Affirmed and Majority and Dissenting Opinions filed June 8, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00839-CR
ALAN WILLIAM NULL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1443617
MAJORITY OPINION
Eleven issues are presented in this appeal from a conviction for sexual assault
of a child. For the reasons given below, we overrule each issue and affirm the trial
court’s judgment.
BACKGROUND
The complainant, a sixteen-year-old girl, came home in a confused state early
one morning and told her mother that she had just been raped. The mother took the
complainant to the hospital, where the complainant was examined by a nurse who
specializes in sexual assaults.
The complainant told the nurse that she went out for a jog and was then
stopped by a man in a car who had offered her a ride home. The complainant said
that she got in the car because the man had sweet-talked her, but rather than take her
home, the man drove her to a park, where he used a switchblade to forcibly have sex
with her.
After leaving the hospital, the complainant revealed that the jogging story was
false. She said that what really happened was that she had skipped school because
she was upset over a break up, and she stayed home to drink alcohol while her mother
was away at work. She later contacted an adult female friend to join her, and the
friend came over to the complainant’s house, where they drank more alcohol
together.
Before the complainant’s mother returned home from work, the friend drove
the complainant to her own house, which was less than two miles away. The
complainant became intoxicated there and passed out. When she woke up, the hour
was late and the friend was asleep. Because the complainant was frantic to get home,
she decided to walk home by herself.
The complainant claimed that she blacked out on her walk home and that she
woke up in an unfamiliar car with someone pressing on top of her. She did not get a
good look at the other person and she did not remember much about the incident at
all.
A toxicology report showed that the complainant had Xanax and marijuana in
her system. Additional forensic analysis found semen in her vagina and underwear.
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A few years after the semen sample was collected, appellant was identified as
a possible suspect in the sexual assault. Appellant, who was nearly thirty-eight years
old at the time of the sexual assault, consented to providing a buccal swab, and based
on a test of that buccal swab, a DNA analyst determined that appellant could not be
excluded as a contributor of the semen sample that had been collected from the
complainant.
Appellant was charged with the complainant’s sexual assault. He pleaded not
guilty to that charge and his case proceeded to a trial by jury. During the trial, the
complainant testified that she did not know anyone by appellant’s name and that she
never even socialized with men in appellant’s age group. She reiterated that she
could not remember much about the night in question, and she did not identify
appellant in open court as her attacker.
Appellant did not testify in his own defense. Instead, his counsel assailed the
prosecution for what he regarded as a “shameful investigation.” Counsel emphasized
that the complainant had been receiving medical treatment for herpes, which is a
highly communicable disease, but the prosecution never ordered any sort of testing
to determine whether appellant had similarly been infected with herpes. Counsel
argued that this failure amounted to reasonable doubt.
Counsel also criticized the prosecution for not interviewing the complainant’s
adult female friend, or any of the friend’s other acquaintances who may have been
at her house on the night in question. Counsel suggested that appellant may have had
consensual intercourse with the friend, and that his DNA was found on the
complainant because the complainant was wearing the friend’s clothes.
The jury rejected these defensive arguments and convicted appellant as
charged.
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SUFFICIENCY OF THE EVIDENCE (Issue Four)
We take appellant’s issues out of order and begin with his sufficiency
challenge because, if meritorious, it would afford greater relief than his other issues.
See Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per curiam)
(indicating that rendition points should be addressed before remand points).
In a sufficiency challenge, a reviewing court must determine whether a
rational trier of fact could have found the essential elements of an offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The offense here was sexual assault of a child, which meant that the prosecution had
the burden of proving the following essential elements: (1) appellant intentionally or
knowingly caused the penetration of the complainant’s sexual organ, and (2) the
complainant was younger than seventeen years of age at the time of the penetration.
See Tex. Penal Code § 22.011(a)(2)(A), (c)(1). When deciding whether the
prosecution satisfied this burden, we consider all of the evidence in the light most
favorable to the verdict. See Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App.
2018).
The jury could have reasonably found that appellant intentionally or
knowingly penetrated the complainant’s sexual organ because there was evidence
that his semen was collected from the complainant’s vaginal swab. The jury could
have likewise determined that the complainant was younger than seventeen years of
age at the time of the offense because her mother testified that the complainant was
sixteen when the incident happened.
