Coleman v. State

833 S.W.2d 286, 1992 Tex. App. LEXIS 1558, 1992 WL 133404
Court of Appeals of Texas·Decided June 18, 1992·No. A14-91-00328-CR·Published·Cited by 31 cases

Opinion

OPINION

SEARS, Justice.

Cass Roy Coleman brings this appeal from a conviction for aggravated sexual assault. Appellant pled not guilty and the case was tried before a jury. Appellant was found guilty, and upon a finding of true to two enhancement paragraphs, he was sentenced to ninety-nine years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

On the evening of August 24, 1989, the complainant, S.K.N., attended bible class and then went to a restaurant with a friend. She arrived home at 11:00 p.m. While taking a bath, she looked up to find a black man with a gun standing in the doorway of the bathroom. The assailant ordered the complainant out of the bathtub, and she grabbed a towel as she stepped out. Appellant then asked her if she had money or jewelry, and the complainant retrieved some from the vanity. As she turned around, she saw that appellant had his penis out through the zipper of his pants. He then ordered the complainant to perform oral sex on him and she complied.

The complainant stopped momentarily and asked appellant if he was a believer in the Lord Jesus Christ. Appellant seemed agitated, told the complainant to take off her towel and continue what she was doing. A few moments later, appellant told her to *288 stop and forced her to have vaginal intercourse. The complainant kept the towel on top of her during this time. Appellant held the gun during the entire episode and waved it around when he would want her to do anything. Appellant finally left after taking a ring and $10.00 from the complainant but he said he would be back for some more “bible studies.”

On August 30,1989, the complainant was asked to view a lineup where she identified appellant as her assailant. She asked if she could see his arms because she remembered her assailant as having well-developed arms. After all the men in the lineup were instructed to roll up their sleeves, she again identified appellant as the attacker. She said she was sure it was him but would only assign a 95% probability because she could never be 100% certain of anything.

In his first point of error, appellant asserts the evidence was insufficient to support a conviction because the complainant was not 100% certain about her identification of the appellant, and appellant denied having committed the offense. The appellant believes there was sufficient evidence of misidentification because the complainant never mentioned appellant’s rather prominent chest tattoo to the police.

When addressing the sufficiency of the evidence, the reviewing court must look at the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We then determine whether a rational trier of fact could have found the essential elements beyond a reasonable doubt. Buxton v. State, 699 S.W.2d 212, 213 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). The credibility of witnesses is not reviewed on appeal. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). Moreover, the jury is entitled to reject part or all of a witness’ testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).

The assailant never removed his clothing when he sexually assaulted the complainant. Only his penis was exposed through the unzipped pants. Further, during trial the following testimony was elicited from complainant by appellate counsel:

Q: During the whole time your assailant was in your house, did he ever take this T-shirt off?
A: No, he did not.
* * * * * *
Q: ... How much of his chest were you able to observe during the whole time he was there that evening?
A: None.
Q: So if he had any kind of unusual tattoos or marks, you wouldn’t have been able to observe it?
A: No, sir.

We fail to see how this testimony, or testimony by appellant that he has a tattoo, shows evidence of misidentification on the complainant’s part. The shirt was never removed, therefore, the complainant would not be able to describe appellant’s chest.

In regards to the percentage assigned to her identification, the complainant gave a reasonable explanation for it; her scientific training prevented her from ever being 100% certain of anything. Additionally, the complainant said that she had seen her attacker’s face very clearly and was sure the man in the lineup was the same person. After she saw his arms, it verified what she already knew — that he was the man who assaulted her in her house. Contrary to appellant’s position that the verdict was supported solely by the complainant’s testimony, the DNA from complainant’s vaginal swab matched the appellant’s blood sample. We find that a rational trier of fact could have found appellant guilty beyond a reasonable doubt. Appellant’s first point of error is overruled.

In appellant’s second point of error, he contends that the trial court erred in overruling his objection to the admission of the vial of complainant’s blood. He contends the State failed to prove the blood was drawn from this complainant, and the exhibit was essential to the DNA expert’s opinion. Four exhibits were used in the DNA testing: (1) the vial containing appellant’s blood; (2) the vaginal swab; (3) the towel recovered from the complainant’s *289 bed; and, (4) the vial of the complainant’s blood.

Appellant asserts that establishing a known sample of the complainant's DNA was necessary to the ultimate question of identifying the appellant through the DNA in the semen recovered from the vaginal swab. Appellant points to the trial record wherein Ms. Das only testified that she had taken a sample of S.N.’s blood, or that the vial contained the blood of S.K.N. Appellant argues that this was insufficient to show that the blood donor was the same person as the complainant, S.K.N. Because Ms. Das, the blood collector, said Ms. N. consented to the “blood drive,” appellant contends that it is possible that she collected blood from several persons who may have used the same name as the complainant and there was no testimony actually linking the blood with this case.

Ms. Das testified she took a blood sample from appellant on January 25, 1990, subsequent to a warrant. She then met with S.N. to draw her blood in regard to the same case. The prosecutor asked why she drew the blood of S.N. as well as drawing blood from defendant in “this sort of investigation.” Ms. Das responded that she drew blood “so it could be compared with the evidence that was collected at a previous time.” Ms. Das transferred both samples to “the chemist working the case.”

Ms.

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Coleman v. State, 833 S.W.2d 286, 1992 Tex. App. LEXIS 1558, 1992 WL 133404 (Tex. Ct. App. 1992).

833 S.W.2d 286 (Coleman v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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