Wilson v. State

¶1OPINION

¶2This is an appeal from a conviction for rape of a child; punishment was assessed by the jury at ten years.

¶3In his third ground of error appellant contends the trial court committed reversible error by refusing his requested charge on the defensive issue of mistaken identification. The State argues the issue was not preserved at trial and the evidence did not raise the issue.

¶4Although the requested charge submitted by appellant was no model, we conclude it was sufficient to call the court’s attention to the issue he sought to have submitted. It began:

“You are instructed that the State has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of his statement. However, you, the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the Defendant is the person who committed the crime, you must find the Defendant not guilty.”

¶5Although other portions of the lengthy requested instruction would have been improper comments on the weight of the evidence had the court included them in the charge, the part quoted here was sufficient to put the court on notice of appellant’s request, and to preserve the issue for review. See Sledge v. State, Tex.Cr.App., 507 S.W.2d 726; Art. 36.15, V.A.C.C.P.

¶6We must therefore decide whether it was error to deny appellant a jury charge on mistaken identification. The offense was committed on December 1, 1975. Richard Bennett testified that on December 26 he, appellant, and two other persons were displayed before the complaining witness for possible identification as one of the three persons who had raped her, and that she said neither appellant nor either of the others had committed the rape. Although this testimony was contradicted by the State’s evidence, the issue before this Court is not the truth or falsity of the defensive evidence. The issue on appeal is whether that evidence raised the defensive issue of mistaken identification.1

¶7In Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166, Presiding Judge Davidson wrote for the Court:

“It has been, as before stated, the universal rule in Texas to hold that wherever a defensive matter is set up, and supported by facts, the accused is entitled to an affirmative charge on that defensive matter. The law is not satisfied with a negative presentation, and it has been held directly that where there is evidence that another, or others, may have committed the crime, and not the accused, the court must submit this issue to the jury, [citations omitted].”

¶8*663This rule applies as well to the defensive issue of mistaken identity. In Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573, the Court approved the affirmative submission of an identity charge:

“On identification of the accused, the court gave the usual charge that the jury must believe beyond a reasonable doubt that on a date named the accused committed the offense of rape upon prosecu-trix. In addition, he gave a special charge asked by appellant, to the effect that the burden was on the state to prove beyond a reasonable doubt the identity of the defendant as the party who committed the crime, and that unless they so found beyond a reasonable doubt they should acquit.”

¶9Although some cases indicate that the defensive issue of mistaken identification can be raised by evidence that someone other than the accused committed the offense, e. g. Florio v. State, Tex.Cr.App., 532 S.W .2d 614, that does not mean such evidence is the only way to raise the issue. We hold the defensive issue of mistaken identification is also raised by evidence that someone other than the accused had been identified as the perpetrator of the crime or by evidence that the identifying witness had on a prior occasion failed to identify the accused when given an opportunity to do so. In this case such evidence was presented, and the failure of the trial court to submit an affirmative jury charge on this defensive issue when requested to do so by appellant presents reversible error.

¶10The judgment is reversed and the cause remanded.

¶12dissenting.

¶13The complainant, who was five feet four inches tall and a ninth grade student on December 1, 1975, the day the offense was committed, lived with her mother and sisters at Clayton Homes in Houston.

¶14The appellant and two others assaulted the complainant, carried her, while she was fighting and screaming, to an area near some warehouses and box cars. All three raped the complainant, who said she had a good opportunity to see the appellant’s face while he was on top of her. She had never before seen the appellant and did not know his name.

¶15About one week after she was raped the complainant was shown photographs of five people. She identified a photograph of the appellant as one of the three rapists. Later, police officers on two occasions had her view a lineup at the Clayton Homes office. She did not identify anyone in either lineup. She testified she had never misidentified anyone as one of the rapists and she had never told anyone that someone other than the appellant or one of his companions had raped her.

¶16The appellant testified that he did not rape the complainant and that he spent the day on December 1 in a gymnasium playing basketball with his friend Richard Bennett. The appellant also said he had appeared in a police lineup and the complainant failed to identify him. Richard Bennett testified that he had been at the gymnasium with appellant at the time of the rape. Bennett also testified that he had been in a police lineup with the appellant and that the complainant failed to identify the appellant as one of the rapists.

¶17It would not be proper to instruct the jurors to acquit the appellant if they found that the complainant had failed to identify appellant in the police lineup; therefore, misidentification is not an affirmative defense. In Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974), this Court, in rejecting the contention that the trial court erred in failing to grant the defendant’s instruction on misidentification, stated:

“The court’s charge affirmatively required the jury to find beyond a reasonable doubt that appellant committed the offense before he could be convicted. The jury was further instructed that if it had a reasonable doubt as to the appellant’s guilt it should acquit. The court did not err in failing to instruct the jury as requested by appellant.”

¶18In the instant case, just as in Ward, the charge affirmatively required the jury to *664find beyond a reasonable doubt that the appellant committed the offense before he could be convicted and that if the jury had a reasonable doubt as to appellant’s guilt it should acquit him. Although the appellant argues that his testimony and that of his friend raised the issue of misidentification for the jury’s consideration, this evidence would not require a submission on the issue of identity. The appellant’s rights were adequately protected as to any issue raised regarding identity by the court’s charge, and the trial court did not err in failing to instruct the jury as requested by the appellant. In Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977), a case not mentioned by the majority, we recently rejected a defendant’s contention that he was entitled to a charge on misidentification because it would improperly single out evidence for the jury’s consideration.

¶19Wheeler v. State, 56 Tex.Cr.R. 547, 121 S.W. 166 (1909), cited by the majority, is not apposite because there, if found to be true by the jury, the defensive matter was an affirmative defense that would require that the defendant be acquitted. That the complainant in the instant case may have failed to identify the appellant in one lineup would not require the jury to acquit the appellant; it was not an affirmative defense.

¶20Briscoe v. State, 106 Tex.Cr.R. 478, 293 S.W. 573 (1926), cited by the majority, is not a case in which the Court held that it was necessary to submit a charge on misidentifi-cation. The Court there merely observed that the trial court had submitted such a charge. The majority cites no case that has ever required that a charge on identity be submitted to the jury. Such a charge would be in the nature of a special issue— criminal cases are submitted on a general charge. Moreover, any such charge would constitute a comment on the weight of the evidence. The majority fails to advise the bench and bar how such a charge could be worded so as not to constitute a comment on the weight of the evidence. The most important reason why such a charge is unnecessary is because mistaken identity is not an affirmative defense.

¶21The majority is clearly wrong; I dissent to the reversal of the judgment.

¶22Before the Court En Banc.