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Derrick
Leon JACKSON
Classification: Murderer
Characteristics: Robbery
Number of victims: 2
Date of murders:
September 11,
1988
Date
of arrest:
April
1995
Date of birth: June
13,
1968
Victims profile: Forrest Henderson,
31, and Alan Wrotenberry, 31
Method of murder: Stabbing
with knife
Location: Harris County, Texas, USA
Status: Executed
by lethal injection in Texas on July 20,
2010
The United States Court
of Appeals For the Fifth Circuit
Forrest Henderson and Alan Wrotenberry were Houston Grand Opera
singers who lived in Henderson’s apartment. Wrotenberry was also
employed at Deer Park Elementary School as a music teacher.
When he failed to appear for work police were
called and found Wrotenbery's body on the floor of his bedroom. He
was wearing only a pair of swimming trunks. In the other bedroom,
officers found the nude body of his roommate, Forrest Henderson.
Blood was all over the bedroom walls, doors, and curtains. Police
found a bloody metal bar in the hallway and a bloody knife in the
kitchen sink. Both victims had been beaten and repeatedly stabbed/slashed.
The wallets of both were missing and Henderson's car was gone.
There were no signs of forced entry into the apartment.
For seven years the murders went unsolved. Then,
in 1995 a sophisticated new fingerprint technology linked a bloody
print from Henderson's apartment to Derrick Jackson, a Houston man
serving 12 years for an unrelated aggravated robbery. Following
this identification, police also matched the blood and DNA
evidence from the crime scene to Jackson, who denied any
involvement.
Citations:
Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000). (Direct
Appeal) Jackson v. Quarterman, 265 Fed.Appx. 352 (5th Cir. 2008).
(Habeas)
Final/Special Meal:
Fried chicken (2 legs, 2 thighs), BBQ ribs, French fries, German
chocolate cake, 2 bananas, Ice water, and Ketchup and BBQ sauce.
Last Words:
Declined.
ClarkProsecutor.org
Name
TDCJ
Number
Date
of Birth
Jackson, Derrick L.
999263
06/13/68
Date
Received
Age (when Received)
Education Level
04/22/98
29
11 years (GED)
Date
of Offense
Age
(at the Offense)
County
09/11/88
20
Harris
Race
Gender
Hair
Color
Black
Male
Black
Height
Weight
Eye
Color
5-1
160
Brown
Native
County
Native
State
Prior
Occupation
Harris
Texas
Cook
Prior
Prison Record
TDCJ #636320, received on 3/10/93
from Harris County and sentenced to 12 yrs. for agg. robbery
with a deadly weapon.
Summary of incident
On September 11, 1998, Jackson
entered the apartment of a male and used a metal bar to beat him.
Jackson also used a knife to stab the victim to death.
Jackson
then beat and stabbed to death the victim’s male roommate.
Jackson then took the victim’s car and was involved in a high-speed
chase with the Houston Police Department.
The automobile was
abandoned and Jackson fled on foot. He was not captured.
Jackson
was later arrested for the crime while he was incarcerated in
TDCJ on an unrelated aggravated robbery charge.
Co-defendants
None
Race
and Gender of Victim
Two unknown males
Texas
Department of Criminal Justice
Jackson, Derrick L.
Date of Birth: 6/13/68
DR#: 999263
Date Received: 4/22/98
Education: 11 years (GED)
Occupation: Cook
Date of Offense: 9/11/88
County of Offense: Harris
Native County: Harris
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 01"
Weight: 160
Prior Prison Record: TDCJ #636320, received on
3/10/93 from Harris County and sentenced to 12 yrs. for agg.
robbery with a deadly weapon.
Summary of incident: On September 11, 1988,
Jackson entered the apartment of a male and used a metal bar to
beat him. Jackson also used a knife to stab the victim to death.
Jackson then beat and stabbed to death the victim's male roommate.
Jackson then took the victim's car and was involved in a high-speed
chase with the Houston Police Department. The automobile was
abandoned and Jackson fled on foot. He was not captured. Jackson
was later arrested for the crime while he was incarcerated in TDCJ
on an unrelated aggravated robbery charge.
Co-Defendants: None.
Texas Attorney General
Tuesday, July 13, 2010
Media Advisory: Derrick Jackson scheduled for
execution
AUSTIN – Texas Attorney General Greg Abbott
offers the following information about Derrick Leon Jackson, who
is scheduled to be executed after 6 p.m. on Tuesday, July 20,
2010. A Harris County jury found Jackson guilty of capital murder
for killing Forrest Henderson and Alan Wrotenberry.
FACTS OF THE CRIME
Forrest Henderson and Alan Wrotenberry were
Houston Grand Opera singers who lived in Henderson’s apartment. On
Monday, September 12, 1988, Alan Wrotenberry failed to appear for
work at Deer Park Elementary School, where he was employed as a
music teacher. At 9 a.m., the school principal contacted Henderson’s
apartment manager to check on Wrotenberry. The manager unlocked
Henderson’s apartment door and found nothing disturbed in the
living room and kitchen. He proceeded to one of the bedrooms,
pushed open the door, and saw a body covered with blood. He
promptly left and called 911.
Police officers arrived at the apartment soon
thereafter and detected no signs of forced entry. They found
Wrotenberry’s and Henderson’s bodies in their respective bedrooms
at opposite ends of the apartment.
Henderson’s nude body was lying face-down in
his bed, and Wrotenberry’s body, clad only in a pair of swimming
trunks, was lying on the floor of his bedroom. Police found a
bloody metal bar in the hallway and a bloody knife in the kitchen
sink. Blood was all over the bedroom walls, doors, and curtains.
Both victims’ wallets were missing, and Henderson’s car was gone.
Two or three days later the car was recovered after a chase
following a burglary at a mall, but the driver was not apprehended.
Apart from the burglary, police recovered no other evidence from
the car.
A forensic pathologist testified that Alan
Wrotenberry suffered a severed carotid artery, cuts to the
vertebrae, and at least three blows to the back of the head with a
narrow blunt instrument, such as a pipe. Forrest Henderson
received a shallow, non-fatal cut to the neck, defensive wounds on
both arms, a six-inch fracture of the skull from blunt force, and
multiple stab wounds to the torso. Fixed lividity in both bodies
signified that both victims were dead for more than eight hours
before they were found.
Blood samples and 20 identifiable fingerprints
were collected from the crime scene, but the Houston Police
Department (HPD) was unable to develop leads to a suspect.
In 1995, HPD upgraded to a new fingerprint
system with an expanded database. The new system matched Jackson
with prints lifted from a beer can and a glass tumbler in
Henderson’s bedroom. A bloody print found on Henderson’s bedroom
door also matched Jackson. An HPD serologist testified that type-B
blood was found on a bedroom door. Jackson is blood-type B; both
victims were blood-type A. Police found no other identifiable
blood type sample at the crime scene. A DNA expert testified that
Jackson’s DNA profile matched DNA from stains on a red towel and a
beige towel located in Henderson’s bathroom.
David Trujillo, who lived next door to
Henderson and Wrotenberry, told police that around 10:30 p.m. on
September 10, 1988, he heard music and Henderson’s voice through
the common wall separating their apartments. Trujillo went to
sleep around 2 a.m. and was awakened at 4:45 a.m. by the sound of
Wrotenberry screaming “Oh my God. No. No,” several times. Trujillo
also heard what sounded like someone being hit numerous times with
a pipe or baseball bat. After 30 minutes of silence, he heard the
water running for about 45 minutes. Trujillo never heard Henderson’s
front door open or anyone leave.
THE PENALTY PHASE EVIDENCE
The State presented evidence that Jackson
snatched a woman’s purse in 1990. The State also presented
evidence that Jackson robbed two other victims of their purses at
gunpoint, and attempted to steal a car.
PROCEDURAL HISTORY
6/19/97 -- Jackson was indicted for capital
murder by a Harris County grand jury.
