Larry Cornwell Patrick v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

Nos. 04-97-00449-CR & 04-97-00450-CR
Larry Cornwell PATRICK,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 96-CR-5980 & 97-CR-0278
Honorable Sid L. Harle, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 7, 1998

AFFIRMED

Larry Patrick appeals from his convictions for aggravated sexual assault (cause no. 96-CR-5980) and aggravated kidnaping (cause no. 97-CR-0278).(1) A jury sentenced Patrick to life imprisonment for each offense. On appeal, Patrick complains about the introduction of deoxyribonucleic acid ("DNA") test results and the sufficiency of the evidence to support his convictions. Finding that the introduction of the DNA test results was proper and sufficient evidence supports the verdicts, we affirm.

Facts

On February 5, 1995, at approximately 6:00 p.m., Amy Thomas exited North Star Mall. Nearing her vehicle, a 1991 metallic blue Pontiac Grand AM, Thomas noticed a man standing behind it. Thomas placed a package in her backseat when the loitering man approached, brandished a gun, and ordered Thomas to get into her vehicle. Thomas testified that she stood, briefly, face to face with her assailant.

Thomas got into the car and complied with her assailant's requests to crouch down onto the front seat passenger-side floorboard and place a plastic bag over her head. Within minutes, he began driving the vehicle and exploring Thomas' purse. He found Thomas' automated teller machine ("ATM") card and demanded the personal identification number ("pin number") for it. Thomas provided him with what she believed to be the correct code; it was a new card which had never been used. Thomas' assailant told her he would not kill her if she cooperated with him. He then drove to an ATM machine where he was unable to access the account with the number Thomas provided. He demanded the "correct" pin number despite Thomas' insistence that she did not know it. Thomas frantically formulated several number combinations, none of which worked. Thomas' assailant then drove to a second ATM machine where he was again denied access to Thomas' account with the numbers she provided. Noticeably agitated, he taunted Thomas by repeatedly stating, "[i]t's a shame you can't even remember your own number." They left the second ATM machine and made a third stop. At this stop, the assailant reminded Thomas that he had a gun and that he would shoot her and run if "she did anything stupid." He then tied both her wrists to her left ankle and got out of the car for a few minutes. The State introduced bank records showing an attempted card transaction at a third ATM machine. When the assailant returned, Thomas pleaded with him for her release stating, "[y]ou said you'd let me go if I cooperated. . . . I've cooperated," to which he responded, "[w]ell, I'm going to get some sex before I let you go." The fourth stop was at a motel.

There, Thomas' wrists were untied, she was pulled out of the car, the bag was removed from her head, and she was forced to walk in front of her attacker. Once inside a room, Thomas was blindfolded, ordered to remove her clothes whereupon she was vaginally raped and forced to perform oral sex upon her assailant. Thomas testified that her assailant ejaculated during the sexual assault. Thomas was then ordered to get dressed, the blindfold was removed, and they left the motel room. Thomas was placed in her vehicle where she was again directed to place a plastic bag over her head. After driving around for awhile, Thomas was dropped off in front of an apartment complex on Jackson-Keller Road between West Avenue and Blanco Road. She was shoved out of the car, did not look back, and she ran to the nearest apartment in search of help.

Thomas knocked on a door which Cindy Collins opened to find the disheveled Thomas. Collins testified that once inside the apartment, a hysterical Thomas explained her torturous ordeal beginning with her abduction at gun point from North Star Mall's parking lot, her abductor's failed ATM attempts, and her rape. Shortly thereafter, Thomas was taken to the hospital where she was fully examined and evidence for her "rape kit" collected. DNA analysis of the collected samples from Thomas' rape kit did not exclude Patrick as a possible suspect.

The State's evidence also included a bank surveillance videotape and bank records documenting three ATM withdrawal attempts on Thomas' accounts on February 5th between 6:09 p.m. and 6:24 p.m. Thomas tentatively identified Patrick as her attacker from a six-person photograph line-up, and positively identified Patrick and her car on the bank surveillance videotape. At trial, Thomas identified Patrick as the man who abducted and raped her. Patrick's mother identified Patrick on a still photo produced from the surveillance tape during the police investigation, although she wavered in her statement at trial.

