Opinion
No. 04-16-00292-CR
03-22-2017
Michael WRIGHT, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR2548
Honorable Sid L. Harle, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Michael Wright appeals his conviction for aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). We affirm the trial court's judgment.
ANALYSIS
In his sole issue on appeal, Wright asserts the pre-trial identification by the victim, Marquise Scott, was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification. See Barley v. State, 906 S.W.2d 27, 32-34 (Tex. Crim. App. 1995). Wright concedes he did not object to Scott's in-court identification of him as the person who shot him, and therefore failed to preserve any complaint concerning the in-court identification. However, Wright asserts he may still challenge the pre-trial identification procedure on appeal as "so suggestive and conducive to mistaken identification" that its subsequent use at trial denied him due process. See Barley, 906 S.W.2d at 32-33. We disagree. A defendant must object to the pre-trial identification in the trial court in order to preserve the issue for appellate review. TEX. R. APP. P. 33.1(a); Perry v. State, 703 S.W.2d 668, 670-71 (Tex. Crim. App. 1986); Mason v. State, 416 S.W.3d 720, 737 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (holding appellant did not preserve error with respect to the pretrial identification by one of the three witnesses); Marines v. State, No. 04-02-00092-CR, 2003 WL 244833, at *1 (Tex. App.—San Antonio Feb. 5, 2003, no pet.) (mem. op., not designated for publication) (appellant waived complaint about suggestive pre-trial identification by failing to object in trial court). The record shows that Wright never challenged the pre-trial identification in the trial court, whether before, during, or after trial. His pre-trial motion to suppress was limited to any oral, written, or recorded statements made by him, and his motion for new trial contained only a general assertion that the verdict was contrary to the law and the evidence. At trial, Scott testified, without defense objection, about the photo lineup and his identification of Wright as the person who shot him. Similarly, Detective Leticia Henricks testified, without objection, about the procedure used for the photo lineup and the identification of Wright by Scott. Because Wright never objected in the trial court that the pre-trial identification procedure was impermissibly suggestive, he failed to preserve the issue for review. TEX. R. APP. P. 33.1(a); Perry, 703 S.W.2d at 670-71; Garcia v. State, 486 S.W.3d 602, 608 (Tex. App.—San Antonio 2016, pet. ref'd) (defendant must object in trial court to preserve constitutional issue for appellate review). We therefore affirm the trial court's judgment.
Rebeca C. Martinez, Justice DO NOT PUBLISH