BELL, Circuit Judge:
This is an appeal from the denial by the District Court of habeas corpus relief to a state prisoner without an evidentiary hearing.
Petitioner was convicted in a Texas state court of robbery by assault with a firearm and sentenced to 50 years. The conviction was affirmed on direct appeal. Lucas v. State, 444 S.W.2d 638 (Tex.Cr.App.1969). No application for collateral relief was filed in state court. In addition to other matters raised by petitioner and not presented by him on appeal, the District Court considered the issue whether the in-court identification of appellant by the robbery victim was of independent origin, untainted by an alleged illegal lineup. The lineup in which appellant was identified was conducted six months after United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), holding a lineup to be a critical stage in a criminal proceeding thus warranting the assistance of counsel. The federal habeas court concluded that state remedies had been exhausted. The court reasoned that the facts had been fully developed at the criminal trial and, on appeal, the Wade-Gilbert issue had been asserted in the Texas Court of Criminal Appeals wherein it was concluded that the in-court identification was of independent origin and that, if there was error in the prosecuting witness identifying the defendant at a lineup, it was error harmless beyond a reasonable doubt. The federal habeas court, on the state court record and without an evidentiary hearing, thereupon concluded that the determination by the Texas Court of Criminal Appeals was correct.
The inquiry on independent origin is most appropriately made in the trial court, Wade, supra, 388 U.S. at 242, 87 S.Ct. 1926. The definitive opinion in Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969), recommends that once the in-court identification of the accused is sought to be introduced and the court is apprised that the identification is questioned on the basis of a lineup, upon motion of the defendant a hearing should be conducted outside the presence of the jury. Martinez points out that the burden is upon the prosecution to establish by "clear and convincing proof" that the testimony is not tainted by an earlier identification made in the absence of counsel or intelligent waiver of counsel, and it suggests that if the trial judge admits the identification evidence, he enter written findings or state into the record his reasons.
Lucas was tried prior to Martinez. The state made no effort, prior to offering the in-court identification, to show that it was of independent origin and not tainted. Indeed, there was no mention of a lineup. The witness was the robbery victim who had a pistol placed in his stomach, according to him, by the petitioner. However, defense counsel addressed the question of the lineup by cross examining the victim and by calling as witnesses police officers having knowledge of the investigation and the lineup. Once the facts of the lineup were developed, the defense moved that the testimony of the victim identifying petitioner be stricken because the lineup had been conducted in violation of Wade and Gilbert. The motion was overruled. The court gave no reason for its ruling.
We note parenthetically that there had been no showing that petitioner did or did not have counsel at the lineup or, if not, whether he waived counsel. However, we can assume arguendo that there was a violation of the Wade-Gilbert right to counsel and proceed to dispose of the case on another ground.
Unlike the situation in Wade and Gilbert, a full record is available in this case for determining whether the in-court identification was of an independent origin.1 We are convinced from a review of the record that there is ample support for the following conclusions of the Texas Court of Criminal Appeals on the direct appeal of petitioner's case, Lucas v. State, supra, 444 S.W.2d at 641:
The district court adopted these conclusions as its view and denied relief. We affirm.
Ordinarily, it is constitutional error to admit in-court identification in circumstances such as those before us without first determining that the identification was not tainted by the illegal lineup.2 That error, however, can be found harmless where the record permits an informed judgment as to the source of the in-court identification. Gilbert v. California stated this proposition conversely when the court remanded because the record did not permit the informed judgment as to independent source. 388 U.S. at 272, 87 S.Ct. 1951. In Rivers v. United States, 5 Cir., 1968, 400 F.2d 935, 941, this circuit made the test for harmless error two-pronged. The trier must find that the identification was of independent and untainted origin, and further, that the error was harmless beyond a reasonable doubt. We find complete and undisputed facts in the record that clearly and convincingly prove the independent origin of the in-court identification. We believe that any error committed was harmless beyond a reasonable doubt. This meets the test of Rivers. It was not error to deny relief on the record and without an evidentiary hearing.
Affirmed.