Richard Paul Kibodeaux v. State

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-18-00001-CR ________________

RICHARD PAUL KIBODEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A170103-R __________________________________________________________________

MEMORANDUM OPINION

A jury convicted appellant Richard Paul Kibodeaux of robbery, and the trial

court assessed punishment at thirty-five years of confinement. In his sole appellate

issue, Kibodeaux argues that the show-up identification procedure used by the police

department violated his right to due process. We affirm the trial court’s judgment.

Kibodeaux states that the victim “was brought to the area in the back of a

police vehicle with the lights flashing to identify the defendant.” According to

Kibodeaux, such an identification procedure constitutes fundamental error and 1 violates due process because Kibodeaux did not have counsel present and there were

no extenuating circumstances that prevented the use of a police lineup at a later date.

See Stovall v. Denno, 388 U.S. 293, 302 (1967) (holding that based on the totality of

the circumstances, confrontation of the accused for identification purposes may

infringe upon due process rights).

The admissibility of evidence may be challenged in two ways: (1) objecting

to the admission of the evidence when it is offered at trial and requesting a hearing

outside the jury’s presence; or (2) filing a pretrial motion to suppress the evidence

and having the motion heard and ruled upon before trial. Holmes v. State, 248

S.W.3d 194, 199 (Tex. Crim. App. 2008). To preserve a complaint for appellate

review, the record must demonstrate that the appellant made his particular complaint

known to the trial court by a timely request, objection, or motion, and that the trial

court ruled on the request, objection, or motion. Tex. R. App. P. 33.1(a); Ross v.

State, 678 S.W.2d 491, 493 (Tex. Crim. App. 1984). The record reflects that

Kibodeaux neither filed a motion to suppress nor objected to the victim’s

identification testimony when it was offered at trial. Because Kibodeaux did not

object to the victim’s testimony regarding the identification procedure or file a

motion to suppress and obtain a ruling on the motion, he has failed to preserve this

issue for our review. See Tex. R. App. P. 33.1(a); Aguilar v. State, 26 S.W.3d 901,

2 905 (Tex. Crim. App. 2000); Perry v. State, 703 S.W.2d 668, 670-71 (Tex. Crim.

App. 1986) (holding that the contemporaneous objection rule for error preservation

is stringently applied in the context of allegedly improper identification).

Accordingly, we overrule Kibodeaux’s sole issue and affirm the trial court’s

judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on July 31, 2018 Opinion Delivered August 29, 2018 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.