Appellant counters that the evidence of penetration is insufficient because the
in-court testimony from the complainant “is completely devoid of any sexual act.”
Appellant correctly observes that the complainant testified during the trial that she
did not remember much about the incident. Indeed, she did not provide many details
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at all about the sexual assault. However, just after the assault occurred, the
complainant told her mother that she had been raped, and the mother repeated that
statement in front of the jury. Also, the complainant told the sexual assault nurse
examiner that the man who attacked her had “put his penis in her vagina.” That
statement was recorded in the nurse’s notes, which were admitted for the jury’s
consideration. Together, these statements provided the jury with a substantial basis
for finding that penetration occurred.
Based on the foregoing, we conclude that there was legally sufficient evidence
from which the jury could have found every essential element of the offense beyond
a reasonable doubt.
VENUE (Issue Five)
The evidence established that the complainant lived in the city of Jersey
Village, which is located within Harris County, and that her adult female friend lived
less than two miles to the east of her in the city of Houston. The evidence did not
establish where the sexual assault occurred, and absent such evidence, appellant
argues that the prosecution failed to prove that venue was proper in Harris County.
Venue is not an element of the offense, which means that the prosecution is
not required to prove it beyond a reasonable doubt. See Schmutz v. State, 440 S.W.3d
29, 34 (Tex. Crim. App. 2014). The prosecution must only establish that venue is
proper by a preponderance of the evidence. See Tex. Code Crim. Proc. art. 13.17.
We presume that the prosecution satisfied that burden unless venue was disputed in
the trial court or the record affirmatively shows that venue was improper. See Tex.
R. App. P. 44.2(c)(1).
Appellant did not dispute venue during the trial, and he concedes on appeal
that he did not produce any evidence affirmatively showing that venue would have
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been proper in a different county. Therefore, we presume on this record that the
prosecution satisfied its burden of showing by a preponderance of the evidence that
the proper venue was in Harris County.
SPOUSE (Issue Six)
The prosecution alleged in both the indictment and the jury charge that
appellant was not the complainant’s spouse. Appellant correctly observes that his
marital relationship was not an element of the offense. Marital relationship relates
instead to an affirmative defense. See Tex. Penal Code § 22.011(e)(1). Appellant did
not claim that defense in this case, but he argues that the prosecution had the burden
to prove what it had pleaded—i.e., that appellant was not the complainant’s spouse.
And as to that point, appellant argues that the evidence is legally insufficient.
This argument fails for two reasons. First, in a sufficiency challenge, we
assess the evidence against the essential elements of the offense, not against an
erroneously heightened command in the jury charge. See Ramjattansingh v. State,
548 S.W.3d 540, 546 (Tex. Crim. App. 2018). Thus, the prosecution was not
required to prove that appellant was not the complainant’s spouse.
And second, even if we assumed for the sake of argument that the prosecution
had the burden of proving that appellant was not the complainant’s spouse, there was
testimony directly from the complainant that she did not know anyone by appellant’s
name and that she did not associate with men in his age group. The jury could have
reasonably inferred from that testimony that she did not know appellant and that they
were not married to each other.
REMOVAL OF JURORS (Issues One and Two)
The voir dire in this case spanned two days and required two separate venire
panels. After the first day, a partial jury of eleven jurors was seated. Soon after being
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seated, one of these eleven jurors approached the bench and informed the trial court
that she was not fluent in English. When the trial court inquired how much English
she understood, she responded as follows: “Well, some words, I can understand. I
tell them to tell you I can’t speak English that good because I don’t know if it would
be fair to sometimes—some words I can understand, some words not.” The trial
court excused this juror sua sponte, over appellant’s objection that the juror could
actually understand English.
On the second day of voir dire, another juror from the original eleven came
forward to also say that he was not fluent in English. He told the trial court, “Yeah,
well my problem is I don’t consider to speak much English. I don’t understand
everything they say and the thing is I don’t get everything what they say and I don’t
know if I could.” The trial court excused this juror sua sponte as well, over
appellant’s objection that the juror was qualified.
Appellant now complains in two related issues that the trial court abused its
discretion by removing both of these jurors without a corresponding motion from
the prosecution.
