author: JOHN F. ONION, Jr., Justice (Retired).

text:
    Anthony Wayne ROBERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 03-98-00590-CR.
    Court of Appeals of Texas, Austin.
    April 13, 2000.

      Robert Icenhauer-Ramirez, Icenhauer-Ramirez & Hubner, P.C., Austin, for Appellant.
    Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, for State.
    Before Chief Justice ABOUSSIE, Justices PATTERSON and ONION.

       Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).

   JOHN F. ONION, Jr., Justice (Retired).

This appeal presents an issue that borders on being a case of first impression in Texas: Can DNA (deoxyribonucleic acid) evidence alone establish a legally and factually sufficient case of a defendant’s guilt in a criminal prosecution? The core concern involves the question of identity.

Appellant Anthony Wayne Roberson appeals his conviction for aggravated sexual assault. See Tex. Penal Code Ann. § 22.021(a)(l)(A)(i), (2)(A)(ii), (iii) (West Supp.2000). The jury found appellant guilty “as alleged within the indictment.” The trial court assessed punishment at life imprisonment and made the sentence cumulative with another life sentence for aggravated sexual assault.

Points of Error

Appellant advances two points of error. Appellant claims that the evidence is legally and factually insufficient to show that he was the perpetrator of the offense charged. Appellant does not claim that the trial court erred in admitting the DNA evidence but urges that the DNA evidence standing alone does not show that he was the person who committed the offense alleged. He notes that the complainant could not describe her assailant in any manner and that there was no other circumstantial evidence of identity like fingerprints, trace evidence, or physical proximity to the crime scene — to link him to the offense. Appellant argues that DNA evidence is not an inclusionary tool but one of probability. He contends that DNA testing can exclude someone as the donor of semen, but it cannot definitively link someone to a crime without other evi-denee. We will affirm the conviction,

Facts

In the early morning hours of November 4, 1990, R.P. was sexually assaulted in her Northwest Hills home in Austin. She was unable to identify her assailant. On Saturday, November B, 1990, R.P.’s husband and their nine-year-old son went hunting. That evening, R.P. allowed her other two children, ages seven and three, to sleep in her upstairs bedroom as a treat. R.P. awakened at about 3:20 a.m. on November 4th but went back to sleep.

Sometime later, R.P. was awakened when she felt a moist gloved hand over her mouth. A male voice said, “Don’t say a word. If you love your children, you will not say a word.” In the dark, the man pulled R.P. from the bed, led her across the hall to a game room and pushed her to the floor. He told R.P. not to look at him and demanded the location of her cash and jewelry. She denied having cash but told the man she had rings and a gold and diamond watch. When R.P. inquired how he got into the house and what was going to happen, the man repeatedly told her to “Shut the f— up.” R.P. thought that she was going to die and was concerned about her sleeping children.

The intruder took R.P. downstairs and into her son’s bedroom, searched the room with a flashlight, picked up a blanket and placed it over R.P.’s head. The man then bound R.P.’s hands behind her back with masking tape obtained from the kitchen, took her to the living room, and told her not to move or she would not see her children again. The man returned with her jewelry and some of her husband’s possessions. When R.P. could not tell him the location of the key to a gun case, he reached under R.P.’s night gown and pulled her panties down, telling her that this might help her remember the key’s location.

After a futile search for the key, the man returned R.P. to her son’s bedroom. When R.P. realized the man’s intentions, she ripped the tape off her hands, but the man hit her in the face with his fist knocking her onto the bed. The man then had vaginal intercourse with R.P.

After the sexual assault, the intruder made R.P. urinate in the bathroom and then retied R.P.’s hands with a jump rope. He disabled all six telephones and instructed R.P. to urinate again. He told her he was leaving. After a few minutes, R.P. removed the blanket from her head. The man was still in the bathroom, shined a flashlight in her eyes, and told her not to look at him. R.P. stayed in the bathroom until she heard the man leaving the house through broken glass.

R.P. immediately ran upstairs to check on her children who had slept through the entire episode. R.P. then activated the panic button on her security system. The police arrived in twenty minutes. It was determined that the point of entry had been made by breaking the glass in a sliding door leading into the living room from a patio. R.P. was taken to the hospital for a rape examination. R.P. was unable to identify her assailant at the time of the offense or at trial almost eight years later.

Ginger Braley-Cochran, a registered nurse, performed a sexual-assault examination on R.P. at Seton Hospital. She collected R.P.’s robe, nightgown, panties, and panty liner. She obtained two oral swabs, hair combings, scrapings from under the fingernails, and two vials of blood. The evidence was placed in a rape kit and given to an Austin police officer. Bradley-Cochran testified as to abrasions, bruises, and rope burns on R.P.’s body.

Dr. John Walker, an emergency room physician, performed a sexual assault examination on R.P. and found sperm in her vaginal fluids. He collected several vaginal swabs. The chain of custody of all the evidence was established.

Steve Robertson, a supervisor in the criminalistic section of the Texas Department of Public Safety Crime Laboratory in Austin, testified that he was present in the lab when the rape kit and other evidence relating to the instant offense was brought to the lab on November 14, 1990. Robertson began work on the evidence on November 26, 1990. He tested the semen on the vaginal swabs for blood group typing and secretor status. He also typed the complainant’s blood which showed that R.P. had a PGM type 1 + . Robertson determined that her assailant was a blood group O secretor or else was a nonsecretor of any blood type with a PGM of 1 minus or 1 minus, 1 plus.

Austin Police Detective Robert Travis testified that almost three years after the offense, he obtained and executed a search warrant for appellant’s blood, hair, semen, and saliva samples. He identified a state’s exhibit as the samples he obtained from appellant and delivered to the DPS Crime Lab on October 15,1993.

Robertson testified that on October 15, 1993 he received appellant’s blood sample and the blood typing revealed appellant to be a blood group O secretor with a PGM type of 1 minus, 1 plus. Robertson testified that, based on his testing in the lab, appellant could not be eliminated as being the donor of the semen in question, including the semen stain on the complainant’s nightgown. Robertson acknowledged that blood group 0 with a PGM type 1 minus, 1 plus was found in approximately nine to ten percent of the male population.

Michelle Loekhoof, a DNA analyst and serologist with Codis (Combined DNA Index System) of the Texas Department of Public Safety Crime Laboratory, testified as an expert -witness for the State. Lock-hoof graduated from the University of Texas with a B.A. degree with a major in biology. Upon graduation, she immediately began working in the DPS lab. She had on-the-job training, attended numerous seminars, conferences, workshops, and had “some continuing education at the University.” She had testified about seventy times in courts all over Texas.

Loekhoof explained that the DPS crime laboratory was certified by the American Society of Crime Laboratory Directors (ASCLD), an oversight agency that determines if the lab is following established guidelines and protocol. The protocol used in the DPS lab is in accordance with the guidelines from Technical Working Group on DNA Analysis Methods (TWGDAM), a national organization, and in compliance with the recommendations of the National Research Council (NRC).

Loekhoof related that the DPS crime lab uses proficiency testing on its caseworkers — usually blind testing. Loekhoof revealed that since January 1994 she had undergone eight or nine proficiency tests and most of the tests were conducted by outside agencies. She never had been advised that she had made a mistake or reported a false match on any proficiency test. Loekhoof reported that it was not uncommon to have DPS lab work re-analyzed by private laboratories. Seventy to eighty percent of her work was eventually reviewed by outside agencies.

Loekhoof explained that DNA is a chemical found in human cells; that all humans have some DNA that is the same; and that is why most humans have two arms, two legs, and two eyes. Other characteristics of most individuals are different because an individual inherits one-half of his DNA from his mother and one-half from his father.

Loekhoof explained that DNA analysis is used in areas other than forensic DNA for use in court proceedings; that DNA testing is used to identify war dead, to determine paternity, and to ensure an individual can receive and not reject an organ transplanted from a donor. There are two main DNA-testing methods, one of which is polymerase chain reaction (PCR). Loekhoof described PCR as a quick test that can be used in testing small stains. It is often utilized when there is a need to know the results in a short time. The other main test is restriction fragment length polymorphism (RFLP). This test requires a larger stain and it takes a longer time to reach a result than the PCR test. In the RFLP test, the analyst is looking for the size or length of an individual’s DNA and needs a large DNA stain and good quality DNA. The PCR test may use a smaller stain and the DNA need not always be of the same quality as in the RFLP test.