3/12/98 – A jury found Jackson guilty of capital murder.
3/17/98 – After a separate penalty hearing, Jackson was sentenced
to death.
5/17/00 – The Texas Court of Criminal Appeals affirmed Jackson’s
verdict and sentence.
1/6/00 – Jackson filed a state application for a writ of habeas
corpus.
12/1/04 – The Texas Court of Criminal Appeals affirmed the denial
of habeas relief.
11/30/05 – Jackson filed a petition for writ of habeas corpus in
U.S. district court.
2/12/07 – The district court granted the state’s motion for
summary judgment and denied relief.
3/9/07 – Jackson appealed to the United States Court of Appeals
for the Fifth Circuit.
2/14/08 – The U.S. Fifth Circuit Court of Appeals affirmed.
5/23/08 – Jackson filed a petition for a writ of certiorari in the
U.S. Supreme Court.
10/6/08 – The Supreme Court denied Jackson’s petition for a writ
of certiorari.
10/28/08 – Jackson filed a Rule 60(b) motion in the federal
district court.
3/31/09 – Th federal district court denied Jackson’s Rule 60(b)
motion.
4/13/09 – Jackson appealed the denial of his Rule 60(b) motion.
10/9/09 – The Fifth Circuit affirmed the denial of Jackson’s Rule
60(b) motion.
7/20/10 – Jackson is set to be executed on this date.
Man executed for deaths of 2 Houston opera
singers
By Michael Graczyk - The Houston Chronicle
AP - July 20, 2010
HUNTSVILLE, Texas — A man who maintained he was
unfairly convicted of the 1988 slayings of two Houston opera
singers was executed Tuesday evening. Derrick Jackson, 42, was put
to death for the fatal beatings and slashings of Forrest Henderson
and Richard Wrotenbery. The two 31-year-old men were in the
Houston Grand Opera chorus.
Their September 1988 slayings inside
Henderson's apartment went unsolved for years until a bloody
fingerprint from the murder scene was matched to Jackson. By then,
in 1995, Jackson already was in prison serving a 12-year term for
aggravated robbery.
Jackson said nothing when the warden asked if
he would like to make a final statement. He never moved, staring
at the ceiling of the death chamber, as the lethal drugs began,
then gasped several times as they took effect. Eight minutes later,
at 6:20 p.m. CDT, he was pronounced dead.
Jackson's father, who wept quietly, and two
brothers were among people watching the execution. Carl Wrotenbery,
the father of one of his victims, was in an adjacent witness room.
No last-day appeals were made to the courts Tuesday to try to
block the 15th lethal injection this year in Texas, the nation's
most active death penalty state. The Texas Court of Criminal
Appeals rejected an appeal Monday, and the Texas Board of Pardons
and Paroles turned down a clemency request.
In a recent interview from death row, Jackson
told The Associated Press he didn't want to die but wasn't scared.
"It's more a reluctance that it had to come to this," he said. "It's
like you have terminal disease for a number of years and finally
they say you're not going to be able to live with it any longer so
you're going to have to get your affairs together with your family
and within yourself."
Jackson was arrested in 1992 for three
robberies and took a plea bargain that sent him to prison. He was
there when detectives working cold cases and using new computer
databases matched his fingerprint to one at the scene of the
murders.
Jackson said bad decisions led to burglaries
and robberies and ultimately the prison term, but he denied
involvement in the killings. Fingerprints on a beer can, a glass
and a door knob were linked to Jackson. Stains on bathroom towels
matched his DNA. "Technology caught up with him," said Bill
Hawkins, a Harris County district attorney who prosecuted the
case. Hawkins said the odds against the DNA match actually
belonging to someone other than Jackson were "off the charts."
Richard Wrotenbery also taught music at an
elementary school in the Houston suburb of Deer Park. He'd been
house-sitting at Henderson's apartment following a divorce until
he could find a place of his own. Henderson had just returned to
Houston after performing with the opera in Scotland. The day of
the slayings, Sept. 10, 1988, Wrotenbery and Henderson, both
tenors, had been rehearsing for an opera production of Bizet's
Carmen. Wrotenbery went to the apartment after rehearsals. Jackson
hit some bars, may have met Jackson there and took him home.
Evidence showed Henderson was stabbed in the
chest. Wrotenbery's throat was slashed. Both were bludgeoned with
a heavy metal bar that could have been part of a weight set.
Wrotenbery may have been asleep when he was killed.
"I'm relieved that it's over," Carl Wrotenbery,
80, said after watching his son's killer die. "It's something that
had to be done. I did not look forward to it." He said he came to
Huntsville from his home in Fort Worth, about 175 miles away, out
a "sense of duty and responsibility" to his family and that he
found Jackson's silence at the end "disappointing" but not
unexpected. "I didn't expect any pleasure and I certainly didn't
receive any," Wrotenbery said.
Jackson said from prison he realized "two
people lost their lives and I feel for their families." "I saw the
pictures. It was a savage scene," he said, adding that he
understood jurors had to "do something when two guys were killed
like that." But when they found him guilty, "It kind of blew me
away," he said. "I didn't do it."
The men's wallets were taken along with
Henderson's car. A Houston traffic officer tried to pull over the
car for speeding, but the driver fled, leading police on a chase
until the car crashed. The driver managed to run off and escape.
An administrator from the school district where Wrotenbery taught
called the apartment manager when the teacher didn't show up for
work. The manager found the bloody scene.
At least three other condemned killers in Texas
have execution dates in the coming months.
Execution set Tuesday in Houston tenors'
slayings
Man convicted in brutal killings will be 15th
put to death this year
By Allan Turner - The Houston Chronicle
July 19, 2010
The scene that greeted police when they entered
Forrest Henderson's Greenway Plaza-area apartment on Sept. 11,
1988, was grisly. Blood smeared bedroom walls, doors and curtains.
The bodies of Henderson and his house guest, Richard Alan
Wrotenbery, had been slashed, stabbed and bludgeoned with an iron
pipe. The killer left a bloody handprint on the doorknob. The
killings rocked the genteel worlds of Houston Grand Opera, where
both men performed as tenors, and Deer Park Elementary School,
where Wrotenbery, the recently divorced father of a 1-year-old
daughter, taught music.
A day after the murders, police spotted
Henderson's stolen car traveling more than 90 mph on a Houston
freeway and gave chase. When the vehicle crashed, the driver
dashed into a nearby apartment complex to make good his escape.
For seven years the investigation stagnated.
Then, in 1995, sheriff's deputies using sophisticated new
fingerprint technology linked a bloody print from Henderson's
apartment to Derrick Jackson, a Houston man serving 12 years for
aggravated robbery. Jackson denied any involvement but was
convicted of the double-murder in 1998.
'I'm getting framed'
Jackson is to be executed Tuesday, becoming the
15th killer put to death in Texas this year. Houston lawyers last
week were reviewing the case but were uncertain if they would find
grounds for further appeals. "It's obvious I'm getting framed,"
Jackson said in a recent death row interview. "I'm not your bad
guy. People who know me know I'm a good guy."
Police described Jackson as a predator who
preyed on patrons of Montrose gay bars. The tenors' friends said
Wrotenbery lived in his friend's apartment while Henderson was on
an overseas tour with the opera. When Henderson returned, the
recently divorced Wrotenbery continued to occupy the residence
until he could find a home of his own.
Before their murders, the men, both 31,
attended a practice session for a performance of Bizet's Carmen at
the opera's downtown headquarters. Afterward, Wrotenbery returned
to the apartment while Henderson visited local bars. While there,
Henderson met Jackson. "He just picked up the wrong person and
brought him back to the house," Houston homicide Sgt. D.D. Shirley
said after Jackson's arrest.
Henderson's next-door neighbor told police he
heard loud music coming from the apartment late on Sept. 10. Then,
about 4:45 a.m. the next day, a man in the apartment screamed, "Oh
my God. No. No." Henderson's nude body later was found face-down
on his bed. He repeatedly had been stabbed and suffered a 6-inch
skull fracture. Wrotenbery was found on the floor of a second
bedroom with his throat slashed.