Appellant correctly observes that “a trial court should not on its own motion
excuse a prospective juror for cause unless the juror is absolutely disqualified from
serving on a jury.” See Johnson v. State, No. AP-77,030, 2015 WL 7354609, at *12
(Tex. Crim. App. Nov. 18, 2015) (not designated for publication) (citing Martinez
v. State, 621 S.W.2d 797, 798 (Tex. Crim. App. 1981)); see also Tex. Code Crim.
Proc. art. 35.19 (providing that a person is absolutely disqualified from serving on a
jury if he has been convicted of misdemeanor theft or a felony, if he is presently
charged with misdemeanor theft or a felony, or if he is insane). However, appellant
did not preserve error on this basis. Appellant argued that both jurors should remain
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on the jury because they understood English. On neither occasion did he object that
the trial court was improperly excusing the juror on its own motion.
Even if we assumed for the sake of argument that error had been preserved,
appellant cannot show that he was harmed. The trial court determined that both
jurors were excludable for cause because they did not fully understand English. See
Tex. Code Crim. Proc. art. 35.16(a)(11) (providing that a juror may be challenged
for cause if “the juror cannot read or write”); Montoya v. State, 810 S.W.2d 160, 170
(Tex. Crim. App. 1989) (applying Article 35.16(a)(11) to a prospective juror who
expressed difficulty understanding spoken English). When a trial court excludes a
disqualified juror for cause on its own motion, the error in acting sua sponte is
considered harmless unless the defendant shows that he was tried by a jury to which
he had a legitimate objection. See Montoya, 810 S.W.2d at 170. Appellant has not
identified any objections to the final jury that was seated in this case. Therefore, we
conclude that any error in the removal of the two jurors was harmless.
THE ENVELOPE (Issue Three)
Appellant’s buccal swabs were stored in an envelope that had several
markings on it. These markings indicated that the buccal swabs were collected as
evidence in an extraneous sexual assault that appellant committed one year after the
charged offense against the complainant.
Outside the presence of the jury, and before the buccal swabs were ever
admitted into evidence, the trial court commented that the markings were highly
prejudicial. To avoid exposing appellant to that unfair prejudice, the trial court
determined that it would admit the envelope and the buccal swabs (assuming the
proper predicate had been established), but not send either of them back to the jury
during deliberations. In the event that the jury asked to see the envelope or the buccal
swabs, the trial court ruled “we will then deal with it then.”
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Later, when the trial resumed and the buccal swabs were offered into
evidence, appellant objected to the admission of the envelope on the basis of the
prejudicial markings. The trial court overruled that objection. Appellant now
challenges that ruling.
For the sake of argument, we will assume without deciding that the trial court
erred by admitting the envelope. The question then becomes whether the admission
was reversible under the standard for nonconstitutional error.
Nonconstitutional error must be disregarded unless it affects a defendant’s
substantial rights. See Tex. R. App. P. 44.2(b). An error affects a defendant’s
substantial rights when the error has a substantial and injurious effect or influence
on the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
If the error had no influence or only a slight effect on the verdict, then the error is
harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
There is no indication that the jury ever saw the envelope. It was not published
during the trial. And during deliberations, after the jury submitted a note requesting
“to see all evidence as entered into court,” the trial court issued the following
response: “The Court is sending all of the evidence, absent the biological material.
If you want to inspect it, please ask to inspect it.” That response was consistent with
the trial court’s earlier ruling that it would not send the envelope back to the jury
unless the jury specifically asked to inspect it. The record does not reveal that the
jury ever replied with an additional request to inspect the envelope.
Because the record does not show that the jury ever saw the envelope and its
prejudicial markings, we conclude that any error in the admission of the envelope
had no influence on the jury’s verdict, and therefore, the trial court’s ruling was
harmless.
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LESSER-INCLUDED OFFENSE (Issue Seven)
During the charge conference, appellant requested an instruction on the lesser-
included offense of attempted sexual assault of a child. The trial court refused the
request, and appellant now challenges that refusal.
A trial court reversibly errs by denying a requested instruction for a lesser-
included offense if (1) the lesser offense is included within the proof required of the
charged offense, and (2) there is some evidence from which a rational jury could
acquit the defendant of the charged offense while convicting him of the lesser
offense. See Segundo v. State, 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008).
