in the Matter of X.D.

Opinion issued July 25, 2019

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-18-00590-CV

———————————

IN THE MATTER OF X.D.

On Appeal from the 323rd District Court

Tarrant County,1 Texas

Trial Court Case No. 323-106412-17

MEMORANDUM OPINION

Appellant, X.D., a juvenile, appeals the trial court’s finding that he engaged

in delinquent conduct by committing the penal offense of arson. In two issues,

X.D. contends that the evidence identifying him as the perpetrator of the arson is

1

The Texas Supreme Court transferred this appeal from the Court of Appeals for

the Second District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing

transfer of cases between courts of appeals).

insufficient to support the trial court’s judgment, and the trial court erred in

admitting impermissibly suggestive photo array evidence.

We affirm.

Background

On the morning of Friday, December 1, 2017, just before the 8:10 bell was

to ring to begin the school day, the fire alarm sounded at Irma Marsh Middle

School in Castleberry Independent School District in River Oaks, Texas. Assistant

Principals Arnulfo Martinez and Ruben Brown saw that smoke was filling the first-

floor sixth-grade hallway. After acting to ensure that the building was fully

evacuated, they returned to the sixth-grade hallway in search of the source of the

smoke.

Martinez and Brown discovered a fire burning in the sixth-grade boys’

bathroom. Martinez observed that “what looked like a toilet paper roll” had been

placed underneath the partition of a handicap stall and lit on fire. The fire had

spread to the partition and toilet paper dispenser, and then to the handicap railing

inside the stall.

Martinez and Brown described the fire as “intense” and the smoke as

“thick,” so much so that they had difficulty breathing. Martinez put the fire out

with a fire extinguisher. Afterwards, he had a headache and some difficulty

2

breathing, and Brown’s “back began to burn quite a bit” and he felt “really

lightheaded” and “faint.”

Michael Rehfeld, a fire investigator with the Tarrant County Fire Marshal,

was dispatched to the school to investigate. He testified that he arrived on the scene

around 8:30 or 9:00 a.m. to discover burned sanitary napkin pads, a burned toilet

paper roll, and a melted plastic toilet paper roller in the handicap stall of the boys’

bathroom. Rehfeld gave school administrators a “wanted poster” and asked them to

display it. According to Rehfeld, the fire was caused by a person or persons

connecting an open flame with a combustible material.

Officer Tony Provencio, Castleberry I.S.D. Police Department Chief of

Police, also testified as to the events of the morning of December 1, 2017. He

stated that he was notified at 8:14 a.m. that the school’s fire alarm had sounded.

When he arrived on the scene, he learned that the fire had been extinguished. He

did not enter the building because it was too dark with smoke, and “inhaling that

was kind of too much without equipment.” After confirming that everyone was out

of the building and the fire department had been called, Provencio spoke with

Martinez and Brown, who relayed the events of the morning. Because there were

no leads at that time, Provencio left the scene.

Shortly after the students returned to the school building, written and verbal

statements about the cause of the fire began to “flood” in. Of the approximately

3

100 student statements submitted that day, Martinez and Brown found only two—

written by sixth-grade students I.R. and M.R.—to be credible.

In her statement, I.R. wrote that earlier that morning, before classes had

begun, she and M.R. went to the sixth-grade girls’ bathroom. On leaving, they

“were walking and [they] saw [X.D.] and [J.M.]”2 The girls “watched [X.D.] light

the lighter,” and then they “ran” to class. “[T]hen 5 seconds later the fire alarm

went of[f] and we had to go outside but when we were leaving the theater room we

saw [X.D.] run[.] [H]e lit a fire cracker.”

M.R. wrote that she was with I.R., G., and G.’s friend outside the sixth-grade

bathrooms when she saw X.D. in the boys’ bathroom with “a lighter in his hand.”

X.D. was there with J.M. and “they both had paper rolled up and the light turned

on and it burned[. S]o me and [I.R.] ran back to class and when I was going to tell

[the teacher] the fire alarm went off.” She added, “They lit up fire crackers[. T]hey

pop loud.”