Wrotenbery's father, Carl Wrotenbery of Fort
Worth, said the impact of his son's death will "go with me to my
grave." The elder Wrotenbery, a retired library director at Fort
Worth's Southwestern Baptist Theological Seminary, said he is
ambivalent about capital punishment. "When you come to the
personal aspect of it, pure logic says for someone to do a crime
of this nature, unprovoked — Alan was in the wrong place at the
wrong time - it's hard for me to think the death penalty is
unjustified."
Wrotenbery said he plans to witness the
execution. "I've made my reservation," he said. "I feel like it's
my duty as a father and head of the clan. I feel a responsibility
to be there and see this done for other family members who, though
they may have strong feelings, won't be able. I have no real
desire to be there. I don't expect to feel anything different.
It's just an unpleasant duty." Wrotenbery said the case, marked by
false investigative starts and long delays, was hard on his family.
Crime-lab problems
Years after Jackson's conviction, the way
police handled the case was criticized by Michael Bromwich, the
independent investigator hired to review operations of the
department's troubled crime lab. In his 2007 report, Brom-wich
found that a technician apparently manipulated lab findings to
bolster the case against detectives' prime suspect of the moment.
When an early suspect had Type O blood,
Bromwich wrote, the employee neglected to report that Type B blood
was found on an apartment door. Only when a charge was lodged
against Jackson, who has Type B blood, was the fact added to the
report.
In his death row interview, Jackson challenged
those fingerprint findings and blasted a series of defense lawyers
who, he said, "helped me get down to the execution chamber." "I
don't stay up at night and have nightmares," Jackson said. "I pray
for myself. I hate the fact that I'm being blamed and will be
killed, but it's more sadness than hate."
Derrick Leon
Jackson
ProDeathPenalty.com
Forrest Henderson and Richard Wrotenbury, were
singers in the Houston Grand Opera. Shortly before his death,
Henderson toured with the opera in Scotland. Wrotenbury moved into
Henderson's Houston apartment to house-sit while Henderson was out
of the country and continued to live in the apartment after
Henderson returned.
David Trujillo and Roger Lindgroff lived next
door to Henderson and Wrotenbury. At around 10:30 p.m. on
September 10, 1988, Trujillo heard music and Henderson's voice
through the common wall separating their apartments. Trujillo went
to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the
sound of Wrotenbury screaming several times, "Oh my God. No. No."
Trujillo also heard what sounded like someone being hit numerous
times with a pipe or a baseball bat. After 30 minutes of silence,
he heard the water running for about 45 minutes. Lindgroff started
to knock on their neighbor's door to see if there was a problem,
but Trujillo called him back inside. Lindgroff did not testify
because he was deceased at the time of trial. Trujillo never heard
Henderson's front door open or anyone leave. A person could enter
or leave Henderson's apartment via a separate stairwell, however,
without having to pass by Trujillo's door. Trujillo explained that,
before Wrotenbury moved in, he would see "street trash" going in
and out of Henderson's apartment, that the apartment was a rowdy
place, and that there was always some kind of screaming and
fighting going on over there. Since Wrotenbury had moved in,
however, the rowdiness had subsided.
Besides the opera, Wrotenbury also worked as a
music teacher at Deer Park Elementary School; but on Monday,
September 12, 1988, he failed to appear for work. At 9:00 a.m.,
the school principal contacted Henderson's apartment manager to
check on him. The manager unlocked Henderson's apartment door and
found nothing disturbed in the living room and kitchen. He
proceeded to one of the bedrooms, pushed open the door, and saw a
body covered with blood. He promptly left and called 911.
Police officers arrived at the apartment soon
thereafter and detected no signs of forced entry. They found
Henderson's and Wrotenbury's bodies in their respective bedrooms
at opposite ends of the apartment. Henderson's nude body was lying
face-down in his bed, and Wrotenbury's body, clad only a pair of
swimming trunks, was lying on the floor of his bedroom. Absence of
significant blood in the hallway connecting the two bedrooms
indicated that neither victim left his room during or after the
attacks. Police found a bloody metal bar in the hallway and a
bloody knife in the kitchen sink. Blood was all over the bedroom
walls, doors, and curtains. Both victims' wallets were missing,
and Henderson's car was gone.
Henderson's car was involved in a burglary of a
Montgomery Wards store two to three days later. Police engaged in
a high speed chase with the perpetrators, who wrecked the car and
fled before police could catch them.
The forensic pathologist testified that Alan
Wrotenbury suffered a severed carotid artery, cuts to the
vertebrae, and at least three blows to the back of the head with a
narrow blunt instrument consistent with a pipe. The force of one
of the blows Wrotenbury received knocked out a tooth. Forrest
Henderson had received a shallow, non-fatal cut to the neck,
defensive wounds on both arms, a six-inch fracture of the skull
from a blunt force, and multiple stab wounds to the torso. Fixed
lividity in both bodies signified that both people had been dead
for more than eight hours.
Tests performed on both victims revealed no
signs of drugs, alcohol, or semen. Blood samples and 20
identifiable fingerprints were collected from the crime scene, but
the Houston Police Department was unable to develop a suspect. In
1995, HPD upgraded to a new fingerprint system with an expanded
database. The new system matched Jackson with prints lifted from a
beer can and a glass tumbler in Henderson's bedroom. A bloody
print found on Henderson's bedroom door also matched Jackson. An
expert in blood-spatter interpretation testified that the bloody
fingerprint could have been formed only by touching a blood drop
while the blood was still wet--as opposed to a blood drop landing
on an old fingerprint. An HPD serologist testified that type-B
blood was found on a bedroom door. Jackson is blood-type B; both
victims were blood-type A. Only these blood types were detected at
the crime scene. The State's DNA expert testified that Jackson's
DNA profile matched DNA isolated from blood stains on a red towel
and a beige towel located in Henderson's bathroom. The odds that
another African-American would possess the same profile is one in
7.2 million. Further, DNA analysis could not exclude Jackson as a
contributor of the blood mixture covering the metal bar.
Derrick Leon Jackson
Canadian Coalition Against the Death Penalty
Derrick Leon Jackson
Texas Death Row
ACTIONS AND RE-ACTIONS - By Derrick Jackson
" I’ve been inspired to write Actions and Re-actions by Roy Pippin
and Paul Colella." By Derrick Jackson, Texas death row prisoner
writes about the continued abuse suffered by these prisoners.
ACTIONS AND RE-ACTIONS Pt. 2- By Derrick
Jackson
Follow up to 'Actions and Re-actions' By Derrick Jackson, writing
about the continued abuse.
