Garcia v. State, 54179

• Decision Date: 05 April 1978
• Docket Number: No. 1,No. 54179,54179,1
• Citation: 563 S.W.2d 925
• Parties: Guadalupe GARCIA, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 925

563 S.W.2d 925

Guadalupe GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 54179.

Court of Criminal Appeals of Texas, Panel No. 1.

April 5, 1978.

Rehearing En Banc Denied April 26, 1978.

Charles C. Snuggs, Lubbock, court appointed on appeal, for appellant.

Alton R. Griffin, Dist. Atty., and Charles C. Bailey, Asst. Dist. Atty., Lubbock, for the State.

Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated rape; punishment was assessed at imprisonment for 25 years.

Appellant asserts that: (1) the evidence is insufficient to sustain the conviction; (2) the court abused its discretion in overruling appellant's motion to suppress the prosecutrix' in-court identification of appellant; (3) the court erred in failing to file findings of fact and conclusions of law regarding appellant's motion to suppress; (4) evidence was improperly excluded at the punishment hearing; and (5) the court erred in overruling appellant's motion for a new trial based on jury misconduct.

On January 15, 1974, the prosecutrix, a seventeen-year-old student at Lubbock High School, went to the school parking lot shortly before 2:00 p. m. When she arrived in the parking lot, a gold Chevrolet Camaro driven by a Mexican-American male stopped beside her. He asked the prosecutrix what her name was, and when she ignored him he opened the car door, grabbed the prosecutrix, and pulled her into the car. The man pulled out a gun and told the prosecutrix not to speak or he would kill her. He then drove to a park north of the school where he forced her to undress him as well as herself; he then raped her. She testified that he was holding the gun next to her head during these events. She also testified that his sexual organ penetrated her sexual organ, and that he got "off and on" three times. After the man smoked a cigarette he and the prosecutrix dressed, and he drove her back to school; before departing, he warned her "if I said anything to the police or to anyone that I could be sure not to ever rest again, I'd always have to be looking behind my shoulder because he would be there."

Dr. Arthur R. Howard examined the prosecutrix that afternoon. He found no bruises, scratches or other evidence of bodily trauma, nor did he observe any damage to her clothing. He stated that her vaginal opening was large enough for her to have had intercourse, but that there was no evidence of recurrent intercourse. Dr. Howard found no sperm, the absence of which he testified might be attributable to the prosecutrix having washed herself at school prior to the examination. She testified that she washed the exterior of her vagina, but did not wash internally. On cross-examination, Howard testified that he found no objective scientific evidence that the prosecutrix had been raped.

On the day following the offense a Mexican-American male was observed driving a gold Chevrolet Camaro near Lubbock High School. A check of the license number of the car revealed that it was registered in the name of appellant, who subsequently was arrested. No gun was recovered.

The prosecutrix was taken to the Lubbock police station on the day of the offense and shown approximately 300 photographs of men, including appellant and his two brothers. She stated that she was unable to identify her assailant. The next day she viewed a police lineup consisting of appellant and four other men. All of the participants in the lineup were required to roll up their sleeves and exhibit any tatoos on their arms and to show their belts and belt buckles. The prosecutrix again stated that she could not identify the man who attacked her. Detective Mike Cooper of the Lubbock Police Department then took the prosecutrix into his office and asked "You really did recognize him, didn't you?" The prosecutrix said that she had recognized her assailant at the lineup but had been scared to identify him. She then identified the appellant.

In cross-examining Cooper, appellant brought out that, according to an offense report filed by Cooper, the prosecutrix on the day of the offense had described her attacker as five feet, eight inches tall with shoulder-length, wavy black hair and a tattoo on his upper left arm. Cooper testified that the prosecutrix told him her assailant had a tattoo on his right arm, and that the offense report should have so stated.

Denise Blackman, a friend of the prosecutrix, testified that she saw the prosecutrix in a Chevrolet Camaro being driven away from the parking lot of Lubbock High School shortly before 2:00 p. m. on January 15, 1974. The witness testified that she was able to get a look at the driver of the car but did not see him in the courtroom at the trial.

Appellant contends that the court erred in overruling his motion for a directed verdict because the evidence was insufficient to prove appellant's guilt beyond a reasonable doubt. He first argues that the evidence is insufficient to show penetration. The prosecutrix testified that appellant's sexual organ penetrated her sexual organ. Her testimony, standing alone, is sufficient evidence of penetration. Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977); Harris v. State, 473 S.W.2d 37 (Tex.Cr.App.1971); Faulkner v. State, 390 S.W.2d 754 (Tex.Cr.App.1965). Appellant also argues that if the offense of rape was shown to have been committed, there is no evidence that he was the guilty party. The prosecutrix' identification of appellant as the man who raped her is sufficient. See Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Lee v. State, 455 S.W.2d 316 (Tex.Cr.App.1970); Giddings v. State, 438 S.W.2d 805 (Tex.Cr.App.1969).

Appellant asserts that the identification procedures which were used were so unnecessarily suggestive and conducive to irreparable mistaken identification as to taint the prosecutrix' in-court identification of appellant, and that the court abused its discretion in permitting the in-court identification. The factors to be considered in determining the origin of an in-court identification are as follows: (1) the prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup identification and the defendant's actual description; (3) any identification of another person prior to the lineup; (4) the identification by picture of the defendant prior to the lineup; (5) failure to identify the defendant on prior occasions; and (6) the lapse of time between the alleged act and the lineup identification. Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972).

The offense occurred outdoors in mid-afternoon, and the rapist sat and smoked a cigarette and talked with the prosecutrix following the act; she had ample opportunity to observe her attacker. The prosecutrix never identified anyone other than appellant. She was shown photos of possible suspects on the day the offense occurred and viewed the lineup the following day, so the time which elapsed between the offense and the prosecutrix' identification of appellant was negligible. Appellant's contention is based on discrepancies between the pre-lineup description given by the prosecutrix as reflected in the offense report and the prosecutrix' failure to identify appellant when she was shown a photo of him and when she initially viewed the lineup.

Specifically, appellant points to...