Roberson v. State

• Decision Date: 13 April 2000
• Citation: 16 S.W.3d 156
• Parties: (Tex.App.-Austin 2000) Anthony Wayne Roberson, Appellant v. The State of Texas, Appellee NO. 03-98-00590-CR
• Court: Texas Court of Appeals

Page 156

16 S.W.3d 156 (Tex.App.-Austin 2000)

Anthony Wayne Roberson, Appellant v. The State of Texas, Appellee

NO. 03-98-00590-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

April 13, 2000

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0953274, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING

[Copyrighted Material Omitted] Robert Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for Appellant.

Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for State.

Before Chief Justice Aboussie, Justices Patterson and Onion^*

JOHN F. ONION, Jr., Justice(Retired).

This appeal presents an issue that borders on being a case of first impression in Texas: Can DNA (deoxyribonucleic acid)¹ evidence alone establish a legally and factually sufficient case of a defendant's guilt in a criminal prosecution? The core concern involves the question of identity.

Appellant Anthony Wayne Roberson appeals his conviction for aggravated sexual assault. See Tex. Penal Code Ann. 22.021(a)(1)(A)(i), (2)(A)(ii), (iii) (West Supp. 2000).² The jury found appellant guilty "as alleged within the indictment."³ The trial court assessed punishment at life imprisonment and made the sentence cumulative with another life sentence for aggravated sexual assault.

Points of Error

Appellant advances two points of error. Appellant claims that the evidence is legally and factually insufficient to show that he was the perpetrator of the offense charged. Appellant does not claim that the trial court erred in admitting the DNA evidence but urges that the DNA evidence standing alone does not show that he was the person who committed the offense alleged. He notes that the complainant could not describe her assailant in any manner and that there was no other circumstantial evidence of identity like fingerprints, trace evidence, or physical proximity to the crime scene-to link him to the offense. Appellant argues that DNA evidence is not an inclusionary tool but one of probability. He contends that DNA testing can exclude someone as the donor of semen, but it cannot definitively link someone to a crime without other evidence.⁴ We will affirm the conviction.

Facts

In the early morning hours of November 4, 1990, R.P. was sexually assaulted in her Northwest Hills home in Austin. She was unable to identify her assailant. On Saturday, November 3, 1990, R.P.'s husband and their nine-year-old son went hunting. That evening, R.P. allowed her other two children, ages seven and three, to sleep in her upstairs bedroom as a treat. R.P. awakened at about 3:20 a.m. on November 4th but went back to sleep.

Sometime later, R.P. was awakened when she felt a moist gloved hand over her mouth. A male voice said, "Don't say a word. If you love your children, you will not say a word." In the dark, the man pulled R.P. from the bed, led her across the hall to a game room and pushed her to the floor. He told R.P. not to look at him and demanded the location of her cash and jewelry. She denied having cash but told the man she had rings and a gold and diamond watch. When R.P. inquired how he got into the house and what was going to happen, the man repeatedly told her to "Shut the f--- up." R.P. thought that she was going to die and was concerned about her sleeping children.

The intruder took R.P. downstairs and into her son's bedroom, searched the room with a flashlight, picked up a blanket and placed it over R.P.'s head. The man then bound R.P.'s hands behind her back with masking tape obtained from the kitchen, took her to the living room, and told her not to move or she would not see her children again. The man returned with her jewelry and some of her husband's possessions. When R.P. could not tell him the location of the key to a gun case, he reached under R.P.'s night gown and pulled her panties down, telling her that this might help her remember the key's location.

After a futile search for the key, the man returned R.P. to her son's bedroom. When R.P. realized the man's intentions, she ripped the tape off her hands, but the man hit her in the face with his fist knocking her onto the bed. The man then had vaginal intercourse with R.P.

After the sexual assault, the intruder made R.P. urinate in the bathroom and then retied R.P.'s hands with a jump rope. He disabled all six telephones and instructed R.P. to urinate again. He told her he was leaving. After a few minutes, R.P. removed the blanket from her head. The man was still in the bathroom, shined a flashlight in her eyes, and told her not to look at him. R.P. stayed in the bathroom until she heard the man leaving the house through broken glass.