It's hard to explain (especially here in
Texas), but to behonest, I personally would have preferred to have
been murdered at thetime of sentencing. I say this, not because I
prefer to be dead (Itruly want to live with a passion). I love
life, but the appealsprocess is no more than a torturous
traumatizing path to a trulysaddenly sick end. I believe in God,
and believe me when I say that itwill be an "act of God" if I am
ever to be a free man, but I do havehope, and I pray. I am a
blessed man to have the insight that I do. Myreality is a sick
curse, for each and every individual it's different(being on death
row), but all of us are insane. You have to lose a bitof your
sanity to maintain the rest of it, like a flu shot. Every day
Iaccept the fact that it's OK for me to go just a little bit crazy
tokeep from breaking down and losing it completely.I don't have a
wife or children, very much family, or many friends, andit may
seem strange to hear, but (for me) that's good, because of thetype
of person that I am. My existence is a very sick one. Just
lastnight I got a visit from my younger brother. I wrote him a
letter a fewweeks ago being a bit desperate and demanding.that he
come visit. Ipersonally feel he should come every week, but I
realize that no oneowes me nothing, and that he has a life to live
in a crazy world. Hetold me I should write to my mother, father,
step mother, and aunts(most of them have never been to visit me)
so that they could feelguilty (I guess he was feeling guilty). I
would never try to make aperson feel guilty in this way,
especially not those I love, even thoughthey seem to have
forgotten about me or maybe just don't know how todeal with seeing
me here trapped in a miserable existence. My twoyounger brothers
and my mother are all I can consider my family at thispoint in my
life. I'm from a poor family, so there is very little(nearly
nothing) that they can do financially, but the moral support,
nomatter how painful, is my reason for existence. I feel their
pain andfrustration, and I can see it in their eyes, but they are
all I have,and living daily in solitary confinement cells is
another madness that aman must deal with that has nothing to do
with the death penalty.Here on the Polunsky unit here in
Livingston, Texas, extreme deprivationis used to punish, control,
and dehumanize a man. Mental games areplayed by most of the guards
(including ranking officers) that aprisoner daily comes in contact
with. You no longer have human and /orcivil rights. Personally
I've felt as if I am a part of a sickexperiment. To have a healthy
conscious mind is a beautiful gift to allhumans, and to use it is
a gift to our world. To attempt to take ordestroy this gift is
criminal. How can I say being a death rowprisoner? What if I can
tell you that I'm not guilty? The fact is, I'mnot!!! Another fact
is that I can't prove it, and that's why I amhere! Two people I
know nothing of or about were brutally beaten andstabbed to death
- that was proven at my trial. Politics' corruption,me being poor,
naive, ignorant to the unjust system in Texas is why I amsitting
here writing these words and not living as I should be, butmerely
existing.I feel that the justice system and society have let me
down. Theoppression that is my life, I cannot describe. I won't
let it controlme, I can't, so at times, I go a little bit crazy,
just so I can cope.I'm a very positive person. I love to see
people smile, and wheneverpossible, I will share one. There are
definitely times that I willsmile to keep from crying. I feel that
everyone deals with or has dealtwith tragedy at some point and
time in their lives (these experiencesdefine us individually). Not
too many people can choose the way theyleave the face of the earth,
and on one lives forever. As I've said, Ilove to live life and to
love, but I'm not afraid to die.I have no sense of panic or
distress as I sit on death row now. Peopledie daily. Every day
takes a positive focus, and I'm going to try to bethe son my
parents raised to Love, the brother my brothers have Loved aswe've
grown, and the man I am proud to be. I'm going to do this withnot
very much more than "sickness" - sickness that is my reality.
Isuffer from diabetes and must take two insulin shots daily, but
thissickness that is the system is what is taking its toll on me
and manyothers who sit on death row.Texas is the execution capital
of the world! I'm not able to give youspecifics and statistics (for
those who are interested, they are madeknown by other sources). I
am writing this to express as well asinform, and I can inform you
that Texas is out of control. Anybody(anyday) that is a speaker of
acting on the death penalty should bespeaking of and acting on
Texas. This is nothing less than mass murdergoing on here!! I
know, more than many, of the corrupt, powerful,political structure.
Then add the money, and it definitely makes for aseemingly
impossible fight to win (for justice), but I see it (Texas) asa
big bully picking on kids. Sure one bully can bully one, two,
eventhree or more kids, but when or if all the kids come, they the
bullyfinds it more reasonable to back off and go away. I basically
have nohelp in my situation, and I often will hear people say or
get a letterfrom someone advising me to organize - put those who
are willing to helpin contact with each other. I pass that advice
on to all reading thesewords who are truly sincere. There are
probably more groups andorganizations that are not doing what they
should or could do to help us(condemned men) in effective ways. A
lot is said that sounds good, andmen are being murdered here in
Texas so regularly that it's seeminglyacceptable. Prisoners who've
had no proper defense during trial,legally retarded men, men that
have been set up by aggressive stateprosecutors (that are elevated
in the political structure according totheir number of convictions),
are being murdered. They are killing menhere that have compelling
evidence of innocence - not hearing the validarguments of the
accused or convicted. Defense attorneys appointed bythe courts (if
they are sincere) are disgracefully underpaid and notallowed the
advantage of investigators, etc. to fight for justice. Itis not
even required by the Texas courts for the court appointedattorneys
to even defend their clients here in Texas now. These are
thethings that are causing the deaths of many men here in Texas.
It isgoing to take an organized effort by all those who are
dedicated andsincere to end this madness in Texas. I won't and
can't say whichorganizations (or people) are not dedicated and
sincere, but if "youare", it shouldn't be long before "you know"!!
No one owes me oranybody who is on death row anything, so I, on
behalf of every manfacing the death penalty, thank you for
everything that you do inprotest. We here in Texas need focused
persistent effective organized measures to be immediately taken,
or murder will continue. PLEASE DO SOMETHING TO HELP STOP THE
KILLING!!!
Please write me at: Derrick Jackson #999263,
Polunsky Unit 3872 FM 350 South Livingston, TX 77351
Justice for Jackson is a non-profit
International Campaign to raise support for the legal defense of
Derrick Leon Jackson, a young man who was wrongly accused and
convicted of a double homicide that took place nearly 10 years
prior to his indictment/conviction. Derrick Jackson now sits on
Texas Death Row and awaits the appeal process and possibly an
execution date.
How did Mr. Jackson end up in this position?
According to the states prosecution team “Old Science and New
Science”. Not facts but the Texas Judicial Systems version of
Science. The truth is that only scientific possibilities and a
biased Texas Justice System gone totally out of control is the
reason Mr. Jackson has been put in this position.
Here are some facts that may interest you:
- Mr. Jackson is a convicted felon/victim of
the Texas war on crime, which has paid his debt to society, but
not a murderer.
- Mr. Jackson was charged with this crime 9
years after it was committed due to a computer-automated
fingerprint.
- This system revealed that Mr. Jackson’s
fingerprint as well as 7 other individuals was possible matches to
the one that was left at the scene of the crime.
- That the individual who did this matching
testified in open court that Mr. Jackson’s fingerprint was not a
positive match to the one left at the scene of the crime.
- That Mr. Johnny Holmes, former District
Attorney, Harris County, for the state of Texas, is responsible
for 42% of the Texas Death Row population and also responsible for
the tragic injustice done to Mr. Jackson and his family.
- Mr. Holmes and those in his jurisdiction (city
officials) have been under fire for being guilty of and known for
manufacturing evidence such as: evidence tampering, delivery of
false reports and testimonies in capital murder trials and death
penalty cases. He makes these requests through the states powerful,
influential, and aggressive bloodthirsty attorneys appointed to
prosecute these cases.
- Such was the case during Mr. Jackson’s trial.
An example of this is that an expert witness for the prosecution
who testified to Mr. Jackson’s guilt due to the results of her DNA
lab work. Minutes later, while being questioned by the defense
counsel, she, Mrs. Childs, admitted to falsifying the DNA test
results in her reports, and just prior lying to the jurors. When
questioned as to why, she answered that it was at the request of
her superiors in the attempt to convict Mr. Jackson. She said and
I quote “I was just doing my job”
Old Science (fingerprinting), and New Science (DNA).
No facts, no witnesses, no concrete evidence, only at best the
possibility of circumstantial evidence.
Here are some facts, as well as other issues
brought forth in Mr. Jackson’s appeal:
The presiding Judge Burdette, over stepped his
boundaries when he expressed his personal opinion to the jury and
further more by repeatedly refusing to accept notes from the jury
that they were dead-locked and could not agree on a verdict that
would eventually send Mr. Jackson to death row. Here is a direct
quote from Judge Burdette, “ you are here to do a job. You will do
it so come back with a verdict.” He also refused several times,
motions from Mr. Jackson’s lawyers requesting a mistrial as the
injustices of the trial developed which are as follows”
- The lack of insufficient evidence to prove Mr.
Jackson’s guilt. Hard core basic evidence required putting a man
on death row.
- The legal constitutionality of the death
penalty as it is applied in this case.
