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Reese, Gary Jermaine v. State ( 2003 )


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  • Affirmed and Opinion filed October 9, 2003

    Affirmed and Opinion filed October 9,  2003.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-02-00847-CR

    NO. 14-02-00848-CR

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    GARY JERMAINE REESE, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 232nd District Court

    Harris County, Texas

    Trial Court Cause Nos. 882,716 & 882,937

     

      

     

    M E M O R A N D U M  O P I N I O N

    Appellant Gary Jermaine Reese was convicted by a jury of two counts of aggravated sexual assault of a child, a first-degree felony. See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003).  Appellant alleges three points of error.  We affirm.

    Background

    In June 2001, appellant was dating S.H., the complainant=s mother.  Approximately two weeks after appellant and S.H. ended their relationship, appellant stopped by S.H.=s residence.  One of S.H.=s 12-year-old boys answered the door. After learning that S.H. was not at home, appellant decided to wait inside the home until she returned.  S.H.=s 13-year-old daughter, A.H., testified that she was asleep in her mother=s upstairs bedroom the night the events took place.  A.H. stated that while she was asleep, appellant came into her mother=s bedroom and removed her pajama bottoms.  She testified that appellant then penetrated her vagina with his penis and made a crude comment about her vagina.  

    After a few minutes had passed, A.H=s younger brother became concerned and went upstairs to check on his sister. When he reached his mother=s bedroom, the door was locked, so he knocked on the door.  After a short pause, A.H. opened the door with a scared look on her face.  The little brother could see appellant walking toward the bathroom and doing something with his pants.  Suspecting something was wrong, the brother asked A.H. to go downstairs and help him find a video game. 

    A.H. was attempting to tell her brother to call 9-1-1 when appellant came downstairs and told her to go back upstairs. Appellant directed A.H. back into her mother=s bedroom.  He then pulled A.H. onto the floor, removed her pajama bottoms, and again placed his penis inside her vagina. Appellant ultimately ejaculated on A.H.=s thigh. 

    When S.H. returned home, A.H. told her mother what had happened.  S.H. called the police and took her daughter to the hospital where a rape kit was collected. Appellant=s DNA was found on A.H.=s vagina, thigh, and a mixture of appellant=s and A.H=s DNA was found on the crotch of A.H=s pajamas. 


    Appellant testified that he was innocent. Appellant claimed that he did not get along with A.H. and the two had many conflicts while he was dating her mother. He asserted the DNA must have come from earlier sexual relations between himself and S.H., even though all sexual relations ended approximately one week prior to the alleged incident. 

    Issue One: Expert Testimony

    In his first issue, appellant contends the trial court erred in admitting the State=s DNA expert=s testimony.  The trial court first conducted a hearing outside the presence of the jury to determine whether the testimony of the State=s DNA expert, Reynard Cockrell, was admissible. At the conclusion of the hearing, appellant=s counsel made two objections to the admission of Mr. Cockrell=s testimony: (1) Mr. Cockrell was not qualified to interpret the results of the DNA analysis, and (2) Mr. Cockrell=s analysis was not reliable because he  did not produce documentation showing that tests were performed to ensure the DNA evidence had not been contaminated.  The trial court admitted Mr. Cockrell=s testimony.  

    We review the trial court=s decision to admit or exclude scientific expert testimony under an abuse of discretion standard.  Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).  The trial court abuses its discretion if it acts without reference to any guiding rules and principles.  Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Thus, we will uphold the trial court=s decision as long as it is within the zone of reasonable disagreement, given the evidence presented and the requirements of Rule 702 of the Texas Rules of Evidence.  Sexton, 93 S.W.3d at 99.  

    The trial court is guided by Texas Rule of Evidence 702 in determining whether expert testimony should be admitted.  Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).  Rule 702 provides: AIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.@  Tex. R. Evid. 702.  The trial court serves as Agatekeeper@, admitting evidence only if it is sufficiently reliable and relevant to assist the jury.  Jordan v. State, 928 S.W.2d 550, 554B55 (Tex. Crim. App. 1996).

    The proponent of the scientific evidence must show through clear and convincing evidence that the proffered evidence is reliable.  Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).  This is accomplished by showing (1) the validity of the underlying scientific theory, (2) the validity of the technique applying the theory, and (3) the proper application of the technique on the occasion in question.  Kelly, 824 S.W.2d at 573.  Additional factors that may affect reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the testifying expert=s qualifications; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the technique=s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573. 


    During the hearing to determine the admissibility of the State=s DNA expert=s testimony, Mr. Cockrell testified that he had worked for the Houston Police Department Crime Laboratory for seven years, and had been performing DNA analysis for five years.  Mr. Cockrell holds a Bachelor=s and Master=s Degree in biology, received in-house training at the Houston Police Department Crime Laboratory, and attended several training seminars on DNA testing and analysis.  With regard to the testing performed in this case, Mr. Cockrell explained that STR DNA testing was performed.  He stated that STR, or short tandem repeats, is an upgraded version of PCR DNA testing, and that STR DNA testing is accepted world-wide and considered an accurate form of genetic testing.  He explained the processes he used to perform the test: the first step is extraction, preformed by Aremov[ing] everything from [the] stain but the exception of DNA.@  After extraction, he quantified the DNA present and then amplified it to develop a DNA profile through a process of electrophoresis.  Once a profile is developed, it is typed to determine whether it is consistent with a known sample.  He further stated that he followed the proper procedures in performing the DNA testing and analysis in this case.

