                                  NO. 07-10-00492-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 DECEMBER 20, 2012


                         MARCOS XAVIER LARA, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


              FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 60,391-C; HONORABLE ANA ESTEVEZ, JUDGE


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


                               MEMORANDUM OPINION

      Appellant Marcos Xavier Lara appeals his conviction of two counts of aggravated

sexual assault of a child 1 and concurrent prison sentences of five years. The trial court

granted in part and overruled in part appellant’s pre-trial motion to suppress. Through a

single issue, appellant complains the trial court abused its discretion in failing to

suppress his statement and other evidence derivative of an illegal entry by police of his

residence. We will affirm.



      1
          See Tex. Penal Code Ann. § 22.021(a)(2)(B) (West Supp. 2012).
                                        Background


      Around 8:30 on the morning of August 29, 2009, an Amarillo mother called police

to report that her 13-year-old daughter, G.V., was out overnight without permission and

remained missing. G.V. and her mother were acquainted with appellant, whom the

mother believed was age 18 or 19. 2 G.V.’s mother told two responding police officers

that G.V. might be with appellant at a nearby residence. Going to this location, officers

contacted Mrs. Bray, who occupied the residence with her husband. They told her they

were looking for appellant and a female runaway. Appellant is Bray’s nephew and lived

in a recreational vehicle parked behind her house. At the time, officers were not made

aware that appellant paid the Brays rent for the RV.


      Bray led officers to the RV and, without knocking, opened the unlocked door.

Noticing appellant inside the RV, she stated, “There he is.” One officer immediately

entered and saw G.V. and appellant lying under covers in a bed. A second officer

followed. One officer testified the purpose for entering the RV was to conduct a “welfare

check” for G.V., as a function of police community caretaking. 3 He did not believe

enough evidence existed to obtain a search warrant.


      Officers soon discovered appellant was clad only in boxer shorts and G.V. wore

only a bra. Appellant was placed in the back of a patrol car and, according to one of the

investigating officers, was not free to leave. G.V. was also taken into custody.

      2
          Appellant actually was 19 at the time.
      3
       In his brief appellant states that officers came to his residence investigating a
runaway report which he adds “could be regarded as a community care taking function.”

                                             2
       A detective was assigned responsibility for the matter.         He requested the

investigating officers bring appellant and G.V. to the police station. There, the detective

spoke first with G.V. and then appellant. The detective also requested that officers book

into evidence bedding from the bed where appellant and G.V. were found. Items of

clothing may also have been collected for evidence. This was done without a search

warrant or consent. The State conceded before the trial court that items taken from

inside the RV were “probably suppressible” because of the absence of a warrant or

consent.


       Before questioning, officers gave appellant his constitutional and statutory

warnings 4 from a form. Appellant indicated he understood the rights and signed the

form. He agreed to waive his rights and give the detective a statement. The detective

reviewed appellant’s rights with him again before taking the statement. The detective

wrote the statement according to the dictation of appellant. The document was signed

by appellant shortly before 1:00 p.m. on August 29. The interview lasted about an hour

and fifty minutes although at times the detective was out of the room. According to the

detective, necessities such as use of the restroom, food, and water were not withheld

from appellant.


       Also during the interview, appellant signed a form authorizing police to take

samples of his body hair and saliva. This, according to the detective, was for DNA




       4
        The warnings of Code of Criminal Procedure Article 38.22 include the Miranda
warnings plus one additional warning. Penry v. State, 715, 747 n.29 (Tex.Crim.App.
1995); Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (West 2005).
                                            3
comparison with the results of an examination of G.V. Items taken from the RV as

evidence were not used for DNA comparison.


       The detective described appellant as tired and lethargic during the interview. At

one point, on returning to the room following an absence, the detective found appellant

lying on a couch.


       Meanwhile, after speaking with the detective, G.V. was transported to the

hospital for a sexual assault examination. Her mother testified that when police found

G.V. she asked them to take G.V. to the hospital. The mother added that she went to

the police station and then the hospital. Trial evidence included a hospital form signed

by G.V.’s mother authorizing a medical forensic examination of G.V., treatment and

collection of evidence.


       Appellant was indicted on two counts of aggravated sexual assault, alleging two

means of sexual assault. He moved to suppress tangible items seized from the RV as

well as testimony relating to his arrest and his statement on the ground that officers

unlawfully entered his residence without a warrant, probable cause, or consent. After

the hearing on appellant’s motion, the trial court ruled that the officers entered the RV in

violation of appellant’s Fourth Amendment rights.         The court suppressed tangible

evidence seized from the RV and testimony pertaining to the observations of the officers

inside the RV. Separate findings of fact and conclusions of law were not filed but the

court announced on the record that it found sufficient attenuation of the taint of illegality

to permit admission into evidence of appellant’s statement and consent to give hair and

saliva samples.

