Pinson v. State

733 S.W.2d 387, 1987 Tex. App. LEXIS 7692
CourtCourt of Appeals of Texas
DecidedJuly 1, 1987
DocketNo. 08-86-00120-CR
StatusPublished
Cited by2 cases

This text of 733 S.W.2d 387 (Pinson 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
Pinson v. State, 733 S.W.2d 387, 1987 Tex. App. LEXIS 7692 (Tex. Ct. App. 1987).

Opinion

OPINION

WOODARD, Justice.

This is an appeal from a conviction for aggravated sexual assault. The jury assessed punishment at thirteen years’ imprisonment. We reverse and remand.

In Point of Error No. One, Appellant contends that the affidavit used to secure a search warrant for Appellant’s residence failed to present probable cause to believe that the items sought would be found at such location. At the time the affidavit was prepared, Appellant had been identified in a photographic lineup by the complainant. He had been placed under arrest. The complainant had provided a description of the items observed during the abduction/rape — to include a dark corduroy jacket, a grey T-shirt with blue trim at the collar and sleeves, a handgun and a penlight flashlight. These were the precise items sought in the affidavit and warrant. The affiant was also aware that Appellant was an eighteen-year-old high school student residing at his parents’ home, which was in the same area of town that the offense occurred and only a short distance from the place where the complainant’s vehicle was found abandoned.

Appellant relies upon the reasoning expressed in Bridger v. State, 503 S.W.2d 801, 803-804 (Tex.Crim.App.1974), which invalidated a search warrant under the first prong of the former Aguilar-Spinelli standard of review. Specifically, the affidavit failed to provide a reviewable probable cause rationale for the asserted belief that the incriminating items sought were at the described location. That is not the case with the affidavit before us. The affiant’s basis for belief is apparent from the face of the affidavit. The items sought were those of the assailant, not the victim. They in-[389]*389eluded items of personal clothing. The assailant, identified as Appellant, was a high school student still residing with his parents at the listed address. These factors present more than a mere suspicion as to the location of the items sought. These facts would warrant a reasonably cautious individual to believe that the personal items would be retained, not abandoned, and would most likely be maintained at the suspect’s residence. Consequently, we conclude the affidavit does present probable cause. See: Lopez v. State, 535 S.W.2d 643, 647-648 (Tex.Crim.App.1976). Point of Error No. One is overruled.

Point of Error No. Two complains that the original of the affidavit and warrant was not produced at trial and that a copy was accepted over a “best evidence” objection. See: Ortiz v. State, 651 S.W.2d 764 (Tex.Crim.App.1983). The rule permits use of a copy if the court in its discretion finds from the evidence that a reasonable but unsuccessful effort has been made to locate the original and if there is no suspicion that the copy differs from the original. Ortiz, at 766; Anderson v. State, 621 S.W.2d 805, 809-810 (Tex.Crim.App.1981); Edwards v. State, 672 S.W.2d 10, 12 (Tex. App. — Houston [14th Dist.] 1984, no pet.). In this case, Deputy County Clerk June Patrick, supervisor of the civil-criminal division, testified that clerks had searched for the original affidavit and warrant for approximately one month without success. The records indicated that it had not been checked out to anyone since it had been filed. She identified State’s pretrial Exhibit No. Three, a purported copy, as bearing the file stamp of the clerk’s office. Copies are stamped and returned to the police when the original return is filed. While she could not testify as to the similarity between the copy and the original, Detective Joe Garcia, the affiant, testified that State's Exhibit No. Three was a true and correct copy of the original, differing only with regard to the blue file stamp of the clerk's office. The combined testimony of these two witnesses satisfied the standards enunciated in the cited cases. Point of Error No. Two is overruled.

Point of Error No. Three complains of improper bolstering of the complaining witness’s identification of Appellant in the photographic and physical lineups. The only specific reference to the statement of facts fails to disclose any bolstering. The prosecutor asked Detective Curtis John Flynn if he attended the physical lineup. An immediate bolstering objection was lodged at the bench. The court did not rule, but the prosecutor ceased any further inquiry. Bird v. State, 692 S.W.2d 65, 71 (Tex.Crim.App.1985). Later, Detective Joe Garcia testified without objection that the complainant identified Appellant in the photographic lineup. Any error was waived by failure to object. Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978). The next reference to the physical lineup was met with an objection. The objection was sustained and a curative instruction was given. No reversible error is presented. Furtick v. State, 592 S.W.2d 616 (Tex.Crim.App. 1980); Maddox v. State, 591 S.W.2d 898 (Tex.Crim.App.1979), cert. denied, 447 U.S. 909, 100 S.Ct. 2994, 64 L.Ed.2d 859 (1980). Point of Error No. Three is overruled.

Point of Error No. Four asserts error in prohibiting defense inquiry before the jury into the results of a rape examination which was conducted by Dr. Marshall Dennis Mabry less than three hours after the alleged assault. In accordance with former Tex.Penal Code Ann. sec. 22.065 and a motion in limine by the State, the matter was developed in camera, with the record sealed, and transmitted to this Court. During the rape examination, the complainant disclosed that her last act of intercourse occurred approximately forty-eight hours prior to the alleged rape and that no condom had been used. She also stated during the examination that the assailant experienced orgasm. She later told police and testified in camera that she believed he ejaculated inside her. Dr. Mabry found sperm in the vaginal vault, all of which were nonmotile. He testified that, absent evidence of some rare condition, in his opinion the sperm was in place at least forty-eight hours. Pubic hair was examined, with no foreign hair identified. Scratches were detected on the complainant’s inner [390]*390thighs, which she herself attributed to climbing over a rock wall after the assault. Blood samples were taken and compared with secretion for which Dr. Mabry could find no source. The secretions matched the complainant’s blood type.

The defense sought to introduce all of the aforementioned evidence before the jury in order to argue that there was in fact no physical evidence to corroborate the act of intercourse.

The State argued and the court ruled that the probative value of this evidence was outweighed by the prejudicial and inflammatory effect of exposing the complainant’s prior sexual conduct, relying upon former Section 22.065. That determination is to be reviewed under an abuse of discretion standard. Allen v. State, 666 S.W.2d 245 (Tex.App.

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Related

Pinson v. State
778 S.W.2d 91 (Court of Criminal Appeals of Texas, 1989)
Golden v. State
762 S.W.2d 630 (Court of Appeals of Texas, 1989)

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733 S.W.2d 387, 1987 Tex. App. LEXIS 7692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinson-v-state-texapp-1987.