Curtis v. State

205 S.W.3d 656, 2006 Tex. App. LEXIS 7790, 2006 WL 2507437

• Court: Court of Appeals of Texas
• Decided: August 31, 2006
• Docket: 2-05-102-CR
• Status: Published

Opinions

OPINION

ANNE GARDNER, Justice.

Introduction

Appellant Clifton Earl Curtis appeals from his conviction and life sentence for aggravated sexual assault — serious bodily injury. In seven points, Appellant asserts errors relating to voir dire, the exclusion and admission of certain evidence, and the trial court’s refusal to charge the jury on a lesser included offense. We affirm.

Background

Gloria King was strangled to death in her bed sometime on May 7, 1995. The medical examiner collected vaginal and pe-rianal swab samples during the autopsy of King’s body. In 1997, police developed evidence allegedly implicating Appellant, who is King’s nephew and who reported her body to police, as a suspect in the killing while investigating another homicide. Although Appellant denied that he ever had sexual intercourse with King, DNA from the autopsy swabs matched Appellant’s DNA. Appellant was tried and convicted for capital murder in 2001. On appeal to this court, we reversed and remanded for a new trial, holding that the trial court erred by failing to charge the jury on the lesser included offenses of aggravated sexual assault and sexual assault. See Curtis v. State, 89 S.W.3d 163, 179 (Tex.App.-Fort Worth 2002, pet. ref'd).

On remand, Appellant was tried for aggravated sexual assault, and the trial court charged the jury on the lesser included offense of sexual assault. The jury convicted Appellant of aggravated sexual assault and sentenced him to life in prison, and the trial court rendered judgment accordingly.

Challenges for Cause

In his first two points, Appellant argues that the trial court erred by overruling his challenges for cause to two veni-repersons who stated that they had friends who were the victims of crimes. Venire-person McCoy, when asked whether her experience would affect her ability to assess punishment, answered, “Probably.” Venireperson Shoquist said that his experience would cause him to lean towards the State.

A prospective juror who has a bias or prejudice against any phase of the law upon which a party is entitled to rely is properly challengeable for cause. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App.2004). The test is whether the bias or prejudice would substantially impair the prospective juror’s ability to carry out his oath and instructions in accordance with the law. Id. Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. Id. Great deference is given to the trial court’s decision. Id.

In this case, Appellant’s counsel did not explain the law to the veniremembers in question nor ask whether they could follow the law regardless of their personal views. We therefore defer to the trial court’s discretion and overrule Appellant’s first and second points.

Exclusion of Crime Lab Evidence

In his third point, Appellant argues that the trial court erred by excluding the testimony of Treva Armstrong, a former Fort Worth Crime Lab employee, regarding problems at the crime lab when one of the State’s DNA expert witnesses, Aliece Watts, worked there. The trial court excluded the evidence as irrelevant.

We review a trial court’s ruling to admit or exclude evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). If the court’s decision falls outside the “zone of reasonable disagreement,” it has abused its discretion. Weatherred, 15 S.W.3d at 542; Montgomery, 810 S.W.2d at 391.

Watts performed the relevant DNA analysis in 1998. Armstrong was not employed by the crime lab until 2000. Because Armstrong had no personal knowledge of any problems at the crime lab at the time of the DNA tests relevant to this case, we cannot say that the trial court abused its discretion by excluding Armstrong’s criticism of Watts’s later work. We overrule Appellant’s third point.

Appellant’s fourth point also concerns Armstrong’s testimony. Although the trial court excluded Armstrong’s testimony about problems at the crime lab, Armstrong did testify about her criticisms of the methodologies employed by Watts in this case. On cross-examination, the State questioned Armstrong generally about various DNA-test methodologies. Appellant argues that the State “opened the door” to Armstrong’s testimony about problems at the crime lab because some of those methodologies were associated with the problems at the crime lab when Armstrong worked there.

A witness opens the door to otherwise inadmissible evidence if, while testifying, the witness creates a false impression. See Crenshaw v. State, 125 S.W.3d 651, 656 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). In such a case, opposing counsel may expose the falsehood. See id. (citing Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.), cert. denied, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993)). We cannot see how the State’s general questions about various DNA-test methodologies left the jury with a false impression of anything. Thus, we agree with the trial court when it said, “I don’t think [the State] opened the door to anything,” and we overrule Appellant’s fourth point.

YSTR DNA Testing

In his fifth point, Appellant argues that the trial court erred by admitting the results of a particular DNA test, the YSTR test, because the State failed to prove that the test was relevant and reliable. Specifically, Appellant argues that there was no evidence that YSTR test results have been admitted into evidence in a criminal trial anywhere in the United States and that the evidence showed that the YSTR test is not standardized because different labs use different markers for the test.

Rule 702 of the Texas Rules of Evidence provides that “if 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. Under Rule 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence he is proffering is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact issue. Weatherred, 15 S.W.3d at 542 (citing Nenno v. State, 970 S.W.2d 549, 560-61 (Tex.Crim.App.1998)). Factors that could affect a trial court’s determination of 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 qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (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(s) who applied the technique on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Before novel scientific evidence may be admitted under rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is rehable and therefore relevant. Id. at 573.

