No. 14-07-00924-CR
Memorandum Opinion filed March 19, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 1108239.
Panel consists of Justices ANDERSON and FROST and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
KEM THOMPSON FROST, Justice.
Appellant Derrick Glenn Craig challenges his conviction for aggravated robbery, claiming in a single issue that the procedure used in connection with the complainant's prior out-of-court identification was unnecessarily suggestive and thus made the complainant's in-court identification unreliable and in violation of appellant's due process rights under the Fifth Amendment to the United States Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A police officer responded to a call involving a robbery in progress. The officer learned that the complainant had been working in his garage with the garage door open when two men exited a vehicle and approached the complainant. They pointed a gun at him and demanded the complainant's wallet and keys to his vehicle. The intruders then ordered the complainant to let them enter his home. One intruder accompanied the complainant upstairs, while his companion remained downstairs with appellant's granddaughter. The intruders searched the home for fifteen minutes and then fled with property, including jewelry and electronic items. One drove away in the complainant's vehicle, while the other left in the vehicle in which the two had arrived. The complainant described one of the robbers as wearing a black shirt and red shorts. The officer left the scene and located the complainant's stolen vehicle, which was seen in the general vicinity. The officer followed the stolen vehicle, whose driver pulled into an apartment complex and stopped the vehicle in the parking lot. Two men exited the vehicle and fled. The officer called for assistance from other officers. An employee of the apartment complex notified the officer that a man had run past him and entered a nearby apartment. Officers approached the apartment. The person who answered indicated that an unknown man had just entered the apartment and had run to a back bedroom. Officers located the man, appellant, in the back bedroom. The responding officer contacted the complainant and asked him to come to the apartment complex to identify his vehicle. Upon the complainant's arrival, police held appellant in police custody in the back of a police cruiser. When asked by officers whether appellant was one of the robbers at his home, the complainant responded affirmatively. The complainant later viewed a videotaped line-up, in which appellant wore red shorts. From the videotape, both the complainant and his granddaughter identified appellant as one of the men who had robbed them in their home. Appellant was charged with the felony offense of aggravated robbery, to which he pleaded "not guilty." At a trial on the merits, the complainant identified appellant as the person who fled the home in the complainant's vehicle. The jury found appellant guilty as charged and assessed punishment at twenty-five years' confinement. ISSUE AND ANALYSIS
On appeal, appellant raises a single issue, claiming the procedure used to procure the complainant's pre-trial identification of appellant was so unnecessarily suggestive as to render the complainant's in-court identification unreliable. Specifically, appellant complains that the identification came about because the complainant saw him in police custody in the back of the police cruiser and confirmed that appellant was one of the robbers in his home. According to appellant, the complainant was able to identify him out of court only because appellant was sitting in the police cruiser and happened to be wearing a black shirt and red shorts. Appellant complains that the complainant's in-court identification was rendered unreliable because of the "impermissibly suggestive procedures" used to procure the out-of-court identification. Appellant does not appear to challenge the procedures used in the complainant's identification of appellant based on the videotaped lineup. As a threshold matter, we consider whether appellant preserved his complaint for appellate review. To preserve error, a party must make a timely request, objection, or motion with sufficient specificity to apprise the trial court of the complaint. TEX. R. APP. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex.Crim.App. 2002); see In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (failing to raise issue of suggestive identification procedures waived error). Appellant has not cited and our own independent review of the appellate record has not revealed that appellant raised the issue of suggestiveness in the trial court. See In re G.A.T., 16 S.W.3d at 827. Although appellant filed a motion to suppress evidence, specifically identification evidence, there is no indication in the record that the trial court ruled on the motion. Moreover, at trial appellant did not object to the in-court identification of appellant when the complainant identified him as the robber, nor did appellant re-urge his motion to suppress. See Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App. 1986); see also Clark v. State, No. 09-06-00230-CR, 2007 WL 4953634, at *6 (Tex.App.-Beaumont Feb. 27, 2008, pet. ref'd) (mem. op., not designated for publication). Without any ruling on this pre-trial motion and absent any objection to the complainant's in-court identification or to testimony based on any allegedly impermissibly suggestive identification procedure, appellant's complaint is not preserved. See Perry, 703 S.W.2d at 670. With few exceptions, not applicable here, even constitutional complaints may be waived by the failure to raise a timely objection in the trial court. See Saldano, 70 S.W.3d at 886-89. Therefore, we conclude that as to appellant's challenge to the complainant's in-court identification of appellant, he has failed to preserve error. See In re G.A.T., 16 S.W.3d at 827. Accordingly, we overrule appellant's sole issue on appeal, and we affirm the judgment of the trial court.