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explaining that "a conviction can be sustained on the testimony of a DNA expert, which establishes identity beyond a reasonable doubt"
Summary of this case from Morales v. StateOpinion
No. 05-11-00056-CR No. 05-11-00057-CR
06-12-2012
RONNIE LEE ALLEN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 12, 2012
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause Nos. F10-00894-L, F10-00896-L
OPINION
Before Chief Justice Wright and Justices Francis and Campbell
The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.
A jury found appellant guilty of two aggravated robbery offenses. The jury assessed punishment at life imprisonment in each case. On appeal, appellant brings a single point of error, contending that the evidence was legally insufficient to support the convictions. We disagree and will affirm. Relevant Facts
Viewed in a light most favorable to the verdict, the evidence shows the complainants, Shukla, owner of Aarti Jewelers, and Patel, Shukla's employee, were robbed in the jewelry store in Dallas County on October 29, 2008 at about 12:30 p.m. The robbery was recorded on multiple surveillance cameras. The first robber, later identified as appellant, entered the store wearing glasses, a cap, and a blazer. He asked to see a gold necklace and earrings, and Patel waited on him at Shukla's request. Patel began showing jewelry to appellant while Shukla was bringing out more merchandise. Shortly thereafter, a second robber entered the store wearing army fatigues and a hat. The second robber was taller and bigger than the first robber. The second robber asked to see a diamond engagement ring, allegedly for his girlfriend. As Shukla was in the process of showing him a ring, the second robber grabbed Shukla by the neck and pulled him down. There was a scuffle in which Shukla was shoved into a jewelry case, and he managed to push a panic button.
At approximately the same time, appellant grabbed Patel and forced her to the ground, pointed a gun at her, told her not to move and to close her eyes. Appellant wrapped a scarf around Patel's head. Patel testified she was afraid the robber would kill her or do serious bodily injury to her. Shukla, in his struggle with the second robber, was injured when he was thrown into the overturned jewelry case. Shukla managed to run to his office after appellant pointed a pistol at him. In a matter of minutes, the two robbers fled the store.
Also within a matter of minutes, officers from the Richardson Police Department arrived, and began to process the scene and take statements from the complainants. While examining the premises, Officer Lee found a handkerchief on the floor in the area where Patel had been attacked. Patel said the handkerchief was not hers and she did not know how it got in the location where it was found. Officer Lee stayed with the handkerchief until it could be turned over to Officer Ivey, a crime scene technician. Ivey photographed and bagged the handkerchief and maintained the proper chain of custody in the Richardson Police Department.
The evidence bag was examined by Trisha Kacer, a forensic scientist in the DNA section of the Department of Public Safety laboratory. Kacer found sufficient DNA on the handkerchief for comparison purposes and submitted a DNA profile of same into the CODIS database. The database returned a match with appellant's DNA. Richardson police obtained a search warrant for appellant, and a buccal swab was obtained from him. A comparison of the DNA on the swab with the DNA from the handkerchief rendered an overwhelming mathematical conclusion that the DNA on the handkerchief belonged to appellant.
Ernie Van Der Leest, a certified forensic video analyst, reviewed the videotape surveillance footage showing the robbery. Part of what Van Der Leest was asked to do was to track the handkerchief in appellant's hand throughout his time in the store. By combining the surveillance camera footage from the various cameras, Van Der Leest made a video recording that focused on the handkerchief in appellant's hand from the time he entered the store until the time he attacked Patel. The evidence shows appellant wiped his hands and face with the handkerchief. After appellant attacked Patel, the video showed an object on the ground that was not there before the attack. Additionally, Van Der Leest used a video technique known as reverse video projection to determine appellant's height in the video. He opined from this procedure that the assailant in the video was five feet, eight inches tall. The book-in sheet for appellant when he was jailed for these offenses showed his height as five-eight.
Standard Of Review
The standard for reviewing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). The standard of review is the same in both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence, rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984), overruled on other grounds by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Though there might not be direct evidence of the perpetrator's identity elicited from witnesses at trial, no formal procedure is required for the State to prove the identity of the accused. Wilson v. State, 9 S.W.3d 852, 855 (Tex. App.-Austin 2000, no pet.) (citing Sepulveda v. State, 729 S.W.2d 954, 957 (Tex. App.-Corpus Christi 1987, pet ref'd)).
