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holding that four months did not create a substantial likelihood of misidentification
Summary of this case from Brown v. StateOpinion
No. 805-84.
May 29, 1985.
Appeal from the 105th Judicial District Court, Nueces County, Preston H. Dial, Jr., J.
Chrysanthe A. Lambros, San Antonio, for appellant.
Sam D. Millsap, Jr., Dist. Atty. E. Dickinson Ryman, Robert Arellano, Alan E. Battaglia Edward F. Shaughnessy, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of murder and sentenced to life in the Texas Department of Corrections. The Corpus Christi Court of Appeals affirmed his conviction, Durrough v. State, 672 S.W.2d 860 (Tex.App.-Corpus Christi, 1984). Venue was changed from Bexar County to Nueces County. The Appellant has filed a Petition for Discretionary Review.
In the Court of Appeals, the Appellant moved to have two exhibits which had been omitted from the appellate record forwarded to the Court of Appeals, included in the appellate record before the Court below. Although the Appellant's motion was granted, the Court of Appeals did not consider the exhibits due to Appellant's failure to comply with Article 40.09, Sec. 7, V.A.C.C.P. Appellant's counsel tendered the omitted exhibits, herself, to the Court of Appeals. The Appellant complains of the failure of the Court below to consider the omitted exhibits in consideration of his ground of error below contesting the identification made by the deceased victim's wife who now is also deceased, in his Petition for Discretionary Review.
From an examination of the record, it appears the omitted exhibits were part of the prepared record in this cause and for unknown reasons were not physically forwarded along with the record to the Court of Appeals. Exhibits are part of the appellate record which shall be included, whether designated or not. Article 40.09, Sec. 1, V.A.C.C.P. Therefore, pursuant to the authority conferred on this Court by Articles 44.37 and 44.45(b), V.A.C.C.P., and Rule 304(k) (Tex.Cr.App. Rules), Appellant's Petition for Discretionary Review is granted, and this cause is remanded to the Court of Appeals for the Thirteenth Supreme Judicial District for reconsideration of Appellant's ground of error below including the omitted exhibits. This Court expresses no opinion with respect to the ultimate disposition of the ground of error. All other grounds for review presented in Appellant's Petition for Discretionary Review are refused.
Appellant's Petition for Discretionary Review is granted, and the cause is remanded to the Court of Appeals.
WHITE, J., not participating.