Bernal v. State
| Decision Date | 15 December 1982 |
| Docket Number | 04-81-00212-CR,Nos. 04-81-00211-C,s. 04-81-00211-C |
| Citation | 647 S.W.2d 699 |
| Parties | Raymond Diaz BERNAL and Robert Nuncio, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Lawrence J. Souza and George Scharmen, San Antonio, for appellant in no. 211.
F. Terry Callahan, San Antonio, for appellant in No. 212.
Bill White, Dist. Atty., Jerry Rosson, Asst. Dist. Atty., San Antonio, for appellee.
Before CADENA, C.J., and CLARK, and CANTU, JJ.
These appeals are taken from convictions of rape. Appellants were tried jointly, and after conviction by a jury elected to have the trial court assess punishment. Each was sentenced to 20 years' confinement.
Four of the contentions raised by appellants are identical in both appeals: they allege that a watch, a ring, clothing of the appellants, and their persons were seized as a result of an illegal search and improperly used as evidence; that the trial court improperly allowed the State to bolster the identification testimony of an unimpeached witness; that there were two instances of juror misconduct necessitating a new trial; and that the prosecutor committed several acts of misconduct. Additionally, appellant Bernal alleges that the trial court erred in refusing to give his requested supplemental charge to the jury after it had begun deliberations, and that the evidence is insufficient to sustain his conviction. We reject all of these contentions and affirm.
The complainant was a licensed vocational nurse at the Bexar County Hospital in San Antonio, where she was working on July 4, 1979. At approximately 2:00 a.m. that day she had gone from her work station on the ninth floor to the cafeteria on the first floor to get some beverages. When she got on the elevator to return to the ninth floor, a woman and two men joined her. Immediately after the other woman got off at the fifth floor and the elevator door had closed, appellant Nuncio came around from behind her, grabbed her and put his right hand over her mouth. He told her not to scream or he would hurt her. After ordering her to hand the drinks to Bernal, Nuncio told Bernal to get out his knife, but none was ever produced.
When the elevator door opened at the ninth floor, the men forced the complainant out of the elevator and then down a stairwell to the eighth floor. They then walked her into the men's restroom. While Bernal stayed at the door as a lookout, Nuncio ripped open the complainant's uniform and ordered her to remove the rest of her clothing. In short order, Bernal had sexual intercourse with her while Nuncio forced her to perform oral intercourse on him, and when Bernal said he had had enough, Nuncio had sexual intercourse with her. Nuncio then took her wedding ring and wrist watch and tied her up with her pantyhose. He told her that if she told anyone he would come back and "get her."
The complainant was able to untie her bonds, get dressed, and report the incident to a nurse on the eighth floor. The police were called and arrived within minutes.
Albert Martinez, a deputy sheriff on duty at the hospital that night, encountered two men loitering around the outside of the building prior to the rape. Martinez demanded identification and the larger of the two produced a military identification card showing him to be Robert Nuncio. On demand, he also gave Martinez an address on Cayton Street as his residence. When asked what they were doing there, Nuncio said he had a headache and wanted to go to the emergency room. Martinez directed the two toward the emergency room and they left. Martinez then noticed a 1955 to 1957 dark Chevrolet station wagon parked at the curb. It appeared disabled by an overheated radiator. The two men had been standing near the car when Martinez first saw them.
A few minutes later, Martinez received a radio call from another security officer that a rape had just taken place in the hospital. Martinez hurried to the eighth floor and met with San Antonio police officers there. Learning that the rapists had been described as two Latin American males in their early twenties, the larger of the two wearing a black and white striped T-shirt with a decal on it and jeans, Martinez realized that the descriptions matched the two men he had just encountered. He told the investigating officers of the encounter, giving them the name and address he had been given.
San Antonio police detective A.L. Domingues went to the Cayton Street address, meeting officer Robert Farley there. They asked for Nuncio, but were told that he did not live there. They were given, however, an address on Lux Street where he might be found, and were told that a Robert (sic) Bernal had been with Nuncio earlier.