- Mr. Jackson’s Constitutional Civil Rights
being violated.
Currently Derrick Leon Jackson sits on death
row and as of May 26/00 has lost his first appeal. In addition to
Mr. Jackson’s legal problems he suffers from a well-known
condition called diabetes and is financially unable to provide for
himself to maintain his health. Many who read this will find all
of this information hard to believe because we as a society have a
tendency to brush off distasteful issues such as this. Please I
ask that you take the time to read further and consider this:
- Texas has executed more people in the last 4
years than all other states combined in the same amount of time.
Are we to believe that their Judicial System is superior to that
of everywhere else? So superior that it has no flaws?
- The same judge who has made sure that Mr.
Jackson’s place of residence is death row has appointed Mr.
Jackson’s appeal attorneys.
- That a Motto of the “Good Old Boys” in Texas
is: “We would rather kill 10 innocent men than to let one guilty
man live”.
We need your help to save the life of this
innocent man as he awaits his fate. A non-profit International
Campaign, Justice for Jackson, to raise funds and support for Mr.
Jackson. Money is needed to secure proper legal representation.
Organizational support is needed to insure a proper legal defense
as well as proper up keep for his medical condition. Legal
Assistance is needed. We are asking for this support through any
donations that can be made so Mr. Jackson’s fate is not left in
the hands of those who have already condemned him to die. Mr.
Jackson and his family are victims of a blood thirsty, barbaric,
biased Justice system that is totally out of control.
If you wish to make an donation in support of
this mans legal defense, please do so by way of U.S. postal,or
International money orders only, made payable to his mother, Rita
Everline, Co Chairperson and treasurer as follows:
Rita Everline #4424
11315 Fondren
Houston, Texas
77035 USA
Please do not send any donations directly to Mr.
Jackson at the prison. He will not be allowed to have it. Those
interested in offering any organizational, legal, investigative,
assistance or advice, or support through way of friendship, see
his pen pal requests and contact information below...
DERRICK LEON JACKSON'S PEN PAL REQUEST:
I am a 31 year old black male incarcerated on
Texas' death row in Huntsville. I would very much like to
correspond with a pen pal in the hopes of building a truly genuine
friendship, that I am very much in need of. I would prefer females
25-45, but men are equally welcomed to respond to this letter.
Race/ ethnic or religious background are of no concern to me, only
that the person responding is open to regular correspondence and
building on a true friendship. Now to tell you a little about
myself, I am a very easy going open minded person. I am very God
fearing and optimistic, and I am a leader by nature. I am a very
honest person and those are the types of people I choose to
associate myself with. I am from a very small family, and I am the
oldest of 3 boys. I am a chef/ cook, and a barber stylist by trade,
I am college educated, and very business minded. I am a serious
person, but I do have a sense of humor, and i enjoy nothing more
than to see a person smile. I am a people person, but I mostly
enjoy interaction with females on all levels. My interests are
basic, although I do enjoy the finer things in life, the simple
things are just as important to me. I like mostly all sports,
basketball and football are my favorites. I'm interested in mostly
all kinds of music and music videos. I like good movies, mostly
romantic and comedy and I love to read good books and poetry. I
enjoy all forms of basic social entertainment. Although I never
married and don't have the pleasure of having any of my own, I
love children. In closing, I would like to thank you very much for
taking the time to read this introductory letter. Please be
assured that if you choose to respond, I will be open and totally
honest to any inquiry that you may have for me. I hope to hear
from you very soon in the hopes of establishing regular
correspondence and more importantly, a true friendship.
In the Court of Criminal
Appeals of Texas
No. 73,081
Derrick Jackson, Appellant v.
The State of Texas
On Direct Appeal from Harris County
Price, J., delivered the opinion of the Court, in which
McCormick, P.J., and Meyers, Keller, Holland, Womack, Johnson, and
Keasler, J.J., join. Mansfield, J., concurs in the judgment only
on point three, and otherwise joins the opinion.
O P I N I O N
Appellant was convicted of capital murder on March 12, 1998. Tex.
Penal Code Ann. §19.03(a). Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure
article 37.0711 §§3(b) and (e), the trial judge sentenced
appellant to death. Art. 37.071 §3(g).
(1) Direct appeal
to this Court is automatic. Art. 37.0711 §3(j). Appellant raises
eight points of error. We will affirm.
SUFFICIENCY OF THE EVIDENCE
In his first
two points of error, appellant challenges the legal sufficiency of
the evidence to support his capital murder conviction for killing
more than one person in the same criminal transaction. We review
the evidence in the light most favorable to the verdict.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The evidence
at trial revealed that the victims, Forrest Henderson and Richard
Wrotenbury, were singers in the Houston Grand Opera. Shortly
before his death, Henderson toured with the opera in Scotland.
Wrotenbury moved into Henderson's Houston apartment to housesit
while Henderson was out of the country and continued to live in
the apartment after Henderson returned.
David Trujillo and Roger Lindgroff
(2) lived next
door to Henderson and Wrotenbury. At around 10:30 p.m. on
September 10, 1988, Trujillo heard music and Henderson's voice
through the common wall separating their apartments. Trujillo went
to sleep around 2:00 a.m. and was awakened at 4:45 a.m. by the
sound of Wrotenbury screaming several times, "Oh my God. No. No."
Trujillo also heard what sounded like someone being hit numerous
times with a pipe or a baseball bat. After 30 minutes of silence,
he heard the water running for about 45 minutes. Lindgroff started
to knock on their neighbor's door to see if there was a problem,
but Trujillo called him back inside. Trujillo never heard
Henderson's front door open or anyone leave. A person could enter
or leave Henderson's apartment via a separate stairwell,
however, without having to pass by Trujillo's door.
Trujillo explained that,
before Wrotenbury moved in, he would see "street trash" going in
and out of Henderson's apartment, that the apartment was a rowdy
place, and that there was always some kind of screaming and
fighting going on over there. Since Wrotenbury had moved in,
however, the rowdiness had subsided.
Besides the
opera, Wrotenbury also worked as a music teacher at Deer Park
Elementary School; but on Monday, September 12, 1988, he failed to
appear for work At 9:00 a.m., the school principal contacted
Henderson's apartment manager to check on him. The manager
unlocked Henderson's apartment door and found nothing disturbed in
the living room and kitchen. He proceeded to one of the bedrooms,
pushed open the door, and saw a body covered with blood. He
promptly left and called 911.
Police officers arrived at the apartment soon thereafter and
detected no signs of forced entry. They found Henderson's and
Wrotenbury's bodies in their respective bedrooms at opposite ends
of the apartment. Henderson's nude body was lying face-down in his
bed, and Wrotenbury's body, clad only a pair of swimming trunks,
was lying on the floor of his bedroom. Absence of significant
blood in the hallway connecting the two bedrooms indicated that
neither victim left his room during or after the attacks. Police
found a bloody metal bar in the hallway and a bloody knife in the
kitchen sink. Blood was all over the bedroom walls, doors, and
curtains. Both victims' wallets were missing, and Henderson's car
was gone.
(3)
The forensic
pathologist testified that Alan Wrotenbury suffered a severed
carotid artery, cuts to the vertebrae, and at least three blows to
the back of the head with a narrow blunt instrument consistent
with a pipe. The force of one of the blows Wrotenbury received
knocked out a tooth. Forrest Henderson had received a shallow,
non-fatal cut to the neck, defensive wounds on both arms, a six-inch
fracture of the skull from a blunt force, and multiple stab wounds
to the torso. Fixed lividity in both bodies signified that both
people had been dead for more than eight hours. Tests performed on
both victims revealed no signs of drugs, alcohol, or semen.
