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holding argument that photo array was impermissibly suggestive because police officer conveyed that man whose prints matched those found in car was in photo array was not preserved for appeal when that argument was not presented in trial court; stating that only objections made in trial court were based on "similarities between two photos, the incident took place at night, and the degree of illumination was unclear"; and holding that "only objection presented to the trial court and now raised on appeal is the similarities of the two photos. Thus, this is the only argument properly presented to this Court for review"
Summary of this case from In re X.D.Opinion
No. 05-05-01601-CR.
December 21, 2006. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F05-71799-T
Before Justices Whittington, Moseley, and O'Neill Opinion By Justice O'Neill
MEMORANDUM OPINION
Appellant Terron Reynolds was convicted of aggravated robbery and sentenced to eight years' confinement. In two points, he complains the trial court erred in overruling his motion to suppress because (1) the pretrial lineup procedure was impermissibly suggestive and (2) the complainant's in-court identification was unreliable. Because the facts of this case are well known to the parties, we will provide them only when necessary to the legal analysis and issue this memorandum opinion. Tex. R. App. P. 47.4. For the following reasons, we affirm the trial court's judgment. The standard of review for claiming that an in-court identification should not have been admitted due to the taint of an impermissibly suggestive pretrial identification procedure is set forth in Loserth v. State, 963 S.W.2d 770 (Tex.Crim.App. 1998). Our standard of review depends upon the type of question presented to the reviewing court. Id. at 772. In this case, the question of whether an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. Id. at 772-73. Accordingly, we apply a de novo standard of review. A trial court must look to the totality of the circumstances surrounding the challenge to an out-of-court identification to determine if the procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Vasquez v. State, 101 S.W.3d 794, 796 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). First, the trial court determines whether the identification procedure was impermissibly suggestive. Id. If the trial court determines the procedure was impermissibly suggestive, the court must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188 (1972). Throughout this process, the burden is on the movant to show impermissible suggestion and substantial likelihood of misidentification by clear and convincing evidence. Vasquez, 101 S.W.3d at 796. In his first point, appellant contends the pretrial lineup was impermissibly suggestive because the photo array contained two similar photos, the police officer told appellant that the man whose prints matched those found in his car was in the array, and the police officer presenting the array knew the "right pick." At the motion to suppress hearing, appellant objected to the array because of the similarities between two photos, the incident took place at night, and the degree of illumination was unclear. The only objection presented to the trial court and now raised on appeal is the similarities of the two photos. Thus, this is the only argument properly presented to this Court for review. See Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986) ("If the objection made in the trial court differs from the complaint made on appeal, a defendant has not preserved any error for review."); Pope v. State, 161 S.W.3d 114, 127 (Tex.App.-Fort Worth 2004), aff'd, 2006 WL 3302823 (Tex.Crim.App. 2006). Here, once the trial court overruled appellant's objection to the pretrial lineup during the suppression hearing, he did not need to subsequently object at trial to the same evidence in order to preserve error. Montes v. State, 876 S.W.2d 538, 540 (Tex.App.-El Paso, no pet.). However, when the State offered the photo array into evidence, appellant's counsel specifically stated "No objection, Your Honor." When a defendant affirmatively asserts he has "no objection" to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Id.; see also Gearing v. State, 685 S.W.2d 326, 329 (Tex.Crim.App. 1985), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997). Accordingly, appellant has waived this argument. Thus, appellant's first issue is overruled. In his second issue, appellant argues the complainant's in-court identification of him was not reliable under the Biggers factors. See Biggers, 409 U.S. 188. Before the motion to suppress hearing, the trial court retired the jury to "conduct a hearing on the admissibility of a lineup." In argument, appellant's attorney focused on the photo array and told the court "Your honor, I believe you identified the key flaw with the photo lineup. . . ." Thus, his objection during the hearing focused on the admission of the photo array and not the in-court identification. Once again, appellant has waived his argument because he did not raise it in the trial court. Tex. R. App. P. 33.1(a). Appellant never objected to the in-court identification of appellant, and an objection to an out-of-court photo array does not preserve for appellate review any complaint regarding the in-court identification. Wallace v. State, 75 S.W.3d 576, 584 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App. 2003). The failure to object to an in-court identification constitutes a procedural default and waiver of any complaint on appeal. Id.; In re G.A.T., 16 S.W.3d 818, 827 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Thus, appellant has presented nothing for review. Even if appellant had preserved this issue for review, his contention would be without merit because the photo array was not impermissibly suggestive. See Vasquez, 101 S.W.3d at 796. As noted above, the only argument appellant has properly presented is whether the array was impermissibly suggestive because of two similar photos. A lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect. Brown v. State, 29 S.W.3d 251, 254 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height or age. Id. However, minor discrepancies between lineup participants will not render a lineup impermissibly suggestive. Id. Here, appellant contends his photo is too similar, not dissimilar, to another photo. As the trial court correctly recognized, ". . . the lineup was so good [the court] had to do a double take with the man sitting in front of me . . . it was a difficult lineup." Further, his claim that the array is impermissibly suggestive because he and one other man have darker skin while the others have lighter skin is without merit. Neither due process nor common sense requires that all individuals be identical. See, e.g., Buxton v. State, 699 S.W.2d 212, 216 (Tex.Crim.App. 1985) (rejecting argument that lineup was reduced from six to two because only two African-American males had dark skin tone); Johnson v. State, 901 S.W.2d 525, 535 (Tex.App.-El Paso 1995, pet. ref'd) (holding lineup is not impermissibly suggestive because skin tones vary). Because the photo array depicts men with the same general skin color, similar age, similar haircut, and similar features, we conclude it is not impermissibly suggestive. Accordingly, appellant's second issue is overruled. Having overruled appellant's two issues, we affirm the trial court's judgment.
Since the photo array was not impermissibly suggestive, we need not discuss the Biggers factors. Id.
Although appellant points to discrepancies in the complainant's description of his height and weight, the photo array only shows individuals from the neck up. Therefore, any differences in his description on these physical characteristics was immaterial for purposes of his identification from the photo array.