Nkrumah Lamumba Valier v. State

Opinion issued November 10, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-08-00975-CR

———————————

Nkrumah Lamumba Valier , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1150625

MEMORANDUM OPINION

A jury

found appellant, Nkrumah Lamumba Valier, guilty of the offense of aggravated

sexual assault [1] and

assessed his punishment at confinement for forty years and a $10,000 fine. In two issues, appellant contends that the evidence

is legally and factually insufficient to support his conviction and the “trial

court constructively denied [him] his right to testify in his own behalf by

ruling that the State could impeach” him with another sexual assault

conviction.

We affirm.

Background

Tiffany

Rogers, the complainant, testified that on the evening of May 15, 2005, after

leaving a bar, she drove her car to a nearby gas station to use a pay telephone. While making her call, a young, “nice-looking

black man” driving a four-door car pulled up to her and asked her if she was

“working.” The complainant said “no” and

then asked the man if he was a police officer.

She explained that she understood that the man was asking her if she was

“prostituting,” and the two engaged in a conversation for five minutes during

which the complainant agreed to have sex with the man for $100. After driving her car back to the parking lot

at the bar, the complainant got into the passenger seat of the man’s car, and

he drove the car away from the lot.

While driving, the man reached

behind his seat, pulled out a gun, pointed it at the complainant’s head, and

told her that he was going to have sex with her. The complainant, who was afraid that the man

was going to shoot her, told the man that she was married, had children, and

did not “even do this.” He drove his car to the back of the driveway

of an abandoned building, where he told the complainant to remove her pants.

The complainant complied, and the man reclined her seat and got on top of her and

engaged in sexual intercourse with her.

The man continued to point the gun at the complainant during the assault,

and she remained afraid for her life throughout the assault. After two or three minutes, the man was

“done,” and he told her to get out of his car.

The complainant jumped out of the car and hid in some bushes. The man kept the complainant’s purse, but he

threw her keys to her. After five or ten

minutes, the complainant walked to a nearby house and asked the homeowner to

call for emergency assistance.

After

an ambulance and police officers arrived, the complainant told the officers

that she had been raped. She did not

tell the officers that she had been “prostituting” or, prior to the assault,

the man who had assaulted her had offered her money for sex. The complainant explained that she did not

provide this information because she was embarrassed, she knew one of the

officers, and she was concerned about getting into trouble. The complainant then went to a hospital for a

sexual assault examination.

Approximately five or six months

later, a police officer called the complainant and asked her to explain what had

happened. In response to the officer’s

questioning, she agreed that it had been “an act of prostitution gone

wrong.” In January 2008, Houston Police

Department (“HPD”) Detective K. McMurtry contacted the complainant to tell her

that HPD “had a positive match on the DNA” obtained during her sexual assault

examination, and he asked her to come to a police station to look at some photographs

for a possible identification of the assailant.

She looked at a photo spread containing six photographs of different men,

but the complainant did not recognize any of the men as the assailant. The complainant noted that the lighting at both

the gas station and the bar was “not good” and the man never got out of the

car. She also explained that the area in

which she was sexually assaulted was dark.

On cross-examination, the

complainant initially denied that she went to the gas station as a prostitute,

but, when she was asked to review a sworn statement that she had given in

January 2008, she agreed that she had stated that she was at the gas station at

around midnight “looking to make some money.”

When asked if she had previously engaged in prostitution, she agreed that

she had previously “dated” a man who paid her $100 for meeting with him on two

occasions. On the first occasion, she and the man “hung

around,” and, on the second occasion she performed oral sex on him. In

regard to her review of the photo spread, the complainant agreed that she had not

identified anyone in it as her assailant.

She also agreed that although Detective McMurtry showed her a photograph

of appellant “all by himself,” she did not recognize him as her assailant. The complainant explained that after the

assault, she had described the assailant as a black man, between 30 and 40

years of age, and between five feet ten inches tall to six feet tall.