Three days later, I.R. wrote a second statement. In it, she stated that she and

M.R. “were walking out [of the girls’ bathroom] when we heard laughing and we

went to head to class and we looked inside [the boys’ bathroom] to see what was

happening so then we saw [X.D.] and [J.M.]. [X.D.] had the lighter . . . and [J.M.]

2

The sixth-grade boys’ and girls’ bathrooms are adjacent, and the doors to both are

kept open.

4

was saying light it up light it light it and it was a purple paper . . . and we walked

away and like 5 seconds later there was a fire drill.”

That same day, a school administrator contacted Officer Provencio to inform

him that I.R. and M.R. had witnessed the incident. Provencio went to the school to

investigate. After reviewing their written statements, he interviewed I.R. and M.R.

each separately. Provencio testified that he found them both to be credible and that

their verbal accounts of the incident corroborated their written statements.

Officer Provencio testified that he then prepared a photo array to administer

to I.R. and M.R. The seven photos Provencio selected for the array included four

former and current students within Castleberry I.S.D. as well as X.D. and J.M., and

another Irma Marsh Middle School student, A.G., who had been rumored to have

been involved. Provencio testified that he determined that A.G. was not involved in

starting the fire before including him in the array.

Officer Provencio stated that, in selecting the photos, he “tried to make it to

where some of these even appear to look like the suspects.” And he explained that

he chose seven photographs for the array because that was the standard number,

based on his past experience. When asked why he put both of the suspects in the

array, Provencio answered that he thought that the possibility that the witnesses

would identify “one and not another” would make it “a lot harder.”

5

Officer Provencio testified that he asked Assistant Principal Brown to

conduct the identification procedure. When defense counsel asked why he did not

conduct it himself, Provencio explained that he did not want to “make it seem like

[he] was trying to influence the witnesses to point out the suspects” and that he felt

it would be better for I.R. and M.R., because of their age, if it was conducted by

someone with whom they felt comfortable.

On December 6, Brown, after being given “specific instructions” by Officer

Provencio, presented the photo array to I.R. and M.R. Brown met with each girl

separately. Both witnesses identified the individuals in place number seven (X.D.)

and place number four (J.M.) as the perpetrators of the arson. They also filled out

school district photo lineup forms, on which they indicated that the individuals in

place numbers four and seven had committed the crime. In the space on the form

where the witnesses were asked to state their level of certainty, I.R. wrote “I’m

pretty sure but not 100% sure,” and M.R. wrote “I’m 100% sure it is number 7.

And I kind of think it’s 4.”

Officer Provencio testified that shortly after I.R. and M.R. identified X.D.

from the photo array, he arrested X.D. During its direct examination of Provencio,

the State offered the photo array as Exhibit 27, M.R.’s photo lineup form as

Exhibit 28, and I.R.’s photo lineup form as Exhibit 29 (“the photo array evidence”)

into evidence. Counsel for X.D. objected:

6

I’m going to object, Your Honor. They’re improper photo

lineups. They weren’t done correctly. They’re not supposed to

have seven people. You’re not supposed to have multiple

people [suspects] in the same lineup. So I’m going to object to

anything as far as the photo lineup goes.

The trial court admitted the exhibits.

I.R. also testified at trial. She stated that on the morning of the fire, she and

M.R. visited the bathroom before class was to begin. They saw two boys standing

behind something in the boys’ bathroom and heard “a lot of laughter” One of the

boys was J.M. One boy had a lighter and the other had a purple paper. “They were

lighting the paper,” and she saw the paper catch fire. She and M.R. then went to

their classroom, where they heard the fire alarm sound.

Later that day, I.R. and several other students, including M.R., “went to the

office and wrote the statement.” I.R. testified that M.R. told her to write the color

of the paper because at the time she didn’t remember that it was purple. When

asked whether she had written anything untrue in her December 1 statement, she

answered, “The fire cracker.”

I.R. further testified that she told a police officer that X.D. and J.M. started

the fire and that she identified X.D. from the photo array as one of the boys who

started the fire. She also explained that she had written “pretty sure but not a

hundred percent” on her photo lineup form “[b]ecause [she] didn’t remember.”

7

And she stated that Officer Provencio told her about a reward for information, but

that she “didn’t want the money.”