After explaining how these two testing methods work, Loekhoof related that she performed RFLP testing on semen stains from the complainant’s nightgown, a panty liner, and a vaginal swab, and appellant’s known blood. She testified as to a visual match between these items and that appellant could not be excluded as a donor of the semen. Lockhoof then related that the DPS crime lab used a database developed by Dr. Arty Eisenberg of the University of North Texas Health Science Center derived primarily from DNA paternity testing, a field in which Dr. Eisenberg is a renowned scientist. The database had been evaluated by Dr. Ranajit Chakraborty of the University of Texas Health Science Center in Houston and adopted by the DPS. The database contains the following approximate number of alleles (type or size of DNA) for the various ethnic groups — Caucasian-3,800 alleles; Black-4,400 alleles; and Hispanic-5,000 alleles.

Lockhoof stated that she could tell the jury how rare the DNA profile of appellant, an African-American, is in the population. Taking the sizes of DNA from appellant’s known blood sample and looking at the database, Lockhoof was able to determine how frequently the overall profile occurred in different populations. Although Lockhoof first testified that appellant’s profile occurred in approximately 1 in 5.5 billion for the Caucasian, Black, and Hispanic populations combined, she pointed out that the actual frequency was 1 in 230 billion for Caucasians, 1 in 420 billion for Blacks, and 1 in 630 billion for Hispanics. Lockhoof explained that as a result of a policy decision, the DPS crime lab does not report ratios higher than the world’s known population at the time of the DNA test, hence, the 1 in 5.5 billion ratio.

Dr. David Bing testified that at the time of the trial (December 1997) he was the scientific director of a company called Ge-nomice Collaborative in Boston, Massachusetts, a relatively new position. He had been the director for all clinical and forensic DNA testing at the Center for Blood Review in Boston.

In 1960, Dr. Bing received his Ph.D. degree in microbiology from Case Western Reserve University. After two years postdoctoral training at the University of California at Berkeley, he became associate professor at Michigan State University. In 1973, Bing moved to the Center for Blood Review (CBR) in Boston and also became a member of the Harvard University Medical School faculty. In 1986, he became director of all clinical testing at CBR and continued teaching at Harvard. He related that he had testified in court approximately seventy-five times. He testified that he had done both PCR and RFLP DNA testing and was an expert in both types of testing.

Bing related that he was asked to do PCR testing on the complainant’s blood, one of the vaginal swabs from the rape kit, and appellant’s blood. Bing described the testing procedure used and summarized his results concluding that appellant could not be excluded as a donor of the sperm found on the vaginal swab and that the frequency of appellant’s DNA profile in the African-American population would be 1 in 1600. Bing explained that in 1992-1993, under the recommendation of the National Review Council Report I, labs only reported the frequencies that certain alleles or certain DNA types appeared in the population. By virtue of the 1996 NRC Report II, these frequencies could be reported as a likelihood ratio: a likelihood that a given set of DNA profiles came from a specific individual as opposed to another random person in the population. Bing performed his PCR testing in December 1994 and concluded that under the 1996 guidelines the likelihood ratio of appellant’s DNA profile in the African American population would be 1 in 1800, not a significant change from the standards employed under the NRC Report I. In further explaining the PCR testing he performed, Bing agreed that it was much less discriminating than the RFLP testing. He further noted that the forensic genetics community used the 1996 NRC Report II as a reliable source and guideline for reporting.

At the close of Dr. Bing’s testimony, the State rested, the trial court overruled appellant’s motion for an instructed verdict, and appellant rested without offering any evidence. The jury returned its general verdict finding appellant guilty of aggravated sexual assault.

Penalty Stage of Trial

At the second stage of the bifurcated trial, the State called four female witnesses, all of whom lived in the northern part of Austin. M.S. testified that appellant had been convicted of aggravated sexual assault in 1995 based on an August 16, 1991 offense. She revealed that the offense occurred in her home and she was the victim. M.S. related that she was unable to identify appellant based solely on the events that occurred in the early morning hours on the day of the offense. S.T., G.B., and H.B. each testified to an extraneous unadjudicated aggravated sexual assault that occurred in their homes in the early morning hours of June 30, July 13, and July 15, 1991, respectively. None of the three women could identify appellant as the perpetrator of the offense in her individual case. Michelle Lockhoof, the DPS DNA analyst, testified that sperm and other items of evidence from these three extraneous offenses were compared with appellant’s DNA profile. She found that appellant could not be excluded as the donor of the sperm in each case. Lock-hoof again testified that there was a 1 in 5.5 billion chance in each offense that appellant’s DNA profile would match another individual.

Here again, appellant rested and closed without offering any evidence. The trial court then assessed punishment at life imprisonment.

Legal Sufficiency

The standard for reviewing the legal sufficiency of evidence is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Skillern v. State, 890 S.W.2d 849, 879 (Tex.App. — Austin 1994, pet. refd). The standard of review is the same in both direct and circumstantial evidence eases. See King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim.App.1992). The State may prove its case by circumstantial evidence if it proves all of the elements of the charged offense beyond a reasonable doubt. See Easley v. State, 986 S.W.2d 264, 271 (Tex.App. — San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781). 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. See Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App.1987). It is important to remember that all the evidence the jury was permitted, properly or improperly, to consider must be taken into account in determining the sufficiency of the evidence. See Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App.1993); Rodriguez v. State, 939 S.W.2d 211, 218 (Tex.App. — Austin 1997, no pet.).

The sufficiency of the evidence to support a conviction should no longer be measured by the jury charge actually given but rather measured by the elements of the offense as defined by a hypothetically correct charge. See Curry v. State, 975 S.W.2d 629, 630 (Tex.Crim.App.1998). “Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability and adequately describes the particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1992).

The jury is the exclusive judge of the facts proved, the weight to be given the testimony, and the credibility of the witnesses. See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The jury is free to accept or reject any or all of the evidence presented by either party. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The jury maintains the power to draw reasonable inferences from basic facts to ultimate facts. See Welch v. State, 993 S.W.2d 690, 693 (Tex.App. — San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex.App. — Fort Worth 1997, pet. refd). The reconciliation of evidentiary conflicts is solely within the province of the jury. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App.1995).

Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence. Rather, it is to position itself as a final due process safeguard insuring only the rationality of the fact finder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.App.1988). It is not the reviewing court’s duty to disregard, realign, or weigh the evidence. See id. The jury’s verdict must stand unless it is found to be irrational or unsupported by more than a “mere modicum” of evidence, with such evidence being viewed under the Jackson light. See id. The legal sufficiency of the evidence is a question of law. See McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.— Fort Worth 1996, pet. ref d) (citing Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim. App.1991)).

Before addressing the sufficiency of the DNA evidence to support the instant conviction, we will briefly examine the admissibility of DNA evidence as background.

DNA Identification Evidence— Admissibility

DNA identification is generally admissible in most American jurisdictions. See Paul C. Giannelli, The DNA Story: An Alternative View, 88 J.Crim. L. & Criminology 380, 380-81 (1997) (reviewing Harlan Levy, And the Blood Cried Out (1996)); Thomas J. Fleming, Annotation: Admissibility of DNA Evidence, 84 A.L.R.4th 313, 335 (1991). The first reported case in which DNA evidence was held admissible was Andrews v. State, 533 So.2d 841 (Fla. Dist.Ct.App.1988). “No other scientific technique has gained such widespread acceptance so quickly”; and “no other technique has been as potentially valuable to the criminal justice system.” Giannelli, 88 J.Crim. L. & Criminology at 381-82. DNA evidence has been called the “single greatest advance in the ‘search for the truth’ ... since the advent of cross-examination.” People v. Wesley, 140 Misc.2d 306, 533 N.Y.S.2d 643, 644 (N.Y.Sup.Ct. 1988), aff'd, 183 A.D.2d 75, 589 N.Y.S.2d 197 (N.Y.App.Div.1992).