DNA Test Results

In his first point of error, Patrick argues that the trial court erred in admitting testimony regarding DNA tests results because the State failed to prove the evidence was reliable and relevant by clear and convincing evidence and, therefore, admissible. See Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

Under Rule 702 of the Texas Rules of Evidence, scientific evidence is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue. . . . " Tex. R. Evid. 702. The goal of Rule 702 is defeated if the evidence presented is unreliable. As explained by the Court of Criminal Appeals in Kelly, "'unreliable . . . scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts.'" Kelly, 824 S.W.2d at 572 (quoting K. Kreiling, Scientific Evidence: Toward Providing the Lay Trier With the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 Ariz. L. Rev. 915, 941-42 (1990)). In Kelly, the Court of Criminal Appeals identified three criteria for determining the reliability of proffered scientific evidence. Reliability is proven by showing: (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory; and (3) proper application of the technique on the occasion in question. Id. at 573; Massey v. State, 933 S.W.2d 141, 152 (Tex. Crim. App. 1996). The proponent of the scientific evidence must prove the criteria by clear and convincing evidence. See Kelly, 824 S.W.2d at 573; accord Campbell v. State, 910 S.W.2d 475, 478 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1140 (1996). Factors which may bear upon a trial court's determination of the reliability of scientific evidence include, but are not limited to: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such community can be ascertained; (2) the qualifications of the testifying expert(s); (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573. The criteria and factors as set forth in Kelly apply to all proffered scientific evidence. Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997).

A suppression hearing was conducted outside the presence of the jury to determine the admissibility of the DNA test results. See Kelly, 824 S.W.2d at 573. At a suppression hearing, the trial court is the sole judge of the weight and credibility of the evidence presented at the hearing, and as such, we review the evidence in the light most favorable to the trial court's ruling. Massey, 933 S.W.2d at 152. We will not disturb the trial court's ruling absent a showing of an abuse of discretion. See Kelly, 824 S.W.2d at 571. An abuse of discretion is found if the trial court's decision lies outside the zone within which reasonable minds disagree. Id. at 574.

Patrick argues the trial court abused its discretion in admitting the DNA evidence because the State did not prove the Kelly factors by clear and convincing evidence. Specifically, Patrick asserts that the State's expert offered little testimony regarding both the validity of the underlying theory of DNA analysis and the application techniques used in instant case. Patrick points out that the State's expert did not reference literature supporting the underlying theory of DNA analysis or otherwise demonstrate the theory's validity. Patrick complains that the expert merely explained that he used analysis techniques which are endorsed by the Federal Bureau of Investigation ("F.B.I."), and argues that whether the F.B.I. endorses particular DNA procedures is immaterial because it, a law enforcement agency, is not the relevant scientific community. Patrick also notes that the expert did not discuss the potential rate of error involving the technique he used. Patrick further argues that the proper application of the analysis techniques was not established given that several items could not be tested due to degradation or insufficient quantities of DNA material. Patrick also challenges whether the State's offered DNA expert has the requisite training and education to properly qualify him as a DNA expert.

The following evidence was presented to the trial court: Henry R. Hollyday, III, a forensic serologist at the Bexar County Forensic Science Center in San Antonio, Texas, testified as the State's DNA expert. Hollyday's educational background includes Bachelor's Degrees in biochemistry and chemistry from Rice University, attendance at a DNA analysis training course at the F.B.I. Academy, and attendance at other instructional DNA analysis courses, workshops, and professional meetings. Hollyday approximated that he has analyzed thousands of DNA samples during his eight years of employment at the Bexar County Forensic Science Center.

Hollyday explained that DNA is a molecule found in the nucleus of cells which contains an individual's genetic material. Other than with identical twins, a person's DNA is unique, and, for purposes of the commonly-used analysis techniques, it does not change over a person's lifetime. Thus, body fluids, tissues, or fibers can be analyzed to identify the donor. Hollyday stated that two methods of DNA testing are generally accepted in the scientific community, the restriction fragment length polymorphism ("RFLP") technique and the polymerase chain reaction ("PCR") technique. The RFLP technique was used in the instant case to test blood samples from Thomas and Patrick, vaginal swabs from Thomas' rape kit, and stains found on Thomas' clothing. In this technique, an individual's DNA is compared to a controlled DNA sample. Hollyday described in detail and clarity the steps for extracting DNA and then preparing it for comparison analysis. Hollyday explained that the extracted DNA is then visually compared to the known samples. Following a visual determination that the samples match, computer analysis is then conducted. Hollyday testified that Patrick was not excluded as the source of semen found on Thomas' clothing, following both a visual and computer-assisted match between Patrick's blood and the semen.