On cross-examination, I.R. testified that she knew J.M. but not X.D. She did

not remember telling “the DAs” that there were four boys in the bathroom but

stated that there could have been four. She did not remember saying that X.D. was

holding the lighter, but she did remember saying that M.R. told her the color of the

paper.

M.R.’s testimony was much the same as I.R.’s. She stated that she was with

I.R. when she heard giggling coming from the boys’ bathroom, where she saw

X.D. and J.M. At first, she testified that one boy had a lighter and the other had

paper. Later in her testimony, she testified that X.D. was holding purple

construction paper and the lighter. She “saw a little click,” but did not see a flame,

and she and I.R. ran back to the classroom, where she heard the fire alarm. When

reminded that she had written in her statement that G. and his friends were with her

and I.R. outside the boys’ bathroom, she remembered that they were.

With regard to the photo array, M.R. stated that she was “one hundred

percent sure” about X.D. and “kind of certain but confused a little” about J.M. She

did not remember the fire crackers she had mentioned in her statement.

On cross-examination, M.R. remembered telling Brown that she learned

X.D.’s name after seeing his picture and hearing his name the Wednesday after the

8

fire. She also stated that she learned about the reward after making her written

statement and that, as she had mentioned to the prosecutors, I.R. wanted her to lie

to the police so that I.R. could get the reward.

Allison Ward, one of X.D.’s teachers, testified that X.D. was a student in her

first period reading class. She stated that X.D. was in her classroom when the fire

alarm sounded just before the 8:10 a.m. bell was scheduled to ring. She also

testified that it would take “a minute or two” to walk from her classroom to the

bathroom.

The trial court found that X.D. engaged in delinquent conduct by committing

arson.3 See TEX. FAM. CODE ANN. § 51.03(a)(1) (providing that delinquent conduct

includes “conduct, other than a traffic offense, that violates a penal law of this state

or of the United States punishable by imprisonment or by confinement in jail”);

TEX. PENAL CODE ANN. § 28.02(a)(2)(A) (“A person commits [arson] if the person

starts a fire . . . or causes an explosion with intent to destroy or damage . . . any

building . . . knowing that it is within the limits of an incorporated city or town.”).

The trial court found the arson to be a first-degree felony because it caused

Martinez and Brown bodily injury and further found that X.D. used a deadly

weapon—“a combustible or flammable liquid or material, that in the manner of its

use or intended use was capable of causing death or serious bodily injury”—in its

3

X.D. waived his right to a jury trial.

9

commission. See TEX. PENAL CODE ANN. § 28.02(d)(1) (providing that arson is

first-degree felony if “bodily injury or death was suffered by any person by reason

of the commission of the offense”). It then sentenced X.D. to two years’ probation.

X.D. appeals the trial court’s judgment of delinquency.

Sufficiency of the Evidence

In his first issue, X.D. argues that the evidence was insufficient to identify

him as the perpetrator of the arson.

A. Standard of Review and Applicable Law

Although juvenile-court proceedings are considered civil cases, they are

quasi-criminal in nature. In re Hall, 286 S.W.3d 925, 927 (Tex. 2009); see TEX.

FAM. CODE ANN. § 51.17(a) (stating when Texas Rules of Civil Procedure and

Texas Code of Criminal Procedure apply in juvenile-court proceedings). We use

criminal-law standards to review the sufficiency of the evidence to support a

judgment of juvenile delinquency. In re D.A.K., 536 S.W.3d 845, 847 (Tex.

App.—Houston [1st Dist.] 2017, no pet.). In conducting a sufficiency review, we

view all the evidence in the light most favorable to the trial court’s judgment to

determine whether any rational factfinder could have found the essential elements

of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Lucio v. State,

351 S.W.3d 878, 894 (Tex. Crim. App. 2011). On review, appellate courts defer to

the factfinder “to resolve any conflicts in the testimony, to weigh the evidence, and

10

to draw reasonable inferences from basic facts to ultimate facts.” Jackson v.