    On cross-examination, appellant=s counsel questioned Mr. Cockrell regarding the procedures employed by the lab to guarantee the DNA evidence was not contaminated.  Mr. Cockrell explained that negative and positive controls are always used to ensure the evidence is not contaminated and the test is performed properly.  He stated the positive controls ensure the test Aran exactly as it should have been,@ and the negative controls Adetermine whether or not you have any contamination in your evidence.@  Appellant=s counsel asked for a document to verify whether these controls were in fact used in this case.  Mr. Cockrell testified that two tests were actually performed with each DNA sample, called the profiler and co-filer kits.  Mr. Cockrell, however, only produced a print-out of the positive and negative controls used in the co-filer kit.  He consistently and repeatedly stated that the positive and negative controls were used for both the profiler and the co-filer kits and explained that the Aexact same@ positive and negative controls used on the co-filer kit were also used on the profiler kit. 

    Appellant complained to the trial court, and now complains on appeal, that the DNA testing, and thus Mr. Cockrell=s testimony, is unreliable because Mr. Cockrell did not produce documentation showing positive and negative controls were used on the profiler kit. The trial court concluded the State had shown by clear and convincing evidence that the STR DNA testing was sufficiently reliable and relevant to help the jury in reaching accurate results. We agree.

    Applying the Kelly factors, (1) Mr. Cockrell testified, and it was not disputed, that STR DNA testing is accepted world-wide; (2) he has a Bachelor=s and Master=s degree in Biology, as well as, five years= experience in DNA testing; (3) Mr. Cockrell testified that STR DNA testing is an accurate form of genetic testing; (4) based on the world-wide acceptance of STR DNA testing, there would be a number of other experts available to test and evaluate the technique; (5) Mr. Cockrell was able to explain the underlying scientific theory and technique with clarity; and (6) a vast amount of scientific literature exists discussing STR DNA testing.[1]  The trial court has great discretion in deciding whether to admit or exclude evidence. We find nothing in the record demonstrating the trial court abused its discretion by admitting Mr. Cockrell=s testimony in the absence of written documentation showing  positive and negative controls were used on the profiler kit.  See Hines v. State, 38 S.W.3d 805, 808B09 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (holding trial court did not abuse its discretion by admitting DNA testimony because appellant only raised the possibility that the expert committed an error and could not point to any specific instances of error).   

    Appellant also contends Mr. Cockrell is not qualified to interpret the results of the DNA testing.  While appellant=s counsel admitted before the trial court that Mr. Cockrell was A[c]ertainly qualified to run the test,@ counsel objected to Mr. Cockrell=s testimony  because Ahe=s not qualified to interpret the results of this test and I object to him being allowed to testify to any probabilities that Mr. Reese [is] a >match in this particular case.=@  The State, however, is not required to present probability and statistics experts in order to show that the DNA testing is reliable and relevant.  Roberson v. State, 16 S.W.3d 156, 168 (Tex. App.CAustin 2000, pet. ref=d); Griffith v. State, 976 S.W.2d 241, 251 (Tex. App.CAmarillo 1998, pet. ref=d).   Neither Kelly nor Rule 702 require such a showing as a prerequisite to admission. Roberson, 16 S.W.3d at 168; Griffith, 976 S.W.2d at 251.  Accordingly, we hold the trial court did not abuse its discretion in concluding the State demonstrated by clear and convincing evidence that Mr. Cockrell=s testimony concerning STR DNA testing, as well as its interpretation, was reliable and relevant to aid the jury in determining appellant=s guilt or innocence on the charged offense. 

     

    Issue Two: Impeachment by Prior Conviction

    In his second issue, appellant contends the trial court erred in admitting evidence of his prior conviction for impeachment purposes.  As previously stated, we review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). As long as the trial court=s decision is within the realm of reasonable disagreement, it will not be disturbed on appeal.  Id.

    Once a defendant testifies, he places his credibility at issue and may thereafter be impeached like any other testifying witness. Dale v. State, 90 S.W.3d 826, 829 (Tex. App.CSan Antonio 2002, pet. ref=d).  Texas Rule of Evidence 609(a) provides that, for the purpose of attacking the credibility of a witness, evidence that a person was convicted of a crime shall be admissible if the prior  conviction was a felony or a misdemeanor involving moral turpitude and the court determines the probative value of admitting the prior conviction outweighs its prejudicial effect.  Tex. R. Evid. 609(a).  In this case, appellant=s prior conviction of aggravated assault is a felony.  Therefore, the conviction was properly admitted unless the probative value of admitting the prior conviction outweighs its prejudicial effect.       As the proponent, the State bears the burden of demonstrating the probative value of the prior aggravated assault conviction outweighs its prejudicial effect.  Theus, 845 S.W.2d at 880.  In Theus, the court set out a non-exclusive list of factors to be considered in deciding whether the State met its burden.  Id.  These factors include: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness= subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant=s testimony; and (5) the importance of the defendant=s credibility.  Id. Accordingly, we will address each factor. 

