Daizjion Deveil Demerson v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-18-00020-CR
________________________

DAIZJION DEVEIL DEMERSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the Criminal District Court Number 3
Tarrant County, Texas
Trial Court No. 1445293D; Honorable Robb Catalano, Presiding

April 16, 2019

MEMORANDUM OPINION
Before QUINN, CJ., and CAMPBELL and PIRTLE, JJ.

Appellant, Daizjion Deveil Demerson, was convicted following a jury trial of the

offense of aggravated sexual assault with a deadly weapon, a knife,1 and assessed a

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i-ii), (a)(2)(A)(iv), (e) (West Supp. 2018) (a felony of
the first degree).
sentence of thirty-three years confinement. In a single issue, Appellant asserts the

State’s evidence was insufficient to prove that he committed the crime.2 We affirm.

BACKGROUND

In April 2016, a two-count indictment was filed alleging that on or about November

4, 2014, Appellant intentionally and knowingly caused the penetration of the (1) mouth

and (2) sexual organ of E.N.3 with Appellant’s sexual organ without her consent, by

compelling her to submit or participate by threatening to use force or violence against her,

and she believed Appellant had the present ability to execute the threat. The indictment

also contained a deadly-weapon notice alleging that Appellant used or exhibited a deadly

weapon, a knife, in the course of the same criminal episode. In November 2017, a jury

trial was held.

The State’s evidence at trial established that during the night of November 4, 2014,

E.N. was awakened by an intruder wearing a bandana to cover his lower face. The

intruder was on top of her and brandishing a large, chopping knife. He told her that if she

screamed, he would cut her throat and then forced her to have intercourse. He then

moved E.N. to her bedroom where he put the knife to her throat and forced her to perform

oral sex. Afterwards, he told her that he wanted her phone, laptop, game console, and

2 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between the precedent of the Second Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.

3 To protect the privacy of the victim, we refer to her by her initials.

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two hundred dollars. She told him that she could obtain the money if he allowed her to

go to an ATM.

In route to the ATM, she discovered she had left her wallet at her apartment and

so informed the intruder. When they arrived at her apartment to retrieve her wallet, she

attempted to slam the front door of her apartment on the intruder. Nevertheless, he was

able to push the door open and reacted by repeatedly hitting her in the face and then

stabbing her. She began screaming and he bolted out the door.

Her neighbor, an off-duty police officer, came to her aid and radioed for backup.

She subsequently described her assailant as an African-American male having “milk

coffee-colored skin” with dark brown eyes that were wide-set. She also told the officers

that he was approximately five feet six inches to six feet tall, was wearing black, and

appeared thin. At the hospital, swabs for later DNA testing were taken from her mouth,

vulva, and face.

In November 2014, the swabs were sent to a Fort Worth crime lab for preliminary

testing and then to the University of North Texas Health Science Center for Human

Identification for final DNA testing. In December 2014, the final DNA results were entered

into the Combined DNA Index System (CODIS), a statewide/nationwide database that

stores unknown DNA profiles from crime scenes. In December 2015, when Appellant’s

DNA profile was added to the CODIS database, he was identified as the person whose

DNA profile was entered more than a year earlier in connection with E.N.’s assault.4 After

Appellant’s DNA was matched in CODIS, law enforcement officers obtained DNA

4 CODIS searches the entire database for DNA matches on a weekly basis.

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evidence from Appellant based on the CODIS match and information indicating Appellant

was in the Fort Worth area when the aggravated sexual assault occurred. In addition, to

being in the Fort Worth area in 2014, he was also a named suspect in six separate

burglaries that occurred October 1, 14, 17, 26, November 4, and then in December 2014.5

After obtaining Appellant’s DNA sample from law enforcement in January 2016,

the laboratory at the University of North Texas Health Science Center for Human

Identification compared Appellant’s DNA to the perpetrator’s DNA recovered from E.N.

Comparing E.N.’s oral swab to Appellant’s oral swab, the State’s expert determined that

Appellant’s DNA on the oral swab had an estimated frequency of occurrence of

approximately one in sixty-eight million African-American individuals with the last census

data for the United States indicating there were forty-five million African-Americans in the

United States including women (making up roughly fifty percent of that number).

When E.N.’s vulva swab was compared to Appellant’s DNA, the laboratory

obtained a positive Y-STR profile, e.g., Appellant or any of his patrilineal relatives could

not be excluded as a contributor of the Y chromosome DNA from E.N.’s vulva swab. The

same result was reached when her chin swab was compared to Appellant’s DNA. Based

on these test results and their comparisons, the State’s expert testified with a reasonable

degree of scientific certainty that Appellant was the perpetrator.

5 During direct examination, Appellant admitted to committing three burglaries in the Fort Worth
area during October 2014. He also testified that he was familiar with the particular area of Fort Worth where
the aggravated sexual assault was committed because he had several girlfriends that lived in the area in
addition to two cousins and the mother of his child. Moreover, he agreed on cross-examination that the
skin-tone description given by E.N. to law enforcement officers matched his own and he was skinny at the
time.

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 In his defense, Appellant testified that he did not commit the aggravated sexual

assault because he was attending a party when the assault occurred. Appellant’s DNA

expert testified that unless you have a full profile, single donor with an estimated

frequency of a figure in the billions or trillions, you cannot say without a doubt or within a

reasonable degree of scientific certainty that Appellant was the assailant and that no one

else could have committed the assault.