DNA evidence has certainly been held admissible in Texas. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Even prior to Kelly, DNA evidence was found admissible. See Mandujano v. State, 799 S.W.2d 318, 321-22 (Tex.App.— Houston [1st Dist.] 1990, no pet.); Glover v. State, 787 S.W.2d 544, 547 (Tex.App.— Dallas 1990), aff'd, 825 S.W.2d 127, 128 (Tex.Crim.App.1992) (citing Kelly).

In Kelly, the court delineated the standard for the admissibility of novel scientific evidence which in that case involved DNA identification evidence (the RFLP method). In Kelly, the “Frye doctrine” (Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)) was abandoned. In establishing the new standard, the Kelly court utilized Rules 702 and 403 of the Texas Rules of Criminal Evidence (now merely rules of evidence). Under Kelly, before admitting scientific evidence, a trial court must make a “threshold determination” as to whether the testimony will help the trier of fact understand the evidence or determine a fact in issue. See id. at 572. Thus, when the trial court is faced with a proffer of expert testimony on a scientific topic unfamiliar to jurors, the trial court’s first task is to determine whether the testimony is sufficiently rehable and relevant to help the jury (fact finder) in reaching an accurate result. See id. If the trial court determines that the proffered expert testimony is reliable (i.e., probative and relevant), the trial court must next determine whether the proffered testimony’s probative value is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. If the evidence is determined to be admissible, then the jury is permitted to hear it. See Fuller v. State, 827 S.W.2d 919, 930 (Tex.Crim.App.1992).

It is clear that Kelly announced that DNA identification evidence (RFLP method) is admissible in Texas. See Kelly, 824 S.W.2d at 574; Griffith v. State, 976 S.W.2d 241, 244-45 (Tex.App. — Amarillo 1998, pet. ref'd). Campbell v. State, 910 S.W.2d 475 (Tex.Crim.App.1995), recognized the Kelly holding and held that the results of the PCR analysis or method of DNA testing was also admissible in evidence. See 910 S.W.2d at 479. In discussing the PCR method, the court noted that the test was less exact than the RFLP method but had other advantages. See id. at n. 6.

There are a multitude of Texas cases following Kelly and holding DNA identification evidence admissible. See, e.g, Trevino v. State, 991 S.W.2d 849, 851-52 (Tex. Crim.App.1999); Wolfe v. State, S.W.2d 270, 274 (Tex.Crim.App.1996); Hicks v. State, 860 S.W.2d 419, 424 (Tex. Crim.App.1993); Hepner v. State, 966 S.W.2d 153, 160 (Tex.App. — Austin 1998, no pet.); Barnes v. State, 839 S.W.2d 118, 123-24 (Tex.App. — Dallas 1992, pet. ref'd); Coleman v. State, 833 S.W.2d 286, 288 (Tex.App. — Houston [14th Dist.] 1992, pet. refd).

Nearly all the cases we have examined in our research, both published and unpublished, have found the DNA identification evidence reliable and relevant and thus admissible in evidence and a factor to be considered in determining the sufficiency of the evidence to support the conviction. Sufficiency, however, not admissibility, is the issue in the instant case. In some of the examined cases, the DNA evidence was superfluous in light of other independent evidence of the defendant’s guilt. In other cases, the DNA evidence was an important link in the determination of guilt, and in still other cases, the DNA evidence was the crucial piece of the State’s proof, corroborated by lesser pieces of evidence.

Appellant’s Argument

Appellant argues that DNA testimony can ■ exclude an individual as being the donor of blood, semen, or other trace evidence, but that DNA evidence, which does not exclude an individual as the perpetrator of a crime, can only be construed in terms of probability. He contends that the DNA evidence in the instant case is legally insufficient to prove his identity, an essential element of the State’s case.

Appellant indicates that his research has failed to reveal a Texas case holding that DNA evidence standing alone is sufficient to sustain a conviction. The State cites Williams v. State, 848 S.W.2d 915 (Tex. App. — Texarkana 1993, no pet.), where the defendant was convicted of aggravated sexual assault, as in the instant case. This is the closest Texas case on point. The facts in Williams shows that in the early morning hours, the victim’s apartment door was kicked in. The victim’s face was covered, and she was sexually assaulted by two assailants. She could not identify her assailants. See id. at 916. The DNA testing revealed that the DNA pattern found in the defendant’s known blood matched the DNA pattern in the blood from the seminal fluid taken from the victim. See id. An expert testified that based on the DNA testing, there was a 1 in 12,500,000 chance that the blood found in the seminal fluid taken from the victim’s vaginal area was not that of the defendant. See id. at 917. The victim testified that she worked with the defendant’s wife, that he had been to her apartment, and once, in a strange conversation, inquired whether anyone had performed oral sex on her. See id. at 916. She testified that she knew a Roger Day by name only. See id. at 917.

The defendant offered alibi testimony that he was in Florida with his wife on the date in question. His wife’s supporting testimony was impeached when she was recalled and admitted that she was at work in Dallas on the date in question and not in Florida. The defendant’s brother testified that the victim was dating Roger Day. Day testified that he had sexual intercourse with the victim on the date in question and the defendant was not present. See id.

The appellate court concluded that the evidence viewed in the light most favorable to the verdict was legally sufficient to support the conviction. See id. at 917. There was no discussion that DNA evidence was the only real inculpatory evidence supporting the conviction. Yet, it is clear the conviction rested upon the DNA evidence.

Identity Required

There is no question that the State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex.Crim.App.1984); Rice v. State, 801 S.W.2d 16, 17 (Tex.App. — Fort Worth 1990, pet. ref d). Identity may be proved by direct or circumstantial evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.App.1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex.App. — Fort Worth 1999, pet. filed); Creech v. State, 718 S.W.2d 89, 90 (Tex.App. — El Paso 1986, no pet.). In fact, identity may be proven by inferences. See United States v. Quimby, 636 F.2d 86, 90 (5th Cir.1981). When there is no direct evidence of the perpetrator’s identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. See Sepulveda v. State, 729 S.W.2d 954, 957 (Tex.App. — Corpus Christi 1987, pet. ref d). Proof by circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim.App.1989). For the purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. See id.

The instant conviction rests upon circumstantial evidence. Michelle Lockhoof, a DNA analyst with the DPS crime laboratory, testified that based on the RFLP analysis, appellant’s known blood and semen matched the semen found on the complainant’s nightgown, panty finer, and vaginal swabs taken from the complainant. Lockhoof stated that the reported frequency or chance of appellant’s DNA profiling occurring in another person was 1 in 5.5 billion for the Caucasian, African-American, and Hispanic populations, and that the actual frequency was 1 in 420 billion for the African-American population. The record shows appellant was an African-American. In Hinojosa v. State, 4 S.W.3d 240, 245 (Tex.Crim.App.1999), the court stated: “Despite one in 19,900,000 odds, appellant’s DNA profile matched the semen found in the victim. Contrary to appellant’s argument, these impressive statistics support the jury’s conclusion that appellant, as opposed to some unidentified ‘suspect’ also sharing the same DNA profile, sexually assaulted, kidnaped, and killed Wright.” (Emphasis added).

In addition to the RFLP test, Dr. David Bing of the Center for Blood Review in Boston, utilizing the PCR method of DNA testing, also obtained a match between appellant’s known blood and the semen found on a vaginal swab taken from the complainant. Still further, Steve Robertson, the criminologist from the DPS laboratory, reported that tests on appellant’s known blood and the semen on the complainant’s nightgown could not eliminate appellant as the donor of the semen. Appellant’s blood group was found in approximately nine to ten percent of the male population. This was a blood grouping or blood typing procedure, not a DNA analysis.