Blood
samples and 20 identifiable fingerprints were collected from the
crime scene, but the Houston Police Department ("HPD") was unable
to develop a suspect. In 1995, HPD upgraded to a new fingerprint
system with an expanded database. The new system matched appellant
with prints lifted from a beer can and a glass tumbler in
Henderson's bedroom. A bloody print found on Henderson's bedroom
door also matched appellant. An expert in blood-spatter
interpretation testified that the bloody fingerprint could have
been formed only by touching a blood drop while the blood was
still wet--as opposed to a blood drop landing on an old
fingerprint.
An HPD
serologist testified that type-B blood was found on a bedroom door.
Appellant is blood-type B; both victims were blood-type A. Only
these blood types were detected at the crime scene. The State's
DNA expert testified that appellant's DNA profile matched DNA
isolated from blood stains on a red towel and a beige towel
located in Henderson's bathroom. The odds that another African-American
would possess the same profile is one in 7.2 million. Further, DNA
analysis could not exclude appellant as a contributor of the blood
mixture covering the metal bar.
In reviewing
the sufficiency of the evidence, we must view the evidence in the
light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson, 443 U.S.
at 319. Although our evaluation considers all evidence presented
at trial, Johnson v. State, 967 S.W.2d 410, 412 (Tex.
Crim. App. 1998), we may not re-weigh the evidence and substitute
our judgment for that of the jury. Wilson v. State, 863
S.W.2d 59, 65 (Tex. Crim. App. 1993).
In his first
point of error, appellant alleges that the fingerprint and DNA
evidence does not establish him as the perpetrator because he
could have left prints on the beer can and tumbler before the
killings. Appellant further contends that he could have reentered
the apartment after the killings to leave the bloody fingerprint
on the door and his own blood on the bathroom towels. Appellant's
scenario does not establish that the evidence presented at trial
was insufficient to support the jury's verdict.
Appellant's
bloody fingerprint puts him in the apartment while the blood was
still wet. Further, the discovery of blood consistent with
appellant's DNA profile on the towels and on the bloody bar leads
to the reasonable conclusion that appellant was injured during the
struggle with one or both of the victims. Thus, the evidence is
legally sufficient to find that appellant killed Wrotenbury and
Henderson. Point of error one is overruled.
In his second point of error, appellant argues that the evidence
is insufficient to establish that Henderson and Wrotenbury were
killed during the course of the same criminal transaction. As
support for this allegation, appellant relies on the testimony of
(1) Trujillo that he did not hear Henderson's voice after 10:30
p.m. and heard only Wrotenbury struggling several hours later and
(2) the medical examiner that he could not pinpoint the time of
death of either victim. Appellant argues that someone could have
entered the apartment through the private staircase, killed
Henderson, left the apartment, reentered the apartment, and killed
Wrotenbury.
(4)
To convict
appellant of capital murder, the jury in this case was required to
find that appellant intentionally caused the death of two
individuals, Forrest Henderson and Alan Wrotenbury, "during the
same criminal transaction." Tex. Penal Code § 19.03(a)(6)(A) (Vernon
Supp. 1988). Because the legislature did not define the term "same
criminal transaction," we have interpreted that phrase to mean "a
continuous and uninterrupted chain of conduct occurring over a
very short period of time . . . in a rapid sequence of unbroken
events." Rios v. State, 846 S.W.2d 310, 311-312 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 1051(1993);
Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992),
cert. denied, 506 U.S. 997 (1992).
Here, both
victims were killed in the same manner with the same weapons and
were found dead in the same apartment. Although the medical
examiner testified that only Henderson's body showed signs of
decomposition, he maintained that he could not determine who was
killed first. He explained that Henderson's struggle with the
assailant could have caused increased secretion of acid in his
system, thus accelerating decomposition. Based on our review of
the record, we find that "the jury could rationally conclude
appellant engaged in a continuous and uninterrupted process, over
a short period of time, of carrying on or carrying out murder of
more than one person." Rios, 846 S.W.2d at 314.
Appellant's second point of error is overruled.
SCIENTIFIC EVIDENCE
In his third point of error, appellant complains that the trial
court denied him a hearing under Kelly v. State, 824 S.W.2d
568 (Tex. Crim. App. 1992) and Daubert v. Merrill-Dow
Pharmaceuticals, 509 U.S. 579 (1993), after he challenged the
reliability of the State's DNA evidence. Specifically, appellant
requested the court to determine whether "the DNA was collected
and tested properly pursuant to accepted protocols, subjected to
peer reviews, and properly calculated." Appellant further points
out that at trial he "also expressed concern over the match
windows used in connection with RFLP
(5) DNA testing
conducted by the state."
We have stated numerous times that a trial court's responsibility
under Texas Rule of Criminal Evidence 702 is to determine whether
proffered scientific evidence is sufficiently reliable and
relevant to assist the jury.
(6)See, e.g.,
Kelly, 824 S.W.2d at 573; Jordan v. State, 928 S.W.2d
550, 554-55 (Tex. Crim. App. 1996). The proponent of the
scientific evidence bears the burden of demonstrating by clear and
convincing evidence that the evidence is reliable. This is
accomplished by showing: (1) the validity of the underlying
scientific theory; (2) the validity of the technique applying the
theory; and (3) proper application of the technique on the
occasion in question. Kelly, 824 S.W.2d at 573. We have
emphasized that, before scientific evidence may be admitted, the
trial court must conduct a hearing outside the presence of the
jury to determine whether the proponent has established all three
criteria. Id; Massey v. State, 933 S.W.2d 141, 152 (Tex.
Crim. App. 1996); Campbell v. State, 910 S.W.2d 475,
478-79 (Tex. Crim. App. 1995), cert. denied, 517 U.S.
1140 (1996). This pre-admission determination is required whether
the science at issue is novel or well established. Hartman v.
State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997); cf.
Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167, 1174
(1999) (holding that trial court's "gatekeeping" function under
Federal Rule of Evidence 702 applies to all expert
testimony--not just scientific testimony).
In this
case, defense counsel agreed to the general validity of DNA
evidence under the first prong of Kelly but challenged
the validity and application of the technique, under the second
and third prongs of Kelly, used to identify appellant as
a suspect. Before the State presented its DNA evidence, the court
heard arguments from the State and appellant debating the
reliability of the State's evidence. Emphasizing that DNA evidence
is based on a conceptually valid theory, the court informed the
parties that it was not required under Daubert and
Kelly to conduct a pre-admission hearing to determine whether
HPD's techniques were valid and properly performed in this case.
The court interpreted the second two Kelly prongs as
matters for the jury to decide:
[N]or am I
persuaded that it is necessary for me to have a hearing to
determine the specific manner and means in which collections occur,
evaluations are conducted.
Certainly,
that is permissible for you to present to a jury for the purposes
of refuting whatever it is that the State claims. But it is not
the matter of a subjective pre-trial hearing for the purposes of
suppressing it because if there is a dispute, the resolution of
the dispute must be done by the jury based on the credibility of
the witnesses.
The defense
then requested to call its expert to discuss the State's DNA
evidence:
I'm going to
call Dr. Elizabeth Johnson and I'm going to ask her, specifically,
based on the evidence given to us under the discovery orders, are
there some specific protocols that are either miscalculated
regarding the match windows and are those subject to peer review.
And,
specifically, I'm going to ask her under the RFLP protocol, some
specific questions regarding our discovery and our evidence that
was given to us of the specific problems.
And then
under the PCR, are there some specific problems. And that will be
it.
Before
defense counsel could pursue these issues, however, the court
intervened to question the defense's expert when she took the
stand:
THE COURT:
Dr. Johnson, have you seen or had a chance to read whatever
information [defense counsel] has supplied to you regarding this
stuff?
THE WITNESS:
Yes, I have.
THE COURT:
From what you have seen, can you specifically say that there was
anything done in terms of the collection, the keeping, the
analysis, the conclusions, can you say from what you have,
specifically, that there was any conduct that was incompatible
with what you would say to be the ordinary accepted standards?
THE WITNESS:
Yes, I can.
THE COURT:
And what is that?
* * *
THE WITNESS:
Based on what I have seen from the protocol supplied by the
Houston Police Department, there are areas that I need
clarification on.
