OPINION
Appeal is taken from a conviction for inducing sexual performance of a child. V.T.C.A. Penal Code, Sec. 43.25(b). Trial was before the court upon a plea of not guilty. Punishment was assessed at 16 years.
Appellant was convicted of intentionally employing, authorizing, and inducing B______ P______, a female child younger than seventeen years of age, to engage in a sexual performance, "namely, committing various acts of sexual conduct with a male for filming in an untitled video cassette motion picture which begins with an announcement of a mad rapist on the loose."
In his first ground of error, appellant challenges the sufficiency of a search warrant and supporting affidavit and objects to the introduction of evidence obtained pursuant to the warrant.
The affidavit and search warrant were never introduced in evidence or proven up by way of bill of exception. Nothing is before us for review. Cannady v. State, 582 S.W.2d 467 (Tex.Cr.App. 1979); Dusek v. State, 467 S.W.2d 270 (Tex.Cr.App. 1971). Further, appellant never obtained a ruling on his pretrial motion to suppress and did not object at trial when the State introduced the video cassette seized pursuant to the warrant. Exquivel v. State, 595 S.W.2d 516 (Tex.Cr.App. 1980). Appellant's first ground of error is overruled.
In his second ground of error, appellant complains that, "the trial court erred in denying the defense request to allow an expert medical witness to view the complainant engaged in the obscene performance in question where the doctor was subpoenaed for the purpose of establishing a defense under Sec. 43.25(h)(1)(2) (4)."
At trial, appellant relied on the affirmative defense that he in good faith reasonably believed the complaining witness was 17 years of age or older. Sec. 43.25(g), supra. In reality, the complainant was only 15 when the film was made.
Under Sec. 43.25(h), supra:
"When it becomes necessary for the purposes of this section to determine whether a child who participated in sexual conduct was younger than 17 years of age, the court or jury may make this determination by any of the following methods:
"(1) personal inspection of the child;
"(2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;
"(3) oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time;
"(4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or
"(5) any other method authorized by law or by the rules of evidence at common law."
Appellant called Dr. Paris Bransford to the stand. The complaining witness had *Page 127 gone to see the doctor several weeks before the alleged sexual performance. Even though the complainant was only 15 at the time, Bransford testified that she looked like and had the body of a mature individual, over 17 years of age.
In a pre-trial motion, appellant sought to have Bransford give his opinion of the complainant's age based upon a viewing of the video cassette.
The trial court denied the motion as premature, stating: "I would suggest if you plan to raise it, you raise it later on."
At no time during the trial on the merits did appellant renew his motion. No error is shown.
In his final ground of error, appellant asserts there was insufficient evidence to support the conviction, "in light of evidence relating to Defendant's affirmative defense that he reasonably and in good faith believed that the complainant was 17 years of age or older." In other words, appellant maintains that he established his affirmative defense by a preponderance of the evidence as a matter of law.
In addition to the testimony of Dr. Bransford, there was evidence that the complainant told appellant she was 17. At one point during cross-examination the complainant stated that she thought appellant believed she was over 17. When the complainant went with appellant to Dr. Bransford's office, she listed her age as 17 on his questionnaire.
Both the appellant and Richard Moten, one of his employees, testified that the complainant looked well over 17. There was evidence that the complainant told many people she worked with at appellant's place of business that she was 17.
The State presented testimony showing that: the complainant told her pimp, who was a friend of appellant's, and appellant's nephew that she was 15; the complainant's parents told the pimp before the movie was made that their daughter was 15; appellant never made a serious effort to check the complainant's identification; when told the complainant was 17 at their first meeting, appellant said her age "didn't matter;" appellant, one of his employees, and the complainant went, sometime after the movie was made, to obtain a fake identification for the complainant.
In addition to the foregoing evidence presented by each side, the trier of fact saw the film containing the sexual performance and personally observed the complainant who was still 15 at the time of trial.
Reasonable good faith belief that the complainant was 17 or older is an affirmative defense and the burden of proving such defense is on the defendant by a preponderance of the evidence and the State is not required to negate the existence of such an affirmative defense. The trier of fact, the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, was not required to believe appellant's testimony that he thought the complainant was at least 17 or the testimony of appellant's witness. Madrid v. State, 595 S.W.2d 106 (Tex.Cr.App. 1979). There was no testimony unequivocally showing that appellant believed or manifested a belief that the complainant was 17, other than appellant's own testimony to that effect.
The defense of reasonable good faith belief that the complainant was 17 or older was not established as a matter of law. See also, Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App. 1981). Appellant's final ground of error is overruled.
The judgment is affirmed.
MILLER, J., dissents to disposition of final ground of error.
CLINTON and McCORMICK, JJ., dissent.