Appellant’s Argument

Nevertheless, appellant argues the DNA evidence was flawed because there were variables affecting the accuracy of that evidence. He contends that Lock-hoof and Bing, who testified for the State on the statistical results of DNA testing, were not shown to be experts in the field of statistics and probability and there was no indication they knew anything at all about the statistical techniques regarding the random probability estimates they offered the jury. The State, however, is not required to call a mathematical expert to comment on the possible interpretation of statistical evidence. See Griffith, 976 S.W.2d at 251. Neither Kelly nor rule 702 makes such a requirement for the admission of DNA evidence. See id.

Appellant also complains that the “error rate” of the laboratory was not shown. Apparently appellant is referring to the DPS crime laboratory. Appellant urges the “error rate” would affect the statistical results. The record does not show the error rate of the lab. The lab was certified by ASCLD, as earlier noted, and used protocol in accordance with the guidelines of TWGDAM and the National Research Council. The testing analyst was subject to periodic blind proficiency testing and had never been advised of having made a false match. The lack of error rate for the lab itself would go more to the weight than the admissibility of the DNA evidence. See United States v. Lowe, 954 F.Supp. 401, 420 (D.Mass.1996), aff'd, 145 F.3d 45 (1st Cir.1998).

All of appellant’s complaints, including those about the data bank, go to the weight or admissibility of the evidence rather than the sufficiency thereof on which appellant bases his appeal. In Welch, the defendant claimed, as here, that the DNA evidence failed to establish his identity as the perpetrator of sexual assault charged because it was scientifically unreliable and should not have been admitted. See 998 S.W.2d at 694. The Welch court pointed out that regardless of whether the evidence was properly admitted, the court must consider it in determining legal sufficiency. See id.; Nickerson v. State, 810 S.W.2d 898, 400 (Tex.Crim.App.1991); Porter v. State, 969 S.W.2d 60, 63 (Tex. App. — Austin 1998, pet. refd). The jury’s verdict must be evaluated from the jury’s perspective. See Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App.1996). Any inconsistencies in the testimony should be resolved in favor of the jury’s verdict. See Cain v. State, 976 S.W.2d 228, 233 (Tex.App. — San Antonio 1998, no pet.).

It was for the jury, as trier of fact, to determine the proper inferences to draw from the evidence. If the circumstantial evidence, viewed in the light most favorable to the verdict, supports a finding of guilt beyond a reasonable doubt, the evidence is legally sufficient, and it is irrelevant that the jury could have viewed the evidence more favorably to the accused.

Hepner, 966 S.W.2d at 157.

All of the elements of the instant offense are supported by direct evidence except the identification of appellant as the perpetrator of the crime, which rests upon circumstantial evidence. The DNA (RFLP analysis) evidence was “strong evidence” of appellant’s participation in the crime. When this evidence is considered in relation to the other DNA test and the blood grouping test, the conclusion that appellant was the perpetrator is warranted by the combined and cumulative force of all the circumstances. See Skinner v. State, 837 S.W.2d 718, 722 (Tex.App. — Fort Worth 1992, pet. refd).

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged.

Except for Williams, our holding in the instant case borders on being one of first impression with regard to DNA evidence establishing identity. We therefore have examined cases from other jurisdictions to see if they support our conclusion.

Other Jurisdictions

Outside of Texas, we find that the New York court in People v. Rush, 165 Misc.2d 821, 680 N.Y.S.2d 681 (N.Y.Sup.Ct.1995), aff'd, 242 A.D.2d 108, 672 N.Y.S.2d 362 (1998), was confronted with the same question we are: “In a criminal prosecution can DNA evidence alone establish a legally sufficient case of a defendant’s guilt?” 630 N.Y.S.2d at 631. In this rape and robbery case, the court noted the general acceptance of the notion that a defendant accused or convicted of a crime could be exculpated by DNA evidence alone, but the court could not find a reported New York decision that DNA evidence alone can inculpate a defendant sufficiently to support a guilty verdict. The New York trial court then answered the question in the affirmative.

The victim in Rush identified her assailant’s photograph from a photographic array and identified him in a corporeal lineup. At trial, however, the victim identified a courtroom spectator as her assailant. Under New York law, evidence of the pretrial identification had to be excluded. Evidence of identification came primarily from an FBI agent, an expert in DNA analysis. He reported that in his DNA profiling test, four out of six “genetic loci” that he tested from anal and vaginal swabs taken from the victim matched the known blood sample of the defendant. The agent-expert concluded “that the probability of selecting another individual, at random from the population that would have the same set of DNA profiles was less than 1 in 500 million for the black, the white, and the Hispanic populations.” 630 N.Y.S.2d at 632. The only other evidence of identity was the testimony of an acquaintance of the defendant who saw him in the vicinity of the crime three days before the crime took place. See id.

The Rush court observed that the evidence of the defendant’s guilt was circumstantial and that DNA profiling evidence was a relatively new theory in New York trials. The court cited People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451, 453 (1994), in which New York highest state court determined that DNA evidence was admissible and that such “evidence consisting of unique genetic characteristics belonging to an individual, can provide strong evidence of a person’s presence and participating in a criminal act.” Rush, 630 N.Y.S.2d at 633 (emphasis added).

The Rush decision also considered the only two reported decisions upholding that criminal convictions where the sole evidence linking the defendant to the crime was DNA evidence. 630 N.Y.S.2d at 633. In Springfield v. State, 860 P.2d 435 (Wyo. 1993), the victim in a rape prosecution was unable to make an in-court identification of the defendant who only “resembles” her attacker. The DNA expert found a match between the defendant’s blood sample and samples recovered from a stain on the victim’s panties and from her anus. The probability that another Indian person would have the same DNA was estimated to be at 1 in 250,000. The Wyoming Supreme Court concluded that “the evidence was sufficient for ‘reasonable and rational individuals’ to conclude that the [defendant] was the perpetrator.” Springfield, 860 P.2d at 449.

The decision in People v. Soto, 35 Cal. Rptr.2d 846 (Cal.Ct.App.1994), cited by Rush, was later affirmed in 21 Cal.4th 512, 88 Cal.Rptr.2d 34, 981 P.2d 958 (Cal.1999). Soto upheld the defendant’s rape conviction where the identifying evidence came solely from DNA testimony. The victim was unable to identify her assailant because he wore a mask during the attack. A DNA match between a seminal stain on the victim’s bedspread and the defendant’s blood resulted in the statistical probability of 1 in 189 million that another Hispanic could have provided the sample. The California court determined that “corroboration of identifying evidence was not required for DNA comparison.” Soto, 35 Cal.Rptr.2d at 859.

The Rush opinion observed that the holdings in the Springfield and Soto cases are consistent with the recognition and approval lawyers and judges have recently bestowed on DNA evidence. Rush, 630 N.Y.S.2d at 633. The court then concluded:

Identification evidence from an eyewitness inculpating a defendant, which can be unreliable and the product of suggestiveness, would not be relied upon by a court in the face of contradictory DNA evidence. Why then should not the opposite be true — that DNA evidence should be relied upon, even in the face of contradictory eyewitness identification evidence exculpating a defendant? Indeed, that is exactly what the jury had done here in finding the defendant guilty.
The DNA evidence at the trial was the product of careful evaluation by a recognized expert in a prominent laboratory using a scientific technique to determine a statistical probability. The eyewitness identification evidence came from an injured and traumatized rape victim using impaired vision while in the unfamiliar capacity of a witness in a strange courtroom setting.
DNA evidence is not completely infallible — no evidence is. Although it has been proclaimed as “virtually infallible” and “a breakthrough that ‘could revolutionize law enforcement,’ ” this court is well aware that there may be “a significant margin of error in scientific analysis.” Critics of forensic science are able to cite examples of sloppy laboratory performance to support their claim that there is room for “drastic improvement.” There can be little doubt, however, that the perils of eyewitness identification testimony far exceed those presented by DNA expert testimony. Acquittals in criminal prosecutions based entirely on eyewitness identification evidence are legion, as are reversals and vacaturs of convictions premised entirely on such evidence. New York State courts have even given serious consideration to admitting expert testimony to discredit eyewitness identification evidence. See People v. Mooney, 76 N.Y.2d 827, 560 N.Y.S.2d 115, 559 N.E.2d 1274 (1990); see also People v. Green, 151 Misc.2d 194, 573 N.Y.S.2d 113 (N.Y.Co., S.Ct. 1991). Where the prosecution is confronted with an irreconcilable conflict between eyewitness identification evidence and DNA identification evidence, it is likely to rely on the DNA evidence. See People v. Dabbs, 154 Misc.2d 671, 587 N.Y.S.2d 90 (Westchester Co., S.Ct. 1991).
This court is, therefore, satisfied that the testimony of even one DNA expert that there is a genetic match between the semen recovered from the victim of a rape and the blood of the defendant, a total stranger, and the statistical probability that anyone else was the source of that semen are 1 in 500 million is legally sufficient to support a guilty verdict. The defendant’s motion for a trial order of dismissal is, therefore denied.