R.P. immediately ran upstairs to check on her children who had slept through the entire episode. R.P. then activated the panic button on her security system.⁵ The police arrived in twenty minutes. It was determined that the point of entry had been made by breaking the glass in a sliding door leading into the living room from a patio. R.P. was taken to the hospital for a rape examination. R.P. was unable to identify her assailant at the time of the offense or at trial almost eight years later.

Ginger Braley-Cochran, a registered nurse, performed a sexual-assault examination on R.P. at Seton Hospital. She collected R.P.'s robe, nightgown, panties, and panty liner. She obtained two oral swabs, hair combings, scrapings from under the fingernails, and two vials of blood. The evidence was placed in a rape kit and given to an Austin police officer. Bradley-Cochran testified as to abrasions, bruises, and rope burns on R.P.'s body.

Dr. John Walker, an emergency room physician, performed a sexual assault examination on R.P. and found sperm in her vaginal fluids. He collected several vaginal swabs. The chain of custody of all the evidence was established.

Steve Robertson, a supervisor in the criminalistic section of the Texas Department of Public Safety Crime Laboratory in Austin, testified that he was present in the lab when the rape kit and other evidence relating to the instant offense was brought to the lab on November 14, 1990. Robertson began work on the evidence on November 26, 1990. He tested the semen on the vaginal swabs for blood group typing and secretor status. He also typed the complainant's blood which showed that R.P. had a PGM type 1+. Robertson determined that her assailant was a blood group O secretor or else was a nonsecretor of any blood type with a PGM of 1 minus or 1 minus, 1 plus.

Austin Police Detective Robert Travis testified that almost three years after the offense, he obtained and executed a search warrant for appellant's blood, hair, semen, and saliva samples. He identified a state's exhibit as the samples he obtained from appellant and delivered to the DPS Crime Lab on October 15, 1993.

Robertson testified that on October 15, 1993 he received appellant's blood sample and the blood typing revealed appellant to be a blood group O secretor with a PGM type of 1 minus, 1 plus. Robertson testified that, based on his testing in the lab, appellant could not be eliminated as being the donor of the semen in question, including the semen stain on the complainant's nightgown. Robertson acknowledged that blood group O with a PGM type 1 minus, 1 plus was found in approximately nine to ten percent of the male population.

Michelle Lockhoof, a DNA analyst and serologist with Codis (Combined DNA Index System) of the Texas Department of Public Safety Crime Laboratory, testified as an expert witness for the State. Lockhoof graduated from the University of Texas with a B.A. degree with a major in biology. Upon graduation, she immediately began working in the DPS lab. She had on-the-job training, attended numerous seminars, conferences, workshops, and had "some continuing education at the University." She had testified about seventy times in courts all over Texas.

Lockhoof explained that the DPS crime laboratory was certified by the American Society of Crime Laboratory Directors (ASCLD), an oversight agency that determines if the lab is following established guidelines and protocol. The protocol used in the DPS lab is in accordance with the guidelines from Technical Working Group on DNA Analysis Methods (TWGDAM), a national organization, and in compliance with the recommendations of the National Research Council (NRC).

Lockhoof related that the DPS crime lab uses proficiency testing on its caseworkers-usually blind testing. Lockhoof revealed that since January 1994 she had undergone eight or nine proficiency tests and most of the tests were conducted by outside agencies. She never had been advised that she had made a mistake or reported a false match on any proficiency test. Lockhoof reported that it was not uncommon to have DPS lab work re-analyzed by private laboratories. Seventy to eighty percent of her work was eventually reviewed by outside agencies.

Lockhoof explained that DNA is a chemical found in human cells; that all humans have some DNA that is the same; and that is why most humans have two arms, two legs, and two eyes. Other characteristics of most individuals are different because an individual inherits one-half of his DNA from his mother and one-half from his father.

Lockhoof explained that DNA analysis is used in areas other than forensic DNA for use in court proceedings; that DNA testing is used to identify war dead, to determine paternity, and to ensure an individual can receive and not reject an organ transplanted from a donor. There are two main DNA-testing methods, one of which is polymerase chain reaction (PCR). Lockhoof described PCR as a quick test that can be used in testing small stains. It is often utilized when there is a need to know the results in a short time. The other main test is restriction fragment length polymorphism (RFLP). This test requires a larger stain and it takes a longer time to reach a result than the PCR test.⁶ In the RFLP test, the analyst is looking for the size or length of...