Fuller v. State

858 S.W.2d 528, 1993 Tex. App. LEXIS 2036, 1993 WL 262593
CourtCourt of Appeals of Texas
DecidedMay 20, 1993
DocketNo. 11-91-276-CR
StatusPublished
Cited by6 cases

This text of 858 S.W.2d 528 (Fuller v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller v. State, 858 S.W.2d 528, 1993 Tex. App. LEXIS 2036, 1993 WL 262593 (Tex. Ct. App. 1993).

Opinion

OPINION

McCLOUD, Chief Justice.

The jury convicted appellant, Alonzo Diego Fuller, of aggravated sexual assault, found the enhancement allegations to be true, and assessed appellant’s punishment at confinement for 99 years. We affirm.

The victim was raped in her home on December 22, 1990, at approximately 11:00 p.m. by a man who apparently entered the house through an unlocked window.

Appellant urges in his first point of error that the evidence is insufficient to prove that he was the person who committed the aggravated sexual assault. In order to determine if the evidence is insufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991).

The victim was lying in bed when she saw the “silhouette” or body outline of a man enter her bedroom. The bedroom light was off, but a table lamp was on in the living room. The assailant put his hands over the victim’s eyes and later put a pillowcase over her head. As the victim struggled with the assailant, she scratched the left side of his “face or body.” At one point, the victim was able to see that the assailant was wearing dark pants and [530]*530white tennis shoes with blue trim. The victim saw her purse “dangling” from the assailant’s arm, and she heard paper tearing.

Terrie Puller, appellant’s wife, testified that appellant came home between 11:00 and 11:30 p.m. on December 22. He was acting nervous, and he had a fresh scratch on the left side of his neck. Appellant was wearing tennis shoes and black jogging pants.

On January 4, 1991, during the search of appellant’s house, Brownwood police officers found three torn-up checks in a wastebasket. Terrie Puller told the officers that appellant had placed the checks in the basket. The victim identified the checks as coming from a checkbook that was in her purse at the time of the sexual assault. The officers also found a pair of tennis shoes which Terrie Fuller said belonged to appellant. The patterns on the soles of the shoes were consistent with the patterns of impressions found in the snow, immediately following the sexual assault, at a window outside the victim’s house. The similarities included the word “Equipment” on the heel, the lug pattern on the heel, a concentric pattern and a star pattern at the ball of the foot, and a ridge pattern at the outside edge.

Appellant’s blood test revealed that he was a blood group “A secretor” and that he had an “enzyme PGM subtype of 1 + 2 —The victim’s vaginal swab test showed that the assailant was a blood group “A secretor” who had a “PGM subtype of 1 + 2 —The test findings were consistent with appellant’s having been the assailant.

The trial court ordered appellant to repeat before the jury certain words that were said by the assailant during the sexual assault. The victim testified that appellant’s voice was “[vjery, very similar” to the voice of the assailant. The victim testified that appellant’s blue and white tennis shoes appeared “similar” to the shoes worn by the assailant.

After reviewing all of the evidence in the light most favorable to the jury’s verdict, we hold that the evidence is sufficient to support the jury’s finding that appellant was the assailant. Appellant’s first point of error is overruled. We have carefully reviewed the authorities cited by appellant, and each case is clearly distinguishable by the facts.

Appellant argues in his second point of error that the trial court erred in overruling his motion to suppress the items taken by the police during the search of appellant’s home. Appellant specifically argues that the trial court violated his rights under TEX. CONST, art. I, § 9 and TEX.CODE CRIM.PRO.ANN. art. 38.23 (Vernon Supp. 1993).

On January 4, 1991, Terrie Fuller, appellant’s wife, gave Brownwood Police Officer Jerry Randall Haskins written permission to search the trailer house occupied by appellant and Terrie Fuller. Haskins also secured a search warrant before searching appellant’s trailer house.

The question of whether consent to search was voluntary is a question of fact to be determined from the totality of all the circumstances. Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982). The testimony of Terrie Fuller and Haskins shows by clear and convincing evidence that the consent of Terrie Fuller was freely and voluntarily given. See Meeks v. State, 692 S.W.2d 504 (Tex.Cr.App.1985).

On January 4, 1991, Terrie Fuller was married to appellant, and she was living with appellant at the trailer house. Persons who have equal access to and control over premises have authority to authorize a search. Swink v. State, 617 S.W.2d 203 (Tex.Cr.App.1981). May v. State, 780 S.W.2d 866 (Tex.App.—Dallas 1989, pet’n ref’d), cited by appellant, is clearly distinguishable. There, an “estranged wife” who had several months before the search, moved from the house of the defendant and who was antagonistic to the defendant, gave officers permission to search the defendant’s house. Furthermore, the evidence in May showed that the estranged wife was working with police officers to “set up” the defendant and have him arrested. There are no such facts in the [531]*531instant case. Appellant’s second point of error is overruled.

In his third point of error, appellant asserts that the court should have granted his motion to suppress because the affidavit, upon which the search warrant was issued, totally failed to establish any reliability on the part of the informant. We disagree.

First, because of our holding that the consent to search was valid, there was no necessity that Haskins secure a search warrant. Nevertheless, we find that the affidavit sufficiently showed the reliability of Terrie Fuller, the informant. Haskins’ affidavit contained sufficient “factual basis” for determining the reliability of Terrie Fuller. See Johnson v. State, 803 S.W.2d 272 (Tex.Cr.App.1990), cert. den’d, — U.S. -, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991). Appellant’s reliance on Ware v. State, 724 S.W.2d 38 (Tex.Cr.App.1986), is misplaced. There, the affidavit contained no “facts” regarding probable cause. Appellant’s third point of error is overruled.

Appellant contends in the fourth point of error that the trial court violated appellant’s rights under TEX. CONST, art. I, § 10 by compelling appellant to read, before the jury, certain statements or words attributed to the assailant.

Article I, section 10 provides that the accused “shall not be compelled to give evidence against himself.”

The victim testified that, during the sexual assault, the assailant made certain statements.

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Bluebook (online)
858 S.W.2d 528, 1993 Tex. App. LEXIS 2036, 1993 WL 262593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-state-texapp-1993.