Virginia, 443 U.S. 307, 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). The factfinder is the sole judge of the weight and credibility of the

evidence after drawing reasonable inferences from the evidence. Adames v. State,

353 S.W.3d 854, 860 (Tex. Crim. App. 2011); see also Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (reviewing court must defer to factfinder to

resolve conflicts, weigh evidence, and draw reasonable inferences). Where, as

here, the case is tried to the bench, the trial court sits as the sole factfinder, and it

alone assesses the credibility of the witnesses and decides how much weight to

give each witness’s testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim.

App. 1995). The trial court may choose to believe or disbelieve any witness’s

testimony in whole or in part. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.

Crim. App. 1976).

The State is required to prove beyond a reasonable doubt that the defendant

is the person who committed the charged crime. See Johnson v. State, 673 S.W.2d

190, 196 (Tex. Crim. App. 1984); Jones v. State, 458 S.W.3d 625, 630 (Tex.

App.—Houston [1st Dist.] 2015, pet. ref’d). It may do so by either direct or

circumstantial evidence, coupled with all reasonable inferences from that evidence.

Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Stubblefield v.

State, No. 01-16-00644-CR, 2017 WL 2645040, at *3 (Tex. App.—Houston [1st

11

Dist.] June 20, 2017, no pet.) (mem. op., not designated for publication). In

determining whether the State presented sufficient evidence to carry this burden,

we must consider “the combined and cumulative force” of all the identity evidence

in the light most favorable to the trial court’s finding. See Merritt v. State, 368

S.W.3d 516, 526 (Tex. Crim. App. 2012); Robertson v. State, No. 14-17-00446-

CR, 2018 WL 4571895, at *3 (Tex. App.—Houston [14th Dist.] Sept. 25, 2018),

pet. ref’d, untimely filed) (mem. op., not designated for publication).

B. Analysis

X.D. challenges the sufficiency of the evidence identifying him as the

perpetrator of the arson. As noted, in addition to testifying at trial that X.D. started

the fire, both I.R. and M.R. identified X.D. in their written statements as well as

from a photo array. X.D. argues that this evidence was insufficient to show that he

was the offender because I.R. and M.R. “gave a good deal of conflicting

testimony” and Allison Ward, X.D.’s teacher, testified that he was in her classroom

when the fire alarm sounded.

With regard to I.R.’s and M.R.’s testimony, X.D. identifies the following

“conflicts”:

• I.R. testified that she and M.R. walked to the classroom from the bathroom,

but M.R. testified that they ran back to the classroom.

• M.R. at first testified that she was outside the boys’ bathroom with I.R., but

after reading her statement, she testified that G. and his friends were also

there.

12

• At trial, I.R. stated that one of the boys was J.M. but in her statement, she

wrote that X.D. was the one who started the fire.

• I.R. testified at first that one boy had a lighter and the other had paper and

that the boys were behind something, but she later testified that the boys

were lighting something on fire.

• M.R. testified at first that she saw one boy with a lighter and could not

remember what the other boy was doing, but she later testified that one boy

had the lighter and the paper.

We note at the outset that many of these examples are not fairly characterized as

“conflicts” when read in the context of the questions asked and the entirety of each

witness’s testimony. But to the extent that there are inconsistencies within each

witness’s testimony and statements, or conflicts between the two witnesses’

accounts of the events, such discrepancies “do not destroy that testimony as a

matter of law.” Lipscomb v. State, 526 S.W.3d 646, 651 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d) (citing McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim.

App. 1970) (“The fact that a witness makes contradictory or inconsistent

statements does not destroy his testimony as a matter of law.”)). Instead, we

resolve any discrepancies in the witnesses’ testimony in favor of the verdict.

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see also Wesbrook v.

State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (stating that because factfinder

is sole judge of witnesses’ credibility and of weight given to their testimony, it is

exclusive province of factfinder to reconcile conflicts in evidence); Herrera v.

13

State, 526 S.W.3d 800, 808 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d)

(stating that factfinder “alone must reconcile any conflicts in the evidence”). We

therefore defer to the trial court’s resolution of any conflicts in the witnesses’

testimony.

