Ex Parte Lawrence James Napper, Applicant
| Decision Date | 29 September 2010 |
| Docket Number | AP-76,285,NO. AP-76,284,AP-76,284 |
| Parties | EX PARTE LAWRENCE JAMES NAPPER, Applicant |
| Court | Texas Court of Criminal Appeals |
ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY
delivered the opinion of the Court in which Meyers, Womack, Keasler, and Holcomb, JJ., joined. Cochran, J., joined except section II B 2. Price, Johnson, and hervey, JJ., concurred.
Applicant was convicted of aggravated sexual assault and aggravated kidnapping. Some of the evidence supporting the convictions involved DNA testing conducted by the Houston Police Department (HPD) Crime Lab. After widespread problems were discovered with the HPD Crime Lab, the present case was subjected to further investigation, including additional DNA testing. Applicant has filed an application for a writ of habeas corpus based upon this further investigation. He alleges, among other things, that agents of the State consumed the entire DNA sample in bad faith, that a state witness perjured himself or gave false testimony, and that defense counsel was ineffective for failing to discover the problems with the lab's testing and its analysis of test results.
We conclude that, despite problems with the lab, applicant's claims are without merit.
On February 11, 2001, six-year-old "E.T." was kidnapped. One of E.T.'s friends was tenyear-old Remington Allen. While E.T.'s mother worked that day, Remington's grandmother cared for E.T., his nine-year-old brother "Junior," and his ten-year-old sister Denetta. Remington, Junior, and their friend Carlos went to a nearby park. Denetta and E.T. walked with them, but crossed the street to go to a store. Denetta went inside the store. E.T. may have accompanied her, but at some point he was outside again. While Remington, Junior, and Carlos played at the park, they saw a man drive up in a car and tell E.T. to "come here." Remington told E.T. not to get in the car.
The trial testimony of the children diverged somewhat at this point. Remington testified that the man got out of the car and acted like he was picking something up. Remington also testified that he saw the man hand E.T. some money when E.T. got into the car. However, on cross-examination, Remington agreed that he never saw the man. Junior testified that he saw the man inside the car and that the man had a mustache and was wearing sweats. On cross-examination, Junior agreed that he did not remember much about the car or the man inside the car because he did not see the man. Junior further testified that he did not know if the man ever got out of the car. E.T. testified that the man tried to get him to take money and then got out and put him in the car.
Remington, Junior, and E.T. all testified that the car sped away quickly once E.T. was in it. Junior and Remington chased the car. Remington picked up his scooter and threw it at the car, but the car did not stop. The children remained at the park for "a little bit" to see if the man would bring E.T. back. The children then went to "Momma Ruth's" place, which was close by, but no adults were home, so they went back up the street to Remington's grandmother's house. At first, Remington's grandmother did not believe the children's story about E.T. being kidnapped, but once she became convinced, she called the police.
At trial, Remington described the car as a "burgundy-like" Oldsmobile with a white top. When asked whether the wheels were shiny, he responded negatively. Junior testified that the car was dark green with a blue top, and scratches at the top. Both Remington and Junior testified that they had picked out a car in a videotape lineup, but they were not asked which car they picked.
Houston Police Officer D.D. Thompson was dispatched to the scene at 3:12 p.m. and arrived at 3:19 p.m. According to Officer Thompson, the children described the kidnapper's vehicle as an Oldsmobile—some said a Monte Carlo. He explained that the "children couldn't pinpoint exactly what make and model it was." The descriptions and the colors given by the children were not consistent. The car was variously described to him as a two-door or a four-door, as dark blue or dark green, with a rusty top or a black top or a vinyl top, and with chrome wheels. Officer Thompson dispatched a description that included model years from 1980 to 1990.
Sergeant Larry Hoffmaster testified that Junior described the car as a mid-sized gray car with chrome rims and with damage to the front around the headlights. Sergeant Hoffmaster further testified that the children were taken to a police sketch artist to make a composite drawing of the suspect. The general broadcast for the suspect indicated a "skinny black male," but Sergeant Hoffmaster acknowledged that applicant was not skinny. When asked if he developed any suspects whose vehicles were black or dark in color, Sergeant Hoffmaster said no.