THE COURT:
Okay. Your answer is no. Your request for a hearing is overruled.
Thank you ma'am.
The defense
pressed on for a hearing on the second two Kelly prongs:
This is our
request. That it requires a hearing outside the presence of the
jury to determine whether the technique protocols used by the HPD
lab in this case meet those standards, whether those standards
that they used are subject to peer review and is there a problem
with those.
. . . [W]e're
asking for the right to make this record regarding just
specifically what we would have been asking you before we even get
to the jury.
* * *
THE COURT:
You have told me so far that you know of no specific situation
that exists in terms of the collection, the retention and so on
and so forth of the evidence about which you have a dispute.
You simply
want to satisfy yourself that the methods used were, in fact,
consistent with the scientific standards.
The court
went on to explain that its reason for cutting off Dr. Johnson was
her response that she needed some clarification about HPD
procedures: "[w]ell, that tells me that there is no dispute. She
doesn't know enough and that this is investigatory as opposed to
anything else."
Counsel
repeated that the defense had a specific dispute with HPD
protocols and relayed specific concerns that Dr. Johnson expressed
to him concerning the "match windows" used by HPD. Based on this
discussion, the court concluded:
I'll let you
present whatever rebuttal evidence, impeachment evidence you care
to the jury. In terms of an out-of-the-presence hearing, I'm not
going to do it. . . . But please don't misinterpret what I'm
saying to be a refusal or an imposition of you being permitted to
present this information to the jury.
I'm
specifically saying I'm not doing that.
The trial
court's ruling deviated from Kelly and its progeny in two
respects. First, it presumed that DNA evidence is admissible in
general and shifted to the defense the burden of demonstrating
that the State's evidence was not reliable. Further, it
refused to permit a hearing outside the jury's presence to
determine whether the evidence was admissible. Thus, the court
erred in failing to determine the admissibility under Rule 702 by
interpreting the second and third Kelly requirements as
issues that the jury could consider in deciding what weight to
give the State's evidence.
Although we agree with appellant that the court abandoned its "gatekeeping"
function with respect to the last two Kelly requirements,
we hold that in this case the error was harmless because the
State's DNA evidence was in fact reliable. Appellant urges that on
cross-examination trial counsel undermined the State's DNA
evidence by revealing that the State did not use "reagent blanks
to eliminate the possibility of cross-contamination" and that the
allele, which was isolated from the metal bar and attributed to
appellant, was weak and could not be ruled out as a "an 'artifact'
or nonspecific showing of DNA testing."
(7) Upon an
independent review of the record, we find that the State's DNA
evidence was reliable and thus admissible.
(8)
Mary Childs
Henry, a DNA analyst with the Houston Police Department performed
the DNA extractions for the PCR and RFLP tests. She testified that
she followed the protocol designated by the FBI at that time,
which did not require reagent blanks. Although the protocol was
later upgraded to include reagent blanks, use of these controls
would have violated FBI protocol at the time she performed the
tests. She explained that the protocol directed her to work only
on one sample at a time to eliminate the possibility of cross-contamination.
Joseph Chu,
a serologist with the HPD crime lab, testified that, from the
mixture of DNA isolated from the metal bar, he identified an
antigen that matched appellant's DNA. He explained that the
antigen was weak and could have been only a trace, but maintained
that appellant could not be excluded as a source of DNA found on
the bar. In Chu's opinion, no cross-contamination or cross-hybridization
occurred during the testing process.
Nothing in the trial testimony suggests that HPD serologists used
invalid protocols or deviated from the proper protocols. Therefore,
we find the State's DNA evidence reliable and admissible under
Kelly. Because the court's failure to hold a hearing outside
the jury's presence did not result in the admission of unreliable
evidence, the error did not have "a substantial and injurious
effect or influence in determining the jury's verdict." King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (announcing
the test for determining whether trial error affects a substantial
right under Rule of Appellate Procedure 44.2(b) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946))).
Accordingly, Rule 103(a)
(9) compels us to
disregard this error. Appellant's third point of error is
overruled.
Appellant
contends in his fourth point of error that the trial court should
have excluded the State's DNA evidence because the State violated
a discovery order which required it to disclose the results of all
scientific testing by March 5, 1998. Appellant complains that the
State failed to timely turn over new statistical calculations of
the frequency that the DNA profile of the blood on the two towels
occurs in the population. Instead, the State informed appellant of
the recalculations on the evening of March 10, the day before the
State began presentation of its DNA evidence. Upon counsel's
objection to the tardy disclosure, the trial court asked how much
time the defense desired to look over the new calculations. Dr.
Johnson, the defense expert, replied, "if they give me the figures
and the type results, . . . I don't have that material -- I would
need a[n] hour or two hours to look at it." The court granted
appellant this additional time to review the information before
the State presented its statistical evidence.
During the afternoon session of March 11th, Mary Childs
Henry testified that she performed RFLP tests on DNA isolated from
a beige and a red towel. The DNA profile of the blood on the
towels matched appellant. The original frequency calculation that
Henry performed indicated that one in every 5.8 million persons
possesses this DNA profile. Henry explained that she used four
probes to achieve this original calculation; however, two of the
probes violated FBI protocol for inclusion in the frequency
analysis. When she recalculated the statistics using only the two
compliant probes, she arrived at a significantly different result
of one out of 224 persons.
(10)
We have held
that evidence willfully withheld from disclosure under a discovery
order should be excluded from the trial. See Hollowell v.
State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). There is
no indication in the record, however, whether the HPD serologist's
failure to recalculate the frequency statistics earlier was done
willfully or was merely an oversight. In any event, we have
distinguished the harsh sanction imposed by Hollowell,
where the State revealed the requested information in time for the
defendant to use it on cross examination of the State's witness.
See Smith v. State, 779 S.W.2d 417, 431 (Tex. Crim. App.
1989)(holding that State's violation of a discovery order to
disclose before trial any leniency arrangements with witnesses did
not deny defendant a fair trial because the State revealed on
direct examination the deal it made with a witness).
Here,
appellant does not explain how he was harmed by the State's
failure to perform the recalculations earlier. He was afforded
ample time for his expert to review the recalculations, and
counsel was able to cross-examine the State's witnesses with the
new results. Because appellant was in no way prejudiced by the
State's failure to comply with the discovery order, we
overrule appellant's fourth point of error.
JURY ARGUMENT
Appellant's
fifth, sixth, and seventh points of error involve alleged improper
jury argument by the State. Proper jury argument includes four
areas: (1) summation of the evidence presented at trial, (2)
reasonable deduction drawn from that evidence, (3) answer to the
opposing counsel's argument, or (4) a plea for law enforcement.
McFarland v. State, 845 S.W.2d 824, 844 (Tex. Crim. App.
1992), cert. denied, 508 U.S. 963 (1993). To constitute
reversible error, the argument must be manifestly improper or
inject new, harmful facts into the case. Gaddis v. State,
753 S.W.2d 396 (Tex. Crim. App. 1988); Everett v. State,
707 S.W.2d 638, 640 (Tex. Crim. App. 1986). Here, we find that
each of the challenged passages fits within one or more of the
categories enumerated above.
In his fifth
point of error, appellant contends that during final rebuttal
argument the State impermissibly shifted the burden to the defense.
Specifically, appellant complains of the following passage in
which the State argued that no defense experts challenged its DNA
evidence.
We had two
samples from the door. We had a scraping and a swab, one of those
is B type . . . And don't you know if there was anything wrong --
I mean they're accusing Mr. Bolding of lying about his results is
what they're doing here. Don't you know if there was anything
wrong or improper about those results -- and understand, they
don't have to do anything. They can sit there like potted plants.
But don't you know if there was something wrong, they would have
had one of those experts on the stand to tell you that that
evidence wasn't B type. And you can make an inference from that.