Appellant has satisfied the first prong of this error analysis because an attempt
is always included within the proof required of the charged offense. See Tex. Code
Crim. Proc. art. 37.09(4).
To satisfy the second prong, there must be affirmative evidence that both
raises the lesser-included offense and rebuts or negates an element of the charged
offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). In other
words, the evidence must establish the lesser-included offense as a valid, rational
alternative to the charged offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.
Crim. App. 2000). It is not enough that the jury may disbelieve crucial evidence
pertaining to the charged offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.
Crim. App. 1997).
Appellant believes that evidence of the lesser-included offense was raised by
testimony from the sexual assault nurse examiner. He refers to two portions of the
nurse’s testimony, both arising out of her cross-examination. In the first portion, the
nurse testified that seminal fluid can migrate from one place to another, meaning
that the location of its discovery is not necessarily the same location of its original
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deposit. In the second portion, the nurse testified that she did not find any injuries
on the complainant that were indicative of sexual assault. Based on these two lines
of testimony, appellant suggests that the jury could have rationally found that his
seminal fluid made contact with the complainant by a means other than penetration,
such as an attempt. We disagree.
The nurse’s testimony does not constitute affirmative evidence that appellant
attempted, but failed, to penetrate the complainant’s sexual organ. The testimony
merely established that the nurse could not be completely certain whether the
seminal fluid that was collected from the complainant was the product of a sexual
assault. The nurse’s uncertainty could have provided a basis for the jury to disbelieve
crucial evidence pertaining to the charged offense, but her uncertainty did not raise
affirmative evidence for purposes of the lesser-included offense. See Massey v. State,
933 S.W.2d 141, 155 (Tex. Crim. App. 1996) (“That a witness agrees that anything
is possible and that he cannot be 100 percent certain of anything does not raise
evidence for purposes of a lesser included offense.”), superseded on other grounds
by statute as stated in Watkins v. State, 619 S.W.3d 265, 287–88 (Tex. Crim. App.
2021); cf. Penaloza v. State, 349 S.W.3d 709, 712–13 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d) (holding in an aggravated robbery case that a witness’s
testimony that she was uncertain as to whether the defendant had used a real gun or
a toy gun did not raise affirmative evidence that a deadly weapon was not used,
which was necessary to support the submission of the lesser-included offense of
robbery).
RULE 702 (Issues Eight and Nine)
The prosecution gave advance notice that it intended to introduce evidence of
an extraneous sexual assault during the punishment phase of trial. Appellant filed a
written objection to this evidence before the punishment phase began.
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In the written objection, appellant represented that the prosecution had sent a
rape kit from the extraneous sexual assault to Bode Technology, which is a lab in
another state. Bode extracted male DNA from the extraneous rape kit, but Bode did
not compare that DNA to a known sample collected from appellant. Instead, Bode
submitted a report with the DNA profile to the prosecution. Using that report and a
buccal swab from appellant, a comparative analysis was then completed by Mary
Symonds, a DNA analyst from the Houston Forensic Science Center. Symonds
determined that appellant could not be excluded as a contributor of the DNA from
the rape kit.
Appellant objected primarily on confrontation grounds because the
prosecution did not identify anyone from Bode on its witness list. Instead, the
prosecution listed Symonds, and appellant objected that her testimony would be
unreliable under Rule 702 of the Texas Rules of Evidence because Symonds had no
knowledge of how Bode conducted its testing, of whether the Bode analyst was
qualified to administer the test, or of whether the Bode analyst administered the test
correctly.
Appellant reiterated these objections just before Symonds took the stand.
Without hearing any evidence outside the presence of the jury, the trial court
overruled the objections and gave appellant a running objection. Now in two related
issues, appellant challenges the trial court’s ruling and the admission of Symonds’s
testimony. He limits his challenge to just Rule 702 and does not re-urge his argument
under the Confrontation Clause.
Rule 702 provides that a witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue. Expert
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testimony that is proffered under this rule is not probative and relevant unless it is
also reliable. See Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). If the
proffered expert testimony is derived from a scientific theory, the testimony is
reliable if it satisfies the following three criteria: (1) the underlying scientific theory
is valid, (2) the technique applying the theory is valid, and (3) the technique was
properly applied on the occasion in question. Id. at 573.
