KENNETH JOEL CROW, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00815-CR
 
KENNETH JOEL CROW,                                FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 25, 1989
        Kenneth Joel Crow appeals his conviction by a jury for aggravated robbery. The jury assessed punishment at seventeen years confinement, enhanced by a prior conviction. Crow contends that 1) the photographic lineup identification procedure was impermissibly suggestive; 2) the photograph of a co-defendant should not have been admitted; 3) the trial court should not have allowed testimony about an extraneous offense committed by a co-defendant; and 4) the order revoking probation should not have been admitted. We disagree and affirm the trial court's judgment.
        Crow and two companions, a man and a woman, entered a Tom Thumb store at approximately one o'clock in the morning. A store employee, Danny Sims, had seen each of the three individuals, separately, in the store on previous occasions. Sims had noticed that the three people walked throughout the store, but never bought anything. On the night in question, Sims saw Crow and the woman standing directly in front of the other man, who was putting meat inside his jacket. Crow and the woman were looking around, as if keeping a lookout. Sims notified his supervisor, Rick Roach. Roach then saw the three individuals walking out of the store without attempting to pay for anything. Roach called to them to come back into the store. Crow turned to Roach, pulled out a knife, and told him to "come on out." Roach went back into the store and called the police. Crow's companions were arrested nearby, but Crow escaped. The next day, Roach identified Crow in a photographic lineup and he was later arrested.
        Crow contends that the photographic lineup was impermissibly suggestive and tainted Roach's in-court identification of Crow. Testimony based upon a pre-trial photographic lineup is inadmissible if the lineup was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1986). However, an impermissibly suggestive lineup does not automatically require the exclusion of evidence because the admissibility of identification testimony depends on its reliability. Garcia v. State, 626 S.W.2d 46, 54 (Tex. Crim. App. 1981). We must look at the following factors to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness in making the identification; and (5) the length of time between the crime and the identification. Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983).
        Roach testified that he observed Crow for two or three minutes when Crow turned to face him in the parking lot. Roach was standing at the store's doorway. The sidewalk in front of the store and the parking lot were well lit, and Roach stood ten to twenty yards away from Crow. Roach testified that he could see Crow clearly and that he concentrated on Crow. He also testified that he had seen Crow in the store prior to the night of the offense. He identified Crow in the photographic lineup only fourteen hours after the offense occurred. He stated that he would have been able to identify Crow in court even if he had never seen the photographic lineup.
        Based upon the five factors above, we find that Roach's in-court identification was sufficiently reliable. Because of his previous observations, Roach had an independent basis for his in-court identification of Crow. An impermissible suggestiveness in the photographic lineup would not render Roach's in-court identification inadmissible. Garcia, 626 S.W.2d at 54. We overrule the first point of error.
        Crow claims that the trial court erred in admitting into evidence a photograph of Anthony Willis, a co-defendant in this case. Willis was the man whom the store employee, Sims, had seen putting meat inside his jacket. Crow argues that the photograph was not relevant to his case and prejudiced him by leading the jury to an inference of guilt by association. The photograph was introduced while Sims, a Tom Thumb employee, was describing the events of the night in question and the participants in the offense. Sims had previously described what Willis wore on the night in question, without objection. Sims stated that the photograph of Willis reflected his appearance on that night.
        The trial court has the discretion to admit a photograph. Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987). If a photograph is relevant and accurately represents the subject as of a certain time, it is generally admissible. De Luna v. State, 711 S.W.2d at 44, 46 (Tex. Crim. App. 1986). If an oral description is admissible, a photograph is also admissible. Marras, 741 S.W.2d at 404. Sims testified that the photograph accurately portrayed Willis on the night of the offense. Crow allowed Sims to testify as to Willis's appearance on the night of the offense; therefore, the trial court acted within his discretion in admitting Willis's photograph depicting his appearance on that night. We have found no authority which prohibits showing a witness a single photograph of a co-defendant not on trial. We overrule the second point of error.
        Crow next contends that the trial court erred in allowing Sims to testify that he had previously caught Crow's female companion stealing meat at the Tom Thumb store. Crow argues that the testimony is evidence of an extraneous offense which he did not commit and which was irrelevant to his case. Crow's attorney objected at trial: "Your Honor, we object to this testimony as irrelevant to the defendant. At this time.[sic] It's outside the scope of the trial, Your Honor." In order to preserve error, counsel must make a specific objection. Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984). An objection of merely "irrelevant" is too general as it fails to state the reason that the evidence is irrelevant; such an objection preserves nothing for review. Barnard v. State, 730 S.W.2d 703, 716 (Tex. Crim. App. 1987); McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980). Crow's objection that the testimony was irrelevant and outside the scope of the trial was a general objection. It failed to show why the testimony was irrelevant and failed to preserve error. We overrule his third point of error.
        In his final point of error, Crow contends that the trial court erred in admitting a penitentiary packet into evidence at the punishment phase because the judgment revoking probation showed that he had broken his probation by violating a law. He claims that this constitutes an inadmissible extraneous offense. However, at the guilt or innocence stage, Crow testified on cross-examination that his probation, shown in the penitentiary packet in question, was revoked because he committed a burglary. The defense did not object to this testimony. Any error in introducing improper evidence is cured if the same evidence is admitted elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 510-11 (Tex. Crim. App. 1984). The objectionable evidence in the penetentiary packet had already been admitted earlier by Crow himself. If the introduction of the penitentiary packet constituted error, it was cured by Crow's own unobjected testimony. We overrule the fourth point of error and affirm the trial court's judgment.
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00815.F
 
 
File Date[01-02-89]
File Name[880815]