Perry v. State

In Perry v. State, 669 S.W.2d 794 (Tex.App.--Houston 1st Dist. 1984), rev'd by, 703 S.W.2d 668 (Tex.Crim.App. 1986), a man entered a 7-11 store and asked the cashier for change. 669 S.W.2d at 796. He also told the cashier he was looking for a job. Id. The cashier gave him the phone number of a former employer and their conservation lasted five to ten minutes. Id. at 797. The man walked behind the counter, held a knife to the cashier's side, and took the cash out of the register. Id. While the man tied up the cashier in the back room, two women--Ms. Cauthen and Ms. King--entered the store. Id. They became suspicious and left to call the police. Id. The cashier and Ms. Cauthen were unable to give a detailed description of the robber, agreeing only that he was a black man with a full Afro haircut and wearing reflective sunglasses. Id. However, Ms. King described the robber as 5'11" and heavy set with a mustache and whiskers. Id. Three months later, Ms. King identified Appellant from a photo spread. Id. The cashier could not make an identification, and Ms. Cauthen indicated that two of the photographs resembled the robber. Id. at 799. The photograph selected by Ms. King depicted Appellant wearing a 7-11 store jacket with an employee name tag. Id. At trial, all three witnesses identified Appellant as the robber. Id. at 798. The court of appeals found that the photo spread immediately led the viewer to identify Appellant as the suspect in the 7-11 store robbery since he was pictured wearing a 7-11 jacket. Id. at 800. Since Appellant's picture provided a visual cue to the principal suspect, the photographic identification procedure was impermissibly suggestive and created a substantial risk of misidentification. Id. The Court of Criminal Appeals ultimately concluded that error had been waived. Perry, 703 S.W.2d at 673.