Leonard Childs v. State

• Court: Court of Appeals of Texas
• Decided: October 13, 2010
• Docket: 04-09-00475-CR
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-09-00475-CR

Leonard CHILDS, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-9372A Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: October 13, 2010

AFFIRMED

The sole issue presented in this appeal is whether the trial court erred in “failing to

suppress the out-of-court identification of the [a]ppellant because the photographic line up was

impermissibly suggestive and tainted the later in-court identification.” We agree with the State

that the complaints presented on appeal have not been preserved for our consideration.

Both Rebecca Carrasco and Kirk Lewis identified Leonard Childs at trial as the person

who stole Carrasco’s wallet. Before trial, the attorney representing Childs filed a motion for an 04-09-00475-CR

identification hearing outside the presence of the jury. The attorney did not, however, request

the hearing or a ruling on the motion until after Lewis had identified Childs in court. At the

subsequent hearing regarding whether the pretrial photographic lineup was impermissibly

suggestive, the only complaints made by the attorney were: (1) Lewis was shown two identical

photographic lineups; and (2) Childs’s picture was located in the center of the top row of the six

photographs shown to the witnesses. With regard to the second complaint, the attorney argued,

“I mean, if you’re playing cards with your kids and you put six cards out and tell them — you

know, show them a card, you put one up there, I mean, even an elementary school kid could tell

you which one he was supposed to pick, Your Honor.”

Texas courts stringently apply the contemporaneous objection rule in the context of

improper identification. Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986). In this

case, Childs waived any complaint regarding Lewis’s identification of him because he did not

request a hearing on his motion or obtain a ruling until after Lewis identified him in court. See

Perry, 703 S.W.2d at 670-71; Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.—Texarkana

2002), aff’d on other grounds, 106 S.W.3d 103 (Tex. Crim. App. 2003); Van Zandt v. State, 932

S.W.2d 88, 94-95 (Tex. App.—El Paso 1996, pet. ref’d). Because Childs’s first complaint

relates to the photographic lineups shown to Lewis, this complaint is waived.

The only other complaints Childs makes in his brief are: (1) the photographs themselves

were impermissibly suggestive because the individuals depicted in the photographs were not

sufficiently similar in appearance; (2) the officer either expressly or implicitly informed the

witnesses that the suspect’s picture was among the six contained in the lineup; and (3) a “six-

pack” photo array is inherently suggestive. These complaints do not, however, comport with the

objection made at trial. Accordingly, they also have not been preserved for our consideration.

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TEX. R. APP. P. 33.1 (error must be preserved by making complaint to trial court stating specific

grounds for complaint); Jasso v. State, 112 S.W.3d 805, 812 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d) (holding error not preserved where complaints on appeal regarding manner in

which photographic lineup was unduly suggestive did not comport with objections made at trial);

Walker v. State, No. 2-02-233-CR, 2003 WL 21940981, at *1 (Tex. App.—Fort Worth Aug. 14,

2003, pet. ref’d) (same) (not designated for publication).

Because Childs’s appellate complaints were not preserved for our consideration, the trial

court’s judgment is affirmed.

Catherine Stone, Chief Justice

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