Appellant argues that the prosecution failed to establish each of these criteria.
Beginning with the first criterion, appellant notes that Symonds gave no testimony
regarding the validity of DNA testing. Appellant did not raise this complaint with a
specific objection in the trial court, but even if he had, his argument would fail
because the trial court was allowed to take judicial notice that DNA testing has
already been widely accepted by other courts. See Hernandez v. State, 116 S.W.3d
26, 29 (Tex. Crim. App. 2003) (per curiam) (“Once a scientific principle is generally
accepted in the pertinent professional community and has been accepted in a
sufficient number of trial courts through adversarial Daubert/Kelly hearings,
subsequent courts may take judicial notice of the scientific validity (or invalidity) of
that scientific theory based upon the process, materials, and evidence produced in
those prior hearings.”); see also Maryland v. King, 569 U.S. 435, 442 (2013)
(recognizing the significance of DNA technology).
In his next point, appellant argues that the prosecution similarly failed to
establish the second criterion, which addresses the validity of the technique applying
the scientific theory. This point was not raised in the trial court either. In any event,
the technique employed in this case was “STR,” or short tandem repeats, and the
trial court was free to take judicial notice that this technique is also valid. See Reese
v. State, Nos. 14-02-00847-CR & 14-02-00848-CR, 2003 WL 22303760, at *2–3
(Tex. App.—Houston [14th Dist.] Oct. 9, 2003, pet. ref’d) (mem. op., not designated
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for publication) (discussing evidence developed at a hearing concerning short
tandem repeats, including “world-wide acceptance of STR DNA testing”).
As for his final point, appellant argues that the prosecution failed to prove that
Bode applied the technique properly. Appellant preserved this argument, but it still
must fail because the prosecution produced evidence pertinent to the third criterion.
Symonds testified that Bode was an accredited lab, and that based on certain on-site
visits, a review of its operating procedures, and its history of compliance, Bode was
outsourced to assist in clearing a backlog of untested rape kits. As for the testing in
this particular case, Symonds said that she was not physically present at Bode when
the testing occurred, but she went through a checklist to ensure that Bode followed
the necessary steps to establishing a DNA profile. She confirmed that all quality
control signatures were in place and that Bode’s results stayed within acceptable
ranges.
Appellant did not produce any affirmative evidence showing that Bode’s
application of the technique was incorrect. Instead, appellant merely elicited
testimony that Symonds had no personal knowledge of certain issues, such as
whether Bode’s instruments were properly calibrated, or whether the Bode analyst
who performed the test was qualified. But Symonds had other reasons to believe that
Bode’s application was reliable, and her expert opinion was not rendered
inadmissible simply because she lacked personal knowledge of every underlying
fact. See Tex. R. Evid. 703 (noting that an expert need not have a personal
observation of facts to form an opinion based on those facts); Tillman v. State, 354
S.W.3d 425, 439 (Tex. Crim. App. 2011) (holding that an expert’s opinion was
admissible even though the expert had not been present for the testimony of every
witness).
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For all of these reasons, we conclude that the trial court did not abuse its
discretion by admitting the expert testimony from Symonds.
OTHER EVIDENCE OF THE EXTRANEOUS OFFENSE (Issues 10 and 11)
In addition to the DNA evidence from the extraneous sexual assault, the trial
court admitted testimony from the complainant in that extraneous offense, as well as
a nurse’s report from that complainant’s sexual assault examination. The extraneous
complainant was unable to identify appellant as her assailant, and the nurse’s report
did not contain any evidence of identity either. In effect, the DNA evidence was the
only nexus between appellant and the extraneous offense.
In his final two issues, appellant argues that if the DNA evidence from the
extraneous sexual assault was inadmissible (as he argued in issues eight and nine),
then the trial court abused its discretion by admitting this other evidence as well.
Because we just concluded that the trial court did not abuse its discretion by
admitting the DNA evidence, we necessarily conclude that these final two issues
lack merit.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan. (Hassan,
J., dissenting).
Publish — Tex. R. App. P. 47.2(b).
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