                                             4
       Trial by jury of guilt or innocence followed.       Testifying for the State, G.V.

described having sexual intercourse with appellant in the RV on August 29. The sexual

assault nurse examiner who examined G.V. testified to the forensic examination. She

noted evidence of an abrasion near the hymen that in her opinion occurred within the

preceding 96 hours. An exhibit containing the patient history of G.V. was read to the

jury. It included G.V.’s description of her vaginal and oral intercourse with appellant

between 3:00 a.m. and 5:00 a.m. on August 29. Over objection, appellant’s consent to

give samples and his written statement were admitted into evidence.


       A forensic scientist with the Texas Department of Public Safety’s crime laboratory

testified concerning her analysis of vaginal swabs taken from G.V. during the sexual

assault examination and the hair and saliva samples of appellant taken by police. She

found spermatozoa or sperm heads on the vaginal slide made from a swab. The DNA

profile obtained from the sperm fraction of the vaginal swab was consistent with a

mixture of the DNA of appellant and G.V. In the opinion of the witness, appellant was

the source of the major component in the DNA profile. 5 The serology reports of the

forensic scientist were admitted into evidence.


       The jury convicted appellant of the charged offenses and at appellant’s election

the court assessed punishment. This appeal followed.




       5
          Her report found the probability of selecting an unrelated person at random who
could be the source of the major component in the DNA profile to be “one in 917.4
quintillion for Caucasians, 1 in 4.444 sextillion for Blacks and one in 7.994 quintillion for
Hispanics.” She added, “To a reasonable degree of scientific certainty, [appellant] is the
source of the major component from this DNA profile, excluding identical twins.”
                                             5
                                         Analysis


      Through a single issue, appellant complains the trial court abused its discretion in

failing to suppress his statement and other evidence derivative of the illegal entry of the

RV by police.


      To require reversal, error in the admission of evidence must have caused

appellant harm. Because the error asserted is constitutional, if we find error, we must

reverse the trial court unless we find beyond a reasonable doubt that the error did not

contribute to the verdict of conviction. Tex. R. App. P. 44.2(a). For the harm analysis,

we examine the entire record in a neutral, impartial and even-handed manner. Tijerina

v. State, 334 S.W.3d 825, 835 (Tex.App.--Amarillo 2011, pet. refused).                 Our

consideration is not the propriety of the outcome of trial but whether the error was a

contributing factor in the jury’s decision; that is, whether “the error adversely affected

the integrity of the process leading to the conviction.” Langham v. State, 305 S.W.3d

568, 582 (Tex.Crim.App. 2010) (quoting Scott v. State, 227 S.W.3d 670, 690-91

(Tex.Crim.App. 2007)).     Constitutional error may be rendered harmless if there is

“overwhelming” untainted evidence supporting the conviction. Tijerina, 334 S.W.3d at

835 (citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284

(1969)). If relevant, we may consider factors such as the nature of the error, the extent

of its emphasis by the State, the probable collateral implications of the error, and the

weight a juror probably placed on the error. Snowden v. State, 353 S.W.3d 815, 822

(Tex.Crim.App. 2011).     But our primary concern is whether the record shows a

“reasonable possibility” the error might have contributed to the conviction. Tijerina, 334

                                            6
S.W.3d at 835 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998)).

Said another way, the harm analysis here considers whether improperly admitted

evidence might have moved the jury from a state of non-persuasion to one of

persuasion on the issue of appellant’s guilt. Langham, 305 S.W.3d at 582 (quoting

Scott, 227 S.W.3d at 690-91).


      As a general rule, the “fruit of the poisonous tree” doctrine prohibits the State’s

use of illegally-obtained evidence. Wong Sun v. United States, 371 U.S. 471, 484, 487-

88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Article 38.23 of the Texas Code of Criminal

Procedure provides that evidence obtained by an officer or other person in violation of

the Texas or U.S. Constitutions or laws is to be excluded from evidence against the

accused in a criminal trial. Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005);

Zepeda v. State, No. 07-03-0135-CR, 2004 Tex. App. Lexis 10684, at *7-8 (Tex.App.--

Amarillo Nov. 30, 2004, no pet.) (mem. op., not designated for publication).


      Under the attenuation doctrine, however, evidence may be admitted if the

connection between the initial illegality and the means through which the evidence was

secured is so attenuated as to dissipate the taint. Hudson v. State, 247 S.W.3d 780,

787 (Tex.App.--Amarillo 2008, no pet.). See Johnson v. State, 871 S.W.2d 744, 750

(Tex.Crim.App. 1994) (“the attenuation doctrine is applicable to Art. 38.23’s prohibition

against evidence ‘obtained’ in violation of the law because evidence sufficiently

attenuated from the violation of the law is not considered to be ‘obtained’ therefrom”). A

trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Oles v.

