¶1dissenting.
¶2I dissent. From the totality of the circumstances, I am of the opinion that the pre-trial identification was not unnecessarily suggestive and conducive to irreparable mistaken identification.
¶3Two eyewitnesses had an excellent opportunity for over an hour to observe appellant during daylight hours. Among other things, appellant told the eyewitnesses that he was married, that he had two children and that he used to live in California. When appellant took the stand he acknowledged that he was married, that he had two children and testified that he had been in prison in California.
¶4Also, the description given the police at the time they were called to investigate the case matches appellant’s description. Upon seeing appellant at the police station the witnesses immediately recognized appellant as the person who took the motorcycle. Also, the first in-court confrontation was inadvertent. The witnesses were in court because they had been notified to be there for trial. The case was not tried on that day because appellant’s motion for a continuance was granted. The fact that there were no other blacks in court or at the police station in and of itself is of no consequence. Blacks like whites, come in all sizes, shapes and hues and there is nothing more in the record to show that these two pre-trial identifications were suggestive.
¶5Regarding the photo layout a day prior to trial, the jury heard the evidence. They examined the photographs and heard Mrs. Besteiro’s explanation that the pictures were not very clear. The jury was satisfied of this explanation and concluded beyond reasonable doubt that appellant was the person who had stolen the motorcycle.
¶6It appears that the in-eourt identification was based upon the observations at the home and not the observations elsewhere. Therefore, I would affirm. See, Benson v. State, 487 S.W.2d 117 (Tex.Cr.App.1972).