Registered Nurse T. Dusang, a

certified sexual assault examiner, testified that she examined the complainant

on May 16, 2005. Although she did not

find any evidence of trauma during her physical exam of the complainant, she

did find evidence of a “tear” during her genital exam. Dusang explained that she took oral, vaginal,

anal, saliva, and fingernail swabs from the complainant, and she also combed

the complainant’s hair and obtained pubic hair.

On cross-examination, Dusang stated that she did not recall the

complainant telling her that she had met the assailant while acting as a prostitute. In regard to the genital tear that she observed

on the complainant, Dusang stated that superficial genital tears normally heal

within 24 to 72 hours.

Detective McMurtry testified that

he was assigned to the complainant’s case and sent the “rape kit” to the crime

lab to be processed in July 2005. After

processing, McMurtry learned that appellant was “the donor of the forensic

evidence” in the rape kit. McMurtry

contacted the complainant and asked her to come to a police station for an

interview and to review a photo spread. Although

McMurtry included a photograph of appellant in the photo spread, the

complainant did not identify any of the men included in the photo spread as her

assailant. The complainant also did not

identify appellant when McMurtry showed her a photograph of him

individually. The complainant did

provide McMurtry with a sworn statement in which she admitted that she was acting

as a prostitute at the time she got into appellant’s car.

McMurty subsequently arrested

appellant, who, pursuant to McMurtry’s request, voluntarily provided a DNA

sample from a swab in his mouth in order to compare it with the sample of

forensic evidence obtained from the complainant and the rape kit. McMurtry agreed that, prior to his assignment

to the case, another officer had attempted to make contact with the complainant

by telephone, and he did not believe that the complainant had returned this officer’s

telephone call.

HPD Crime Lab Supervisor L. Gahn

testified that she had reviewed the testing records from the rape kit performed

on the complainant. Gahn stated that, in

early 2008, a private lab to which the rape kit was sent had tested the vaginal

swabs, anal swabs, a pair of panties, and oral swabs. Gahn noted that both the

vaginal swabs and the anal swabs tested positive for semen, and the lab

identified DNA profiles on the tested items.

The lab obtained a female DNA profile that was “consistent” with the

complainant. In testing the “sperm cell

fractions” from the vaginal swabs, the lab obtained “a mixture of male and

female DNA,” which included the complainant’s DNA and a “larger portion of the

DNA” from a “male contributor.” At this

time, the contributor was unknown because the lab did not have any male sample

references with which to compare it. In March 2008, HPD submitted a reference

sample from appellant in order to compare it to the DNA profiles that the lab

had obtained from the complainant’s rape kit. The lab determined that the DNA profile obtained

from the sample provided by appellant and the DNA profile obtained from the

rape kit “were, in fact, the same.” The

lab then performed a statistical analysis to determine how many people might

also match that profile. Ghan stated

that the frequency of the profile “would be less than one in 570

quadrillion.” Ghan explained that “it

would be very unlikely” to find “a single other individual that would also

match” the profile.

Sufficiency

In

his second issue, appellant argues that the evidence is legally and factually

insufficient to support his conviction because although appellant “did engage

in sexual intercourse” with the complainant “at some time,” there is no

evidence that he was the assailant that committed the sexual assault. Appellant also asserts that the evidence

demonstrates that the complainant consented to engage in sexual intercourse

with the assailant.

We review the legal sufficiency of

the evidence “by considering all of the evidence in the light most favorable to

the prosecution” to determine whether any “rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.” Jackson

v. Virginia , 443 U.S. 307 , 318–19, 99 S. Ct. 2781 , 2788–89 (1979). Evidence is legally insufficient when the

“only proper verdict” is acquittal. Tibbs v. Florida , 457 U.S. 31 , 41–42,

102 S. Ct. 2211, 2218 (1982). Our role

is that of a due process safeguard, ensuring only the rationality of the trier

of fact’s finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State , 755

S.W.2d 866, 867 (Tex. Crim. App. 1988). We

give deference to the responsibility of the fact finder to fairly resolve

conflicts in testimony, to weigh evidence, and to draw reasonable inferences

from the facts. Williams v. State ,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to “ensure that

the evidence presented actually supports a conclusion that the defendant

committed” the criminal offense of which he is accused. Id . We now review the factual sufficiency of the

evidence under the same appellate standard of review as that for legal

sufficiency. Ervin v. State , 331 S.W.3d 49 , 52–56 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (citing Brooks v. State ,

