Opinion

Ronnie Roshell Johnson v. State

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Apr 21, 2011
Status: Published
Cited by: 0 cases
Authority: More cited than 42.2%

holding that defendant preserves objection to introduction of evidence in pre-trial motion to suppress but waives that error when he affirmatively states no objection to introduction of same evidence at trial

How later courts described this case

holding that defendant preserves objection to introduction of evidence in pre-trial motion to suppress but waives that error when he affirmatively states no objection to introduction of same evidence at trial
holding it is fact finder’s duty to resolve conflicts in evidence

Written by the judges who cited it.

The opinion

Opinion issued April 21, 2011

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-09-01078-CR

———————————

Ronnie Roshell

Johnson , Appellant

The State of Texas , Appellee

Appeal from the 10th District Court

Galveston

County, Texas

Trial Court Case No. 08CR2561

MEMORANDUM OPINION

Appellant, Ronnie Roshell Johnson, was

charged by indictment with murder. [1] Appellant pleaded not guilty. A jury found appellant guilty as charged and

assessed punishment at life in prison.

In four issues, appellant argues (1) the evidence was insufficient to

support a finding that appellant was the shooter; (2) the trial court erred by

denying his motion to suppress; (3) the State violated his due process rights

by failing to turn over exculpatory evidence; and (4) the trial court erred by

refusing to give a jury instruction on the claimed failure by the State to turn

over exculpatory evidence.

We affirm.

Background

In the evening of May 18, 2007, Louis Joel Gonzalez, the

complainant, was at some bars in Texas City, Texas with his cousin, Ari Sosa; a

friend, Joel Quintana; and some other friends.

They all consumed a significant amount of alcohol. After the bars had closed at 2:00 a.m. the

next morning, Gonzalez drove around in his truck with Sosa and Quintana to see

if he could find a prostitute. Not

familiar with where to find a prostitute, Gonzalez saw a black male walking

along the street and asked the man if he knew where they could find some

prostitutes. The man offered to help,

jumped into the back of the truck, and began giving Gonzalez directions.

Once they reached their destination, the man jumped out of

the truck and went into an apartment complex.

He returned with a woman in her late thirties. Gonzalez declined. The man got back into the truck and directed

Gonzalez to a different location nearby.

Again, the man got out of the truck, walked into an apartment complex,

and returned with a woman. Gonzalez

again declined.

At this point, the man became hostile and began yelling at

Gonzalez. Gonzalez began to drive away

when a shot was fired. Gonzalez was hit

in the head and killed almost instantly.

Quintana and Sosa jumped out of the car and fled.

In the course of the subsequent police investigation, officers

determined that appellant’s mother’s house was in the immediate vicinity of the

shooting. Additionally, Texas City

police officers located two known prostitutes that told the officers that they

had been approached on the night in question by appellant, who was trying to

obtain a prostitute for some Hispanic males in a truck. The two women, Trudi Mills and Sindy Griffin,

both were familiar with appellant and knew him from the neighborhood. They both also identified appellant in

separate photographic line-ups. One

other witness testified that he saw appellant and Mills talking together on the

night in question. Griffin, the first

woman appellant had brought to Gonzalez that night, told police officers that

appellant had told her that he had a gun and was “going to jack these

guys.” Griffin and one of the officers

testified at trial that to “jack” someone was slang for robbing them.

Previously, when police officers initially arrived at the

scene of the crime, they found Gonzalez’s pockets were turned out and a gold

necklace that he regularly wore was missing.

Some time after the officers had arrived at the scene of the crime,

Griffin passed by and recognized the truck in which Gonzalez’s body had been

found as the same truck that appellant had taken her to earlier. During one of her interviews with the

officers, she was presented with pictures of Gonzalez and Quintana. Griffin noted on the photograph of Gonzalez

that she believed he was the driver of the truck but she was not certain. She noted on the photograph of Quintana that

she believed he was the passenger in the truck but she was not certain. At trial, Griffin stated that she was certain

that she had identified the two men correctly.

A Marlin rifle was found a few blocks from the scene of

the crime. A ballistics test established

that this rifle was the weapon used to shoot Gonzalez. In a search of the room in which appellant

lived at his grandmother’s house, a police officer found a box of bullets that

were the same make and caliber as the bullet that killed Gonzalez.

