COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00433-CR

CHARLES LEVI MILLER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

A jury found appellant Charles Levi Miller guilty of aggravated assault with 

a deadly weapon, a knife, and assessed his punishment at fifteen years’ 

confinement and a fine of $2,000. In two issues, Miller argues that the trial court 

abused its discretion by admitting into evidence four knives and photographs of 

those knives and that in-court identifications of him by two witnesses were 

 

1See Tex. R. App. P. 47.4.
2

inadmissible because they were tainted by an impermissibly suggestive pretrial 

identification procedure. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

One afternoon, Kathy McCain was working alone at the Akers & Fultz 

office on Loving Highway in Graham when a man, later identified as Miller, came 

to the door of her office. Miller asked McCain if she knew the owner of an 

adjacent building. McCain directed the man to Coleman’s Packers, the business 

across the street, for the information. Miller left McCain’s office and went to 

Coleman’s Packers, where he spoke to Stacy Creswell. Approximately ten 

minutes later, Miller returned to McCain’s office and asked to borrow a phone 

book. Miller returned the phone book to McCain, and when she reached out to 

take it, Miller grabbed her left arm and pushed her down onto a couch. Miller 

held a knife to McCain’s throat and told her to do as he said or he would slit her 

throat. McCain began praying out loud to God and Jesus and pleaded with Miller 

to stop. Miller attempted to take off McCain’s jeans while still holding the knife 

but was unable to do so. McCain continued pleading with Miller and finally 

convinced him to stop. Miller stood, releasing McCain, hugged her, and left. 

McCain and Creswell each gave officers a description of Miller and the 

truck he was driving. Officers located the truck at a house and found Miller lying 

on the floor inside the house. Miller accompanied officers to the police station 

and consented to a search of his home and truck. Officers found two knives in 
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the house and two in the truck. At the police station, Miller confessed to the 

assault and gave a written statement to officers. 

Two days after the attack, Sergeant Terry Vanlandingham met with 

McCain at the Akers & Fultz office and met with Creswell at the Graham Police 

Department to show them a photographic lineup that he had compiled from the 

Young County Jail database. The photographic lineup consisted of six black and 

white photographs of males approximately the same size and build. Each

photograph contained a marker with an identification number and the booking 

date of the individual. Miller’s photograph was the only one that had the same

booking date as the offense date. McCain and Creswell both identified Miller in 

the photographic lineup. 

III. ADMISSIBILITY OF THE KNIVES AND PHOTOGRAPHS

In his first issue, Miller argues that the trial court abused its discretion by 

admitting into evidence the four knives that were found in his truck and house 

and the photographs of those knives because there was no evidence that the 

knives were used in the commission of the assault. We will assume error and 

apply a harm analysis.2

 

2

The parties appear to dispute whether the knives were admissible as 

evidence of the actual knife used in the assault or as demonstrative evidence of 

replicas or duplicates of the actual knife used. We need not decide whether the 

complained-of evidence was admissible for either reason because, applying the 

appropriate standard of review, we hold that any error was harmless.
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Because any error in admitting this evidence was not constitutional, rule 

44.2(b) is applicable. Tex. R. App. P. 44.2(b). A substantial right is affected 

when the error had a substantial and injurious effect or influence in determining 

the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) 

(citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 

(1946)). Conversely, an error does not affect a substantial right if we have a fair 

assurance that the error did not influence the jury, or had but a slight effect. 

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State, 

967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 

In making this determination, we review the record as a whole, including 

any testimony or physical evidence admitted for the jury’s consideration, the 

nature of the evidence supporting the verdict, and the character of the alleged 

error and how it might be considered in connection with other evidence in the 

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also 

consider the jury instructions, the State’s theory and any defensive theories, 

whether the State emphasized the alleged error, closing arguments, and even 

voir dire, if applicable. Id. at 355–56.