X.D. also argues that I.R. and M.R. “lied” in their testimony. For example,

he points out that I.R. testified that, for her written statement, M.R. told her what to

write down for the color of the paper. Again, a review of I.R.’s testimony in its

entirety does not necessarily bear this out. I.R. testified that she did remember the

color of the paper after M.R. reminded her it was purple. Similarly, X.D. argues

that I.R. “admitted that she lied” when she told prosecutors in an interview that she

had seen four boys in the bathroom at the time of the fire. On cross-examination,

the following exchange occurred:

[X.D.’s counsel]: When you talked with the DAs, you actually said

there were four boys that were in the bathroom at

the time, right?”

[I.R.]: Yes.

[X.D.’s counsel]: Is that a truth or is that a lie?

[I.R.]: A lie.

[X.D.’s counsel]: That was a lie?

[I.R.]: Yes. I don’t remember putting that there [were]

four boys.

[X.D.’s counsel]: So that’s something you didn’t tell the DAs?

14

[I.R.]: No.

....

[X.D.’s counsel]: And just so I’m clear, so are you saying there

[were] definitely only two boys in the bathroom or

you just don’t remember there being more than

that?

[I.R.]: I don’t remember being more than that.

X.D.’s characterization of this testimony as I.R. “admitting she lied” to prosecutors

is only one interpretation. Alternatively, in answering the question whether “that”

is “a truth” or “a lie,” I.R. may have been referring to the prosecutors’ statement

that she told them there were four boys instead of two.

X.D. also points out that I.R. and M.R. wrote about fire crackers in their

statements but admitted at trial either that they did not remember fire crackers or

that there were none and that M.R. testified that I.R. wanted her to lie to get the

reward. We presume by referencing all of the above testimony, X.D. is arguing that

the identification evidence is insufficient because I.R. and M.R. were not credible

witnesses. But witness credibility is solely within the province of the trier of fact

who evaluates demeanor and credibility. See Thomas, 444 S.W.3d at 8; Cain v.

State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997) (“What weight to give

contradictory testimonial evidence is within the sole province of the [factfinder]

because it turns on an evaluation of credibility and demeanor.”); see also Herrera,

526 S.W.3d at 808 (stating that factfinder “may choose to believe all, some, or

15

none of a witness’s testimony”). We therefore defer to the trial court regarding the

credibility of I.R.’s and M.R.’s testimony.

In stating in his brief that I.R. “stated that she was ‘pretty sure,’ but not

100% sure, as to who started the fire when she identified in the photo line-up,”

X.D. also appears to challenge I.R.’s identification of him from the photo array.

But I.R. identified X.D. by name at trial as well as in her written statements, as did

M.R., who wrote on her photo lineup form that she was “100% sure it is [X.D.].”

This evidence is sufficient to identify X.D. as one of the students who started the

fire. See Merritt, 368 S.W.3d at 526 (holding that appellate court must consider

“combined and cumulative force” of all evidence in light most favorable to trial

court’s finding in reviewing sufficiency of identity evidence).

Finally, we turn to X.D.’s contention that Ward’s testimony makes it “highly

improbable” that he could have started the fire. Ward testified that it takes “a

minute or two” to walk from the boys’ bathroom to her classroom, and that X.D.

was in her classroom when the fire alarm sounded. This testimony does not

foreclose the possibility that, after setting the fire, X.D. could have made it to the

classroom before the fire alarm sounded; nothing in the record shows how long it

took X.D. to get to the classroom (whether he walked or ran), or how long it took

for the fire alarm to sound after the fire started.

16

In sum, the trial court was fully entitled to believe I.R.’s and M.R.’s version

of events to conclude beyond a reasonable doubt that X.D. perpetrated the arson.

We overrule X.D.’s first issue.

Admission of Identification Evidence

In his second issue, X.D. argues that the photo array evidence—consisting of

the photo array, M.R.’s photo lineup form, and I.R.’s photo lineup form—should

not have been admitted because it was so impermissibly suggestive that it gave rise

to a substantial likelihood of misidentification.

A. Standard of Review and Applicable Law

A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that later use of that identification at trial would deny the

accused due process of the law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.

