Johnson v. State

• Decision Date: 09 February 2000
• Docket Number: No. 1915-98,1915-98
• Citation: 23 S.W.3d 1
• Parties: (Tex.Crim.App. 2000) JIMMIE LEE JOHNSON, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 1

23 S.W.3d 1 (Tex.Crim.App. 2000)

JIMMIE LEE JOHNSON, Appellant v. THE STATE OF TEXAS

No. 1915-98

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

February 9, 2000.

Rehearing Denied May 3, 2000.

ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS, GONZALES COUNTY

[Copyrighted Material Omitted]

Before the court en banc.

O P I N I O N

Mansfield, J., delivered the opinion of the Court in which Meyers, Price, Holland, Womack, & Johnson, J.J., joined.

After a jury trial in Gonzales County, appellant, Jimmie Lee Johnson, was convicted of two counts of aggravated sexual assault. Johnson v. State, 978 S.W.2d 703 (Tex.App. - Corpus Christi 1998). The jury recommended that appellant pay a $10,000 fine and serve a term of life imprisonment, and judgment was rendered accordingly. On direct appeal to the Thirteenth Court of Appeals, appellant challenged the factual sufficiency of the evidence after asserting that the State failed to prove an essential element of the offense charged. Specifically, appellant argued that the State failed to show that appellant was the person responsible for carrying out the aggravated sexual assault. In a two-member majority opinion, the Court of Appeals held that, while the State proved a rape did occur, the evidence was factually insufficient to prove beyond a reasonable doubt that appellant was the guilty party, and a "manifest injustice" would occur if this conviction was allowed to stand. ¹ Johnson v. State, 978 S.W.2d at 707.

The District Attorney and the State Prosecuting Attorney each filed petitions for discretionary review. The two questions presented ask this Court to determine (1) whether the Clewis factual sufficiency standard of review is still valid and, (2) if so, whether the Court of Appeals properly applied the correct standard of review in this case. See Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). The Court of Criminal Appeals, while not permitted to conduct a de novo factual sufficiency review, can be called upon to determine whether the Court of Appeals applied the correct standard of review and considered all of the relevant evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). This Court's only recourse in the event of an improper application of the factual sufficiency review is to reverse the Court of Appeals decision and remand, with instructions, for the appropriate review. Ibid.

The Relevant Facts

The following represents, unless indicated otherwise, the uncontradicted facts as to what occurred on or about November 16, 1992. After working the 3:00 p.m. to 11:00 p.m. shift at Gonzales Memorial Hospital, the victim of this assault, K__C__, drove into the parking lot outside her apartment. Before she could turn off the car's engine, a man dressed entirely in black and wearing a ski mask and gloves, opened her car door, forced his way into the back seat, and directed her to drive from the parking lot. Believing that her assailant was armed and potentially violent, K__ C__ complied, and she was directed to a local community center outside the Gonzales city limits. Once there, the victim was blindfolded, her hands and ankles were bound, and she was forced into the passenger's seat. Her assailant began driving and proceeded to an even more remote location in the county. ² K__ C__ was then untied, undressed, and raped. During the assault, the assailant ordered K__ C__ to her knees and demanded oral sex. At this point, he removed his mask and left it off for the duration of the crime. Although the headlights to the car were left on, the assailant never stood directly in front of the lights, so K__ C__ never got a lengthy, unobstructed view of his face. She believed at one point, however, that she was able to briefly glimpse her attacker's face, but could still only provide police with scant details of his overall appearance. She described him as an uncircumcised ³ African-American, standing approximately five feet, nine inches tall with a medium build and a flat stomach.

After the assault, K__ C__ was driven back to Gonzales but by a different route. She was dropped off at a hotel close to her home, and the police were notified. Investigators discovered later that the victim's car had been returned to her apartment's parking lot. It was impounded and examined for possible evidence.

Investigators began tracking down possible suspects from the area. K__ C__ looked through several photo line-ups but was unable to positively identify the perpetrator. At one point, however, she was shown a line-up that contained appellant's picture and, while she did not positively identify appellant, she told the sheriff that the eyes of the man in that picture were "similar" to the eyes of the man who had raped her. Additionally, shortly after the attack, K__ C__ was driven to Austin to describe her assailant to a sketch artist for the Texas Department Public Safety. This collaboration produced a composite sketch that, in the victim's opinion, bore a resemblance to appellant's face. However, a defense witness who had known appellant for most of his life stated that, in her opinion, the sketch did not bear a reasonable likeness.

