No. 05-07-01625-CR
Opinion issued May 28, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-58759-M.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MORRIS.
A jury convicted Juan Enrique Cantu, Jr. of capital murder. He now challenges his conviction on appeal, complaining the trial court erred by failing to suppress both a buccal swab taken from him and a witness's in-court identification of him. He also complains the trial court erred by allowing the jury to see a witness's written comment in a photographic lineup. Concluding appellant's points are without merit, we affirm the trial court's judgment.
Factual Background
Appellant entered a trailer home to shoot and kill a woman inside. When he discovered the woman's teenage son, appellant also shot and killed the boy. Appellant then found a third person in the home, a woman. Appellant tied the woman's hands and feet and sexually assaulted her. Next, he stabbed her several times with a knife, attempted to confirm that he had killed her, doused her body with hair spray, then set her and the entire trailer on fire. The woman, Z.V., survived. Using her own blood to loosen her binds, she pushed out a window to escape the burning trailer. She identified appellant in a photographic lineup and at trial. DNA testing of seminal fluid collected in Z.V.'s rape kit linked appellant to the offense. In addition, the State admitted into evidence recorded conversations between appellant and one of his associates who, unknown to appellant, was working for police as an informant. In the recorded conversations, appellant admitted to committing the capital murder and provided details of the two murders and the sexual assault. Discussion
Appellant does not challenge the sufficiency of the evidence supporting his conviction. In his first point of error, appellant complains the trial court erred by failing to suppress Z.V.'s in-court identification of him because, he alleges, it was tainted by an impermissibly suggestive photographic lineup. He specifically complains that only two of the six Hispanic young men in the lineup were light skinned. An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive photographic lineup before trial. The test is whether, considering the totality of the circumstances, the photographic lineup procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999). A photographic lineup should depict persons of the same age, race, general skin color, and height as the suspect. Wilson v. State, 15 S.W.3d 544, 553 (Tex.App.-Dallas 1999, pet. ref'd). But neither due process nor common sense requires that all photographs used in a lineup be identical. See id. Here, the officer who showed Z.V. the lineup noted that all the men pictured were Hispanic and about the same age and build, with short hair and some facial hair. The officer considered the lineup "fairly good." Although he agreed "to a certain degree" that only two of the men, including appellant, appeared to have light skin, he explained that the ink used in printing and copying the photographs may have somewhat darkened the skin color pictured in the other photographs. We have viewed the photographic lineup and conclude it was not impermissibly suggestive based on the differences in skin tone. The trial court did not err in denying appellant's request to suppress Z.V.'s in-court identification of him. We overrule appellant's first point of error. We next address appellant's third point of error because the admissibility of the DNA evidence complained of in point three also affects point of error two. In his third point, appellant complains the trial court erred in failing to suppress the buccal swab taken from him. He specifically contends the affidavit accompanying the search warrant for the swab did not request collection of a buccal swab but rather requested the collection only of hair and pubic hair samples from appellant. In fact, the affidavit referenced buccal swab samples four times, noting that with ". . . a buccal swab sample from [appellant], trace evidence comparison testing and DNA testing could be performed to determine to a reasonable degree of scientific certainty whether the semen or other collected biological evidence came from [appellant]." The affidavit noted that appellant had been charged with capital murder and that the woman whom he had sexually assaulted had already identified him in a photographic lineup and submitted to a rape kit. The affidavit did not, however, conclude by asking for issuance of a search warrant for the collection of a buccal swab. Instead, it requested only hair and pubic hair samples. The search warrant itself authorized collection only of buccal swabs from appellant. In reviewing an affidavit supporting a search warrant, we give great deference to the magistrate's determination of probable cause. Moreover, we interpret the affidavit in a common sense and realistic manner, allowing reasonable inferences to be drawn from the affidavit. See Hespeth v. State, 249 S.W.3d 732, 736-37 (Tex.App.-Austin 2008, pet. ref'd). After reviewing the affidavit as a whole, we conclude the affidavit authorized the magistrate's issuance of a search warrant for collection of buccal swabs. The trial court did not err in denying appellant's motion to suppress. We overrule appellant's third point of error. In his second point of error, appellant complains the trial court erred in admitting the photographic lineup into evidence because a written comment by Z.V. was included in the exhibit. The comment was handwritten next to appellant's photograph. In Spanish, it states, "He destroyed my life and that of my daughter." Although we do not condone the trial court's permitting the jury to see the written comment included in the photographic lineup, we cannot see how appellant was harmed. DNA evidence and appellant's own conversations clearly established his guilt for the charged offense. Moreover, after hearing how appellant sexually assaulted Z.V., then set her on fire as she pretended to be dead, the jury could not have been surprised to learn that she viewed appellant as destroying her life. Appellant was not harmed by any trial court error in admitting the written comments with the photographic lineup. See Tex. R. App. P. 44.2(b). We overrule his second point of error. We affirm the trial court's judgment.