Michael Wayne Whittington v. State ( 2015 )

Opinion filed June 30, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00186-CR
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MICHAEL WAYNE WHITTINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR40620
MEMORANDUM OPINION
The jury convicted Michael Wayne Whittington of aggravated assault with a
deadly weapon and assessed his punishment at confinement for a term of five years
and a fine of $1,000. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The
trial court, on the jury’s recommendation, suspended Appellant’s sentence, placed
Appellant on community supervision for a term of ten years, and assessed a fine in
the amount of $1,000. In a single issue, Appellant argues that his right to due process
was violated when police used a suggestive procedure to identify him. We affirm.
An accused’s right to due process is violated when the State uses a pretrial
identification procedure that is so suggestive that it creates a “substantial likelihood
of irreparable misidentification.” Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim.
App. 1983) (internal quotation mark omitted) (quoting Neil v. Biggers, 409 U.S. 188,
198 (1972)). The State argues that Appellant has waived this issue. We agree.
Appellant did not raise this issue prior to trial, nor did he make any objections to the
testimony regarding the identification procedure used by the officers. Although
defense counsel pointed out problems with the reliability of the identification during
closing arguments, the issue of whether the identification procedure violated
Appellant’s right to due process was never before the trial court. Appellant also
never objected to the admission of the out-of-court, or in-court, identification
testimony. Appellant has therefore failed to preserve error and has waived this issue
for our review. See TEX. R. APP. P. 33.1; Perry v. State, 703 S.W.2d 668, 669–71
(Tex. Crim. App. 1986) (determining that the error was not fundamental and holding
that the appellant waived error when he failed to object in the trial court to the
identification procedure). We overrule Appellant’s sole issue on appeal.
Although Appellant identifies and argues only one issue throughout his brief,
he asserts in two sentences in his “SUMMARIES OF THE ARGUMENTS”
section that the evidence was insufficient to support his conviction. The Texas Rules
of Appellate Procedure require an appellant to “state concisely all issues or points
presented for review” and to make “a clear and concise argument” for each issue
raised, “with appropriate citations to authorities and to the record.” TEX. R.
APP. P. 38.1(f), (i). Appellant has failed to brief this issue in accordance with the
appellate rules. However, because we can identify the issue, we will review the
challenge to the sufficiency of the evidence as if it had been properly briefed.
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We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
Officer Anthony Goyang of the Midland Police Department testified that he
responded to a “shots-fired call” at the Metro Inn. When he arrived at the Metro Inn,
there were several people outside in the parking lot, including a male and female
who approached him and began telling him what had happened. The two individuals
also gave him a description of a vehicle that was connected with the incident. After
he learned the address of one of the suspects, Officer Goyang went to that address
and found a vehicle that matched the description, including a partial license plate
number given to him by one of the witnesses. Officer Goyang also observed two
individuals standing next to the vehicle and believed that they might have been
involved in the incident at the Metro Inn. Officer Goyang, with the help of other
officers, placed the two suspects into two separate patrol cars. The officers found
two firearms on the passenger seat in the vehicle. While Officer Goyang was still at
the residence with the suspects, other officers brought the witnesses from the Metro
Inn to the residence to determine whether either of the suspects could be identified.
Officer Goyang testified that he “took the Defendant, placed him outside by the
vehicle, and we were able to receive positive confirmation by the witness.”
Officer Goyang identified Appellant as the person that the witnesses said they saw
at the Metro Inn.
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James Conn testified that he was at the Metro Inn with Bambi Moran on the
night in question. Moran was working at the Inn, and Conn was keeping her
company. Conn and Moran, along with two or three other individuals, went outside
to smoke a cigarette and saw someone drive a “small, compact, black SUV” into the
parking lot “really fast” and then park it. While the vehicle was parked, Conn heard
two gunshots. The driver of the vehicle drove “real fast” out of the parking lot. On
the way out of the parking lot, a male individual in the passenger seat pointed a gun
out the window at Conn and the others standing outside. Conn heard another gunshot
when the vehicle “went to the street.” Before the driver of the vehicle drove away,
Conn was able to get a partial license plate number. He testified that he did not see
the individual in the courtroom that pointed a gun at him, nor was he able to identify
the individual shortly after the offense occurred. However, he was able to identify
the vehicle.
Moran identified Appellant in open court as the individual that pointed the
gun at her. She testified that Appellant was the passenger in the vehicle and was ten
to fifteen feet away from her when the incident occurred. Moran was “freaking out”
and was frightened; she called the police. Sometime after the police arrived at the
scene, officers took Moran to the place where they believed they had located the
vehicle and the suspects that were involved in the offense. Moran identified
Appellant as the offender.
To sustain a conviction for aggravated assault as charged in this case, the State
had to prove beyond a reasonable doubt that Appellant intentionally or knowingly
threatened Moran with imminent bodily injury and that Appellant used or exhibited
a firearm during the commission of the assault. See PENAL § 22.01(a)(2) (West
Supp. 2014), § 22.02(a)(2). Moran testified that Appellant pointed a gun at her and
that she was frightened. Conn also testified that a male individual pointed a gun at
them while they were in the Metro Inn parking lot. In addition, Officer Goyang
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found Appellant next to a vehicle that matched the description that Conn had given
him at the scene. We have reviewed the evidence in the light most favorable to the
verdict, and we hold that a rational trier of fact could have found beyond a reasonable
doubt that Appellant committed the offense of aggravated assault with a deadly
weapon. See Jackson, 443 U.S. at 319. Appellant’s challenge to the sufficiency of
the evidence is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
June 30, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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