Tanya Dean performed the analysis comparing appellant’s

DNA to DNA found on the rifle. According

to Dean’s testimony, DNA is analyzed by comparing 16 specific loci—that is,

segments of the DNA strand—from two separate samples. If all 16 of the loci for a sample can be

determined, it is said to be “a full profile.”

If less than 16 of the loci can be determined, it is said to be “a

partial profile.” Dean testified that

she identified three loci from one sample taken from the stock of the rifle and

then identified another loci from another sample also taken from the stock of

the rifle. Dean treated all four of

these loci as one sample, compared it to appellant’s DNA, and determined that

appellant could not be excluded as the contributor of the DNA located on the

rifle. She further testified that, given

the somewhat rare characteristics of one of the four loci, this partial profile

would be a match with approximately one in every 16.24 million

African-Americans, one in every 889.7 million Caucasians, and one in every

822.4 million Hispanics.

On cross-examination, Dean admitted that there had been

instances of DNA contamination at her lab.

Contamination occurs when DNA from a source other than the sample source

is inadvertently introduced into the sample, leading to incorrect

identifications on one or more loci.

Dean also admitted that she had been cited for DNA contamination events

in multiple instances. The time period

for the instances of DNA contamination by Dean or others in the lab was not

established. Nor was it established that

there had been any contamination in the DNA analyses for this case.

Huma Nasir, a DNA analysis expert presented by appellant,

testified that it was inappropriate for Dean to have treated the loci from the

two samples as one sample because there was no way of determining whether the

two samples were from the same person.

She further testified that, considering only the partial profile from

the first sample (the profile with three loci), the profile would be a match

with approximately one in every 45,000 African-Americans.

During the jury charge conference, appellant asked for a

jury instruction relating to the State’s failure to notify appellant that Dean

had been cited for instances of DNA contamination in the past. The trial court denied the request.

Sufficiency of the Evidence

In his fourth issue, appellant argues that the evidence is

insufficient to establish his identity as the shooter.

Standard of Review

This Court reviews sufficiency-of-the-evidence challenges applying

the same standard of review, regardless of whether an appellant presents the

challenge as a legal or a factual sufficiency challenge. See Ervin

v. State , 331 S.W.3d 49 , 52–55 (Tex. App.—Houston [1st Dist.] Nov. 10,

2010, pet. ref’d) (construing majority holding of Brooks v. State , 323 S.W.3d 893, 912 , 924–28 (Tex. Crim. App. 2010) ). This standard of review is the standard

enunciated in Jackson v. Virginia ,

443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979).

See id. Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational fact finder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ; In re Winship , 397 U.S. 358, 361 , 90 S. Ct.

1068, 1071 (1970); Laster v. State ,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams

v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under

the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence

conclusively establishes a reasonable doubt. See

Jackson , 443 U .S. at 314, 318 n.11, 320, 99 S. Ct. at 2786 , 2789 n.11,

2789; see also Laster , 275 S.W.3d at

518 ; Williams , 235 S.W.3d at 750 .

The sufficiency-of-the-evidence

standard gives full play to the responsibility of the fact finder to resolve

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

inferences from basic facts to ultimate facts. See Jackson ,

443 U.S. at 319 , 99 S. Ct. at 2789 ; Clayton

v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact

finder resolved any conflicts in the evidence in favor of the verdict and

defers to that resolution, provided that the resolution is rational. See

Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 . In viewing the record, direct and

circumstantial evidence are treated equally; circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton ,

235 S.W.3d at 778 . Finally, the

“cumulative force” of all the circumstantial evidence can be sufficient for a

jury to find the accused guilty beyond a reasonable doubt. See

Powell v. State , 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

Analysis

In his brief, appellant concedes that it is appropriate to

presume that the black man that traveled with Gonzalez, Quintana, and Sosa

committed the murder. Appellant

contends, however, that there was insufficient evidence to establish that he

was that man.

Viewing the evidence in the light most favorable to the

verdict, Mills and Griffin testified that they had been approached on the night

in question by appellant, who was trying to obtain a prostitute for some

Hispanic males in a truck. Both of the

women were familiar with appellant and knew him from the neighborhood. They both also identified appellant in

separate photographic line-ups. One

other witness testified that he saw appellant and Mills talking together on the

night in question.