Appellant's arrest for this crime did not occur until August 31, 1994, almost two years after the attack. A month after his arrest, appellant escaped from the Gonzales County Jail. He remained at large for two months before being apprehended near Dallas. The State used evidence of appellant's escape to help establish his guilt in this crime. See Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App. 1982) (evidence of escape from custody or flight to avoid arrest can be admissible on the issue of guilt).

Due to the circumstances of the abduction and the sequence of events from that night, the Gonzales County Sheriff hypothesized it was likely that the individual responsible for the crime was intimately familiar with the areas where the abduction occurred and where the rape took place. Prosecutors established that appellant lived within a half-mile of the victim's apartment and determined that he had spent at least part of his boyhood years in the remote and sparsely populated area where the assault occurred.

The State also relied upon DNA evidence taken from the victim's dress to link appellant to the assault. The State's expert determined that appellant was within the 8 1/2% of the black male population that could have contributed the DNA found in the sperm extracted from the dress. ⁴ In rebuttal, however, a defense expert testified that based on his calculations, appellant is within the 26% of the black male population that could have produced the sperm.

The State also relied on an in-court identification by the victim to establish that appellant was her attacker. During direct examination, the victim was asked to describe her attacker, and admitted, because of the conditions and her state of mind, her identification could not be absolutely certain:

PROSECUTOR: . . . can you describe for this jury the man that did this to you? You know he was a black man?

WITNESS: He was a black man.

PROSECUTOR: Do you have any idea how tall he was?

WITNESS: Like I said, maybe like 5'9", something like that. He is black. He has a flat - - his tummy is flat and I could tell that he isn't circumcised.

PROSECUTOR: You saw his face briefly when you were out there?

WITNESS: I believe I saw his face.

COURT REPORTER: I'm sorry.

WITNESS: I believe that I saw his face.

PROSECUTOR: K__ C__, have you had an opportunity to look at this defendant. . . ?

WITNESS: Pardon me?

PROSECUTOR: Have you had a chance to look at this defendant. . . ?

WITNESS: Yes, sir.

PROSECUTOR: Do you believe or do you know whether or not that is the man that sexually assaulted you in November of 1992?

WITNESS: I cannot tell a hundred percent that it is him, but I am positive.

PROSECUTOR: I'm sorry?

WITNESS: I'm positive that it is him.

PROSECUTOR: But you are not a hundred percent positive?

WITNESS: No, sir.

PROSECUTOR: Why can't you be a hundred percent positive?

WITNESS: It was dark. I was blindfolded. I was so scared. He had a ski mask on most of the time. I didn't take a look at him very good. I was just so scared. I don't think I would have a chance to identify him. I thought I was going to die.

During subsequent cross-examination by defense counsel concerning uncertainty about the shade of her assailant's skin, the victim continued:

WITNESS: Like I said before, I cannot tell you exactly a hundred percent that it is [appellant], but something in his eyes.

DEFENSE COUNSEL: Something about [appellant's] eyes?

WITNESS: Yes, ma'am.

DEFENSE COUNSEL: Is it possible. . . that you had seen a picture of [appellant] before?

WITNESS: I believe that I did.

DEFENSE COUNSEL: And when was that?

WITNESS: When I saw lots of pictures, many different times after that. I cannot tell when that I saw his picture.

DEFENSE COUNSEL: Do you know who it was that showed it to you?

WITNESS: Investigator Reyna showed them to me; the Sheriff at least twice.

DEFENSE COUNSEL: Did you ever look at his picture when Investigator Reyna showed it to you and say, "This is the man"?

WITNESS: They never told me who - - which one.

DEFENSE COUNSEL: I am talking about did you ever say, "This is the man," to detective-investigator Reyna?

WITNESS: No.

DEFENSE COUNSEL: And did you ever tell the Sheriff, "This is the man"?

WITNESS: No.

The defense, aside from disputing the State's DNA evidence, called a handful of other witnesses. In an attempt to discredit the victim's in-court identification of appellant, one defense witness told of a time the victim described her assailant as being tall, having a slender build, very dark skin, and long, greasy hair. This is a description contrary to her previous accounts. An expert on hair analysis testified that three foreign hairs recovered from the victim could not be matched with sample hairs taken from appellant....