Thereafter, the jury rendered its verdict of guilty on both counts in the indictment

as well as the deadly-weapon finding. On appeal, Appellant challenges whether the State

presented sufficient evidence at trial to prove beyond a reasonable doubt that Appellant

was the person who committed the aggravated sexual assault against E.N. See

Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d) (citing Rice

v. State, 801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet. ref’d)) (state has the

burden to prove identity beyond a reasonable doubt). In other words, he challenges the

sufficiency, not the admissibility of the State’s evidence identifying him as the perpetrator

of the crime charged.6

APPLICABLE LAW

In our due process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in a light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This

6 Appellant does not challenge whether the aggravated sexual assault occurred as described by
E.N. or the reliability of the State’s DNA testing procedures.

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standard gives full play to the responsibility of the trier of fact to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319; Jenkins, 493 S.W.3d at 599.

The trier of fact is the sole judge of the weight of the evidence and the credibility

of the witnesses. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary

sufficiency review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the fact finder. See Montgomery v. State, 369 S.W.3d

188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence when viewed

in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex.

Crim. App.), cert. denied, ___ U.S. ___, 136 S. Ct. 198, 193 L. Ed. 2d 127 (2015). We

must also presume that the fact finder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Id. at 448-49. See Blea, 483 S.W.3d at 33.

The fact that a witness cannot positively identify a suspect is a matter to be

weighed by the jury. Skinner v. State, 837 S.W.2d 718, 722 (Tex. App.—Fort Worth 1992,

pet. ref’d). When, as here, if there is no in-court identification of the perpetrator’s identity

elicited from trial witnesses, no formalized procedure is required for the state to prove the

identity of the accused. Clark v. State, 47 S.W.3d 211, 214-15 (Tex. App.—Beaumont

2001, no pet.).

For purpose of proving guilt beyond a reasonable doubt, direct and circumstantial

evidence are equally probative. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim.

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App. 1989). Thus, in a circumstantial evidence case, identification is sufficient, when,

considered in relation to all other identification testimony, the conclusion is warranted by

the combined and cumulative force of all the circumstances. Skinner, 837 S.W.2d at 722

(citing Livingston v. State, 739 S.W.2d 311, 330 (Tex. Crim. App. 1987), cert. denied, 487

U.S. 1210, 108 S. Ct. 2858, 101 L. Ed. 2d 895 (1988)).

ANALYSIS

Here, the State’s evidence established that E.N. was the victim of an aggravated

sexual assault, i.e., E.N. was threatened with a knife while being forced to have

intercourse and then oral sex. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i-ii),

(a)(2)(A)(iv) (West Supp. 2018). After the incident, swabs were taken from her mouth,

vulva, and face for DNA testing. When Appellant’s DNA was entered into the CODIS

database months later, his DNA was a positive match to the DNA recovered from E.N.

After additional testing and comparison, the State’s expert testified with a reasonable

degree of scientific certainty that the DNA recovered from E.N.’s mouth, vulva, and face

matched Appellant’s DNA. Moreover, Appellant was in Fort Worth during the relevant

time period committing similar burglary offenses and was familiar with the area where the

offense occurred.

Appellant contends the State’s evidence is insufficient because his DNA expert

opined that he could not conclude within a reasonable degree of scientific certainty that

Appellant committed the offense because the State did not have a full profile, single donor

with an estimated frequency of a figure in the billions or trillions. This assertion goes to

the weight given by the jury to Appellant’s expert testimony rather than the sufficiency of

the State’s evidence on which Appellant bases his appeal. It is the jury’s role to reconcile

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conflicts, contradictions, and inconsistencies in the evidence, and to judge the credibility

of witnesses; Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991), and we

afford almost total deference to these determinations. See Lancun v. State, 253 S.W.3d

699, 704-05 (Tex. Crim. App. 2008). Thus, when performing an evidentiary sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact finder. See Montgomery, 369 S.W.3d at 192.

DNA evidence is admissible to prove identity. Glover v. State, 825 S.W.2d 127,

128 (Tex. Crim. App. 1992). Further, DNA evidence alone, without circumstantial

evidence, may be sufficient to establish identity. See Neighbors v. State, No. 2-07-00176-

CR, 2008 Tex. App. LEXIS 4467, at *9-11 (Tex. App.—Fort Worth June 12, 2008, pet.

ref’d) (mem. op., not designated for publication) (holding that DNA evidence collected by

law enforcement officers after a robbery that matched an individual through CODIS

provided sufficient evidence of appellant’s identity as the robber). See also Hunt v. State,

No. 13-10-00551-CR, 2011 Tex. App. LEXIS 7007, at *9-10 (Tex. App.—Corpus Christi

Aug. 29, 2011, pet. ref’d) (mem. op., not designated for publication) (collected cases cited

therein).

Viewing the evidence in the light most favorable to the verdict, we hold that a

rational jury could have identified Appellant, beyond a reasonable doubt, as the person

who committed the aggravated sexual assault against E.N. Accordingly, we find the

State’s evidence was sufficient to support Appellant’s conviction and overrule his single

issue.

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 CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

Do not publish.

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