No. 01-03-01139-CR
Opinion issued July 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 943359.
Jerald K. Graber, Houston, TX, for appellant. Pete Delagarza, Abilene, TX, pro se. Alan Curry, Assistant District Attorney, Houston, TX, Charles A. Rosenthal, Jr., District Attorney — Harris County, Houston, TX, and William J. Delmore, III, Chief Prosecutor, Appellate Division, Houston, TX, for appellee.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
TERRY JENNINGS, Justice.
A jury found appellant, Pete De La Garza, guilty of the offense of aggravated assault and assessed his punishment at confinement for 18 years. In his sole point of error, appellant contends that the trial court erred in admitting an in-court identification against him in violation of his constitutional rights to due process and due course of law. We affirm.
Tex. Const. art. I, § 19.
Facts
Miguel Santillane, the complainant, testified that he was employed as a truck driver and that on the evening of November 10, 2002, he dropped off "a load" at a truck yard located on Wallisville road in Houston. Thereafter, he telephoned a friend, Gerardo Soliz, who agreed to come and pick him up. When Soliz arrived at the truck yard, he and the complainant inspected the complainant's truck because, while driving it, the complainant had noticed "a little sound that didn't sound right." However, Soliz and the complainant were unable to determine where the sound was coming from, and they gave up looking after approximately 30 minutes because they were being bitten by mosquitoes. The complainant and Soliz then left the truck yard in Soliz's car. While driving eastbound on Wallisville road, Soliz, who was comparing his mosquito bites to the complainant's, swerved his car into an adjacent traffic lane and then moved it back into the lane in which he had been previously driving. Appellant, who was driving a pickup truck in the same direction on Wallisville road, saw Soliz swerve into the other lane. Thereafter, appellant sped up, drove past Soliz's car, and then twice swerved his truck into the lane in which Soliz was driving. Soliz and appellant subsequently pulled their vehicle's alongside each other at a traffic light. While they were stopped at the light, appellant rolled down the window of his truck and asked the complainant whether he "had a problem." The complainant responded, "No, no. Why? Do you?" When the light turned green, appellant and Soliz continued driving in the same direction. After they both turned right onto Federal road, Soliz and appellant again pulled their vehicle's alongside each other at a traffic light. At this light, appellant, addressing the complainant, stated, "Didn't I tell you if you had a problem." The complainant responded, "[N]o, I don't; no, I don't; why? Do you?" Thereafter, appellant stared at the traffic light and waited for it to change color. When the light turned green, appellant reached down, picked up a handgun, and fired a single shot into the front passenger side door of Soliz's car. Appellant then drove away from the traffic light. At this point, the complainant, using his cellular phone, called for emergency assistance. When he told the emergency assistance operator what had happened, the operator instructed the complainant to attempt to get the license plate number of the truck, but to "stay back, if possible." Soliz and the complainant then followed appellant, and, after approximately 10 or 15 minutes, the complainant was able to write down the license plate number of the truck. Thereafter, Soliz and the complainant drove to meet with an officer from the Houston Police Department. Houston Police Department Sergeant R. Torres testified that, as the officer in charge of investigating the shooting, he performed a computer check of the license plate number of the truck and learned that it was registered to appellant's wife, Priscilla De La Garza. When Torres contacted her, she told Torres that, in November 2002, "she and her husband would have been the only two people driving" the truck. After obtaining a copy of appellant's "jail photo," Torres compiled a photographic array consisting of a photograph of appellant and photographs of five other men. When Torres showed the array to the complainant, the complainant identified appellant as the shooter. Impermissibly Suggestive Pretrial Identification
In his sole point of error, appellant argues that the trial court erred in denying his motion to suppress the complainant's in-court identification of him as the shooter because the content of the photographic array was impermissibly suggestive. He asserts that the array was impermissibly suggestive because (1) he was the only person in the array who had "a visible tattoo," (2) his photograph "[was] a close up, while at least three of the other photographs [were] taken from further away," (3) "at least four of the five other photographs [were] considerably lighter" than his photograph, and (4) his photograph "makes him appear larger and heavier than any of the other men pictured in the array." To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Tex.R.App.P. 33.1(a)(1)(A). Here, appellant did not file a pretrial motion to suppress the complainant's identification of him as the perpetrator of the shooting. Moreover, appellant did not object at trial when the complainant actually identified him in court as the perpetrator of the shooting. In fact, appellant waited until the State attempted to introduce the photographic array into evidence, during Sergeant Torres's testimony, before he stated as follows: "I would object to and I think that because the only person that has — the only person that has a teardrop on there is [appellant]. At this time I'm going to make a [m]otion to [s]uppress the photo spread." Accordingly, we hold that appellant has waived any error. See Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App. 1986) (noting that "[w]ithout an objection to an in-court identification or to testimony based on an impermissibly suggestive identification procedure, no error is preserved."). We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.