No. 01-09-01078-CR
Opinion issued April 21, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 10th District Court Galveston County, Texas, Trial Court Case No. 08CR2561.
Panel consists of Justices JENNINGS, HIGLEY, and BROWN.
LAURA CARTER HIGLEY, Chief Justice.
Appellant, Ronnie Roshell Johnson, was charged by indictment with murder. Appellant pleaded not guilty. A jury found appellant guilty as charged and assessed punishment at life in prison. In four issues, appellant argues (1) the evidence was insufficient to support a finding that appellant was the shooter; (2) the trial court erred by denying his motion to suppress; (3) the State violated his due process rights by failing to turn over exculpatory evidence; and (4) the trial court erred by refusing to give a jury instruction on the claimed failure by the State to turn over exculpatory evidence. We affirm.
Background
In the evening of May 18, 2007, Louis Joel Gonzalez, the complainant, was at some bars in Texas City, Texas with his cousin, Ari Sosa; a friend, Joel Quintana; and some other friends. They all consumed a significant amount of alcohol. After the bars had closed at 2:00 a.m. the next morning, Gonzalez drove around in his truck with Sosa and Quintana to see if he could find a prostitute. Not familiar with where to find a prostitute, Gonzalez saw a black male walking along the street and asked the man if he knew where they could find some prostitutes. The man offered to help, jumped into the back of the truck, and began giving Gonzalez directions. Once they reached their destination, the man jumped out of the truck and went into an apartment complex. He returned with a woman in her late thirties. Gonzalez declined. The man got back into the truck and directed Gonzalez to a different location nearby. Again, the man got out of the truck, walked into an apartment complex, and returned with a woman. Gonzalez again declined. At this point, the man became hostile and began yelling at Gonzalez. Gonzalez began to drive away when a shot was fired. Gonzalez was hit in the head and killed almost instantly. Quintana and Sosa jumped out of the car and fled. In the course of the subsequent police investigation, officers determined that appellant's mother's house was in the immediate vicinity of the shooting. Additionally, Texas City police officers located two known prostitutes that told the officers that they had been approached on the night in question by appellant, who was trying to obtain a prostitute for some Hispanic males in a truck. The two women, Trudi Mills and Sindy Griffin, both were familiar with appellant and knew him from the neighborhood. They both also identified appellant in separate photographic line-ups. One other witness testified that he saw appellant and Mills talking together on the night in question. Griffin, the first woman appellant had brought to Gonzalez that night, told police officers that appellant had told her that he had a gun and was "going to jack these guys." Griffin and one of the officers testified at trial that to "jack" someone was slang for robbing them. Previously, when police officers initially arrived at the scene of the crime, they found Gonzalez's pockets were turned out and a gold necklace that he regularly wore was missing. Some time after the officers had arrived at the scene of the crime, Griffin passed by and recognized the truck in which Gonzalez's body had been found as the same truck that appellant had taken her to earlier. During one of her interviews with the officers, she was presented with pictures of Gonzalez and Quintana. Griffin noted on the photograph of Gonzalez that she believed he was the driver of the truck but she was not certain. She noted on the photograph of Quintana that she believed he was the passenger in the truck but she was not certain. At trial, Griffin stated that she was certain that she had identified the two men correctly. A Marlin rifle was found a few blocks from the scene of the crime. A ballistics test established that this rifle was the weapon used to shoot Gonzalez. In a search of the room in which appellant lived at his grandmother's house, a police officer found a box of bullets that were the same make and caliber as the bullet that killed Gonzalez. Tanya Dean performed the analysis comparing appellant's DNA to DNA found on the rifle. According to Dean's testimony, DNA is analyzed by comparing 16 specific loci — that is, segments of the DNA strand — from two separate samples. If all 16 of the loci for a sample can be determined, it is said to be "a full profile." If less than 16 of the loci can be determined, it is said to be "a partial profile." Dean testified that she identified three loci from one sample taken from the stock of the rifle and then identified another loci from another sample also taken from the stock of the rifle. Dean treated all four of these loci as one sample, compared it to appellant's DNA, and determined that appellant could not be excluded as the contributor of the DNA located on the rifle. She further testified that, given the somewhat rare characteristics of one of the four loci, this partial profile