Newton, Randy Lee v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed August 16, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00188-CR

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RANDY LEE NEWTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 951,714

M E M O R A N D U M O P I N I O N

Appellant, Randy Lee Newton, appeals from his conviction for arson. In three issues, appellant argues that (1) the trial court erred in failing to suppress a witness=s in-court identification of him because it was tainted by an impermissibly suggestive pretrial identification procedure, (2) the State failed to prove the allegations in an enhancement paragraph, and (3) the trial court erred in denying his motion to suppress based on an illegal search and seizure. We affirm.

A jury convicted appellant of arson based on his setting fire to a car outside the home of his estranged wife, Linda Shafer. Shafer=s neighbor, Michelle Fougeron, witnessed someone flee from the scene after she looked out her window in response to her dogs barking loudly. She called the police and described the suspect and his vehicle. An investigation ensued, and appellant was detained the next day. An arson investigator asked Fougeron to come to a fire station where appellant was being held to see if she recognized him. Fougeron identified appellant as the person she saw fleeing the scene of the fire. At trial, Fougeron again identified appellant as the man she saw that night.

In his first issue, appellant complains that the out-of-court identification procedure was impermissibly suggestive, thereby tainting Fougeron=s in-court identification, and thus, the in-court identification should have been suppressed. The day before trial, the trial court held a hearing regarding the propriety of the out-of-court identification in which appellant=s attorney argued that appellant=s Sixth Amendment rights were violated because counsel was not present during the first identification and that the identification procedures were suggestive, stating:

I would like to say that the Defendant should have been afforded the right to have an attorney. This violates his rights underneath the 6th Amendment. It violates his rights under the due process of the 14th Amendment, and this whole procedure is highly suggestive and that her testimony should be stricken to this investigation, the fact that he was denied counsel.

The trial court denied appellant=s motion.

At trial, when Fougeron again identified appellant, no objection was made. ATexas courts stringently apply the contemporaneous objection rule in the context of suggestive identification procedures.@ In re G.A.T., 16 S.W.3d 818, 827 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (citing Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986)). Though appellant=s pretrial objection challenged the propriety of the out-of-court identification, he did not argue that Fougeron should be prohibited from making an in-court identification. These are distinct arguments requiring separate objections. See Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.CTexarkana 2002) (AAn objection to the [out-of-court photo] array does not preserve for appellate review any complaint regarding the in-court identification.@), aff=d on other grounds, 106 S.W.3d 103 (Tex. Crim. App. 2003); Warren v. State, No. 01-98-00903-CR, 1999 WL 1208499, at *1 (Tex. App.CHouston [1st Dist.] Dec. 16, 1999, pet. ref=d) (not designated for publication) (holding that an objection to the admission of a photo spread does not preserve error as to the out-of-court identification based on the photos or to the in-court identification). Thus, appellant=s failure to object to Fougeron=s in-court identification waived any such argument on appeal. See Tex. R. App. P. 33.1(a); Wallace, 75 S.W.3d at 584. We overrule appellant=s first issue.

In his second issue, appellant challenges the jury=s finding regarding an enhancement paragraph. The indictment alleged two enhancement paragraphs. The first paragraph states that before the commission of the arson offense, Ain Cause No. 16,547 C,@ appellant was convicted of aggravated robbery. The second paragraph states that before the commission of the arson offense Aand after the conviction in Cause No. 16,547 C was final,@ appellant was convicted of felony theft Aon December 19, 1994 in the 232nd District Court of Harris County, Texas.@ During the punishment phase, appellant proved that the cause number specified in the first paragraph was incorrect. The jury found the first enhancement paragraph not true but found the second one true. Appellant challenges the legal and factual sufficiency of the evidence to support the finding of true on the second paragraph.

Under Texas law, the State must prove the basis for enhancement true beyond a reasonable doubt. Williams v. State, 980 S.W.2d 222, 226 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). AIt is well settled that a pen packet combined with fingerprint analysis linking the packet to the defendant is sufficient proof of prior convictions.@ Varnes v. State, 63 S.W.3d 824, 834 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (citing Beck v. State, 719 S.W.2d 205, 209B10 (Tex. Crim. App. 1986)). The State introduced just such evidence, which was clearly sufficient to prove the second enhancement paragraph true.

Nevertheless, appellant argues that since both enhancement paragraphs recite the incorrect cause number for the offense alleged in the first paragraph and since the jury found the first paragraph not true, the evidence is insufficient to sustain a finding of true to the second paragraph because the second paragraph is conditioned on the first. This argument is without merit. The incorrect cause number for an unrelated offense was extraneous information not necessary to the proof of the offense alleged in the second paragraph. Cf. Straughter v. State, 801 S.W.2d 607, 611 (Tex. App.CHouston [1st Dist.] 1990, no pet.) (proof of cause number not necessary to prove enhancement offense). Nothing in the wording of the enhancement paragraphs makes them contingent on one another, and indeed, the jury instructions specifically gave the option of finding only the second paragraph true. In short, neither the incorrect cause number nor the jury=s finding of not true to the first paragraph negates the State=s otherwise sufficient proof as to the offense alleged in the second enhancement paragraph. Because the evidence is legally and factually sufficient to support the jury=s finding, we overrule appellant=s second issue.

In his third issue, appellant argues that the description Fougeron gave to the police of the suspect and his vehicle were so vague that they Awere inadequate to establish probable cause to arrest Appellant or search Appellant=s residence or vehicle.@ However, appellant made no argument regarding the alleged vagueness of Fougeron=s description to the trial court, arguing instead that the search of his home was invalid because it was without a warrant. Because his objection to the trial court does not comport with his objection on appeal, appellant has failed to preserve this argument for our review. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) (A[T]he point of error on appeal must correspond to the objection made at trial.@). We overrule appellant=s third issue.

Having overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).