Jackson, Christopher Raymond v. State ( 2004 )

Affirmed and Memorandum Opinion filed September 28, 2004

Affirmed and Memorandum Opinion filed September 28, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-01051-CR

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CHRISTOPHER RAYMOND JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 926,376

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of sexual assault.  Based on the jury’s finding  that an enhancement paragraph alleging a prior conviction for sexual assault was true, appellant was sentenced to a mandatory life sentence in the Texas Department of Criminal Justice, Institutional Division.  In a single point of error, appellant contends the evidence was legally and factually insufficient to support his conviction because the victim was unable to  identify him in open court.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 2002, the victim was sexually assaulted in her home by a man she met the previous evening through a friend.  The State attempted to prove appellant’s guilt through DNA testing and other circumstantial evidence.  On the night of the assault, the victim identified appellant by name as her attacker and supplied his telephone number to police.  The police later contacted appellant at this telephone number and arranged to obtain his photograph and a DNA sample.  Two independent laboratories tested the appellant’s DNA sample against the sample taken from the victim’s body.  Both laboratories found that the two samples matched.  At appellant’s trial, over sixteen months after the assault, the victim failed to identify appellant as the man who assaulted her. She did, however, identify her assailant from a photograph police took shortly after the assault.  Appellant’s telephone records revealed numerous calls between the victim and appellant on the night of the assault.  The victim’s friend also identified appellant in court as the man she introduced to the victim the evening before the assault.

The jury found appellant guilty of sexual assault and further found the enhancement paragraph (alleging a prior sexual assault) to be true.  Appellant received a mandatory twenty year sentence and now brings this appeal.

ANALYSIS

In his sole point of error, appellant contends that the evidence was legally and factually insufficient to support his conviction because the victim was unable to identify him in open court.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).  The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984) (en banc).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) (en banc); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).

In evaluating a factual sufficiency challenge, we view the evidence in a neutral light.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004). The evidence is factually insufficient if (1) the evidence supporting the verdict is too weak to find guilt beyond a reasonable doubt, or (2) the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.

Appellant relies on the victim’s failure to identify him in open court.  The victim identified her attacker as Christopher Jackson, a man she met the previous evening through a friend.  But, when asked whether she saw the man in the courtroom that her friend introduced her to, the victim twice responded that she did not.^[1] 

However, the State also introduced evidence from two DNA experts—Dr. Joseph Matthew, the supervisor of the Harris County Medical Examiner’s Forensic DNA Lab, and Jennifer McCue, a forensic DNA analysis employed by IndentiGene.  Dr. Matthew testified that appellant’s DNA sample matched the sample taken from the victim, that the frequency of appellant’s DNA profile occurring in another person was 1 in 6.2 billion, and that the frequency of appellant’s DNA profile occurring in another person within the black population was 1 in 1.8 quadrillion.^[2]  Similarly, McCue testified appellant’s DNA sample matched the sample taken from the victim, and that the frequency of appellant’s DNA profile occurring in another person was 1 in 13.5 quadrillion.  The State also introduced evidence that (1) the victim knew appellant, (2) she told a police officer her assailant was named Chris Jackson, (3) she gave the officer appellant’s phone number, (4) she identified a picture of appellant taken by the officer, and (5) appellant had telephoned the victim despite denying knowing her.

In support of his position that this evidence was insufficient in light of the victim’s inability to identify him, appellant cites Johnson v. State, 978 S.W.2d 703 (Tex. App.—Corpus Christi 1998), aff’d, 23 S.W.3d 1. In Johnson, the victim testified in court, but was unable to unequivocally identify the defendant.  Id. at 705–06.  To bolster its case, that State introduced DNA evidence that showed appellant was in a group of only 8.5% of the black population to match the samples taken from the victim.^[3]  Id. at 706.  The court of appeals held that the DNA evidence was factually insufficient because it “could . . . apply to many people other than [the defendant].”  Id. at 707.

The State counters with two cases in which DNA evidence was held to be sufficient.  See Hinojosa v. State, 4 S.W.3d 240, 246 (Tex. Crim. App. 1999); Roberson v. State, 16 S.W.3d 156, 172 (Tex. App.—Austin 2000, pet. ref’d).  In Hinojosa, the DNA expert testified that only 1 in 19,900,000 randomly selection people within the defendant’s racial group would match the sample taken from the victim.^[4]  4 S.W.3d at 243.  The Court of Criminal Appeals held that “these impressive statistics support the jury’s conclusion that appellant, as opposed to some unidentified ‘suspect’ also sharing the same DNA profile, sexually assaulted, kidnapped, and killed [the victim].”  Id. at 245.  In Roberson, the DNA expert testified that only 1 in 420 billion people within the black population would match the defendant’s profile.^[5]  16 S.W.3d at 162.  The court of appeals held that “[t]he DNA (RFLP analysis) evidence was ‘strong evidence’ of [the defendant’s] participation in the crime.”  Id. at 168.