Rush, 630 N.Y.S.2d at 633-34.

In affirming the above quoted Rush decision, the Appellate Division, Second Department, of the Supreme Court of New York, wrote:

The defendant first claims that DNA evidence cannot serve as the sole evidence supporting his conviction because it is circumstantial in nature and is not absolute or infallible. This claim is not persuasive. Virtually no evidence is absolutely conclusive in its probative import, and the defendant cites no authority which imposes such a standard of absolute certitude (cf., People v. Geraci, 85 N.Y.2d 359, 367, 625 N.Y.S.2d 469, 649 N.E.2d 817; People v. Bethune, 105 A.D.2d 262, 271, 484 N.Y.S.2d 577; see, Springfield v. State, 860 P.2d 435 [Wyo]). Legal sufficiency “does not mean that absolute or metaphysical certainty is required” (People v. Eckert, 2 N.Y.2d 126, 129, 157 N.Y.S.2d 551, 138 N.E.2d 794). Further, it is well settled that “[c]ircumstantial evidence is not a disfavored form of proof and, in fact, may be stronger than direct evidence” (People v. Geraci, supra, at 369, 625 N.Y.S.2d 469, 649 N.E.2d 817; see also, People v. Benzinger, supra, [36 N.Y.2d 29,] at 32 [364 N.Y.S.2d 855, 324 N.E.2d 334]; People v. Leach, 57 A.D.2d 332, 336, 394 N.Y.S.2d 722, aff'd 46 N.Y.2d 821, 414 N.Y.S.2d 121, 386 N.E.2d 1088). It has been observed that “[e]ircumstan-tial evidence is frequently more rehable and stronger than direct proof by eyewitness testimony” (People v. Gallo, 75 A.D.2d 148, 153, 431 N.Y.S.2d 1009; People v. Benzinger, supra at 32; cf., People v. Mooney, 76 N.Y.2d 827, 828-833, 560 N.Y.S.2d 115, 559 N.E.2d 1274 [Kaye, J., dissenting]).

Rush, 672 N.Y.S.2d at 363-64.

Finding our conclusion in general accord with other states’ cases, we overrule appellant’s first point of error challenging the legal sufficiency of the evidence.

Factual Sufficiency

In his second point of error, appellant challenges the factual sufficiency of the evidence to support the conviction. A review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the conviction was legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). In a challenge to the factual sufficiency of the evidence, we view the evidence without employing the prism of “in the light most favorable to the verdict.” Id.; Stone v. State, 823 S.W.2d 375, 381 (Tex.App.— Austin 1992, pet. refd, untimely filed). A reviewing court must consider all of the evidence impartially, comparing evidence that tends to prove the existence of a disputed fact or facts with evidence that tends to disprove that fact or those facts. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). The verdict or judgment is to be set aside only when the factual finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. In factual sufficiency analysis, it must be remembered that the trier of fact is the sole judge of •the weight and credibility of the testimony. See Santellan, 939 S.W.2d at 164. Appellate courts should be on guard not to substitute their own judgment in these matters for that of the trier of fact. See id. One principle of a factual sufficiency analysis is deference to the findings of the jury or other fact finder. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Appellate courts should exercise their jurisdiction to review the factual sufficiency of the evidence only to prevent manifestly unjust results; they are not free to reweigh the evidence and set aside a jury verdict merely because the judges believe a different result is more reasonable. See Reaves v. State, 970 S.W.2d 111, 115 (Tex.App. — Dallas 1998, no pet.) (citing Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135). “A decision is not manifestly unjust merely because the jury [or fact finder] resolved conflicting views of the evidence in favor of the State.” Cain, 958 S.W.2d at 410. “Courts of Appeals are not at liberty to engage in fact finding.” Id. at 409. Yet, in Clewis, 922 S.W.2d at 133, the court also wrote: “In conducting the factual sufficiency review, an appellate court reviews the fact finder’s weighing of the evidence and is authorized to disagree with the fact finder’s determination.”

After the above was written, the Court of Criminal Appeals handed down Johnson v. State, No.1915-98, — S.W.3d -, 2000 WL 140257 (Tex.Crim.App. Feb.9, 2000), supposedly clarifying Clewis and addressing the factual sufficiency controversy. In Johnson, the court rejected the contention that the factual sufficiency review in criminal cases is “ ‘unworkable’ as it is generally applied.” Id. at-. In clarifying Clems, the court stated:

We conclude the Court of Appeals was correct in this respect, and the appropriate scope of the Clewis criminal factual sufficiency review does, in fact, encompass both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Because the State always carries the burden of proof to establish the elements of a criminal offense at trial, an appellant’s points of error challenging the sufficiency of the evidence used to establish the elements of the charged offense could claim that the evidence used to establish the adverse finding was so weak as to be factually insufficient. This is the most equitable approach, especially given the fact criminal defendants are not under any obligation to present evidence on their behalf and usually rely, instead, on forcing the State to prove its case beyond a reasonable doubt. Alternatively, in the event a defendant does muster contrary evidence, this standard of review allows him, if he so chooses, to present the argument on appeal that his evidence greatly outweighed the State’s evidence to the extent that the contrary finding is clearly wrong and manifestly unjust. We hold, therefore, that our opinion in Clems is to be read as adopting the complete civil factual sufficiency formulation. Borrowing in part from Justice Vance’s concurring opinion in Mata v. State, 939 S.W.2d 719, 729 (Tex. App. — Waco 1997, no pet.), the complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Adoption of this complete standard allows us to remain true to one of the stated goals of Clewis, harmonization, when appropriate, of civil and criminal jurisprudence, and it recognizes the State’s burden at a criminal trial is proof beyond a reasonable doubt.

Id. at-(footnote omitted).

Johnson is not yet final. The mandate has not yet issued. Thus, it is not binding precedent at this time. However, we will apply it here to prevent unnecessary remand. In the instant case, the issue in question is identity, an element of the offense upon which the State bore the burden of proof beyond a reasonable doubt. Although appellant cross-examined the State’s witnesses, he offered no evidence at all. Appellant’s claim falls under the first prong of the civil or Clewis-Johnson modified test. His second point of error will be reviewed as a claim that the evidence supporting the jury’s adverse finding of identity is so weak as to be factually insufficient.

The evidence need not be reiterated at length. The State’s evidence as to identity was based on the DNA (RFLP analysis) test supported by the DNA (PCR analysis) test, and the blood grouping test. Appellant offered no contrary evidence. We have examined all of the evidence impartially — a neutral review — and do not find that proof of identity is so obviously weak as to undermine the confidence in the jury’s determination. Giving due deference to the jury’s verdict, we conclude that the verdict is not so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. The second point of error is overruled.

The judgment is affirmed.

      . "DNA — deoxyribonucleic acid, [is] the chemical molecule inside cells which carries biological information. DNA is a double stranded molecule held together by weak hydrogen bonds between complementary base pairs of nucleotides (Adenine and Thymine; Guanine and Cytosine). This molecule carries genetic information from parent to offspring.” Robert D. Myers, Ronald S. Run-stein, & Gordon M. Griller, Complex Scientific Evidence and The Jury, 83 Judicature Nov.Dee. 1999 at 150.