would be a match with approximately one in every 16.24 million African-Americans, one in every 889.7 million Caucasians, and one in every 822.4 million Hispanics. On cross-examination, Dean admitted that there had been instances of DNA contamination at her lab. Contamination occurs when DNA from a source other than the sample source is inadvertently introduced into the sample, leading to incorrect identifications on one or more loci. Dean also admitted that she had been cited for DNA contamination events in multiple instances. The time period for the instances of DNA contamination by Dean or others in the lab was not established. Nor was it established that there had been any contamination in the DNA analyses for this case. Huma Nasir, a DNA analysis expert presented by appellant, testified that it was inappropriate for Dean to have treated the loci from the two samples as one sample because there was no way of determining whether the two samples were from the same person. She further testified that, considering only the partial profile from the first sample (the profile with three loci), the profile would be a match with approximately one in every 45,000 African-Americans. During the jury charge conference, appellant asked for a jury instruction relating to the State's failure to notify appellant that Dean had been cited for instances of DNA contamination in the past. The trial court denied the request. Sufficiency of the Evidence
In his fourth issue, appellant argues that the evidence is insufficient to establish his identity as the shooter. A. Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying the same standard of review, regardless of whether an appellant presents the challenge as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 52-55 (Tex. App.-Houston [1st Dist.] Nov. 10, 2010, pet. ref'd) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 924-28 (Tex. Crim. App. 2010)). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U .S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 n. 11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Finally, the "cumulative force" of all the circumstantial evidence can be sufficient for a jury to find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). B. Analysis
In his brief, appellant concedes that it is appropriate to presume that the black man that traveled with Gonzalez, Quintana, and Sosa committed the murder. Appellant contends, however, that there was insufficient evidence to establish that he was that man. Viewing the evidence in the light most favorable to the verdict, Mills and Griffin testified that they had been approached on the night in question by appellant, who was trying to obtain a prostitute for some Hispanic males in a truck. Both of the women were familiar with appellant and knew him from the neighborhood. They both also identified appellant in separate photographic line-ups. One other witness testified that he saw appellant and Mills talking together on the night in question. Griffin, the first woman that appellant had brought to Gonzalez that night, told police officers that appellant had told her that he had a gun and was "going to jack these guys." Griffin and one of the officers testified at trial that to "jack" someone was slang for robbing them. When police officers initially arrived at the scene of the crime, Gonzalez's pockets had been turned out and a gold necklace that he regularly wore was missing. Some time after the officers had arrived at the scene of the crime, Griffin passed by and recognized the truck in which Gonzalez's body had been found as the same truck that appellant had taken her to earlier. During one of her interviews with the officers, she was presented with pictures of Gonzalez and Quintana. Griffin noted on the photograph of Gonzalez that she believed he was the driver of the truck but she was not certain. She noted on the photograph of Quintana that she believed he was the passenger in the truck but she was not certain. At trial, Griffin stated that she was certain that she had identified the two men correctly. A Marlin rifle was found a few blocks from the scene of the crime. A ballistics test established that this rifle was the weapon used to shoot Gonzalez. In a search of the room in which appellant lived at his grandmother's house, a police officer found a box of bullets that were the same make and caliber as the bullet that killed Gonzalez. It was also established that appellant's mother's house was in the immediate vicinity of the scene of the crime. DNA samples were taken from the rifle. While the samples did not form a complete profile, it was established that appellant could not be excluded as the contributor to the DNA samples. The parties disputed the statistical significance of the partial DNA profile obtained from the rifle. Even the most conservative estimate, however, established that the profile would only match one in every 45,000 African Americans. Appellant argues that the evidence supporting a finding that he was the shooter should be considered insufficient because Quintana's description of the man that traveled with them that night did