323 S.W.3d 893 , 894–913 (Tex. Crim. App. 2010)).

A person commits the offense of

aggravated sexual assault if he intentionally or knowingly causes the penetration

of the anus or sexual organ of another person by any means, without that

person’s consent and if he uses or exhibits a deadly weapon in the course of

the same criminal episode. Tex. Penal Code Ann. § 22.021 (Vernon

2011).

Appellant’s primary argument is

that, even if the evidence demonstrated that he had had sexual intercourse with

the complainant, it did not establish that he was the man that assaulted the

complainant. Appellant notes that the

complainant could not identify him as the assailant, there was no testimony as

to whether the assailant ejaculated or wore a condom, the complainant was

“admittedly sexually active,” and nothing in the record established whether the

complainant “engaged in other sexual acts” before she was assaulted.

We recognize that the complainant

did not identify appellant as the assailant.

However, the jury was able to consider the evidence demonstrating that

appellant’s DNA matched the DNA profile of the only “male contributor”

identified in the samples of the rape kit, which was collected shortly after

the assault. HPD Crime Lab supervisor

L. Gahn testified that the samples taken shortly after the assault contained

two DNA profiles, one belonging to the complainant and the other belonging to

an unknown male. This unknown male was

identified as appellant after appellant voluntarily provided a DNA sample. Gahn also did not indicate that there was any

DNA evidence suggesting a third contributor in the samples taken from the rape

kit. Significantly, when asked about the

possibility of other individuals matching the profile of appellant, Gahn stated

that the frequency of this profile “would be less than one in 570 quadrillion”

and “it would be very unlikely” that any other individual “would also match”

this profile. The jury was entitled to

rely upon the DNA evidence in finding that appellant assaulted the

complainant. See Glover v. State , 825 S.W.2d 127, 127 (Tex. Crim. App. 1992); see also King v. State , 91 S.W.3d 375,

380 (Tex. App.—Texarkana 2002, pet. ref’d) (stating that DNA evidence is

admissible to prove identity); Oliver v.

State , No. 14-09-00690-CR, 2010 WL 3307391 , at *2 (Tex. App.—Houston [14th

Dist.] Aug. 24, 2010, no pet.) (mem. op., not designated for pub.) (noting that

defendant was major contributor to DNA mixture, and stating that DNA evidence

is admissible to prove identity).

The complainant did not testify as to whether

the assailant used a condom or ejaculated, but she did state that the assailant

inserted his penis into her vagina and engaged in intercourse for approximately

two to three minutes. Additionally,

although the complainant admitted to “prostituting,” the jury could have

reasonably concluded from her testimony that she had engaged in the act of

prostitution in limited circumstances.

When asked if she had previously engaged in prostitution, the

complainant testified that she had engaged in oral sex with another man on only

one other occasion. There is no other

evidence that the complainant engaged in prostitution or sexual activity with

other men around the time of her assault.

In regard to appellant’s argument

regarding consent, although the complainant stated that she had initially

agreed to engage in sexual intercourse with the assailant while at the gas

station, she testified that after getting into the assailant’s car, he pointed

a gun at her head and forced her to engage in sexual intercourse against her

consent. She also noted that the

assailant kept her purse. We hold that

the evidence is sufficient to support appellant’s conviction for aggravated

sexual assault.

We overrule appellant’s second

issue.

Impeachment with Prior Conviction

In his first issue, appellant argues

that the “trial court constructively denied [him] his right to testify in his

own behalf by ruling that the State could impeach [him] with his [prior] sexual

assault conviction” because the State failed to demonstrate that the probative

value of this prior conviction outweighed its prejudicial effect.

