Booker v. State
| Decision Date | 23 January 2003 |
| Docket Number | No. 2-00-408-CR.,2-00-408-CR. |
| Citation | 103 S.W.3d 521 |
| Parties | Duwan A. BOOKER, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Dean M. Swanda, Arlington, for Appellant.
Tim Curry, Criminal District Attorney, Charles M. Mallin, Michael R. Casillas, Alana Minton, Assistant Criminal District Attorneys, Fort Worth, for the State.
PANEL F: LIVINGSTON, GARDNER, and WALKER, JJ.
After reconsidering our prior opinion on appellant's motion for rehearing, we grant the motion, withdraw our July 11, 2002 opinion, and substitute the following in its place.
Appellant Duwan A. Booker appeals his conviction for aggravated robbery with a deadly weapon. In two issues, he contends that the trial court erred in admitting evidence of two extraneous offenses during the guilt/innocence phase of the triaL We reverse and remand for a new trial.
On December 16, 1998, after taking her boyfriend to work at about 4:00 a.m., Elsa Lopez returned to the King's Mill apartments in Fort Worth where she lived. When she got out of her car, she saw a man on the other side of the parking lot, who asked her for directions to Berry Street. She gave him directions and noticed that he wore dark green overalls and a stocking hat. As she continued walking, the man ran up behind her, put his arm around her neck, and demanded her purse. When she refused, the man put a cold, sharp knife to her neck and threatened to kill her if she did not give him her purse. When Lopez screamed, the man put his hand on her mouth. She then turned around and saw the man close to her face. As she continued to fight, the man took her purse, and she fell to the ground. She saw him run away past the apartment office and swimming pool. The apartments were well lit, and there was a street light nearby.
Lopez called the police and Fort Worth Police Officer Dale Connor arrived at 5:21 a.m. to investigate. Although still upset, Lopez was able to describe the robbery at knife-point by a dark-complected, young man about "five foot eight" in height and weighing 130 pounds. Officer Connor observed that Lopez's neck was red, consistent with someone having grabbed her tightly around the neck.
On January 7, 1999, Melissa Griffin found two purses in her backyard at 3737 Misty Meadow in Fort Worth, a location about five blocks from the King's Mill apartments. After finding Lopez's driver's license in one of the purses, Griffin called Lopez. Lopez went to Griffin's house about 6:00 p.m. that evening to retrieve her purse. In explaining to Griffin what had happened to her, Lopez described the robber as a medium-sized, black male wearing a tight-fitting, green cap. Griffin told her that she had seen some guys playing basketball next door earlier that day, and one of them fit that description. While Lopez was still there, Griffin went upstairs and looked into the backyard next door, and she again saw the person fitting the description given by Lopez.
On January 8, 1999, Fort Worth Police Detective Bobby Pate contacted Lopez and showed her a photo spread that did not include appellant's photograph. Lopez stated that the person who robbed her was not in the photo spread. After learning that Lopez's purse had been recovered and that appellant was a possible suspect, Pate showed Lopez a photo spread that included appellant's photograph on January 21, 1999. Confidently and almost immediately, Lopez identified appellant's photograph as that of the person who had robbed her.
Lopez also identified appellant at trial as the person who had robbed her on December 16, 1998. Likewise, Griffin identified appellant at trial as the person she had seen in the backyard next door on January 7, 1999, matching the description Lopez had given her.
Over appellant's objections, the State elicited testimony at trial concerning two extraneous offenses allegedly committed by appellant; the victims were Maralee Linstead Kilts (Linstead) and Laura Davis (Davis). First, Linstead testified that on January 4, 1999, when she got in her car at the King's Mill apartments, the same apartments as Lopez's, to leave for work about 4:15 a.m., her "car door came back open," and a man came up from behind, said that he had a gun, and told her to do what he said or he would kill her. The man was of medium height and wore a scarf covering his head. The man got in the passenger's seat and ordered Linstead to drive to a park a few blocks away. As she drove, the man repeatedly struck her in the face with his fists while screaming, cursing, and threatening to kill her. At the park, the man sexually assaulted her in the back seat. He then took her purse, threatened her again, and told her not to move as he got out of the car and left. About five minutes later, Linstead went to a truck in a nearby driveway where she asked someone to call 911. Linstead never got a good look at the attacker's face because it was covered the entire time.