In this case, the State presented ample evidence of Miller’s guilt, including 

his use of a deadly weapon. McCain testified that Miller held a knife to her throat 

and threatened to slit her throat if she did not cooperate. She testified that she 

could not “be for sure” that the knife used in the assault was one of the four 

knives recovered by officers from Miller’s truck or house. Officers that arrived on 
5

the scene after the assault saw visible redness on McCain’s neck and took 

photographs of her injuries. Miller later confessed to the attack in writing, 

although he did not mention the use of a knife in his confession. The testimony 

about the knives found in Miller’s truck and home was not extensive and focused 

on where the knives had been found and the fact that McCain could not positively 

identify one as the one used in the attack. The State made no mention of the 

knives in its closing arguments, but the defense’s closing argument reiterated to 

the jury that none of the knives were ever identified by McCain. 

Having examined the record as a whole, we have a fair assurance that any 

error in admitting the knives found in Miller’s truck and house, and photographs 

of those knives, did not substantially sway the jury to finding him guilty of assault 

with a deadly weapon. See Solomon, 49 S.W.3d at 365; Johnson, 967 S.W.2d at

417. Accordingly, we hold that any error in admitting the knives and photographs

of the knives did not have a substantial or injurious effect on the jury’s verdict and 

did not affect Miller’s substantial rights. See King, 953 S.W.2d at 271. Thus, we 

disregard any error. See Tex. R. App. P. 44.2(b). We overrule Miller’s first issue.

IV. IN-COURT IDENTIFICATIONS

In his second issue, Miller argues that Creswell’s and McCain’s in-court 

identifications of Miller as the person who committed the assault lacked indicia of 

reliability because their out-of-court identifications were based on an

impermissibly suggestive photo array. 
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A. Standard of Review

To preserve a complaint for our review, a party must have presented to the 

trial court a timely request, objection, or motion that states the specific grounds 

for the desired ruling if they are not apparent from the context of the request, 

objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 

691–92 (Tex. Crim. App. 2009). Further, the trial court must have ruled on the 

request, objection, or motion, either expressly or implicitly, or the complaining 

party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 

33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A 

reviewing court should not address the merits of an issue that has not been 

preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 

2010) (op. on reh’g). 

B. Preserving Issues Challenging Pretrial Photo Arrays

When attacking an in-court identification as being tainted by an 

impermissibly suggestive pretrial identification procedure, generally, a motion to 

suppress the identification should be filed and a hearing held out of the jury’s 

presence. Barley v. State, 906 S.W.2d 27, 32 (Tex. Crim. App. 1995), cert. 

denied, 516 U.S. 1176 (1996); Martinez v. State, 437 S.W.2d 842, 848 (Tex. 

Crim. App. 1969); Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.—Texarkana 

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

very least, there should [be] a trial objection to the in-court identification made by 

the witnesses who viewed the photographic array.” Barley, 906 S.W.2d at 32. 
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Failure to complain about or object to the in-court identification amounts to a 

procedural default and waives any complaint on appeal. Id.; Wallace, 75 S.W.3d 

at 584. It is not enough to object to the introduction of the photographic lineup to 

preserve a complaint on the in-court identification. See Wallace, 75 S.W.3d at 

584. 

C. Waiver of Complaint Regarding Pretrial Photo Array

Miller argues on appeal that neither McCain’s nor Creswell’s initial 

descriptions were particularly specific or adequate to identify Miller and that the 

date of Miller’s arrest that is visible on the photograph of him in the lineup had the 

“corrupting effect” of a suggestive pretrial lineup. However, Miller did not file a 

motion to suppress the in-court identifications or object when either Creswell or 

McCain identified him in court. See Barley, 906 S.W.2d at 32; Wallace, 75 

S.W.3d at 584. Consequently, Miller has not preserved this issue for appeal. 

See Tex. R. App. P. 33.1(a)(1). We overrule Miller’s second issue.
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V. CONCLUSION

Having overruled Miller’s two issues, we affirm the trial court’s judgment. 

PER CURIAM

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: July 12, 2012