The officers went to the Lux Street address, arriving at approximately 6:30 a.m. They met an officer Beckett there. The officers noticed a 1957 Chevrolet there that matched the description of the car near which deputy Martinez had seen the two men standing at the hospital. Alma Nuncio, later determined to be appellant Nuncio's wife, answered the door and, after the officers explained why they were there, she acted very cooperative and let them in. She led Domingues toward two bedrooms and he saw one man asleep in each. They matched the descriptions given by the rape complainant and other witnesses, and near each man was a pile of clothing that appeared to match that worn by the rapists. They were awakened, warned of their rights, and subsequently were taken to the police station. After warning Bernal of his rights, Domingues asked him for the watch that had been taken from the complainant. Bernal reached into his pants pocket and gave Domingues a watch, which later proved to be the complainant's.
Domingues then spoke separately with appellant Nuncio, telling him that he had the watch and also relating all of the other information linking Nuncio to the offense. When Domingues asked for the complainant's ring, Nuncio denied knowledge of any ring, watch, rape or robbery. After both men had been placed in separate squad cars and Nuncio and his wife had spoken, Domingues was called back to the house by Alma Nuncio, who produced a ring from her purse and gave it to him. It was later identified by the complainant as hers.
Appellant Bernal testified in essence that the intercourse between Nuncio and the complainant had been consensual and that, when told by Nuncio that it was Bernal's "turn" with the complainant, Bernal only pretended to have intercourse with the complainant so that Nuncio would not get upset with him. Bernal denied having sexually penetrated the complainant.
Appellant Nuncio testified that the complainant had motioned to him to get on the elevator, and began acting in a friendly way toward him while they were on the elevator. Eventually, she supposedly agreed to go into the men's room with him for sex. He denied putting his hand over her mouth and further denied that she had been forced into anything. It was intimated in his testimony that the complainant gave him her watch and ring in recognition of his amatory prowess.
In their first ground of error, both appellants argue that the officers' entry into the house at 106 Lux Street was illegal, and that the persons of the appellants, their clothing, the watch and ring were thus inadmissible. Although there is reference in the record to some written motion in limine or to suppress such evidence, no such motion appears in the record before us. We do have before us, however, the objections of counsel made at the time of the hearing outside the presence of the jury, as well as those made before the jury when the evidence was offered. Only the issues raised in those objections and brought forward as assignments of error will be considered. Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982).
Regarding the contention that the persons of appellants, having been illegally seized, should have been suppressed, no such contention was made at trial. Further, no objection was made to the complainant's in-court identification of the appellants. Even if error had been preserved and the arrests were to be held unlawful, a defendant's physiognomy is not a species of evidence subject to the exclusionary rule of the Fourth Amendment to the United States Constitution. United States v. Crews, 445 U.S. 463, 477-479, 100 S.Ct. 1244, 1253-1254, 63 L.Ed.2d 537 (1980) ().
Analysis of the admissibility of the appellants' clothing and the complainant's watch and ring is controlled by different principles. Appellants both argue that this was not a situation in which there was a valid consent to search in that the State failed to prove by clear and convincing evidence that Alma Nuncio's consent was freely given, rather than being the result of acquiescence to a claim of police authority. Alternatively, they argue that the police actions amounted to nothing more than routine felony arrests, for which warrants were required. Since no arrest warrants were secured, the argument goes, the arrests were illegal and the physical evidence thereby obtained was tainted and inadmissible. 1
The record belies all of these contentions. First, the only evidence on consent to search came from the State's witnesses, appellants having chosen not to call Alma Nuncio as a witness. Detective Domingues stated that Mrs. Nuncio was very cooperative and understanding, and let him and officer Farley into the house and led them to the bedrooms where appellants lay sleeping. Domingues denied using any threats, coercion, or promises to secure her consent. He did admit on cross-examination that she had asked what would happen if the officers had to get a search warrant. He had responded that a search warrant issued by a San Antonio magistrate would direct that in the event the evidence to be searched for were found, all persons on the premises would be arrested. He specifically...
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