App. 2001); Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995). We

review de novo whether an identification procedure was so impermissibly

suggestive as to give rise to a very substantial likelihood of misidentification, but

we review historical issues of fact in the light most favorable to the trial court’s

ruling. Fisher v. State, 525 S.W.3d 759, 762 (Tex. App.—Houston [14th Dist.]

2017, pet. ref’d) (citing Loserth v. State, 963 S.W.2d 770, 773–74 (Tex. Crim.

App. 1998)).

17

A pre-trial identification procedure may be impermissibly suggestive based

on the manner in which it was conducted or the content of the photo array. Barley,

906 S.W.2d at 33; Villareal v. State, No. 01-17-00234-CR, 2018 WL 4134994, at

*7 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op., not

designated for publication). For example, suggestiveness in the conduct of the

pretrial identification procedure may be created by police pointing out the suspect

or suggesting that a suspect is included in the photo array. Burkett v. State, 127

S.W.3d 83, 87 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Barley, 906

S.W.2d at 33). Or the content of a photo array itself may be suggestive if the

suspect is the only individual who closely resembles the description given by the

witness. Id.

Once a pre-trial identification procedure is found to have been

impermissibly suggestive, the court must determine whether the suggestive

procedure gave rise to a very substantial likelihood of irreparable misidentification.

Balderas v. State, 517 S.W.3d 756, 796 (Tex. Crim. App. 2016); Thomas v. State,

470 S.W.3d 577, 589 (Tex. App.—Houston [1st Dist.] 2015), aff’d, 505 S.W.3d

916 (Tex. Crim. App. 2016). The defendant bears the burden of showing by clear

and convincing evidence both impermissible suggestion and a substantial

likelihood of misidentification. See Barley, 906 S.W.2d at 33–34; see also Gorden

v. State, No. 01-16-00088-CR, 2016 WL 6803354, at *5 (Tex. App.—Houston [1st

18

Dist.] Nov. 17, 2016, pet. ref’d) (mem. op., not designated for publication). And

“[a]n analysis under these steps requires an examination of the ‘totality of the

circumstances’ surrounding the particular case and a determination of the

reliability of the identification.” Santiago v. State, 425 S.W.3d 437, 440 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Barley, 906 S.W.2d at 33).

Reliability is the “linchpin” in determining admissibility of identification

testimony. Nunez-Marquez v. State, 501 S.W.3d 226, 237 (Tex. App.—Houston

[1st Dist.] 2016, pet. ref’d) (quoting Burkett, 127 S.W.3d at 86). Thus, even if the

pretrial procedure is found to be impermissibly suggestive, the identification

testimony is still admissible if the indicia of reliability outweigh the

suggestiveness, such that there is not a substantial likelihood of irreparable

misidentification. Id.

B. Analysis

X.D. argues that the photo array was impermissibly suggestive because (1) it

was administered by a school official instead of by law enforcement personnel, and

(2) two of the seven photos in the array were of other “possible suspects.”

We first address the State’s argument that X.D. forfeited this issue because it

does not comport with his counsel’s trial objection. To preserve error for appellate

review, the Texas Rules of Appellate Procedure require that the record show that

the objection “stated the grounds for the ruling that the complaining party sought

19

from the trial court with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context.” TEX. R.

APP. P. 33.1(a)(1)(A). If the issue on appeal does not comport with the objection

made at trial, the error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012).

The State offered the photo array evidence through Officer Provencio after

asking him to explain how he prepared the photo array. Provencio testified that the

array consisted of seven of the school’s former and current students, and that he

made sure that each of the photos had at least some similarities with X.D. and J.M.

He chose seven people because that number was standard for photo arrays. He put

“both the possible suspects” in the array because he thought that the “possibility of

them picking one and not the other just made it a lot harder,” and he included A.G.,

who had been rumored to have been involved in the incident, only after

determining that A.G. was not involved. Provencio further testified that he asked

assistant principal Brown to conduct the identification procedure because he

believed I.R. and M.R. would be more comfortable with someone they knew.

The State then offered the photo array evidence, and X.D.’s counsel objected

as follows:

I’m going to object, Your Honor. They’re improper photo

lineups. They weren’t done correctly. They’re not supposed to

have seven people. You’re not supposed to have multiple

20

people in the same lineup. So I’m going to object to anything as

far as the photo lineup goes.

