Kelly v. State, 2-89-026-CR

CourtCourt of Appeals of Texas
Writing for the CourtMEYERS
Citation792 S.W.2d 579
PartiesBarry Dean KELLY, Appellant, v. STATE of Texas, State.
Docket NumberNo. 2-89-026-CR,2-89-026-CR
Decision Date27 June 1990

Page 579

792 S.W.2d 579
Barry Dean KELLY, Appellant,
STATE of Texas, State.
No. 2-89-026-CR.
Court of Appeals of Texas,
Fort Worth.
June 27, 1990.
Rehearing Overruled July 31, 1990.
Discretionary Review Granted
Oct. 10, 1990.

Page 580

Richard Alley, Fort Worth, for appellant.

Tim Curry, C. Chris Marshall, Alan Levy, Robert K. Gill, Betty Marshall, Asst. Crim. Dist. Attys., for State.



MEYERS, Justice.

Appellant, Barry Dean Kelly, appeals from a murder conviction wherein he was sentenced by a jury to life imprisonment in the Texas Department of Corrections. 1 Appellant complains the trial court erred as follows: (1) in overruling appellant's "Frye Motion" challenging the admissibility and scientific reliability of DNA genetic fingerprinting test result evidence and procedures; (2) in permitting the introduction before the jury of DNA genetic fingerprinting test results and procedures; and (3) in overruling appellant's motion for mistrial because of juror misconduct. Appellant also challenges the sufficiency of the evidence. We overrule appellant's points of error and affirm the judgment of the trial court.

Mary Earlene Copeland testified she met appellant, a white male, in December, 1986. They dated for a couple of months and, during that time, had a sexual relationship. That relationship included sex in Copeland's room at home, but never involved sex in the room or on the bed or bedspread belonging to Copeland's mother, Melva Teems, a 63-year-old widow. The sexual relationship ended in February, 1987, when appellant got married, though appellant began to call Copeland again in the summer of 1987. Teems was introduced to appellant, lent him money to buy gas and get his car radiator fixed, and bought a 1974 Ford Fairlane from him. At no time, however, was appellant ever inside Teems' 1968 blue and white Ford pickup truck.

On October 5, 1987, when Copeland left the house about 7:15 p.m. to go to a lounge, Teems was planning to take her regular evening walk and was wearing a T-shirt

Page 581

bearing the name of her son, Michael's, rock-and-roll band, "Looker."

Copeland further testified that she left the lounge about 12:15 a.m. and returned home. As she parked her car, she noticed her mother's truck was gone. Inside the house, her mother was gone and several things were out of place; the blue jeans her mother had been wearing earlier and a yellow rag lay on her mother's bedroom floor; the mattress was pushed off her mother's bed a little bit and the bed was messed up; a bra with a missing clasp was lying on her mother's bed; a drawer in her mother's chest of drawers was open and a .22 automatic usually wrapped in the yellow rag was missing; her mother's purse which usually contained her mother's wedding rings was missing; a butcher knife was on a kitchen counter; and her mother's checkbook was on the dining room table. Copeland described her mother as a very particular housekeeper. Teems' nightgown was still under her bed pillow, as were three envelopes containing $580; money Teems had saved all year for the annual church trip. Copeland called a neighbor and then her brother, Michael. After Michael looked around the house, they called the police. An officer came out and took down some information for a missing persons report.

Lynn Sims, a prostitute, testified that at about 11:00 p.m., sometime during the first week of October, she got a ride from appellant from Evans Street over to Rosedale Street in Fort Worth. Sims had known appellant awhile, and knew he usually drove a yellow Ford. She said that on that night, however, he was driving a truck which Sims identified as State's Exhibits Nos. 2 and 3, or Teems' truck. Sims recalled that appellant did not appear to know how to drive the truck and he kept missing gears. The record reveals that Teems' truck had a manual transmission. Sims also stated that appellant had money with him, including $100 and $50 bills, which was unusual. She went on to say that during the ride appellant stopped, tied a rope around his arm, and injected what appeared to be cocaine into his arm. Sims identified the rope as State's Exhibit No. 24A, the rope later found in the truck. Sims stated that during the ride she was wearing plum-colored lipstick and lit one of appellant's cigarettes with a wooden match and smoked the cigarette all the way down to the filter.

