However, due process is not always violated by such procedures. Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968); Garcia v. State, 626 S.W.2d 46 (Tex.Crim.App. 1981). Convictions based on eyewitness testimony at trial, after pre-trial identification of the defendant, will only be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Garcia v. State, 626 S.W.2d 46, 54 (Tex.Crim.App. 1981).
The facts and circumstances of the instant case are distinguishable from Ladd. Appellant also relies upon Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App. 1981), where it was observed that a jury might become incensed by what it believes to be the defendant's perjury during the penalty stage of the trial of a capital case. Appellant appears to suggest the improper question may have led to affirmative findings on the special issues (Article 37.071(b)(1) and (2), V.A.C.C.P.). The comment in Garcia was not necessary to the holding in that case and the facts are clearly distinguishable.
A photographic display must be "impermissibly suggestive" and "give rise to a substantial likelihood of misidentification" in order to invalidate an in-court identification. Garcia v. State, 626 S.W.2d 46, 53-53 (Tex.Crim.App. 1981); Turner v. State, 614 S.W.2d 144, 145-46 (Tex.Crim.App. 1981). This determination depends upon the totality of the circumstances.
These cases follow Wade, 388 U.S. 218, 87 S.Ct. 1926, and Gilbert, 388 U.S. 263, 87 S.Ct. 1951, all of which deal with illegal pre-trial proceedings (such as when a lineup is held in the absence of counsel), which may not otherwise be suggestive. If the State showed that the witness based her in-court identification upon observations at the time of the offense, apart from any pre-trial identification, then it was admissible, even though the lineup, for example, may have been illegal. Wade, 388 U.S. at 240, 87 S.Ct. at 1939; Thompson, 480 S.W.2d at 627; see also Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App. 1981). The test to determine whether the evidence proffered is of independent origin is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."
17 "warning hearing," where arrest warrant was present, Nehman v. State, 721 S.W.2d 319 (Tex.Cr.App. 1986). But an arrest alone does not trigger the right. Green, 872 S.W.2d at 720; Garcia v. State, 626 S.W.2d 46, 53 (Tex.Cr.App. 1981) (warrant, arrest and taking of defendant before a magistrate do not meet the requirements of filing formal charges). At the time of his line-up, no complaint or indictment had been filed against appellant.
Following Bumper, we have held consistently that Witherspoon error does not govern the resolution of capital murder convictions that ultimately result in life sentences. Garcia v. State, 626 S.W.2d 46, 55 (Tex.Crim.App. 1981). Sanne v. State, 609 S.W.2d 762, 768 n. 3 (Tex.Crim.App. 1980), cert. denied, 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 432 (1981).
Id., at 390. In Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App. 1982), the defendant was convicted of murder committed in the course of robbing a Mexican national who had illegally crossed the border. At first, Garcia agreed to give the decedent a ride to a taxi stand but instead, Garcia robbed the decedent and then shot him in the head.
Cf. Spence v. State, 795 S.W.2d 743, at 752-53 (Tex.Cr.App. 1990) (no Sixth Amendment right to counsel at taking of dental impressions because Spence "was not then formally charged or indicted"); Holloway v. State, 780 S.W.2d 787, at 791, n. 3 (Tex.Cr.App. 1989) ("return of an indictment signals" initiation of adversary judicial proceedings); McCambridge v. State, 712 S.W.2d 499, at 502 (Tex.Cr.App. 1986) (in misdemeanor case, defendant's "Sixth Amendment right to counsel did not attach until the complaint and information were filed."). On the other hand, though we have made it clear that an arrest alone does not trigger adversarial judicial proceedings, with or without a warrant, Dunn v. State, 696 S.W.2d 561 (Tex.Cr.App. 1985); Garcia v. State, 626 S.W.2d 46, at 53 (Tex.Cr.App. 1981); see also McGee v. Estelle, 625 F.2d 1206 (C.A. 5 1980), nor does an Article 15.17 warning, Wyatt v. State, 566 S.W.2d 597, at 600 (Tex.Cr.App. 1978), a two judge panel opinion has held that the filing of a felony complaint does.
516 S.W.2d at 934. Compare, however, Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App. 1981) affirming the capital conviction of a defendant tried together with a codefendant over objection that a venireman was improperly dismissed on the State's challenge for cause, viz: "Appellant was not caused to exhaust his peremptory challenges by an improper ruling on the challenge for cause.
It has long been the rule that in answering the special issues under Article 37.071, V.A.C.C.P., including the issue of future dangerousness, the jury may consider all of the properly admitted evidence at the first or guilt stage of the bifurcated trial, including the testimony of appellant's own psychiatrist on the issue of insanity as a defense. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App. 1983); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App. 1981). This is exactly the same situation this Court found in the case of Penry v. State, 691 S.W.2d 636 (Tex.Cr.App. 1985).