      . The current code is cited for convenience. The offense occurred on November 4, 1990. The prosecution was under the Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, § 1, 1987 Tex. Gen. Laws 80. The law has remained unchanged despite amendments to the statute in 1993, 1995, 1997, and 1999.

      . The juiy’s general verdict did not distinguish between the two theories of the offense alleged. When different theories of an offense are submitted to the jury in the disjunctive as in the instant case, a general verdict is sufficient if the evidence supports one of the theories. See Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex.Crim.App.1991).

      . We deal here with the issues presented, not with the cases where DNA evidence has been used to exclude suspects or exonerate convicted defendants.

      . R.P. testified that she "set” the security system before she retired. Why it did not work was not clearly explained.

      . The RFLP analysis has been discussed in many cases and periodicals. See, e.g., State v. Futrell, 112 N.C.App. 651, 436 S.E.2d 884, 888 (1993); Judith E. Lewter, Note, The Use of Forensic DNA in Criminal Cases in Kentucky as Compared with Selected Other States, 86 Ky. L.J. 223 (Fall 1997/1998).

      . On the panty liner, Lockhoof revealed that in addition to appellant's semen, the semen of another male was found. R.P. testified that on the night before her husband left on his hunting trip they had had sexual intercourse, and she had not changed her panty liner since that time.

      . Lockhoof stated that the 1996 National Research Council Report II recommended a database of at least 200 samples for use on DNA case work. See generally National Research Council, Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence (1996).

      . The record reflects that DNA samples and specimens were sent by the DPS laboratory to the Gen Screen laboratory in Dallas. In the absence of the jury, appellant’s counsel admitted that the Gen Screen lab had been retained by appellant to perform DNA testing on the samples, that the results had been received, but the results would not be offered by appellant. It has been said that a "wrongly accused person's best insurance against the possibility of being falsely incriminated is the opportunity to have the testing repeated.” United States v. Lowe, 954 F.Supp. 401, 416 (D.Mass.1996), aff'd, 145 F.3d 45 (1st Cir. 1998) (quoting National Research Council Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence at 3-11 (1996)).

      . See Roberson v. State, No. 03-96-00067-CR, 1997 WL 420979 (Tex.App. — Austin July 24, 1997, no pet.) (not designated for publication).

      . Interestingly, the four extraneous offenses all involved the same type of offense and revealed a distinctive modus operandi that was so unusual as to mark each offense as one person’s handiwork or signature. See Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim. App.1996); Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996); Barrett v. State, 900 S.W.2d 748, 750 (Tex.App. — Tyler 1995, pet. ref’d). When extraneous offense evidence is offered to prove identity on a modus operandi theory, it is, of course, crucial that the two offenses share distinguishing characteristics common to both. See Dickey v. State, 646 S.W.2d 232, 235 (Tex.Crim.App.1983); Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim.App.1981).
      Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show that he acted in conformity therewith. See Tex.R. Evid. 404(b); Taylor, 920 S.W.2d at 321; Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991) (op. on reh’g). However, extraneous offense evidence may be admissible to prove an elemental fact or an evidentiary fact of consequence to the determination of the case. See Vernon v. State, 841 S.W.2d 407, 411 (Tex.Crim.App. 1992). In this regard, Rule 404(b) also provides that such evidence may be admissible for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R. Evid. 404(b). Thus, when identity is an issue in a case, and the proper foundation or predicate is laid, an extraneous offense may be admissible at the guilt/innocence stage of the trial to show identity. See Lane, 933 S.W.2d at 519; Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim.App.1985).

        Here, identity was an elemental fact the State was required to prove. The complainant was unable to identify appellant as her assailant. Appellant cross-examined the State’s expert witnesses on this issue. The State’s need for the extraneous offense evidence was great. See Pena v. State, 867 S.W.2d 97, 99 (Tex.App. — Corpus Christi 1993, pet. refd). It appears that the extraneous offense evidence would have been relevant evidence at the guilt-innocence stage of the trial provided its probative value was not substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. The State, however, used the evidence only at the penalty stage of the trial.

      . Kelly further explained how the reliability prong of the test of admissibility should be met. To be considered reliable, scientific evidence must satisfy three criteria. First, the underlying scientific theory must be valid. Second, the technique applying the theory must be valid. Third, the technique must have been properly applied on the occasion in question. See id. at 573; Griffith v. State, 976 S.W.2d 241, 244 (Tex.App. — Amarillo 1998, pet. refd).
      A test similar to Kelly applies under the federal rules. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). For a discussion of the Daubert and Kelly standards and the standards now applicable to non-scientific expert testimony, see Roise v. State, 7 S.W.3d 225 (Tex.App. — Austin 1999, pet. filed); compare Nations v. State, 944 S.W.2d 795 (Tex.App. — Austin 1997, pet. refd).

      . The defendant was shown to be a se-cretor — that is, he secretes traces of blood in his bodily fluids, such as saliva or semen. See Williams, 848 S.W.2d at 916.

      . Caution is advised. Each case based on properly analyzed DNA evidence must stand on its own merits. Other admissible identity evidence should not be disregarded.


source: Caselaw Access Project

author: TIM TAFT, Justice.

license: Public Domain

text:
    Wayne SCOTT, Appellant, v. Wallace R. BRITTON, Sr., and Nancy Murphy, as next friend of Norman Britton, a minor, Appellees.
    No. 01-99-01101-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 13, 2000.

      Richard D. Naylor, Austin, for appellant.
    Monica Celeste Vaughan, Houston, for appellee.
    Panel consists of Justices MIRABAL, TAFT, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

TIM TAFT, Justice.

Wallace Britton, Jr., (the deceased), died from heat stroke while confined on a broken-down prison bus in hot weather. Ap-pellees, Wallace R. Britton, Sr., father of the deceased, and Nancy Murphy, as next friend of Norman Britton, son of the deceased, brought suit against appellant, Wayne Scott, Director of the Texas Department of Criminal Justice — Institutional Division (TDCJ). Appellees asserted state claims of negligence, survival action and wrongful death damages, and federal violations of due process and Eighth Amendment rights. Scott challenges the trial court’s granting the appellees’ motion for summary judgment while denying his motions for summary judgment, all of which concerned Scott’s affirmative defense of immunity. We address (1) whether Scott established as a matter of law that he is entitled to official immunity for ap-pellees’ state law claims, (2) whether Scott, in his official capacity, is entitled to summary judgment on the section 1983 claim, and (3) whether Scott, in his individual capacity, is entitled to summary judgment on the section 1983 claim. We reverse and render.

Facts

During the summer of 1995, the deceased and approximately 45 other psychiatric inmates were being transported by bus from the Jester IV Unit near Richmond, Texas, to the Montford hospital at Lubbock, Texas. The unairconditioned bus broke down in 100-degree weather. The correctional officers on the bus immediately notified their supervisors, called for local law enforcement assistance, called a local mechanic, and made ice water available to the inmates. During the two-hour wait, neither the deceased nor any of the inmates on the bus were allowed off the bus. The deceased suffered a heat stroke that day and died two days later. The deceased was under medication prescribed by physicians working for the Texas Department of Criminal Justice (TDCJ) as part of his treatment. Some of his medications could predispose a patient to heat stroke.

Procedural History

Appellees sued the TDCJ, Scott, and the three guards who were on duty when the bus broke down. Appellees alleged state claims of negligence, wrongful death and survival action damages, and federal violations of the deceased’s Due Process and Eighth Amendment rights under section 1983.

Scott filed a motion for summary judgment claiming he was entitled to summary judgment on appellees’ claim under section 1983. In that motion, Scott argued that appellees’ allegations against him did not support a claim of deliberate indifference under the Eighth Amendment or a due process claim under the Fourteenth Amendment, that negligence claims do not give rise to constitutional claims under section 1983, that Scott was not a “person” under section 1983 in his official capacity, that the section 1983 claims brought against him in his individual capacity were barred by the two-year statute of limitations, and that Scott was entitled to qualified immunity.

