THOMAS TOLAND v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-01-390-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

THOMAS TOLAND ,   Appellant,

v.

THE STATE OF  TEXAS  , Appellee,

On appeal from the 105th District Court

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Valdez

Appellant, Thomas Toland (Toland), appeals from a conviction of check forgery. He argues the trial court erred because the evidence was factually insufficient to sustain the conviction. We affirm.

Facts and Procedural History

Toland twice attempted to cash a $600.00 check made payable to him. At both banks, Toland used the drive-thru lane and used his driver=s license for identification. Terry Rosas (Rosas), the teller at the first bank, could not cash the check due to insufficient funds. Emily Garcia (Garcia), the teller at the second bank, noticed the signature on the check did not match the signature of the check=s account holder, Mr. Shockley. Toland drove off while Garcia called Mr. Shockley, who told her that his checks were stolen and that he had not written a check to Toland. Garcia kept the $600.00 check and Toland=s license, and the police were called. The two banks posted copies of Toland=s license on their bulletin boards the next day.

Both Rosas and Garcia identified Toland as the person who attempted to cash the check in a six-man photo lineup and in court. Rosas testified that Toland was Anot very far@ from her in the drive-thru lane, that she had not seen Toland=s license for three to four days before looking at the photo lineup, and that she had no problem identifying Toland. Garcia testified that the drive-thru lane was Aright directly in front of@ her and that she did not need to look at Toland=s licence before the photo lineup because she remembered Toland=s face. Toland=s counsel did not object to either Rosas=s or Garcia=s in-court identification.

Toland presented two alibi witnesses. Having waived a jury trial, Toland was found guilty of forgery, sentenced to two years, and fined $500.00. Toland=s pro se motion for new trial was denied, and the court appointed another counsel for appeal to replace his previous counsel, who withdrew without Toland=s objection.

Analysis

Toland=s sole point of error argues that the photo lineup was suggestive and the eyewitnesses= testimony is therefore obviously weak and cannot support his conviction. Raising the issue of factual insufficiency, Toland argues that the lineup was suggestive because his lineup photo Alooks exactly like@ his license photo. He asserts Rosas=s and Garcia=s eyewitness testimony would therefore be unreliable and insufficient to support the vital fact that he was the person attempting to cash the check at the two banks.

In performing factual-sufficiency review, the appellate court must give due deference to the fact finder=s determinations, especially those concerning the weight and credibility of the evidence, and must examine all evidence impartially. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); Contreras v. State, 54 S.W.3d 898, 903 (Tex. App.BCorpus Christi 2001, no pet.). We may not reverse unless the evidence supporting guilt is either so obviously weak or so greatly outweighed by the overwhelming weight of contrary evidence that the conviction is clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

A. Suggestive Photo Lineup

It is true that a conviction based on in-court identification by eyewitnesses following a pretrial photo identification may be set aside when the photo-identification procedure was Aso impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification.@ Crane v. State, 786 S.W.2d 338, 348 (Tex. Crim. App. 1990). However, failure to object waives any appealable error regarding out-of court identification or its taint on the in-court identification. Perry v. State, 703 S.W.2d 668, 670-71 (Tex. Crim. App. 1986); Degarmo v. State, 922 S.W.2d 256, 268 (Tex. App.BHouston [14th Dist.] 1996, pet. ref=d) (appellant waived any error regarding out-of-court identification by failing to object to in-court identification.)

In this case, Toland=s failure to object to either Rosas=s or Garcia=s in-court identification waives any appealable error regarding the suggestiveness of the lineup or its taint on their in-court identification. Accordingly, we find his contention concerning the photo lineup=s alleged suggestiveness to be waived.

B. Remaining Factual-Sufficiency Considerations

Aside from Toland=s argument concerning the lineup=s suggestiveness, his sole point of error also raises the issue of factual sufficiency. During this bench trial, the trial court was presented with testimony from Rosas=s and Garcia=s positively identifying Toland as the man who attempted to cash the check. Toland presented two alibi witnesses, his fiancé and her daughter, who testified that he was with them on the day he allegedly attempted to cash the check.

The trier of factBas the exclusive judge of the facts and the witnesses= credibilityBmay believe or disbelieve the testimony of any witness, Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1982), including that of alibi witnesses, Lopez v. State, 815 S.W.2d 846, 849 (Tex. App.BCorpus Christi 1991, no pet.). In light of the evidence presented, we cannot say the eyewitness testimony supporting Toland=s conviction was so weak as to be factually insufficient. See, e.g., Stewart v. State, 664 S.W.2d 835, 837 (Tex. App.BCorpus Christi 1984, no pet.) (the testimony of just one eyewitness is sufficient to sustain a forgery conviction even when alibi evidence is presented). Nor can we say that the evidence supporting Toland=s conviction is so greatly outweighed by overwhelming contrary evidence as to make his conviction clearly wrong and manifestly unjust, Vasquez, 67 S.W.3d at 236.

We affirm.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 8th day of August, 2002.