E.T. was returned to the neighborhood the next day. He was crying, and his face was bruised and swollen. E.T., who is African-American, described his kidnapper as having skin color that was a little darker than his own.1 E.T. described the man as having no facial hair, wearing eyeglasses, wearing a black hat, and wearing a purple jacket with green (or a purple and green jacket) and matching purple pants. E.T. described the car as a dark navy blue in color, like his tennis shoes, with a brown interior, and with a black console between the front two seats.
E.T. related that the man offered him money, and when E.T. got closer, the man pulled him into the car. The kidnapper took E.T. to a house that had a brown couch in the front room and a television next to the bed in the bedroom. He tied E.T.'s arms and legs to the corners of the bed. E.T. also said that the man rubbed "orange grease" on his body. The man told E.T. that "if I tell anybody he's going to kill me." When asked if he had been touched inappropriately, E.T. "clammed up" and started "tearing up." When asked by another officer what happened after he was tied to the bed, E.T. became extremely upset, crying and breaking down into hysterics.
E.T. was taken to the hospital the day he was returned. Pursuant to instructions from Chemist Reidun Hilleman at the HPD Crime Lab, Officer Lorenzo Verbitskey swabbed E.T.'s face. Verbitskey let the resulting two swabs air dry in his office. He then delivered the swabs to Hilleman. Hilleman also received anal and oral swabs and clothing. Hilleman gave the swabs to Mary ChildsHenry, a forensic biologist at the HPD Crime Lab who analyzed body fluids and conducted serology testing. Childs-Henry extracted two tubes of DNA from each of the face swabs (four tubes in all).
For each swab, one of the tubes contained a sperm fraction and the other tube contained an epithelial fraction of the genetic material. She then discarded the original swabs.
E.T. subsequently made an outcry to his aunt, Tangela Harding: E.T. described his kidnapper as wearing a baseball hat, wearing eyeglasses, and having a short haircut. The house had two rooms, and they went up some stairs to get into the house. The man said he was going to pull out his thing (Tangela understood E.T. to be referring to his penis) and wanted E.T. to put it in his mouth. When E.T. said no, the man started slapping him. So E.T. complied, his mouth started hurting, and the man "wet his face." This outcry was relayed to the police on February 14th. That same day, E.T. was taken to have two composite sketches done of his kidnapper—one with eyeglasses and one without.
Joseph Chu, a chemist at the HPD Crime Lab, received the four tubes of DNA that had been derived from the face swabs. Chu's typing of the DNA was completed on February 20th. Chu effectively consumed the entire sample in all four tubes during testing.2 He determined that the sample was a mixed sample and that DNA patterns within the sample showed that a portion of the sample was consistent with E.T.'s DNA. He did not at that time have any information regarding the identity of any other contributor.
On February 23rd, E.T. told Officer Shawn Valenta that the kidnapper referred to his house as "his friend's house." E.T. described the house as wood frame, with about four concrete steps, and a number "2" on the front of the building. Applicant was not in custody at the time E.T. communicated this information.
Later that day, police received a Crime Stoppers tip implicating applicant. Sergeant Hoffmaster obtained a photograph of applicant and compared it to the composite; he could not eliminate applicant as a suspect based upon a comparison of the two. Sergeant Hoffmaster discovered that applicant had an outstanding parole warrant and went to applicant's house at 8602 Alsuma.3 The house matched the description given by E.T.: a white wood frame home with a concrete sidewalk leading to two concrete steps in the front and the number 2 in the address. The address was on the mailbox and above the door to the house. The car parked in front of the house was a 1982 Buick Regal, with white vinyl over dark gray. The interior of the car was brown with gray. There was no grille in the front and there was damage around the headlights.
Applicant was arrested on the parole warrant at 10:00 p.m. that day. On February 24th, the police obtained a search warrant for applicant's house, car, and body. Police discovered that applicant's house had two rooms that were in use: a living room and a bedroom.4 The living room contained only one piece of furniture: a brown sofa. In the bedroom was a four-poster bed with a headboard and a footboard, a television on a stand beside the bed, and a nightstand beside the bed. On the nightstand was a bottle of orange cocoa butter lotion. A Houston Oilers cannister and purple pants were also found in the house. A dark baseball cap and a multicolored windbreaker with dark sleeves and a purple inlay was recovered from the vehicle.
The next day, Sergeant Hoffmaster recorded a...
To continue reading
Request your trial