                                  NO. 07-08-0108-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                               NOVEMBER 12, 2009
                         ______________________________

                                    CARL PINNER,

                                                              Appellant

                                            v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

              FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                      NO. 3748; HON. FELIX KLEIN, PRESIDING
                        _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Carl Pinner appeals his conviction on three counts of aggravated sexual assault

committed upon his adopted daughter. He argues that 1) his confession was involuntary,

and 2) the evidence was insufficient to support the convictions. We affirm the judgment.

      Issue 1 - Voluntariness of Confession

      In his first issue, appellant complains of the trial court’s failure to suppress his

written confession. It was purportedly coerced by a fellow inmate who allegedly threatened
to kill him if he did not write it.1 After a hearing, the trial court denied the motion to

suppress. Thereafter, when the confession was offered into evidence at trial, appellant’s

counsel stated, “No Objection . . . .”2               By so stating, all complaints regarding the

confession’s admissibility were waived. Holmes v. State, 248 S.W.3d 194, 201 (Tex. Crim.

App. 2008).3 Therefore, appellant’s first issue is overruled.

        Issue 2 - Sufficiency of the Evidence

        Next, appellant attacks the sufficiency of the evidence to support the conviction. It

is unclear if appellant is basing the attack on both legal and factual insufficiency grounds

or simply factual insufficiency.            Nevertheless, since factually sufficient evidence is

necessarily legally sufficient, we will discuss only the former, and overrule both issues.

         Appellant contends that the evidence was factually deficient because the victim’s

testimony was unreliable and inconsistent. She also had motive to misrepresent the truth,

he continues. Admittedly, the record discloses that the victim had previously denied being

assaulted by appellant. She nonetheless testified to the contrary at bar. So too did she

represent that her prior denials were made because appellant warned her that telling

anyone would result in her mother and appellant being jailed and her siblings being placed




        1
        The confession consisted of the following statem ent: “I Carl W ayne Pinner confess that I am guilty
as charged of the charge of aggrivated [sic] sexual assault of [the com plainant].”

        2
          Counsel for appellant represented in her brief that an objection was uttered. Given that the appellate
record clearly indicates otherwise, we will construe the representation as a m ere m istake as opposed to an
attem pt to m islead.

        3
          W hile appellant m ay not have waived his right to receive an instruction under art. 38.23(a) of the
Code of Crim inal Procedure (regarding the ability of the jury to disregard testim ony that was obtained contrary
to the law), such an instruction was included in the charge.

                                                       2
in foster care. So, the jury had before it a justification for the inconsistencies, if it cared to

believe it.

       We further note that evidence indicated the victim and appellant continued to be

sexually intimate after she was married to another person, and had a child.4 Indeed, her

ex-husband once found the two in bed together. Yet, even if the relationship was

consensual that would not negate the criminality arising from appellant engaging in sexual

intercourse with her when she was eleven years old.

       And, to the extent that the victim may have been angry at appellant and her mother

for moving away without telling her, the record discloses that an initial complaint about the

assaults was made to the Rape Crisis Center before the move occurred. So, one could

reasonably infer that the allegations against appellant were not motivated by the move and

her anger arising therefrom.

       That the victim’s step-brother denied witnessing inappropriate activity between his

father and step-sister was something the jury could have considered in rendering its

verdict. Yet, it, along with the other evidence mentioned above, created little more than

credibility issues for the jury to resolve. Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

App. 2008), cert. denied, __ U.S. __, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009) (noting the

jury to be the exclusive judge of witness credibility and the weight to be afforded a witness’

testimony). In resolving those credibility issues, it could choose not only whom but also

what to believe. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2002),

overruled in part on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App.



       4
           The com plainant was only fifteen when she m arried and gave birth to a child.

                                                       3
2009). That, coupled with appellant’s own confession, leads us to conclude that the

manner in which it decided those issues was not manifestly unjust. Nor does the evidence

cited by appellant as contrary to the verdict undermine our confidence in the jury’s

decision.   Thus, that verdict has the support of both legally and factually sufficient

evidence.

      The judgment of the trial court is affirmed.



                                                Brian Quinn
                                                Chief Justice



Do not publish.




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