Griffin, the first woman that appellant had brought to

Gonzalez that night, told police officers that appellant had told her that he

had a gun and was “going to jack these guys.”

Griffin and one of the officers testified at trial that to “jack”

someone was slang for robbing them. When

police officers initially arrived at the scene of the crime, Gonzalez’s pockets

had been turned out and a gold necklace that he regularly wore was missing.

Some time after the officers had arrived at the scene of

the crime, Griffin passed by and recognized the truck in which Gonzalez’s body

had been found as the same truck that appellant had taken her to earlier. During one of her interviews with the officers,

she was presented with pictures of Gonzalez and Quintana. Griffin noted on the photograph of Gonzalez

that she believed he was the driver of the truck but she was not certain. She noted on the photograph of Quintana that

she believed he was the passenger in the truck but she was not certain. At trial, Griffin stated that she was certain

that she had identified the two men correctly.

A Marlin rifle was found a few blocks from the scene of

the crime. A ballistics test established

that this rifle was the weapon used to shoot Gonzalez. In a search of the room in which appellant

lived at his grandmother’s house, a police officer found a box of bullets that

were the same make and caliber as the bullet that killed Gonzalez. It was also established that appellant’s

mother’s house was in the immediate vicinity of the scene of the crime.

DNA samples were taken from the rifle. While the samples did not form a complete

profile, it was established that appellant could not be excluded as the

contributor to the DNA samples. The

parties disputed the statistical significance of the partial DNA profile

obtained from the rifle. Even the most

conservative estimate, however, established that the profile would only match

one in every 45,000 African Americans.

Appellant argues that the evidence supporting a finding

that he was the shooter should be considered insufficient because Quintana’s

description of the man that traveled with them that night did not match

appellant. Specifically, Quintana told

the police officers that the man that was locating prostitutes for Gonzalez was

not wearing anything on his head that night, and Quintana made no mention of

any tattoos.

In contrast, Mills, Griffin, and another witness testified

that appellant was wearing a red cap or bandana that night. The evidence also established that appellant

had a small tattoo of some teardrops on one of his cheeks. Quintana did testify, however, that it was

dark on the night of the incident and that he did not get a good view of the

black man traveling with them.

The discrepancies between the descriptions of appellant’s

appearance and the shooter’s appearance on the night in question were conflicts

in the record for the jury to resolve. See

Clayton , 235 S.W.3d at 778

(holding it is fact finder’s duty to resolve conflicts in evidence). When, as here, the record supports

conflicting inferences, we must defer to the jury’s resolution of the

conflict. Id.

We hold that the

evidence was sufficient to support a finding beyond a reasonable doubt that

appellant was the man who shot Gonzalez.

We overrule appellant’s fourth issue .

Motion to Suppress

In his first issue, appellant argues that the trial court

erred by denying his motion to suppress the introduction of evidence obtained

from a warrantless search of his room inside his grandmother’s house. The evidence in question was a box of bullets

matching the kind of bullet used in the offense.

Prior to the trial, the trial court held a hearing on the

motion to suppress and denied appellant’s motion. At the trial, when the State sought to

introduce the bullets into evidence, appellant’s counsel stated, “No

objection.” “The affirmative acceptance

of this previously challenged evidence waived any error in its admission.” Swain

v. State , 181 S.W.3d 359, 368 (Tex. Crim. App. 2005); see also, Moraguez v. State , 701 S.W.2d 902, 904 (Tex. Crim. App.

1986) (holding that defendant preserves objection to introduction of evidence

in pre-trial motion to suppress but waives that error when he affirmatively

states no objection to introduction of same evidence at trial). Accordingly, this issue has been waived.

We overrule appellant’s first issue.

DNA Analysis

In his second issue, appellant argues that the State

committed a Brady violation by

failing to notify appellant that Dean had been cited for instances of DNA contamination

in the past. In his third issue,

appellant argues that the trial court erred by refusing to give a jury

instruction relating to the alleged violation.

In Brady , the

United States Supreme Court held that the prosecution’s suppression of evidence

favorable to a defendant violates due process if the evidence is material to

either guilt or punishment, without regard to the good or bad faith of the

prosecution. Brady v. Maryland , 373 U.S. 83, 87 , 83 S. Ct. 1194 , 1196–97 (1963);