                                      COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS


                                                 §
 AARON WILLIAMS,                                                 No. 08-10-00056-CR
                                                 §
                   Appellant,                                      Appeal from the
                                                 §
 V.                                                          168th Judicial District Court
                                                 §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                 §
                   Appellee.                                    (TC# 20080D06123)
                                                 §

                                                 §

                                          OPINION

       Aaron Williams was convicted of two counts of aggravated robbery and three counts of

burglary of a habitation. The trial court sentenced Appellant to 12 years’ imprisonment for the

robbery convictions and 12 years’ imprisonment for the burglary convictions. The sentences will

run concurrently. On appeal, Appellant raises a single issue challenging the trial court’s denial of

his pretrial motion to suppress.

       Appellant was indicted for two counts of aggravated robbery and three counts of burglary

of habitation. Appellant filed a motion to suppress. Specifically, Appellant argued that the photo

array through which the victim of the charged offenses, Mrs. Emma Olivas-Vellan, identified

him as the perpetrator was illegally suggestive. The trial court denied Appellant’s motion.

       During Mrs. Olivas-Vellan’s trial testimony, she again identified Appellant as who

burglarized her home and attacked her and her husband. The jury convicted Appellant of all

counts. Appellant elected to be sentenced by the court. Prior to the punishment phase, the
parties reached a sentencing agreement, which provided that Appellant would serve twelve years

for each offense, sentences to run concurrently. The trial court accepted the agreement and

sentenced Appellant accordingly.

       In his sole issue presented for this Court’s review, Appellant contends that the trial court

abused its discretion by denying his motion to suppress the evidence of Mrs. Olivas-Vellan’s

pretrial identification, because the photo array was illegally suggestive. Although Appellant’s

argument focuses exclusively on the court’s suppression ruling, as a preliminary matter, we must

address whether the error complained of is preserved for our review. Texas courts stringently

apply the contemporaneous objection rule in the context of suggestive identification procedures.

See TEX .R.APP .P. 33.1(a); Perry v. State, 703 S.W.2d 668, 670 (Tex.Crim.App. 1986). Absent a

timely objection to the in-court identification, or testimony based on an allegedly suggestive

identification procedure, no error is preserved. Perry, 703 S.W.3d at 671. In other words,

despite the denial of Appellant’s motion to suppress the investigative identification, Appellant

was still required to object to the witness’s in-court identification to preserve the alleged error.

Perry, 703 S.W.2d at 670. Failure to do so constitutes a procedural default, and waives the

complaint for appellate review. See Wallace v. State, 75 S.W.3d 576, 584 (Tex.App.--Texarkana

2002, pet. granted), aff’d on other grounds, 106 S.W.3d 103 (Tex.Crim.App. 2003).

       There is no indication from the record of Mrs. Olivas-Vellan’s trial testimony that

Appellant objected to her in-court identification. Therefore, Appellant’s argument regarding the

trial court’s ruling on his motion to suppress has been waived. See Wallace, 75 S.W.3d at 584.

Issue One is therefore overruled as waived.

       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


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June 15, 2011
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




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