Applicable Law-DNA
DNA evidence is admissible in Texas. See Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App.1992). The Austin Court of Appeals has held that evidence was legally sufficient to support a guilty verdict when a DNA expert testified there was a genetic match between a substance of unknown origin recovered from the victim and a sample of DNA taken from the accused, a total stranger, with the mathematical probability that anyone else was the source of the unknown substance was 1 in 5.5 billion. See Roberson v. State, 16 S.W.3d 156, 167-69 (Tex. App.-Austin 2000, pet. ref'd) (citing People v. Rush, 165 Misc.2d 821, 630 N.Y.S.2d 631 (N.Y.Sup.Ct. 1995), aff'd 242 A.D.2d 108, 672 N.Y.S.2d 362 (1998)). This Court has likewise cited Roberson for the proposition that the State can prove identity through circumstantial evidence, including DNA. See Jackson v. State, No. 05-99-01763-CR, 2001 WL 253860 (Tex. App.-Dallas Mar. 15, 2001, no pet.) (not designated for publication). We can discern no reason why we should not follow Roberson and hold that a conviction can be sustained on the sole testimony of a DNA expert, which establishes identity beyond a reasonable doubt. Appellant's Sufficiency Claims
Though appellant does not directly challenge the science or math of the DNA evidence, he does make tangential claims concerning the identity of the handkerchief that is the centerpiece of the State's case. He avers the State failed to prove the handkerchief containing DNA belonged to him. He claims the evidence showed a white object fell to the floor and was present when the crime scene investigator photographed it. Appellant's handkerchief was not white, but multi-colored. However, the video expert explained this difference, viz the brightness of the overhead lights in the jewelry store cast a glare on the handkerchief, making it appear as if it were white in color. This was a reasonable conclusion by Van Der Leest upon which the jury could rationally base a decision.
Additionally, appellant claims the crime scene was not secure, but the testimony of the crime scene investigator demonstrated otherwise. The fact finder implicitly resolved this doubt in favor of the State, and there was ample evidence to do so. We reach the same conclusion with reference to appellant's complaint that the chain of custody on the handkerchief was not properly maintained. The evidence shows otherwise, and the trier of fact implicitly so found.
Finally, appellant claims that there was no eyewitness testimony that would prove he committed these aggravated robbery offenses, and that there is only a mere modicum of evidence. It is true that there is no direct evidence tending to link appellant with these robberies. Neither complainant identified appellant as one of the two robbers. But there is ample circumstantial evidence to show identity. If anything, the evidence in this case is even stronger than the evidence in Roberson, especially concerning the mathematical probability of someone other than appellant being the likely perpetrator. In the instant case, Kacer testified that the probability of a person other than appellant being the person who contributed the DNA to the handkerchief was one in 1.433 septillion for Caucasians, one in 2.984 sextillion for blacks, and one in 276.5 sextillion for Hispanics.
When the DNA evidence is coupled with evidence that placed the handkerchief in appellant's possession immediately before the robberies and up to the point where he dropped the handkerchief to the floor in the store, behind the jewelry counter where Patel was assaulted, a finding that appellant committed these robberies was a rational finding that his guilt was established beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Having considered appellant's arguments, and finding them without merit, we overrule his sole point of error.
The judgment of the trial court is affirmed.
CHARLES F. CAMPBELL
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
110056F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RONNIE LEE ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00056-CR
Appeal from the Criminal District Court No. 5 of Dallas County, Texas. (Tr.Ct.No. F10- 00894-L).
Opinion delivered by Justice Campbell, Chief Justice Wright and Justice Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 12, 2012.
CHARLES F. CAMPBELL
JUSTICE, ASSIGNED
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RONNIE LEE ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00057-CR
Appeal from the Criminal District Court No. 5 of Dallas County, Texas. (Tr.Ct.No. F10- 00896-L).
Opinion delivered by Justice Campbell, Chief Justice Wright and Justice Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 12, 2012.
CHARLES F. CAMPBELL
JUSTICE, ASSIGNED