Appellees filed a no-evidence motion for summary judgment on Scott’s affirmative defense of official immunity. Appellees claimed that Scott had not brought forward any evidence on each of the elements required for official immunity: (1) that Scott was performing discretionary duties; (2) undertaken in good faith; (3) while acting within the scope of his authority.

Scott filed a supplemental motion for summary judgment claiming he was entitled to official immunity regarding appel-lees’ state law claims. Scott argued he was entitled to official immunity because his actions were discretionary, he acted in good faith, and he acted within the scope of his authority.

The trial court denied Scott’s motions and granted appellees’ motion for summary judgment. Scott has timely perfected this interlocutory appeal. Generally, no appeal may be taken from the denial of a summary judgment. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980); Community Mut. Ins. Co. v. Owen, 804 S.W.2d 602, 605 (Tex.App. — Houston [1st Dist.] 1991, writ denied). One of the recognized exceptions is:

A person may appeal from an interlocutory order of a district court that ... denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state.

Tex. Crv. Prac. & Rem.Code Ann. § 51.014(5) (Vernon 1997). Therefore, we are authorized to consider Scott’s assertion of immunity.

Standard of Review

Both of Scott’s motions for summary judgment sought traditional summary judgment under rule 166a(c). Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex.App.— Houston [1st Dist.] 1994, writ denied). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in his favor. Randall’s Food Mkts., 891 S.W.2d at 644; Lawson, 888 S.W.2d at 33.

Appellees presented a no-evidence motion for summary judgment, pursuant to rule 166a(i), under which the non-movant has the burden to bring forward evidence raising a genuine issue of material fact on the challenged elements. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App. — Houston [1st Dist.] 1999, no pet.).

When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented. Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court should render the judgment that the trial court should have rendered. Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex. 1984).

TTCA: Official Immunity

In his first issue, Scott argues the trial court erred in denying his motion for summary judgment because he is entitled to official immunity against appellees’ state law claims. Government employees or officials are entitled to immunity from suit arising from the performance of (1) discretionary duties (2) executed in good faith (3) while acting within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Font v. Carr, 867 S.W.2d 873, 879 (Tex.App.— Houston [1st Dist.] 1993, writ dism’d w.o.j.).

A. Discretionary Duty

This Court must determine if the conduct in question is discretionary or ministerial. An official is not entitled to immunity when he performs a ministerial duty. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994). If an act involves personal deliberation, decision, and judgment, it is discretionary; actions that require obedience to orders, or the performance of a duty to which the actor has no choice, are ministerial. Chambers, 883 S.W.2d at 654; City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex.App. — Houston [1st Dist.] 1995, no writ).

The appellees maintain that in adopting and implementing of procedures and policies to properly provide for the safety of inmates like the deceased, Scott’s conduct was ministerial. Appellees specifically state in their brief, “Given the likelihood of these buses breaking down, policies and procedures should have been instituted to prevent prisoners like the deceased from suffering a heat stroke.” Appellees contend that instituting these policies and procedures is a required act that leaves no room for judgment or deliberation because the TDCJ is required to provide safe confinement for inmates. See Tex. Govt.Code Ann. § 494.001 (Vernon 1998) (“The mission of the institutional division is to provide safe and appropriate confinement, supervision, rehabilitation, and reintegration of adult felons, and to effectively manage or administer correctional facilities based on constitutional and statutory standards”).

Scott’s summary judgment evidence included the procedure manual that he approved and was in effect at the time of the incident. This manual provides guidelines for officers transporting inmates. The manual specifies rules officers are to follow when the bus breaks down, when the bus breaks down in remote areas, and when a medical emergency occurs during the transport of inmates. In the event a bus transporting inmates breaks down hundreds of miles from a TDCJ Unit, the manual requires that officers contact their supervisor, call for a wrecker, maintain the security of the vehicle, and contact local law enforcement. In the event of a medical emergency, an officer is directed not to open the security cage, but to determine what is wrong, and drive to the nearest TDCJ Unit or seek local law enforcement help. Scott testified that decisions regarding whether it was safe to unload the bus during a breakdown or emergency were left to the discretion of the officers on the bus. Scott produced this manual as proof that he had complied with Government Code section 494.001 and that the duties specified were discretionary.

Appellees do not argue that the officers failed to comply with these guidelines, but that Scott should have promulgated better guidelines to account for the weather, long distances between units, and the likelihood of mechanical breakdown in the heat. Appellees do not refer us to any authority to support their claim that the failure to do a job better makes a duty ministerial as opposed to discretionary, and we have found none. There is no question that the manual promulgated by Scott could have been more thorough by accounting for the threat of a breakdown during the summer months. The potential to do better does not in any way determine whether a duty is discretionary, however. The key issue remains whether the action involved personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654; Bamstone, 921 S.W.2d at 272.

While the manual dictates specific duties of the officers, Scott stated, in deposition testimony, that officers were still expected to use their discretion in deciding whether it was safe and feasible to remove prisoners from the bus during a breakdown. The focus is not on whether the guards’ conduct is discretionary, however, but on whether Scott’s conduct in drafting the manual for the safe transportation of inmates is discretionary.

We fail to see how Government Code section 494.001, which establishes a generic duty to provide safe confinement for inmates, makes the promulgation of particular policies and procedures for the safe transportation of inmates a ministerial function. Government Code section 494.001 is “not sufficiently specific so as to leave no choice to an officer in the performance of these duties.” Chambers, 883 S.W.2d at 655. Appellees suggest that various means and methods of transportation and confinement during a breakdown could have been used to ensure the safety of the inmates. Recognizing that options were available to Scott in promulgating safety guidelines or procedures dealing with a breakdown during the transportation of inmates implies that personal deliberation, decision, and judgment were involved. See Kassen, 887 S.W.2d at 9. Complying with Government Code section 494.001 does not require Scott to obey orders or perform a duty about which he has no choice. See Chambers, 883 S.W.2d at 655; Bamstone, 921 S.W.2d at 272. Scott’s act of promulgating a manual for the safe transportation of inmates involved personal deliberation, decision and judgment, and was therefore discretionary. Chambers, 88B S.W.2d at 654; Barnstone, 921 S.W.2d at 272.

B. Good Faith

This Court must measure good faith in official immunity cases against a standard of objective reasonableness, without regard to the official’s subjective state of mind. Chambers, 883 S.W.2d at 656; Cobb v. Texas Dept. of Grim. Justice, 965 S.W.2d 59, 64 (Tex.App. — Houston [1st Dist.] 1998, no pet.). This determination requires a two-part test that balances the seriousness of the situation, as well as the alternatives available to the official, against “the nature and severity of harm that the officer’s actions could cause, the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.” Wadewitz v. Montgomery, 951 S.W.2d 464, 467 (Tex. 1997); Cobb, 965 S.W.2d at 64. To be entitled to summary judgment, an official must prove that a reasonably prudent official might have believed that the action taken was appropriate. Chambers, 883 S.W.2d at 656-57; Gallia v. Schreiber, 907 S.W.2d 864, 869 (Tex.App. — Houston [1st Dist.] 1995, no writ). The official need not prove that it would have been unreasonable to take different action, nor that all reasonably prudent officers would have acted as he did. Chambers, 883 S.W.2d at 656-57; Gallia, 907 S.W.2d at 869.

Scott’s testimony that the manual he promulgated allowed officers to use their discretion during emergency situations indicates that Scott took the risks involved into consideration. Scott produced summary judgment evidence demonstrating that his actions in adopting and implementing safety procedures for the transportation of inmates were reasonable. Scott stated in an affidavit that he promulgated the policies and procedures regulating the transportation of inmates after proper study, research, and recommendations from his staff. Finally, Scott stated that any reasonable director of a penal system could have adopted these same procedures for transportation, classification, and inmate transfer. Consequently, Scott has shown that his actions in adopting the procedures in effect on the date of the deceased’s death were objectively reasonable. Appellees offered no summary judgment evidence to dispute this testimony and have not challenged it on appeal.

