Mandujano v. State

799 S.W.2d 318, 1990 Tex. App. LEXIS 2346, 1990 WL 135523
CourtCourt of Appeals of Texas
DecidedSeptember 20, 1990
Docket01-89-00804-CR
StatusPublished
Cited by13 cases

This text of 799 S.W.2d 318 (Mandujano v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mandujano v. State, 799 S.W.2d 318, 1990 Tex. App. LEXIS 2346, 1990 WL 135523 (Tex. Ct. App. 1990).

Opinions

OPINION

COHEN, Justice.

A jury found appellant guilty of burglary of a habitation, and the court assessed punishment of life imprisonment. In four points of error, appellant challenges: (1) the seizure of samples of his blood, saliva, head hair, and pubic hair, which he urges were taken without probable cause; (2) the admissibility of “DNA fingerprinting” or genetic marker evidence to establish his identity; (3) the sufficiency of the evidence; and (4) the trial court’s refusal to grant a new trial, based on newly discovered evidence. A detailed account of the evidence is necessary.

On March 3, 1988, some time before 3:00 a.m., a man entered the victim’s home and sexually assaulted her. She saw only the outline of the attacker’s face. She testified the attacker had triangular-type shoulders from his neck, a potbelly, and a flat backside. His hair was parted in the middle, cut at the ears, longer in the back, and “kind of stuck up a little bit.” At trial, the victim testified that, like her attacker, appellant had a flat backside and a potbelly, but his hair was different, and his shoulders were broader than she remembered.

At the direction of the police, the victim went to the hospital, where a sexual assault kit was prepared. At that time, she wore only a tank top, a sweat shirt, and sweat bottoms. She gave samples from her sweatpants, a bedsheet, a pair of panties, vaginal swabs, and blood. She was unsure then whether her attacker had an orgasm, but she testified at trial that he ejaculated. She had previously had intercourse with her boyfriend between 10:00 p.m. on March 1, 1988 and 1:00 a.m. on March 2, 1988.

The victim told the nurse who took the samples for the rape kit that her attacker was Caucasian. She told Officer Bostick, who prepared an initial offense report about the incident, that the attacker had wavy hair, was age 25, plus or minus five years, and was probably a white male. She never described her attacker as Hispanic. Appellant is Hispanic.

Richard Hernandez, who lived next door to the complainant when she was attacked, testified that he knew appellant and saw him in the vicinity of his and the victim’s residences “quite a few times” before and after the assault. Hernandez said that ap[320]*320pellant “just walked by” his house. The State introduced photos that Hernandez said accurately depicted appellant’s appearance as he walked near Hernandez’ house around the time of the sexual assault. The photographs show that appellant is an Hispanic male, with a pot belly, with his hair parted in the middle, with hair length between mid-ear to bottom of the ear.

On January 23, 1989, Officer Freddie Ko-mar obtained, and the next day executed, a search warrant to seize samples of appellant’s blood, saliva, head hair, and pubic hair. Appellant was in jail at that time.

Donna Stanley, a serologist, testified that appellant and the donor of the semen she tested were both blood type 0 se-cretors. Stanley acknowledged that some semen she inspected could have come from the victim’s boyfriend, rather than from the attacker. The race and blood type of the boyfriend are not in evidence. However, Stanley concluded that the semen she tested was left by the attacker because 90-99% of the boyfriend’s semen would have been naturally removed from the victim’s body in the intervening 24 hours. Stanley testified that the secretions on the victim’s panties, as well as the “jumpsuit” (sweat bottoms), were both blood type 0. Evidence showed that approximately 45 percent of Hispanics are type 0 secretors.

Lauren Galbreath, an employee of Life-codes Corporation, testified that she used four genetic markers for comparison of appellant’s samples with the samples provided by the victim. When comparing appellant’s blood to the material from the victim's sweatpants, all four genetic markers matched, with no inconsistencies. Two markers matched between appellant’s blood and the vaginal swab. The other two markers from the vaginal swab were not inconsistent, but were not identifiable because of deterioration. The bedsheet stain matched two genetic markers in appellant’s blood. The other two markers obtained from the genetic material on the bedsheet were not sufficient for comparison, but were not inconsistent. The crotch area of the panties did not match the genetic markers examined in appellant’s blood. They matched someone else, who had not provided a sample for comparison.

Dr. McElfresh, the assistant director of forensics and paternity at Lifecodes, testified that the scientist conducting the test, as well as three scientists with Ph.D. degrees, review the results of every genetic marker test conducted at Lifecodes. He stated that particular sections of DNA are selected because they differ from person to person. Of the four genetic markers used here, McElfresh stated that the allele frequency distribution for the North American Hispanic population, i.e., the random probability that a North American Hispanic person would have the particular genetic markers he found, were as follows: (1) once in 2963 people for the first marker; (2) once in 72 people for the second marker; (3) once in 76 people for the third marker; and (4) once in 149 people for the fourth marker. Multiplying these figures yields a statistical probability that this particular combination of genetic material would be found at random in the North American Hispanic population only once out of approximately 2.4 billion people.

McElfresh stated that four markers from the sweatpants were compared with appellant’s blood, and two each from the vaginal swab and the bedsheet. McElfresh testified that Lifecodes uses the Hardy-Weinberg equilibrium equation in population statistics to determine the probability of a particular genetic makeup in the relevant population at random, and it is generally accepted in the scientific community. McElfresh testified that the allele frequency distributions used by Lifecodes had been published in a scientific journal and subjected to peer review. The Hispanic allele frequency distribution graph was compiled by researching the DNA of 151 Hispanics, which yielded 302 chromosomes for comparison.

Dr. Wild, a biochemistry professor at Texas A & M University, testified that he had reviewed five articles written by Life-codes employees, which explained their methods in evaluating genetic population distribution, and that they seemed “very solid.” He testified that Lifecodes’ meth[321]*321ods were the “best approach” and “at the cutting edge of current state of the science right now.” These methods were, “without a doubt,” accepted by the scientific community. From his personal interviews with Galbreath and McElfresh, Dr. Wild concluded that they were highly intelligent, experienced, and competent. In his words, “They do good science.” He testified that a mistake in Lifecodes’ procedures would not cause a false result, but would cause the absence of any result at all.

In his third point of error, appellant contends the evidence did not prove that he was the attacker. The standard of review is whether, viewing all the evidence in the light most favorable to the verdict, any rational jury could have found the elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App.1984). This standard applies in both direct evidence and in circumstantial evidence cases. Id.

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Mandujano v. State
799 S.W.2d 318 (Court of Appeals of Texas, 1990)

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Bluebook (online)
799 S.W.2d 318, 1990 Tex. App. LEXIS 2346, 1990 WL 135523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mandujano-v-state-texapp-1990.