Johnson, Michael Wayne v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 13, 2006

Affirmed and Memorandum Opinion filed April 13, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00804-CR

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MICHAEL WAYNE JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 990,384

M E M O R A N D U M  O P I N I O N

A jury convicted Michael Wayne Johnson of the offense of aggravated robbery with a deadly weapon and sentenced him to confinement for forty years in the Texas Department of Criminal Justice, Institutional Division.  Johnson appeals claiming the trial court erred in permitting his in-court identification because the pre-trial identification was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification.

In determining whether the in-court identification was admissible, we first consider whether there is clear and convincing evidence the pre-trial identification procedure was impermissibly suggestive.  See Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995).  The record reflects a photo-spread was prepared containing photographs of appellant and five other males with similar likenesses, facial features, complexions, and hair.  The complainant, Troy Berry, viewed the array but did not identify appellant. 

Berry=s granddaughter then viewed the array and informed the officer that appellant=s current appearance differed from his picture.  The officer instructed her not to say anything to Berry or influence his identification.  The record does not indicate she failed to follow his instructions.  Two days later, Berry was shown a new photo-spread with a different photograph of appellant and five other males.  Berry identified appellant saying, Athat=s the one who pulled the shotgun on me.@

Appellant does not identify what aspect of the procedure was unduly suggestive.  The fact that appellant appeared in both photo-spreads might have been suggestive, but not impermissibly so.  Id. at 34.  There is no suggestion in the record that Berry recognized appellant from the first array when viewing the second one.  Appellant has not demonstrated the pre-trial identification procedure was impermissibly suggestive.  Accordingly, there is no need to determine whether under the circumstances the procedure created a substantial likelihood of misidentification.  Appellant=s issue is overruled.  The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed April 13, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do not publish - Tex. R. App. P. 47.2(b).