not match appellant. Specifically, Quintana told the police officers that the man that was locating prostitutes for Gonzalez was not wearing anything on his head that night, and Quintana made no mention of any tattoos. In contrast, Mills, Griffin, and another witness testified that appellant was wearing a red cap or bandana that night. The evidence also established that appellant had a small tattoo of some teardrops on one of his cheeks. Quintana did testify, however, that it was dark on the night of the incident and that he did not get a good view of the black man traveling with them. The discrepancies between the descriptions of appellant's appearance and the shooter's appearance on the night in question were conflicts in the record for the jury to resolve. See Clayton, 235 S.W.3d at 778 (holding it is fact finder's duty to resolve conflicts in evidence). When, as here, the record supports conflicting inferences, we must defer to the jury's resolution of the conflict. Id. We hold that the evidence was sufficient to support a finding beyond a reasonable doubt that appellant was the man who shot Gonzalez. We overrule appellant's fourth issue. Motion to Suppress
In his first issue, appellant argues that the trial court erred by denying his motion to suppress the introduction of evidence obtained from a warrantless search of his room inside his grandmother's house. The evidence in question was a box of bullets matching the kind of bullet used in the offense. Prior to the trial, the trial court held a hearing on the motion to suppress and denied appellant's motion. At the trial, when the State sought to introduce the bullets into evidence, appellant's counsel stated, "No objection." "The affirmative acceptance of this previously challenged evidence waived any error in its admission." Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005); see also, Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (holding that defendant preserves objection to introduction of evidence in pre-trial motion to suppress but waives that error when he affirmatively states no objection to introduction of same evidence at trial). Accordingly, this issue has been waived. We overrule appellant's first issue. DNA Analysis
In his second issue, appellant argues that the State committed a Brady violation by failing to notify appellant that Dean had been cited for instances of DNA contamination in the past. In his third issue, appellant argues that the trial court erred by refusing to give a jury instruction relating to the alleged violation. In Brady, the United States Supreme Court held that the prosecution's suppression of evidence favorable to a defendant violates due process if the evidence is material to either guilt or punishment, without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); see also Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). When evidence withheld in violation of Brady is disclosed at trial, the defendant's failure to request a continuance "indicates that the tardy disclosure of the evidence was not prejudicial" and waives the error. State v. Fury, 186 S.W.3d 67, 73-74 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Testimony of Dean's past instances of DNA contamination was elicited during her cross-examination. At no point during Dean's testimony did appellant request a continuance or in any other way raise a complaint of any Brady violation. The State rested after Dean's testimony. Appellant then presented Nasir, his own DNA expert. Following this testimony, appellant rested and the State rested and closed. It was not until the next morning, during the jury charge conference, that appellant presented his Brady complaint to the trial court. Appellant's counsel represented to the trial court that they were not aware of any instances of DNA contamination by Dean until they received a note from Nasir advising them to ask about DNA contamination. Counsel for the State represented to the trial court that they had not been aware of any instances of DNA contamination by Dean prior to the testimony either. The State argues on appeal that appellant's failure to request a continuance after Dean admitted to instances of DNA contamination waived any error. See Fury, 186 S.W.3d at 73-74. Appellant responds that any benefit of a continuance was rendered moot because all of the samples had been consumed in Dean's testing. Dean testified that, if she had consumed the entire samples in her testing, it would have been included in her report. Because there was no indication in her report that any of the samples had been fully consumed, Dean concluded that some portions of the samples must still exist. At the very least, a continuance could have resolved whether samples sufficient for testing still existed. Assuming without deciding that the State's failure to disclose prior instances of DNA contamination by Dean was a Brady violation, we hold that any error was waived or at least was established to not truly be prejudicial due to appellant's failure to request a continuance. We overrule appellant's second and third issues. Conclusion
We affirm the judgment of the trial court.