    1.       Impeachment Value

    Since the defendant=s credibility is at issue, the impeachment value of crimes involving deception is greater than crimes involving violence.  Id. at 881; Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). Crimes involving violence inherently contain a higher potential for prejudice; therefore, if the prior conviction involves deception and not violence, this factor will favor admissibility. Theus, 845 S.W.2d at 881.  Because aggravated assault involves violence rather than deception or untruthfulness, it would not ordinarily weigh against a witness= honesty.  Therefore, this factor weighs against admissibility.               

    2.       Temporal Proximity and Subsequent History

    The second factor favors admission if the past crime is recent and the witness has demonstrated a propensity for breaking the law. Id.  It is important to look at the amount of time that has elapsed between the charged offense and the prior conviction.  Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).  Rule 609(b) provides a more stringent test if more than ten years have elapsed since the date of conviction or release.  Tex. R. Evid. 609(a) & (b).  This more stringent test is inapplicable to this case because appellant was convicted of aggravated assault in 1995, well within the ten-year range.  The temporal proximity of the prior conviction favors admissibility. 

    3.       Similarity

    When the prior conviction is for a crime that is similar to the charged offense, a danger arises that the jury will convict the defendant based on a belief that the defendant acted in conformity with the prior offense.  Theus, 845 S.W.2d at 881; Pierre, 2 S.W.3d at 443.  Thus, if the crimes are similar, this factor weighs against admission. Theus, 845 S.W.2d at 881. Appellant was charged with aggravated sexual assault of a child, and the aggravating element was the age of the child, not violence.  In contrast, jurors are more likely to equate aggravated assault with the use of violence. Since both crimes do not involve violence, we find this factor weighs in favor of admissibility.  Furthermore, the judge instructed the jury that it could only consider the prior conviction for the purpose of weighing the defendant=s credibility and for no other purpose, thereby reducing any prejudicial effect.  Norris v. State, 902 S.W.2d 428, 441 (Tex. Crim. App. 1995).  We must presume the jury followed the court=s charge.  Gamez v. State, 737 S.W.2d 315, 324 (Tex. Crim. App. 1987).

     4.      Importance of Defendant=s Testimony and Credibility

    The fourth and fifth factors are closely related, especially if the defense=s only witness is the accused.  Theus, 845 S.W.2d at 881.  The fourth factor concerns the importance of the defendant=s testimony, while the fifth factor relates to the defendant=s credibility.  Id. If the defendant is the sole witness for the defense, then the importance of his testimony and credibility escalates; however, as the importance escalates, the need for the State to impeach the defendant also escalates.  Id.; Simpson, 886 S.W.2d at 452B53. In this case, appellant was the sole witness in his defense; therefore, both factors favor admissibility of the prior conviction.

    We find that four of the five factors favor admission of appellant=s prior conviction of aggravated assault. The sole factor which militates against admission, impeachment value, does not trump the remaining four factors in this case.  In reviewing the trial court=s decision to admit evidence of the prior conviction, we find the trial court=s decision to allow the evidence was not an abuse of discretion.  We overrule appellant=s second issue.   

    Issue Three: Cruel & Unusual Punishment

    In his final issue, appellant claims the trial court=s cumulation of appellant=s sentence pursuant to the State=s motion constitutes cruel and unusual punishment under the Eighth Amendment. After punishment was assessed by the jury at fifty-years= confinement for each offense, the trial court considered the State=s motion to cumulate the sentences. Appellant=s counsel argued that Aaccumulation@ was improper because appellant would not be eligible for parole until he was close to fifty years old and the two separate offenses were Aone almost continuous [assault].@ The court granted the State=s motion and then asked appellant=s counsel the following critical question: ADoes the Defense have anything to say in bar of sentence?@ Appellant=s counsel replied ANo Your Honor.@


    Appellant failed to preserve error because there was no trial objection concerning cruel and unusual punishment.  Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984). The only objection appellant made related to the trial court=s charging of two counts of aggravated sexual assault because, as appellant argued, there was only one continuous offense. This objection is not related and is not sufficient to preserve an Eighth Amendment claim.  Appellant=s third issue is overruled. 

    We affirm the judgment of the trial court.

     

     

     

    /s/        John S. Anderson

    Justice

     

     

     

     

    Judgment rendered and Opinion filed October 9, 2003.

    Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

    Do Not Publish C Tex. R. App. P. 47.2(b).

     


    [1]  This court may take judicial notice of scientific literature not presented by either party at trial or on appeal.  Mata v. State, 46 S.W.3d 902, 910 (Tex. Crim. App. 2001); Emerson v. State, 880 S.W.2d 759, 764B65 & 765 n. 1 (Tex. Crim. App. 1994).