State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999).

                                            7
       The nub of the State’s case against appellant was the version of facts recounted

by G.V., who, as noted, testified at trial. It is unclear to us whether appellant’s motion to

suppress extended to G.V.’s trial testimony, but to the extent it did so, we agree with the

trial court’s conclusion the connection between the unlawful entry into appellant’s

residence and the in-court testimony of the victim of the charged offense was sufficiently

attenuated to permit its presentation to the jury. See United States v. Ceccolini, 435

U.S. 268, 280, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978) (“[t]he exclusionary rule should be

invoked with much greater reluctance where the claim is based on a causal relationship

between a constitutional violation and the discovery of a live witness than when a

similar claim is advanced to support suppression of an inanimate object”); 40 George B.

Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice and Procedure

7:58 (3d ed. 2011) (claim the taint of illegal police conduct is attenuated is strengthened

by the voluntary decision of a witness to cooperate in the investigation) (citing cases).


       The Washington case of State v. O’Bremski, illustrates, on remarkably similar

facts, our conclusion G.V.’s in-court testimony was properly considered by the jury. 70

Wash. 2d 425, 423 P.2d 530 (1967). In O’Bremski the parents of a 14-year-old female

runaway reported her absence to police.          Another juvenile then lead officers to an

apartment where they pushed the door open against the expressed will of the male

occupant, O’Bremski. Officers found him partially clothed. A search of the quarters

located the runaway, nude but covered with a blanket. O’Bremski was charged with

carnal knowledge of a girl under age fifteen. Id. at 531. In a motion to suppress,

O’Bremski argued the police search was illegal and any evidence obtained

inadmissible. The motion was denied. At trial, the only evidence of the charged offense
                                             8
was the testimony of the runaway. The jury returned a guilty verdict. Id. O’Bremski

argued on appeal the trial court erred by failing to exclude her testimony. Id. at 532.

Disagreeing, the court noted knowledge of the runaway and her presence in the

apartment was not the product of the search. Her parents asked police to find her.

Another juvenile pointed officers to the apartment. Hence, her testimony was not the

product of an unlawful search. Id. at 533.


       In the present case, police searched for G.V. at Bray’s residence because the

child’s mother reported her daughter’s absence and suggested that as her possible

location.   Bray directed officers to the RV.       Several hours after having sexual

intercourse with appellant, G.V. went to the hospital at her mother’s behest, who

consented to a SANE examination and treatment. For trial, G.V. returned from her new

home in another state and voluntarily gave extensive testimony of her sexual encounter

with appellant. Her testimony was not the product of an unlawful search and was,

therefore, among the evidence properly before the jury.


       Beyond the testimony of the victim, other overwhelming evidence of appellant’s

guilt was before the jury. Other trial evidence included the report of the SANE nurse

and G.V.’s patient history containing her narrative of oral and vaginal sex with appellant.

The DPS written report stated the opinion of the forensic scientist matching appellant’s

DNA with the sperm from G.V.’s vaginal swab.


       Thus even apart from the testimony of the SANE nurse, the jury had G.V.’s

account of relevant events, her trial testimony, and the corroborating matching DNA

evidence.

                                             9
         In his written statement appellant gave police, he acknowledged the two had

sexual intercourse but blamed its initiation on G.V. We need not consider whether the

trial court erred by failing to exclude the statement from evidence. In view of G.V.’s

testimony and the scientific evidence, we agree with the prosecutor’s argument to the

jury that appellant’s statement is the least important item of evidence supporting his

guilt.


         Properly before the jury was overwhelming evidence of appellant’s guilt. 6 We

conclude without hesitation, beyond a reasonable doubt, that any improperly admitted

evidence derived from the unlawful entry did not move the jury from a state of non-

persuasion to one of persuasion on the issue of appellant’s guilt, and thus any trial court

error did not contribute to appellant’s conviction. 7   Appellant’s sole issue on appeal is

overruled, and the judgment of the trial court is affirmed.




                                                  James T. Campbell
                                                      Justice



Do not publish.


         6
       All of the evidence was to the effect appellant’s sexual contact with G.V. was
consensual. Because of her age, of course her consent is irrelevant.
         7
        Appellant does not complain, nor do we find an indication, that the asserted
error had a demonstrable impact at the punishment stage of trial. See Wall v. State,
184 S.W.3d 730, 747 (Tex.Crim.App. 2006) (noting in some cases testimonial
statements that are harmless beyond a reasonable doubt at the guilt stage may have a
demonstrable impact at the punishment stage).
                                             10