Appellant filed a pretrial “Motion

to Testify Free from Impeachment,” in which he argued that the probative value

of any prior convictions for purposes of determining his credibility was

“vastly outweighed” by the prejudicial effect of this impeachment evidence. At a pretrial proceeding, appellant’s counsel

disclosed that appellant’s criminal history included a sexual assault

conviction from 2006 and a misdemeanor assault from 1988. Appellant’s counsel notified the trial court

that he would be filing on the following morning a motion to permit appellant

to testify free from impeachment, “especially to the sexual assault that he got

convicted of a couple years ago,” because it was “too closely associated” with

the instant case. The trial court

stated that it would make a ruling on the motion when counsel presented

it. The record reflects that the trial

court denied appellant’s motion to testify free from impeachment. Appellant subsequently decided not to testify

during the guilt phase of the trial.

Evidence of a witness’s prior

conviction shall be admitted for purposes of impeachment if the crime was a

felony or a crime of moral turpitude and the court determines that the

probative value of admitting the evidence of the conviction outweighs its

prejudicial effect. Tex. R. Evid. 609(a). The Texas Court of Criminal Appeals has set out

a non-exclusive list of factors courts should use to weigh the probative value

of a conviction against its prejudicial effect. Theus v.

State , 845 S.W.2d 874 , 880–81 (Tex. Crim. App. 1992). Such factors include (1) the impeachment value

of the prior crime, (2) the temporal proximity of the past crime relative to

the charged offense and the witness’s subsequent criminal history, (3) the

similarity between the past crime and the charged offense, (4) the importance

of the witness’s testimony, and (5) the importance of the witness’s

credibility. Id . The proponent

seeking to introduce evidence pursuant to rule 609 has the burden of

demonstrating that the probative value of a conviction outweighs its

prejudicial effect. See id . at 880.

To preserve error from a trial

court’s pretrial ruling to allow impeachment of a defendant’s testimony with

prior convictions, a defendant must testify, because without the testimony, a

harm analysis cannot be conducted. Long v.

State , 245 S.W.3d 563 , 572–73 (Tex. App.—Houston [1st Dist.] 2007, no pet.);

Morgan v. State , 891

S.W.2d 733, 735 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Luce v. United States , 469 U.S.

38, 43 , 105 S. Ct. 460, 464 (1984). Because

appellant did not testify during the guilt phase of the trial, we hold that he

failed to preserve any error regarding the trial court’s ruling on his pretrial

motion to testify free from impeachment during this phase of trial. [2] Long ,

245 S.W.3d at 572–73.

We overrule appellant’s first

issue.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann. § 22.021

(Vernon 2010).

[2]

Additionally, a defendant does not have the right to testify free from

impeachment. Grant v. State , 247 S.W.3d 360, 367 (Tex. App.—Austin 2008, pet.

ref’d); Brent v. State , 916 S.W.2d

34, 40 (Tex. App.—Houston [1st Dist.] 1995, pet ref’d). Thus, even if appellant had preserved his

error, there is no legal authority to support appellant’s assertion that, by

denying his motion, the t rial court

“constructively denied” him his right to testify. Finally, we note that, during the punishment

phase of trial, appellant testified that he had elected not to testify

during the guilt phase of trial based upon his lawyer’s advice. Appellant also asserts in his brief that, had

he testified during the guilt phase, he would have testified (consistent with

his testimony during the punishment phase) that he engaged in consensual

intercourse with the complainant. To the

extent that appellant asks us to consider his punishment-phase testimony as

some type of proffer as to what he would have testified to during the guilt phase

of trial, we conclude that his punishment-phase testimony does not

preserve his complaint. See Luce

v. United States , 469 U.S. 38 , 41 n.5, 105 S. Ct. 460 , 463 n.5 (1984)

(noting that “a proffer of testimony is no answer” to the preservation problem

because a defendant’s “testimony could, for any number of reasons, differ from

the proffer”). In sum, appellant’s

punishment phase testimony does not preserve his complaint that he was denied

his right to testify free from impeachment .