No. 04-07-00150-CR
Delivered and Filed: December 12, 2007. DO NOT PUBLISH.
Appeal from the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-4458, Honorable Raymond Angelini, Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice. Opinion by: SANDEE BRYAN MARION, Justice.
SANDEE BRYAN MARION, Justice.
A jury found defendant, Justin James Klein, guilty of aggravated robbery, and the trial court assessed punishment at twenty-five years' confinement. In a single issue on appeal, defendant asserts the pretrial identification procedure used by the State was impermissibly suggestive and, therefore, violated his due process rights. We affirm.
DISCUSSION
When determining the admissibility of an in-court identification that is challenged by a defendant, we engage in a two-step analysis. First, we consider whether the pretrial identification procedure was impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995); Mayfield v. State, 152 S.W.3d 829, 831 (Tex.App.-Texarkana 2005, pet. ref'd). Second, if the procedure was impermissibly suggestive, we determine whether the procedure gives rise to a very substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33; Mayfield, 152 S.W.3d at 831. Here, defendant contends the pretrial identification procedure was impermissibly suggestive because he was the only male in the photo array wearing jail clothing. We disagree. The array consists of two rows of three color photographs. Defendant's photo is the middle picture in the bottom row. All men pictured in the array are white and have facial hair and similar hair styles. All are standing in front of a height indicator. The photos are taken from the upper mid-chest up and stop at the shoulders; none are full-length photos. All men are wearing shirts of either different colors or different styles. Two of the men are wearing golf-style shirts with open collars. One man is wearing a sleeveless tank-top. Another man is wearing what appears to be a t-shirt, and another is wearing what appears to be either a t-shirt or a collarless shirt under a jacket. Defendant is pictured in a v-neck orange shirt. Nothing about the shirt worn by defendant indicates it is jail clothing. We conclude that because the individuals chosen for the photo array were reasonably similar to one another, the pretrial identification procedure was not impermissibly suggestive. We overrule defendant's issue on appeal and affirm the trial court's judgment.