Lopez v. State, 13-81-214-CR

• Decision Date: 17 June 1982
• Docket Number: No. 13-81-214-CR,13-81-214-CR
• Citation: 643 S.W.2d 431
• Parties: Juan LOPEZ, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 431

643 S.W.2d 431

Juan LOPEZ, Appellant, v. STATE of Texas, Appellee.

No. 13-81-214-CR.

Court of Appeals of Texas Corpus Christi.

June 17, 1982.

Rehearing Denied Aug. 26, 1982.

Gene A. Garcia, Corpus Christi, for appellant.

Wm. B. Mobley, Jr., Dist. Atty., Corpus Christi, for appellee.

Before NYE, C.J., and YOUNG and GONZALEZ, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at fifteen years' confinement. Appellant presents eight grounds of error for reversal.

Early on the morning of May 8, 1978, the Foodland grocery store in Shoppers' World mall in Corpus Christi was held up by a lone gunman wearing coveralls, gloves, black makeup around the eyes, and a ski mask. The robber apparently let himself into the establishment with keys in his possession and lay in wait for someone who could open the store's safe. When an assistant manager and two employees arrived to open the store, the attacker surprised them inside. At gunpoint, the stockmen were made to lie on the floor and the manager forced to open the safe and remove cash and checks to a cloth bag produced by the robber. The assailant then escaped through the store's rear exit.

The manager who was robbed identified appellant at a police line-up and later at the trial as the perpetrator of the crime. Appellant was a former city policeman. He was recognized and stopped by Pete Rodriguez, a police detective, a few blocks from the Shoppers' World less than fifteen minutes after the robbery. Rodriguez testified that the appellant appeared to be carrying something under his arm and that he ducked behind some bushes as the detective drew near. Appellant reappeared when the policeman stopped his car but without any object in his hands. According to Rodriguez, appellant appeared very nervous, was shaking and perspiring heavily. Appellant's shoes were damp and had grass on them. Rodriguez also noticed a black substance around appellant's eyes and mouth. When Rodriguez mentioned robbery, appellant inquired whether it was at Shoppers' World.

Rodriguez drove appellant to his home at his request. He then returned to the bushes near where he had picked up appellant and found a pair of overalls which were later identified at trial by the victims as like those worn by the robber. Meanwhile, other officers following leads from the mall found the cloth bag with money, checks identified as from Foodland, the ski mask and a police scanner radio in a nearby field. Following a trail of footprints through the wet grass, these officers were led in the direction of the area where Rodriguez had met the appellant. At that point, they met Rodriguez, who showed them the overalls he had found.

With the information then put together, the officers got warrants to arrest appellant and search his residence. The search netted an automatic pistol and a pair of shoes, both of which the victims identified at trial as similar to what they observed during the robbery.

Fibers taken from the overalls were identified by an expert as resembling a carpet in appellant's residence. Another expert analyzed hairs recovered from the ski mask and known hairs from appellant's head. This expert testified that the chances of the resemblance he found between the hair samples occurring at random was one in 1.5 X 10 ¹⁰ (1 in 15,000,000,000).

In the first ground of error, appellant challenges the sufficiency of the evidence to prove that appellant committed the robbery. In his brief, appellant's counsel treats the case as one of circumstantial evidence, despite the identification of appellant by one of the victims. We do not think the fact that the appellant benefited from a circumstantial evidence jury charge should change the standard of review. Regardless, when the sufficiency of the evidence is challenged, we are required to view the evidence in the light most favorable to the verdict. Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976). With this rule in mind, and after reviewing all such evidence in the record, we hold the evidence sufficient to sustain the conviction. Point of error number one is overruled.

As part of its effort to tie the appellant to the offense, the State introduced the testimony of Dr. John Randall, an expert in the "neutron activation analysis" method of hair identification and comparison. Randall testified about tests he had made comparing known samples of appellant's hair with some two to four strands recovered from a ski mask which was found in a field near the scene along with money, checks and food stamps taken in the robbery. This testimony was not favorable to appellant.

The matter of the hair analysis was a subject of controversy in the case. Prior to the trial, appellant's counsel moved to suppress the evidence on the ground that the taking of locks of hair for purposes of comparison violated his constitutional privilege against compulsory self-incrimination.

We agree with the State's contention that a hair sample, like handwriting and voice exemplars, is an identifying physical characteristic unprotected by the fifth amendment. See United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980).

Even if appellant's permission to take the hair was required, no error is shown. Before any testimony concerning the hair analysis was admitted, the court, outside the presence of the jury, heard direct testimony on the circumstances of the collection of appellant's hair from the officer who collected the sample and from appellant. The officer testified that the appellant voluntarily provided the sample hairs. In such situations, the trial court is the sole judge of the credibility of the witnesses and can accept or reject all or part of the testimony of any witness, including the defendant. Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979). Ground of error number four is overruled.

Another point of contention at the trial was the availability of hairs from the ski mask for testing by an expert of appellant's choosing. All of the hair found in the mask was sent to Dr. Randall for testing. The record is unclear as to the ultimate fate of that sample. There was conflicting testimony as to whether hairs subjected to neutron activation analysis could be accurately retested using the same method.

Appellant claims the trial court erred in not declaring a mistrial because the State failed to provide the defense with a sample of the unknown hair for testing. We cannot tell from appellant's brief when in the trial this alleged error took place. Appellant also fails to indicate where the record discloses that the sought-after evidence was in fact available, tested or untested. Nothing is presented for review.

Assuming the hair samples were suppressed by the prosecution, we find no reversible error. To warrant reversal, the evidence suppressed must be shown to be exculpatory. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1976).

The circumstances of this case are analogous to those in driving-while-intoxicated cases in which used breathalyzer ampoules are discarded and unavailable for retesting. The unavailability merely goes to the weight and credibility of the test results. c.f. Turpin v. State, 606 S.W.2d 907 (Tex.Cr.App.1980). Appellant's second ground of error is overruled.

In a related ground, appellant alleges error in the trial court's failure to grant a motion for continuance to allow investigation and testing of hair samples. Again, appellant's counsel has failed to apprise this Court of the location in the record of the supposed error. There is no record of a written application for continuance on grounds of surprise. Appellant's motion failed to comply with Tex.Code Crim.Pro.Ann. arts. 29.03, 29.08 and 29.13. The motion was not in writing and not sworn to by the defendant. Our reading of the record fails to disclose any showing...