The trial court conducted a Kelly hearing on the YSTR evidence outside the jury’s presence. William Watson testified for the State. Watson is the forensic laboratory director for Orchid Cellmark, a DNA testing laboratory, and holds a Bachelor of Science degree in microbiology and a Master of Science degree in biology. Watson testified that YSTR employs the same technology as an older test — STR— but examines genetic markers on the Y-chromosome, found only in males. Building on research conducted by the National Institute of Standards and Technology, Orchid Cellmark developed a set of ten YSTR markers. The markers are located on regions of the DNA molecule that have been fully sequenced. Other labs in the United States and Europe have used the same YSTR markers since the mid-1990s. YSTR underwent validation studies prior to use in forensics, and those studies have been published in peer-review journals. Watson testified that there is a general consensus in the scientific community that YSTR testing is reliable, accurate, and valid. On cross-examination, Appellant established that different labs use different sets of YSTR markers, but there is substantial overlap among the different sets. The State also called Cassie Johnson at the Kelly hearing. Johnson is a forensic DNA analyst for Orchid Cellmark and holds a Bachelor of Science degree in biology and chemistry, a Master of Science degree in biomedical sciences, and a Master of Science degree in forensic genetics. Johnson was involved in optimizing the YSTR markers for Orchid Cellmark, and she performed the YSTR test on the DNA samples in this case.

At the conclusion of the Kelly hearing, the trial court found that the YSTR methodology had been validated “internally and externally” and subjected to peer review, that it was generally accepted in the scientific community, and that the YSTR evidence was reliable and relevant. In light of the testimony presented at the Kelly hearing, we hold that the trial court did not abuse its discretion by determining that the YSTR evidence was reliable and relevant, and we overrule Appellant’s fifth point.

Blood Sample Search Warrant

In his sixth point, Appellant argues that the trial court erred by allowing a police detective to testify that he collected a sample of Appellant’s blood pursuant to a search warrant. Appellant argues that testimony about the search warrant was not relevant because he voluntarily submitted a blood sample and was prejudicial because it left the jury with the impression that he did not cooperate with police.

Nothing in the record, apart from the argument of Appellant’s counsel to the trial court, suggests that Appellant voluntarily submitted a blood specimen for DNA testing. A major thrust of Appellant’s theory of defense was that the State mishandled the DNA evidence in this case. Thus, the circumstances under which the State obtained DNA from Appellant was relevant to issues before the jury. We therefore hold that the trial court did not abuse its discretion by allowing the detective to testify about the search warrant, and we overrule Appellant’s sixth point.

Lesser Included Offense

In his seventh point, Appellant argues that the trial court erred by failing to charge the jury with the lesser included offense of aggravated assault.

To determine whether a jury must be charged on a lesser included offense, we apply a two-step analysis. Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App.2005); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). The first step is to decide whether the offense is a “lesser included offense” as defined in article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981); Salinas, 163 S.W.3d at 741; Moore, 969 S.W.2d at 8. “An offense is a lesser included offense if ... it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. Ann. art. 37.09(1). Here, the State concedes that aggravated assault can be a lesser included offense of aggravated sexual assault.

Second, some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Salinas, 163 S.W.3d at 741; Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether the lesser included offense should be submitted. See Gadsden v. State, 915 S.W.2d 620, 622 (Tex.App.-El Paso 1996, no pet.). Regardless of its strength or weakness, if more than a scintilla of evidence raises the issue that the defendant was guilty only of the lesser offense, the charge must be given. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994); Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992). In deciding whether a lesser included offense instruction is warranted, we are required to view the evidence in the light most favorable to Appellant and give him the benefit of reasonable inferences from the evidence, without regard to whether it is credible, controverted, or in conflict with other evidence. Curtis, 89 S.W.3d at 179.

An accused is guilty only of a lesser included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex.App.-El Paso 1998, pet. ref'd). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1526, 140 L.Ed.2d 677 (1998). A charge on the lesser offense is not required if a defendant’s evidence suggests that he committed no offense at ah. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App.2001) (citing Bignall, 887 S.W.2d at 23 (Tex.Crim.App.1994)).

A person commits the offense of aggravated sexual assault if the person causes the penetration of another’s sexual organ without the other’s consent and causes serious bodily injury to the victim in the course of the same criminal episode. Tex. Penal Code Ann. § 22.021 (Vernon 2004). A person commits the offense of aggravated assault if the person intentionally, knowingly, or recklessly causes serious bodily injury to another. Id. §§ 22.01, 22.02 (Vernon 2004).

Appellant argues that he was entitled to a charge on aggravated assault because the medical examiner testified on cross-examination as follows:

Q: [W]hen you find semen in the vagina of the deceased, can you determine when it got there in relation to when the person died?

A: No.

Q. Up to how many days prior to the death could it be?

A. There have been reported examples of even identifiable viable moving sperm recovered from the woman’s vagina as much as three or four days after intercourse.

Appellant contends that this testimony raises the possibility that Appellant had sexual intercourse with King days before she was murdered; thus, the penetration of her sexual organ may not have occurred “in the same criminal transaction” as the serious bodily injury that resulted in her death. See Tex. Penal Code Ann. § 22.021.

We agree that the testimony in question raised the possibility of a temporal separation between the time Appellant had sex with King and the time of her death, but we disagree that this possibility entitled him to a charge on the lesser included of aggravated assault. The DNA evidence that Appellant had sexual intercourse with King — despite his repeated statements that he had never done so — was the same evidence and virtually the only evidence that pointed to Appellant as King’s killer. The fact of King’s death by strangulation was the key evidence tending to prove that Appellant sexually assaulted her, as opposed to engaging in consensual intercourse with her. If Appellant engaged in sexual intercourse with King days before death rather than at the time of her death, then the only reasonable and logical conclusion to be drawn from the evidence is that he neither sexually assaulted her nor killed her. It is the combination of Appellant’s DNA on King’s body and the circumstances of King’s death that points to aggravated sexual assault as the crime and to Appellant as the perpetrator. Thus, if the medical examiner’s testimony suggests that Appellant could have had sexual intercourse with King as many as four days before her death, then it suggests that he committed no crime at all. We therefore hold that the trial court did not err by denying Appellant’s request for a charge on aggravated assault, and we overrule his seventh point.

Conclusion

Having overruled all seven of Appellant’s points, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.