This case is more similar to Hinojosa and Roberson than to Johnson. The experts here testified that the likelihood of appellant’s DNA profile occurring within his racial group was either 1 in 1.8 quadrillion or 1 in 13.5 quadrillion.  Thus, the likelihood that another person shares the same profile as appellant is even lower than the likelihood that another person shares the same profile as the defendants in Hinojosa and Roberson.  See Hinojosa, 4 S.W.3d at 243; Roberson, 16 S.W.3d at 162.  By contrast, in Johnson the likelihood of another person sharing the same profile as the defendant was 8.5%, or roughly 1 in 12.  See 23 S.W.3d at 706.  Although no set percentage will automatically satisfy the beyond-a-reasonable-doubt standard, of course, cf. Wilder v. State, 111 S.W.3d 249, 253 (Tex. App.—Texarkana 2003, pet. ref’d) (“[W]e do not encourage the use of a percentage equation in describing the concept of beyond a reasonable doubt . . . .”), we are comfortable that the percentages presented in this case—1 in 1.8 quadrillion and 1 in 13.5 quadrillion—satisfy the standard.

Appellant argues that the DNA evidence does not show that he committed the crime, but rather it only rules out a large number of other possible suspects.  This argument was also before the Hinojosa and Roberson courts, and both courts rejected it.  See Hinojosa, 4 S.W.3d at 245; Roberson, 16 S.W.3d at 166.  Proof by circumstantial DNA evidence is not subject to a more rigorous standard than proof by direct evidence; they are equally probative.  Roberson, 16 S.W.3d at 167.  As the Court of Criminal Appeals noted, “these impressive [DNA] statistics support the jury’s conclusion . . . .”  Hinojosa, 4 S.W.3d at 245; see also Roberson, 16 S.W.3d at 167 (quoting Hinojosa).

Viewing the DNA evidence and the additional circumstantial evidence offered by the State in the light most favorable to the verdict, we conclude that a rational jury could have found appellant guilty beyond a reasonable doubt. The evidence is therefore legally sufficient to support the verdict.  See Matson v. State, 819 S.W.2d at 846.

Viewing the same evidence in a neutral light, we also conclude that it is not too weak to support guilt beyond a reasonable doubt.  Nor is the contrary evidence—the victim’s inability to identify appellant in court—strong enough that the beyond-a-reasonable-doubt standard could not have been met.  See Meeks v. State, 897 S.W.2d 950, 955 (Tex. App.—Fort Worth 1995, no pet.) (holding that evidence was sufficient because “[t]he fact that the complainant failed to identify [the defendant] at trial goes only to the weight and credibility of the witnesses and was before the jury for their consideration”).  The evidence is therefore factually sufficient to support the verdict.  See Zuniga, 2004 WL 840786, at *7.

We overrule appellant’s sole point of error and affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2004.

Panel consists of Chief Justice Hedges and Justices Hudson and Fowler.

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

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^[1]  The victim’s testimony follows:

Q:         And when you got there, when you got to her apartment who did you meet?

A:         I met Chris.

Q:         Chris?

A:         Christopher.

Q:         Christopher who?

A:         Jackson.

Q:         And do you see him sitting in the courtroom today?

A:         No, I don’t see him.

Q:         Looking around you don’t see Christopher Jackson in this room.

A:         No.

^[2]  A quadrillion is represented by a one followed by fifteen zeros (1,000,000,000,000,000).  In his testimony, Dr. Mathews described this probability as “one in one, 885 followed by 12 zeroes” (1 in 1,885,000,000,000,000).  Although the record reflects that Dr. Mathews referred to this number as “about 1.8 quad-billion,” his testimony demonstrates the stated number is equivalent to 1.8 quadrillion.

^[3]  In addition to this DNA evidence, the State introduced evidence that the defendant had once lived in the area where the victim was taken, was uncircumsized (as was the victim’s attacker), escaped from jail after his arrest, and lived near the victim.  Johnson, 978 S.W.2d at 706.

^[4]  In addition to this DNA evidence, the State introduced evidence that the defendant lived next door to the victim, was familiar with the victim’s house, and returned home from work at about the same time as the victim on the night of the murder.  Hinojosa, 4 S.W.3d at 245.

^[5]  In addition to this DNA evidence, the State introduced the results of an additional DNA analysis and a blood grouping procedure. Roberson, 16 S.W.3d at 167–68.