Autry v. State

• Decision Date: 16 October 1986
• Docket Number: No. 13-86-046-CR,13-86-046-CR
• Citation: 718 S.W.2d 898
• Parties: Arthur Roy AUTRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 898

718 S.W.2d 898

Arthur Roy AUTRY, Appellant, v. The STATE of Texas, Appellee.

No. 13-86-046-CR.

Court of Appeals of Texas Corpus Christi.

Oct. 16, 1986.

Rehearing Denied Nov. 13, 1986.

John Peterson, Beeville, for appellant.

C.F. Moore, Dist. Atty., Beeville, for appellee.

Before DORSEY, UTTER and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

This is an appeal from a conviction for the aggravated sexual assault in which C_____ A_____ was the victim. The jury assessed punishment at 22 years in the Texas Department of Corrections and a $5,000.00 fine. Two grounds of error are raised: (1) that the pre-trial photographic identification procedure was impermissibly suggestive, and (2) that the trial judge abused his discretion in failing to grant a new trial based on newly discovered evidence. The identification of the appellant as the assailant is the thrust of both grounds of error. A detailed recitation of the evidence is therefore necessary.

The first witness was C_____A_____, a 23-year-old housewife who recently moved to Beeville, Texas, with her husband, a student pilot at Chase Field Naval Air Station near Beeville. C_____A_____'s husband had a 24-hour duty period at the air station beginning 7:00 a.m. on Saturday, June 29, 1985. As C_____A_____ had not been apart from her husband overnight since their recent marriage, she called a woman friend, J_____D_____, in Corpus Christi to spend the night with her. Two other friends, who were student pilots in the Navy along with C_____A_____'s husband, arrived at C_____A_____'s house later that evening. The four spent the evening at C_____A_____'s house talking, playing guitars, and drinking until 3:00 in the morning, when the two student aviators left.

After C_____A_____ and J_____D_____ saw their friends to their car, they walked around the block and returned to C_____A_____'s house. In the bedroom used by C_____A_____ and her husband, there was an exterior doorway which was closed by a screen door and a wooden door. That doorway had not been used as an entranceway by C_____A_____ or her husband and the screen door remained locked. However, the wooden door was opened in the evening in order to provide a breeze through the bedroom. Earlier that evening, C_____A_____ had shown J_____D_____ a .357 magnum revolver that she and her husband had purchased the prior day. The pistol was loaded and was kept in its original box under the bed.

Sometime after the women went to bed, an intruder burst into the bedroom with a pistol in his hand telling the two women not to reach for the pistol because he had it. The intruder turned on the bright light in the bedroom but quickly turned it off and told C_____A_____ to turn on the bedside lamp. The intruder was wearing red shorts, a red T-shirt, and had a red bandana covering his face from his nose downward. He ordered C_____A_____ out of bed and raped her from behind while she was standing. The revolver rested between her shoulders during the act. The assailant ordered J_____D_____ several times to turn away from him and not to look at him, so she turned away from him and put her head under the covers. After he had finished his assault on C_____A_____, he had her kneel by the bed and put her head down with the instruction not to look at him while he assaulted J_____D_____. The women estimated that the assault lasted approximately 45 minutes or an hour and the assailant at all times had the pistol pointed at one of them, and he generally carried the pistol in his left hand. His hair was described by C_____A_____ as being an unusual blondish brown color and very wavy. She described his eyes as being "squinty." J_____ D_____ stated that the assailant was wearing tennis shoes and socks, a fact that C_____A_____ did not remember. The assailant continually cautioned the ladies not to look at him and they generally obeyed his instructions. At no time did the mask slip or were they able to catch a glimpse of his full face. No other description of their assailant was testified to by the victims.

The investigating officer, William T. Lazenby, interviewed the victims and received a sales slip for the revolver from C_____A_____'s husband. Officer Lazenby put a description of the pistol, along with the serial number, in the National Crime Information Computer. On July 3, Officer Lazenby received information from the Laredo Police Department that they had a suspect in custody who was driving a vehicle reported stolen from Beeville, and he had in his possession the pistol taken from C_____A_____'s residence. As a result of a conversation with the Laredo suspect, Valentine Fragosa (appellant's half-brother), Officer Lazenby brought in a suspect by the name of Kirk Doud. C_____A_____ listened to Mr. Doud's voice and viewed him through a two-way mirror. As a result of the viewing on July 11, C_____A_____ said that Mr. Doud was not her assailant. Officer Lazenby then interviewed Valentine Fragosa and was told that he had obtained the pistol from appellant. This testimony was received without objection.

The appellant was interviewed and photographed and the resulting picture was made part of a photographic lineup conducted by Detective Lazenby with C_____ A_____ on August 27, 1985. The photographs were exhibited to C_____A_____ with the lower part of each face covered. After briefly studying the photographs, she chose appellant's.

The same photographic lineup was shown to J_____D_____ on August 29. J_____D_____ testified that none of the photographs exhibited to her appeared to be that of the assailant; however, one had hair similar to that of the assailant. The one with hair similar to the assailant was not the appellant. Someone then pointed to appellant's photograph and informed J_____D_____ that this was the man identified by C_____A_____. J_____D_____ disagreed.

Several days later, at the district attorney's office, J_____D_____ observed a stack of color photographs laying in a pile on a desk. She recognized the picture on the top as that of her assailant. The photographs were then taken away from her. Later, when she came to court, the appellant was pointed out to her as the defendant. Both she and C_____A_____ subsequently identified the appellant in court as the one who had assaulted them. J_____D_____ testified that her earlier inability to identify appellant in the photographic lineup was due to the fact that his hair was wet and slicked back which made him unrecognizable to her.

Other than the identification by C_____A_____ and J_____D_____, there was slight evidence connecting the appellant to the crime. Valentine Fragosa was called by the State. Mr. Fragosa was under indictment for unauthorized use of a motor vehicle. He testified that the statement he had given on September 9, 1985, that the appellant had given him the pistol, was not true. He testified that Ruben Gonzales, Jr., and the appellant drove to George West at Fragosa's request to give him a ride back to Beeville. The appellant and Mr. Gonzales arrived in Mr. Gonzales' car at a filling station where Mr. Fragosa was waiting. While the appellant was putting gasoline in the Gonzales automobile, Fragosa climbed in the back seat and unintentionally kicked a pistol under the driver's seat. He removed it from under the driver's seat. Fragosa also admitted telling Lazenby that someone named Jerry had given him the gun and that he "might have told Lazenby" that Kirk Doud had given him the gun. The pistol that Fragosa removed from the car was the same one that belonged to C_____A_____ and her husband. On the way back to Beeville from George West, Gonzales stopped the car and Fragosa fired five shots from the car alongside the road.

Ruben Gonzales, Jr. testified that the appellant asked him to drive to George West, that at George West they picked up Fragosa at a truck stop and drove straight back to Beeville. Mr. Gonzales said he did not see any gun nor did he see Fragosa fire a pistol from his car.

Appellant's witnesses testified that they knew him well and had never seen him with red shorts or T-shirt. The appellant did not take the stand.

Accompanying appellant's motion for new trial was an affidavit of J_____D_____ dated November 27, 1985, which states in pertinent part:

On November 19, 1985, during the trial of Arthur Roy Autry, on the charge of aggravated rape, I identified Mr. Autry as the person who raped me on the morning of June 30, 1985, in Beeville, Texas. Following this...