Other State's witnesses testified about Linstead's sexual assault. Detective Cheryl Johnson testified the other purse recovered from Griffin's residence belonged to Linstead. Deborah McNairn, a sexual assault examiner at John Peter Smith Hospital, testified concerning the sexual assault examination that she performed on Linstead at John Peter Smith Hospital on January 4, 1999. The examination included looking for trauma and taking various specimens for testing. McNairn also testified concerning Linstead's statement to her of what had happened during the sexual assault.
Lisa Sweetland, a forensic serologist at Southwestern Institute of Forensics Science, testified concerning her testing of vaginal swabs and other specimens from the Linstead sexual assault kit. Sweetland also described her collection of blood samples from appellant pursuant to a warrant and the making of a bloodstain for further testing such as DNA.
Aliece Watts, senior analyst over the DNA section of the Fort Worth Police Forensic Science Laboratory, testified concerning the nature and development of DNA testing as well as her tests of the samples in the Linstead case. After testing the vaginal swabs from the sexual assault kit as well as bloodstains from appellant and the man whom Linstead had been dating, Watts determined that the DNA of the major contributor matched that of appellant. She testified that the probability of finding another person besides appellant who had the same DNA was one in 39,500 African-Americans, 2.8 million Caucasians, or 855,000 Hispanics.
Evidence of the second extraneous offense involving Laura Davis was first introduced by Officer Richard Simmons's testimony. Simmons testified that on January 16 and 17, 1999, he and other officers conducted surveillance on appellant's house at 3733 Misty Meadow, next door to Griffin's house. The officers had been conducting nightly surveillance from a van for about a week and a half because of Griffin's report of having recovered stolen property from her backyard as well as to investigate the December 16, 1998 robbery and the January 4, 1999 aggravated sexual assault and aggravated kidnapping. Earlier in the trial, Griffin had identified appellant as the person she saw at 3733 Misty Meadow on January 7, 1999 matching the description Lopez gave her.
Simmons testified that the officers observed a young man, later identified as appellant, leave 3733 Misty Meadow at about 1:00 a.m. on January 17, 1999. Appellant walked through the neighborhood and the King's Mill apartments and then to the Polo Club apartments where, during a five-hour period, the officers observed appellant on four occasions attempt to approach lone females. About 6:00 a.m., Simmons saw appellant driving a minivan erratically while beating a female passenger about the face, neck, and shoulders and pulling her hair while she was honking the horn. When the van came to a stop, appellant fought the officers, but they were able to arrest him. They then found a baby in the van's backseat.
Just before daylight on January 17, 1999, Officer Patrick Blauser, who also testified, watched appellant at the Polo Club apartments from the roof of a grocery store as appellant moved in and out of the buildings and breezeways and ran toward and attempted to waive down two different vehicles. As daylight approached, Blauser heard a woman screaming. Blauser notified the other officers by radio, and after discussing whether to send in the marked police cars, they decided to "send in everybody." Within a minute, the officers stopped the van.
Officer Simmons interviewed the victim, Laura Davis. Although she was still upset, Davis explained how she had walked to her van and placed the child into the car seat through the sliding door. According to Davis, as she was attempting to start the van, appellant knocked on her window, stated that his car had broken down, and asked for a ride to his grandmother's house where he had left his children overnight. When Davis repeatedly declined, appellant opened the door and struck her with both fists, pushing her out of the driver's seat onto the floorboard. When appellant got in and started to drive, Davis told him about the baby in the back, but he said he "didn't care." Davis offered him money, and he ordered her to get it. In addition to repeatedly striking Davis, appellant threatened to kill Davis and told her that he had a gun. When a police car met the van head on, appellant again threatened to kill Davis if she said anything.
On January 18, 1999, appellant gave a written statement to Detective John McCaskill about the incident with Davis. Appellant stated he decided to take a walk around the neighborhood about 1:30 in the morning, and at the King's Mill apartments he saw what he thought was an undercover police officer and then saw a big white dog. Appellant explained that because of...
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