Affirmed and Memorandum Opinion filed July 27, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00751-CR
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INES CARILLO GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1005380
M E M O R A N D U M O P I N I O N
A jury convicted appellant Ines Carillo Garcia of aggravated robbery with a deadly weapon and the trial court sentenced him to confinement for twenty-five years in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises six issues on appeal. We affirm.
I. Factual and Procedural History
Appellant and an unknown man purchased duct tape from a dollar store in a strip center. Afterwards, appellant and three unknown men entered a music/video store located next to the dollar store. Appellant was holding the duct tape. One of the men approached Micailina Vivar, who was working in the store, and asked the price of a compact disc. The same man pulled out a gun, pointed it at Vivar, and demanded money. Vivar told the man she did not have any money and he chambered a round in the gun. Vivar was taken to a back room and taped with duct tape to a dolly by appellant and the other men.
Vivar was left alone in the room and could hear the men searching the store. When she could no longer hear them, she left the room, still attached to the dolly. Vivar saw a green truck speed off when she approached the front of the store. Approximately $1,000 and a number of compact discs were missing from the store.
Based upon a fingerprint on a compact disc in the store, appellant=s photograph was placed in a photographic array. Vivar identified appellant as one of the four men, specifically as the man with the duct tape. Marco Burciaga, who had been shopping at the dollar store, identified appellant as one of the men he saw buying duct tape in the dollar store. Burciaga also erroneously selected another photo from the array as depicting another participant.
Appellant moved to suppress evidence of the in-court and out-of-court identifications by Vivar and Burciaga. The trial court conducted a pre-trial hearing and overruled the motion to suppress. On appeal, appellant claims in issues one through four that the trial court erred in overruling the motion and in admitting in-court identifications by the same witnesses. In issues five and six, appellant argues the evidence is legally and factually insufficient to support the verdict.
II. Analysis
A. Identification
Appellant=s first and third issues challenge the trial court=s denial of his motion to suppress the out-of-court identification of appellant by Vivar and Burciaga. Appellant argues on appeal that the identifications were tainted by an unduly suggestive pre-trial identification procedure because the photograph of him in the array was sufficiently distinctive and different from the other photographs. We review a trial court=s ruling on a motion to suppress evidence by giving almost total deference to the trial court=s determination of historical facts and reviewing de novo the trial court=s application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
Appellant=s argument on appeal does not comport with the argument made to the trial court. At the hearing on the motion to suppress, no claim was made that the content of the array itself was suggestive. Appellant=s only objection in the trial court was that the witnesses gave contradictory statements. Because appellant never objected that the content of the array itself was suggestive, appellant failed to preserve this argument for appeal. See Tex. R. App. P. 33.1(a); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (en banc).
Furthermore, even if appellant had preserved this argument, we find it is without merit. Suggestiveness may be created by the content of the photo array itself if the suspect is the only individual closely resembling the pre‑procedure description. See Barley v. State, 906 S.W.2d 27, 32B33 (Tex. Crim. App. 1995) (en banc). Appellant does not identify the distinction or difference of which he complains. All six photos in the array depict a male with dark hair, of a similar style and length, with a mustache, and of similar complexion. We conclude appellant=s photo is not sufficiently distinctive or different from the other photographs so as to be impermissibly suggestive. Id.
In issues two and four, appellant contends the trial court erred in admitting in-court identifications by the same witnesses, arguing that the witnesses merely repeated their previous tainted identifications. To establish the inadmissibility of an in-court identification, a defendant must prove two elements: (1) the pretrial identification procedure was impermissibly suggestive; and (2) the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Abney v. State, 1 S.W.3d 271, 275 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Having found that the challenged pretrial identification procedure was not impermissibly suggestive, we need not determine whether the procedure gave rise to a very substantial likelihood of misidentification. Id. Moreover, appellant failed to object to the in-court identifications, thereby waiving this argument. See Tex. R. App. P. 33.1(a); In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (ATexas courts stringently apply the contemporaneous objection rule in the context of suggestive identification procedures.@).
We overrule issues one through four.
B. Sufficiency of the Evidence
In issues five and six, appellant claims the evidence is legally and factually insufficient to support the verdict.
When reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). Although we consider all of the evidence presented at trial, we may not re-weigh the evidence or substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). A person commits aggravated robbery with a deadly weapon if he commits aggravated robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. ' 29.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. ' 29.02(a)(2).
In conducting a factual sufficiency review, we will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).
Appellant argues the evidence is both legally and factually insufficient because the State=s witnesses, Vivar and Burciaga, were not credible. In support of this contention, Appellant relies upon the Atainted@ in-court identifications and Burciaga=s mistaken identification. Appellant further claims the testimony was not corroborated, although he admits a matching fingerprint was found on a piece of merchandise in the store.
The record reflects Vivar identified appellant as one of the participants, specifically the man holding the duct tape. Burciaga also identified appellant as the man he saw buying duct tape in the store next to Vivar=s store right before the robbery. Finally, appellant=s fingerprint was found on merchandise inside the store.
The jury is the exclusive judge of the facts proved and of the weight given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon Supp. 2004). Viewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See Ovalle v. State, 13 S.W.3d 774, 777 (Tex. Crim. App. 2000). Furthermore, a neutral review of all the evidence, both for and against the trial court=s finding, does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the trial court=s determination, nor does it demonstrate that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc). Accordingly, we hold the evidence is both legally and factually sufficient to support appellant=s conviction. Therefore, we overrule appellant=s issues five and six.
III. Conclusion
Having overruled appellant=s issues, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed July 27, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).