Another prostitute, Sharon Marie Byrd, testified she was also used to seeing appellant along Rosedale Street in a yellow Ford, but on two occasions on the same day she saw him in a blue and white truck. The first time she saw him, about 4:00 or 5:00 a.m., he was alone in the truck on East Rosedale, and she spoke to him for a few minutes. The second time, about four hours later, he was on Allen Street, and he had three other people in the truck with him. Byrd also identified the truck as Teems' truck, in particular because of rust spots on the side.

Yet another prostitute, Brenda Joyce Reese, recalled seeing appellant in Teems' truck on Rosedale Street a little after 10:00 p.m. After he honked, she flagged him down and got in the truck. Reese further stated that appellant took her with him and bought some heroin and cocaine for $20. She said they cooked the heroin, added the cocaine, and shot it into their arms with a syringe. As they drove around afterward, appellant showed Reese a watch and some rings and necklaces he said he was going to sell. Reese identified one of the rings as State's Exhibit No. 13, Teems' ring. Reese said appellant told her he had gotten the ring from an old lady, and that the truck would be "hot" soon.

Vance White, owner of Texas Tire on Hemphill Street, testified that on October 6, in the late morning, appellant sold a set of wedding rings to him for $450 in cash. White recalled that appellant arrived at Texas Tire on foot. White identified the rings as State's Exhibit No. 13, or Teems' rings. Peggy Coop, a longtime friend of Teems, also identified the rings sold to White as those belonging to Teems. White further stated that on October 13, a man identifying himself as the seller of the rings called him about the rings. The record indicates the call was a collect call from cell # 16E of the Tarrant County Jail

Page 582

where appellant had been incarcerated since October 10.

An employee of Hemphill Motors testified that on October 6, at about 1:30 p.m., appellant bought a Ford LTD from Hemphill Motors on Hemphill Street, about a block and a half from Texas Tire, for a $325 cash down payment. He was seen driving the LTD at the intersection of Rosedale and Mansfield Streets at about 2:50 p.m. by a Fort Worth police officer.

At about 2:00 p.m. on October 6, a police officer found Teems' truck behind Panther Hall on South Collard Street. There was no key in the ignition, but it had not been hot-wired and was locked. After the truck was towed, it was examined for fingerprints. One fingerprint, from inside the passenger-side vent window was identified as appellant's. Human blood was discovered on the driver's side seatcover, the driver's side floor mat, the ceiling above the driver's seat, and a rope was also found on the seat. After examination, the only blood present in sufficient quantities to be tested was the blood on the floor mat, which was inconsistent with appellant's blood. Also in the truck was a small plastic envelope containing cocaine residue, a cigarette butt with lipstick on it, and wooden matchsticks.

On October 17, Fort Worth Police Officer Scott Hood found Teems' body near a dry creek bed off a dirt road northwest of the junction of I-35 and North Loop 820, approximately two miles from appellant's last place of employment. Dr. Charles H. Harvey, Deputy Medical Examiner for Tarrant and Parker Counties, stated that the body was very decomposed, consistent with a date of death of October 6, and was wearing jeans, tennis shoes, and a blue T-shirt bearing the name of the rock band, "Looker," but no bra. Because of the advanced state of decomposition, it was impossible to determine Teems' blood type or if she had been sexually assaulted. It was possible, however, to determine that she had been strangled, probably with the piece of material ripped off the bottom of her own T-shirt and still tied around her neck.

Copeland stated that on October 21, the day Teems was buried, she found a bra hook in her mother's bedroom which matched the one missing from the bra found earlier on the bed. The same day, she noticed a yellow stain on her mother's bedspread. The bedspread had been purchased in May, 1987, after Copeland's sexual relationship with appellant had ended. The stain on the bedspread was identified as semen from a type "O" secretor with PGM type 1 + 1 - , which subgroup includes about 10% of white males. The record shows appellant is a type "O" secretor with PGM type 1 + 1 - . Further testing of the semen at a DNA testing laboratory, Lifecodes Corporation, showed that the semen could have come from appellant. The statistical probability that the semen came from another white male was 1 in 13.5 million.

In his first two points of error, appellant argues the trial court erred in overruling appellant's "Frye Motion" and admitting expert testimony on DNA because the DNA evidence was not reliable under either the relevancy standard or the "Frye" standard.

At the hearing on the admission of the DNA evidence the State called five witnesses.

Dr. Philip S. Hartman, an associate professor of biology at Texas Christian University, testified he was a member of a number of professional societies, including the Genetic Society of America, the American Society for Photobiology, and the American Association for the Advancement of Science. He stated he has never been affiliated with Lifecodes Corporation (a corporation which does DNA analysis for paternity testing, forensic testing, and medical diagnostics) in any capacity....

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