the complainant's in-court identification of him. The complainant testified that on July 9, 1988 at approximately 1:00 a.m., she and her husband were asleep when she felt a penis being rubbed against her cheek. She awoke and saw an individual standing at the side of the bed. She woke her husband up and had him turn on the light. A man, whom she later identified as appellant, was standing in their bedroom. Her husband told appellant to get out. Appellant squatted down and remained for nearly two minutes. After the complainant's husband again demanded that appellant leave, appellant got up and left the house. Shortly thereafter, the complainant found appellant peeking through one of their windows. She then called the police. The following day, she and her husband saw appellant in the neighborhood; the complainant called the police. The police returned shortly with appellant. She also said that she paid particular attention to appellant because of a tattoo on his face.
        On cross-examination, she said that on July 14, 1988, she was asked to view photographs by the Grand Prairie Police. The police had told her husband to have her come to the station to pick someone out of a lineup. She was told by investigators to look at the lineup and see if she could pick out the person she had seen in her house. During her examination of the lineup, two people stood by her. At the time she saw appellant, his hair was short; however, the picture of him in the lineup showed him with long hair. On redirect, she said that it took only a second to pick out appellant's picture. She also said that the police made no suggestions to her as to which picture she should select.
        A photographic lineup will be set aside as impermissibly suggestive only when the procedure utilized is such that it gives rise to a substantial likelihood of misidentification. Simmons v. State, 390 U.S. 377, 384 (1968); Taylor v. State, 474 S.W.2d 207, 210 (Tex. Crim. App. 1974). In order to sustain a challenge to an in-court identification, a defendant must show by clear and convincing evidence that the in-court identification was tainted by improper pretrial identification procedures. Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982).
        Appellant bases his argument that the lineup was impermissibly suggestive, in part, on the unartful language of the complainant. While she said at one point that she had been told that she "had to point out this picture", she also testified that the police did not suggest to her which picture to select.
        Appellant also argues that the lineup is suggestive because the police told the complainant's husband that she was to come to the station to pick appellant out of a lineup. Appellant argues that it was improper for the police to tell the complainant that appellant's picture was in the lineup. The United States Court of Appeals has addressed this point:
    While [the knowledge that suspects are included in the lineup] may be taken into account where there is other indication of suggestivity, the mere fact that suspects are included within the lineup, and the witnesses know or assume this to be the case, is an inescapable aspect of the lineup identification procedure.
McGee v. Estelle, 632 F.2d 476, 478 (5th Cir. 1980). While we do not endorse the practice allegedly used by police in this case, we hold the lineup identification procedure was not impermissibly suggestive.
        Appellant also argues that the lineup was suggestive because police officers stayed in the room with the complainant during the selection process. However, the complainant also said that it took her only a second to identify appellant's picture. We hold the presence of policemen in the room, without more, does not support a conclusion that the lineup was suggestive.
        Finally, appellant argues that the lineup was unnecessarily suggestive because appellant's picture is the only one in which the subject has short hair. We have examined the lineup, which consists of six Hispanic males, three of whom have relatively short hair. To the extent that appellant is arguing that the pictures must be identical in every feature, we must disagree. It may be the better practice to use photographs which portray persons whose every feature matches the pre-identification description. However, neither common sense nor due process of law requires such a procedure. Ward v. State, 474 S.W.2d 471, 476 (Tex. Crim. App. 1971). Based on the foregoing, we hold that record does not support appellant's contention that the photographic lineup was impermissibly suggestive.
        Even if we were to find the lineup unduly suggestive, we still conclude that the in-court identification testimony is not tainted by the lineup. In determining whether an in-court identification is of an origin independent of a photographic lineup, the court should consider: (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancies between any pre-trial lineup description and the actual description of the defendant; (3) any identification prior to the lineup of another person; (4) the identification prior to the lineup of a photograph of the defendant; (5) any failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged offense and the lineup identification. Turner v. State, 614 S.W.2d 144, 146 (Tex. Crim. App. 1981).         In the present cause, the complainant testified that she had an opportunity to observe appellant for approximately two minutes after she had awakened. In addition, she saw him at the window shortly after the offense, and again in her neighborhood the following day. There is no evidence of discrepancies between the description she gave police and appellant's actual appearance. The complainant did not identify anyone other than appellant prior to the photo lineup. She saw appellant at the time of the offense, outside her window, in her neighborhood the day after the offense, in the photographic lineup, and at trial. There is no evidence that she ever failed to identify appellant as the person whom she saw in her bedroom. Finally, the complainant identified appellant approximately five days after the offense. Compare Ross v. State, 715 S.W.2d 55, 56 (Tex. App.--Dallas 1986, no pet.). We conclude that the identification testimony of the complainant was sufficiently reliable to allow its admission. Accordingly, the trial court did not err in denying appellant's motion to suppress the in-court identification. Appellant's first point of error is overruled.
        In his second point of error, appellant claims that the trial court erred in failing to admonish him as to the consequences of his plea of true to the third paragraph of the indictment. Appellant argues that a plea of true is the functional equivalent to a plea of guilty; as a result, it may be made only with a full understanding of the consequences. Sesser v. Gunn, 529 F.2d 932, 933-934 (9th Cir. 1976). See Boykin v. Alabama, 395 U.S. 238, 242 (1969). The Court of Criminal Appeals has declined to follow the rule of the Ninth Circuit, and has held that admonishments on enhancement paragraphs are not required. Sylvester v. State, 615 S.W.2d 734, 736-737 (Tex. Crim. App. 1981). Appellant's point of error is overruled.
        The judgment of the trial court is affirmed.
                                                  PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-01152.F
 
 
File Date[01-02-89]
File Name[881152]