C. Scope of Authority

Appellees have stipulated that, at all material times, Scott was acting within the scope of his authority as director of TDCJ. Because Scott’s summary judgment evidence established he was engaged in the performance of discretionary duties in good faith within the scope of his authority, he is entitled to official immunity. See Chambers, 883 S.W.2d at 653; Font, 867 S.W.2d at 879.

We sustain Scott’s first issue.

Section 1983

In issues two through four, Scott argues that the trial court erred in denying his motion for summary judgment on appel-lees’ section 1983 claim. Scott claims that appellees’ claims are barred because Scott, in his official capacity, is not a “person” under section 1983. In his individual capacity, Scott argues that he is entitled to qualified immunity from suit under section 1983.

A. Official Capacity

Appellees have brought a claim against Scott under section 1983 for violations of the deceased’s Eighth Amendment right against cruel and unusual punishment and Fourteenth Amendment right to due process. Scott argues in his third issue that he is not a proper defendant under section 1983 because, as a governmental official in his official capacity, he is not a “person” under section 1983. Section 1988 of the Civil Rights Act provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1988 (emphasis added).

A suit against a state official in his official capacity is not a suit against the official but the official’s office and the state for which the official is an agent. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); City of Hempstead v. Kmiec, 902 S.W.2d 118, 122 (Tex.App. — Houston [1st Dist.] 1995, no writ). The suit is therefore the same as one brought directly against the state. Will, 491 U.S. at 71, 109 S.Ct. at 2312; Kmiec, 902 S.W.2d at 122. In addressing this exact issue, the United States Supreme Court has held that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will, 491 U.S. at 71, 109 S.Ct. at 2312; see Harrison v. Texas Dep’t of Crim. Justice, 915 S.W.2d 882, 889-90 (Tex.App. — Houston [1st Dist.] 1995, no writ). Therefore, Scott, in his official capacity, is entitled to summary judgment on appellees’ section 1983 claim.

We sustain the portion of Scott’s third issue dealing with official capacity.

B. Individual Capacity

In his second and fourth issues, Scott contends he is entitled to qualified immunity, in his individual capacity, from appellees’ section 1983 claim. The doctrine of qualified immunity shields an official performing discretionary functions from liability for civil damages under section 1983, provided the official’s conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Thomas v. Collins, 860 S.W.2d 500, 503 (Tex.App. — Houston [1st Dist.] 1993, writ denied). A legal right is “clearly established” when the “contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). After a governmental official asserts the affirmative defense of qualified immunity, the burden shifts to the plaintiff to show that the defendant’s conduct violated clearly established statutory or constitutional rights of which a reasonable person would have been aware. Whatley v. Philo, 817 F.2d 19, 20 (5th Cir.1987); Thomas, 860 S.W.2d at 503. We examine the appellees’ section 1983 claim to determine which constitutional rights they claim were violated, and then decide if appellees pled the violation sufficiently. Brown v. Texas A & M Univ., 804 F.2d 327, 333-34 (5th Cir.1986); Thomas, 860 S.W.2d at 503.

1. Fourteenth Amendment: due process

The United States Supreme Court has held that acts of negligence by state officials that result in unintended loss or injury to life, liberty, or property do not constitute a due process violation under the Fourteenth Amendment. Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986). In circumstances similar to the facts of this case, the Court of Appeals for the Fifth Circuit has held that the conduct of state officials was merely negligent and did not implicate due process concerns. Lemoine v. New Hori zons Ranch & Center, Inc., 174 F.3d 629, 636-36 (5th Cir.1999).

Lemoine involves a 12-year-old boy who was under the managing conservatorship of the Texas Department of Protective Regulatory Services. While at New Horizons Ranch, he was forced to work as part of a behavior-modification program that involved moving 40-pound rocks all day with temperatures reaching 103 degrees. Id. at 631. The boy had been prescribed a complex diet of anti-psychotic and psychotropic drugs whose side effects made him hypersensitive to light and less able to dissipate heat. Id. at 631. The boy died 32 days after being transferred to the New Horizons Ranch. Id. at 632. The boy’s mother sued many individuals, from those who were at the scene on up to supervisory officials with positions similar to Scott’s. Id. at 633. As in our case, the defendants in Lemoine appealed the district court’s denial of their motion for summary judgment based on qualified immunity. Id. at 633. The appellate court held that the conduct of state officials was merely negligent, at most. Id. at 636.

Here, as in Lemoine, appellees have pled facts that could only rise to the level of negligence. Consequently, they have not pled sufficient facts showing that Scott’s conduct violated clearly established constitutional or statutory rights of which a reasonable person would have been aware, and have thus not sufficiently pled a due process violation. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Brown, 804 F.2d at 333-34; Thomas, 860 S.W.2d at 503.

2. Eighth Amendment: cruel and unusual punishment

In cases involving a failure to prevent harm, the plaintiff must demonstrate an incarceration under conditions posing a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994). An Eighth Amendment violation occurs when the deprivation alleged is objectively serious and the prison official acted with deliberate indifference to inmate health and safety. Id. This requires “more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). Moreover, the prison official must “know of and disregard an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 838, 114 S.Ct. at 1979. This means the official must be aware of facts from which it could be inferred that a substantial risk of serious harm exists, and must draw that inference. Id. Thus, proof of deliberate indifference requires a showing of subjective recklessness. Id. 511 U.S. at 839, 114 S.Ct. at 1980 (defining “reckless” as “consciously disregarding] a substantial risk of serious harm.” by adopting Model Penal Code § 2.02(2)(e)).

Appellee claims the policy and procedures dispensed by Scott violated the deceased’s Eighth Amendment right against cruel and unusual punishment. Specifically, appellees argue that forcing the deceased to stay on a broken-down bus with 45 other men in 100-degree weather, while on heat-stress inducing drugs, was cruel and unusual punishment that led to the eventual death of the deceased. Here again, the focus of this analysis is not on the action of the prison guards who decided to keep the prisoners on the bus, but on the policy and procedures promulgated by Scott that allowed the guards to use theft discretion in determining whether to remove the prisoners from the bus during the breakdown.

Scott’s conduct does not rise to the level of subjective recklessness. We agree that the deceased’s particular circumstances posed a substantial risk of serious harm. See Farmer, 511 U.S. at 834, 114 S.Ct. at 1977. However, it cannot be said that Scott acted with subjective recklessness in promulgating safety regulations that did not adequately provide for prisoners in this unique situation. Assuming all of the allegations by appellees are true, they do not support a conclusion that Scott was aware of, or should have been aware of, the substantial risk of harm to the deceased and consciously disregarded that risk. Id., 511 U.S. at 839, 114 S.Ct. at 1980.

At worst, Scott’s actions rose to a level of negligence. Because due process analysis shows mere negligence, Scott’s conduct does not rise to the level of subjective recklessness under an Eighth Amendment analysis. See Lemoine, 174 F.3d at 635-36. Consequently, the circumstances do not indicate that Scott’s conduct violated clearly established constitutional or statutory rights of which a reasonable person would have been aware. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Thomas, 860 S.W.2d at 503. Likewise, taking ap-pellees’ allegations as true, they do not show an Eighth Amendment violation. See Brown, 804 F.2d at 333-34 (5th Cir. 1987); Thomas, 860 S.W.2d at 503. Therefore, Scott, in his individual capacity, is entitled to qualified immunity and summary judgment on appellees’ section 1983 claim.

We sustain Scott’s second and fourth issues.

Conclusion

We reverse the judgment of the trial court, which rendered summary judgment in favor of the appellees and denied Scott’s motions for summary judgment, and render judgment in favor of Scott against appellees’ claims under state and federal law.

      . 42 U.S.C.A. § 1983 (Civil Rights Act of 1964).

      . Appellees allege that all defendants violated the Texas Tort Claims Act (TTCA). The TTCA does not create a cause of action. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Rather, the TTCA merely waives sovereign immunity allowing the state to be sued under particular circumstances. Id. We interpret the substance of appellees’ petition to allege negligence and wrongful death and survival actions.

      . In his third issue, Scott also raises the issue of statute of limitations. We do not address this argument because the other issues raised are dispositive.