The State argues that this objection does not state that the photo arrays were

impermissibly suggestive, nor can such an argument be ascertained by considering

the context in which the objection was made.

“[A] party need not state his objection with specificity in order to preserve

error so long as the record otherwise makes it clear that both the trial court and the

opposing party understood the legal basis.” Thomas v. State, 408 S.W.3d 877, 884

(Tex. Crim. App. 2013); see also Zillender v. State, 557 S.W.2d 515, 517 (Tex.

Crim. App. 1977) (“[W]here the correct ground of exclusion was obvious to the

judge and opposing counsel, no waiver results from a general or imprecise

objection.”). This is because “the reason that any objection must be specific in the

first place is so that the trial court can avoid the error or provide a timely and

appropriate remedy, and the opposing party has an opportunity to respond and, if

necessary, react.” Thomas, 408 S.W.3d at 884. Thus, if the record on appeal shows

that these policies have been satisfied, “it should not matter to the appellate court

whether the objecting party used a particular ‘form of words’—or any particular

words at all, if meaning is adequately conveyed by context.” Id. at 884–85 (citing

State v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (“Rather than focus

on the presence of magic language, a court should examine the record to determine

whether the trial court understood the basis of a defendant’s request.”)).

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Nothing in X.D.’s counsel’s trial objection put the court or the State on

notice of his complaint that the photo array evidence was administered by a school

official instead of law enforcement. We therefore hold that X.D. forfeited this

argument for appellate review. See Moore v. State, No. 14-08-00146-CR, 2009 WL

1416075, at *8 (Tex. App.—Houston [14th Dist.] May 21, 2009, pet. ref’d) (mem.

op., not designated for publication) (holding that appellant preserved argument that

he had different hair length than others in array, but not that he was only person

with oblong face, where his sole argument in trial court was that only one other

man in photo array had similar skin tone to appellant but had different hair length

than appellant); Reynolds v. State, No. 05-05-01601-CR, 2006 WL 3742898, at *1

(Tex. App.—Dallas Dec. 21, 2006, no pet.) (mem. op., not designated for

publication) (holding argument that photo array was impermissibly suggestive

because police officer conveyed that man whose prints matched those found in car

was in photo array was not preserved for appeal when that argument was not

presented in trial court; stating that only objections made in trial court were based

on “similarities between two photos, the incident took place at night, and the

degree of illumination was unclear”; and holding that “only objection presented to

the trial court and now raised on appeal is the similarities of the two photos. Thus,

this is the only argument properly presented to this Court for review”).

22

But X.D. did not forfeit his argument that the inclusion of photos of J.M. and

A.G. rendered the photo array impermissibly suggestive. Here, given Officer

Provencio’s testimony just before the State offered the photo array evidence, it is

clear that “[y]ou’re not supposed to have multiple people in the same lineup” was

an objection that the inclusion of J.M. and A.G. in the photo array made it

impermissibly suggestive. See Clark, 365 S.W.3d at 339 (“In determining whether

a complaint on appeal comports with a complaint made at trial, we look to the

context of the objection and the shared understanding of the parties at the time.”).

We therefore consider this argument.

To amount to the level of impermissible suggestiveness necessary to require

reversal, the photographic identification procedure must in some way be so

defective as to indicate or suggest the photograph that the witness is to identify.

Ward v. State, 474 S.W.2d 471, 475 (Tex. Crim. App. 1971); Aviles-Barroso v.

State, 477 S.W.3d 363, 381 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

X.D. does not cite any authority supporting his argument that the inclusion of two

other potential suspects rendered the array impermissibly suggestive. And this

argument is unlike any other we have found. As we understand it, it is X.D.’s

position that the probability that the witnesses would select “a” potential suspect

was increased by including J.M. and A.G., two additional suspects, in the array.

While this is true, it did not increase X.D.’s individual odds of being selected. We

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conclude that X.D. has not shown by clear and convincing evidence that the photo

array was impermissibly suggestive. See Barley, 906 S.W.2d at 33–34.

We overrule X.D.’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

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