After matches are detected, statistical analysis, which determines the frequency with which a banding pattern will appear in the relevant population, is conducted. The "fixed bin" method, a data base table developed by the F.B.I. and used in most laboratories in the country, was used for this analysis. Hollyday indicated that the scientific community assisted the F.B.I. in its data collection efforts for the bin data base. Applying this method, Hollyday determined that Patrick's banding pattern would likely appear in approximately 1 in 7.52 million Black individuals. In conclusion, Hollyday stated that the DNA procedures endorsed by the F.B.I., and used in the instant case, are generally accepted procedures in the scientific community. Aside from being unable to analyze two items, Hollyday stated that he did not experience any problems during the analysis process in the instant case.

Patrick did not offer controverting expert testimony. His effort to challenge the State's evidence was largely limited to questioning Hollyday about his involvement in generating the statistical information he applied in the instant case.

Viewing Hollyday's testimony in the light most favorable to the trial court's ruling, we find that the State carried its burden in demonstrating the reliability of its DNA evidence. Hollyday stated his extensive experience as a forensic serologist at the Bexar County Forensic Science Center. He testified that DNA analysis, and the procedures used in the instant case, are accepted by the scientific community. While it is clear that the F.B.I. is a law enforcement agency, it is equally clear from Hollyday's testimony that the scientific community and the F.B.I. have worked in concert in the development and research of DNA analysis. Hollyday also provided clear and detailed testimony regarding the techniques applied in the instant case, and stated that they were properly applied. Even though Hollyday did not discuss the potential rate of error for the application techniques, or discuss current literature supporting or rejecting the underlying scientific theory and techniques, we are unable to conclude that the trial court abused its discretion in finding the State's DNA evidence reliable, and denying Patrick's motion to suppress the State's DNA evidence. See Massey, 933 S.W.2d at 152-53. Point of error number one is overruled.

Sufficiency of the Evidence

Patrick next challenges the legal and factual sufficiency of the evidence to support his convictions. Specifically, Patrick argues there is insufficient evidence to establish his identity as Thomas' abductor/rapist. To this end, Patrick focuses on what he considers to be lacking in the State's proof. Patrick notes there is no physical evidence placing him at the North Star Mall parking lot at the time of the abduction. The State never introduced fingerprint evidence linking him to Thomas' vehicle, nor did the State produce motel records demonstrating that Patrick had rented a room on the date in question. Patrick also notes that Thomas' description of her attacker does not match his physical characteristics, and Thomas could only tentatively identify Patrick after two photo line-ups. Patrick further attacks the reliability of the State's DNA evidence, arguing that possible contamination rendered the results unreliable.

In evaluating the legal sufficiency of the evidence, this court, after viewing the evidence in the light most favorable to the jury's verdict, must determine whether any rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991). In conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Rather, we consider all the evidence, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Clewis, 922 S.W.2d at 129.

The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988); Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 910 (1982). In this regard, the jury is entitled "to draw reasonable inferences from basic facts to ultimate facts." Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.--San Antonio 1994, pet. ref'd) (citing Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd)). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987); see Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983), cert. denied, 465 U.S. 1073 (1984).

Applying the proper standards of review, we find the record contains legally and factually sufficient evidence upon which the jury could find that Patrick abducted Thomas at gun point, subjected her to a harrowing car ride in pursuit of money, concluding this nightmare by raping her. The "holes" Patrick identifies in the State's case were issues for the jury to consider in the weight to be given to certain pieces of evidence. Thomas testified that she stood face-to-face, albeit briefly, with her attacker whom she later identified as Patrick. Thomas identified Patrick twice as her attacker, first in the photo line-up and second on the bank surveillance videotape which shows Patrick in a car resembling Thomas' blue Pontiac Grand AM. See Garcia v. State, 563 S.W.2d 925, 927 (Tex. Crim. App. [Panel Op.] 1978) (identification of defendant by victim sufficient evidence upon which affirmance of conviction can rest). Charlene Grant, Patrick's mother, also identified Patrick from the still photo produced from the bank surveillance video. The jury also viewed both items of evidence and was free to determine whether it was Patrick who was recorded on tape. Moreover, the State's DNA evidence did not exclude Patrick as the donor of semen found on Thomas' clothing. See Williams v. State, 848 S.W.2d 915, 916-17 (Tex. App.--Texarkana 1993, no pet.); see also Najera v. State, 955 S.W.2d 698, 701 (Tex. App.--Austin 1998, no pet.). Points of error two and three are overruled.

The judgments of the trial court are affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. Larry Patrick was also charged with and tried for the offense of aggravated robbery. The jury returned a not guilty answer for that offense.

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