Then you come to the DNA. And it follows here as well. I mean,
they haven't had just one, but they've had two experts looking at
our DNA evidence. They've had one of them sitting in the courtroom
listening to the testimony. Don't you know if there was anything
wrong with the results of those samples -- [
(11)]
Our review
of the record reveals that the prosecutor's comments were rebuttal
to defense counsel's argument attacking the State's scientific
evidence. Arguing that the State did not produce reliable evidence
that the blood on the wall matched appellant, counsel pointed out
that James Bolding, the State's serology expert, waited ten years
to conduct the tests revealing type-B blood on the wall. Counsel
also implied that the defense DNA expert, who had been sitting at
counsel table during the State's presentation of its case, did not
approve of the State's DNA evidence; particularly, the dramatic
change in the frequency statistics when the two noncompliant
probes were eliminated. Counsel continued with arguments attacking
the reliability of the PCR testing done on the metal bar, the
State's use of improper protocol, and the methods used to extract
the DNA.
Defending
the State's scientific evidence, the prosecutor retorted that the
defense would have called its expert to the stand if it had
seriously disputed the State's evidence. Thus, the prosecutor's
argument was merely a response to the defense's assertions that
the State's scientific evidence was lacking. See McFarland v.
State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999). In this
context, the challenged comments did not impermissibly shift the
burden of proof to the defense, particularly given the
prosecutor's repeated reminders to the jury that the defense was
not required to present any evidence.
Moreover,
the prosecutor's argument did not amount to a prohibited reference
to appellant's failure to testify. We have held that the
prosecutor may comment on the defendant's failure to produce
witnesses and evidence so long as the remark does not fault the
defendant for exercising his right not to testify. Patrick v.
State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995), cert.
denied, 517 U.S. 1106 (1996); Livingston v. State,
739 S.W.2d 311, 338 (Tex. Crim. App. 1987), cert. denied,
487 U.S. 1210 (1988). Here, reference to the defense's failure to
produce expert testimony was not improper. Appellant's
fifth point of error is overruled.
Appellant
next asserts that during punishment-phase argument the prosecutor
improperly commented on facts outside the record, as follows:
But here at
punishment it is different. You get to hear more. You get to know
the real Derrick Jackson. And you get to take into consideration
his victims, the impact on the victims' family and society. You
get to look at all that. Now a life sentence to you -- you and me
would be a lot of punishment. I am going to suggest to you . . .
Defense counsel interrupted with an objection that the prosecutor
was interjecting his own opinion into the case. The court
sustained the objection, instructed the jury to disregard, and
ordered the prosecutor to rephrase. The prosecutor continued, "Let's
put it this way: A life sentence would be punishment for a lot of
people, but not to Derrick Jackson." Appellant contends that the
trial court should have granted his motion for mistrial because
the prosecutor's comments about a life sentence "suggested that he
has information about the Institutional Division of the Texas
Department of Criminal Justice ("TDCJ") to which the jury was not
privy."
(12) The record
does not support this inference.
A prosecutor
may not convey to the jury during argument that he possesses
specialized knowledge or expertise about a contested factual issue
in the case. Such comments pose a danger of influencing the jury's
opinion in deciding the issue. Johnson v. State, 698 S.W.2d
154, 167 (Tex. Crim. App. 1985), cert. denied, 479 U.S.
870 (1986); Boyd v. State, 643 S.W.2d 700 (Tex. Crim. App.1983);
Maupin v. State, 930 S.W.2d 267, 270 (Tex. App.--Fort
Worth 1996, pet. ref'd). In evaluating whether the
prosecutor interjected his personal opinion into the argument, we
must consider the challenged remark in the context in which it
appears. Gaddis, 753 S.W.2d at 398.
When we
evaluate the prosecutor's statements in the appropriate context,
it is evident that his remark concerning a life sentence referred
to appellant's apparent contentment with the prison environment.
The prosecutor began his argument, "Now, this phase of trial, it's
the punishment phase. It's not the what's best for Derrick Jackson
phase." He went on to summarize appellant's punishment-phase
evidence that appellant performed well in prison, reacted
positively to the structured setting, and could accomplish many of
his goals there, such as earning a GED. The crux of the argument,
therefore, was that prison would not serve to punish appellant.
Within this context, it is clear that the prosecutor's statements
comparing the punitive effect of a life sentence on appellant to a
life sentence on people in general--such as the jurors--was based
on appellant's proffered evidence, as opposed to some specialized
knowledge harbored by the prosecution. Accordingly, the
prosecutor's comments qualify as a permissible plea for law
enforcement. Appellant's sixth point of error is overruled.
In his
seventh point of error, appellant contends that the prosecutor
impermissibly argued facts outside the record and thus
misconstrued the testimony of the defense's mental health expert.
The challenged portion is as follows:
And Dr.
Wheeler is tremendously concerned about that kind of individual if
they ever got out of the penitentiary. She's testified in 12
capital murder cases for the Defense. And the person that did this
scares the hell out of her. And she told you under oath that she
would never want a person capable of doing all that on the streets
of Harris County, Texas again.
Defense
counsel objected that the prosecutor was misstating Dr. Wheeler's
testimony. The trial court sustained the objection and instructed
the jury to disregard the comment, but denied the defense's motion
for mistrial. The prosecutor continued, "She told you that in her
opinion that kind of person would be capable of doing all of this
again." The trial court overruled appellant's objection that this
comment was outside the record. Appellant asserts that the trial
court should have granted his motion for mistrial because the
prosecutor impermissibly argued outside the record to undermine
the defense's expert witness.
Contrary to
appellant's assertion, however, the record reveals that the
prosecutor's argument was properly based on the evidence. During
the punishment phase, the prosecutor questioned Dr. Wheeler:
Doctor, in
your professional opinion, you wouldn't want someone that's
capable of committing a capital murder where two people are killed
like you see in those pictures, stealing a purse from a lady,
during an aggravated robbery, they shoot at somebody and then
doing three more aggravated robberies [. . .] a week later within
an hour and a half, you wouldn't want somebody like that back on
the streets of Harris County, Texas would you?
Dr. Wheeler replied, "No, I would not." Wheeler also agreed on
cross-examination that she would be scared of a person who had
just committed these various crimes. Although the prosecutor's
characterization of Wheeler's testimony is somewhat overstated, we
find that this argument qualifies as a summation of the evidence,
and thus is not improper. Appellant's seventh point of
error is overruled.
(13)
SENTENCING
In his eighth point of error, appellant complains that the trial
court abused its discretion in failing to grant a motion for
mistrial when the jury appeared unable to agree on sentencing. At
the end of the punishment phase, the jury deliberated for about
five hours and sent out a note indicating that they were
deadlocked. After the court instructed them to continue their
deliberations, they deliberated for another two hours at which
time counsel for appellant moved for a mistrial. The court
overruled the motion, and the jury recessed for the night. On the
following day, the jury had deliberated for an additional four
hours when they sent out a note stating, "What happens if we are
11 to 1 on special issue #3?" The court again instructed them to
continue deliberating.
(14) The jury
returned a unanimous verdict 28 minutes later.
Article
37.0711, § 3(g) compels the trial court to enter a life sentence
if the jury is unable to answer any special issue. See Montoya
v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989),
cert. denied, 502 U.S. 961 (1991). The court may exercise its
discretion to discharge the jury when "it has been kept together
for such a time as to render it altogether improbable that it can
agree." Art. 36.31. Reversal is mandated only if the record
reveals that the trial court abused its discretion in holding the
jury for deliberations. Montoya, 810 S.W.2d at 166. In
assessing abuse of discretion, we consider the length of the trial
and volume of evidence submitted to the jury. Howard v. State,
941 S.W.2d 102, 121 (Tex. Crim. App. 1996). For instance, in
Andrade v. State, 700 S.W.2d 585, 589 (Tex. Crim. App. 1985),
cert. denied, 475 U.S. 1112 (1986), the trial court
instructed the jurors to continue deliberations when, after four-and-a-half
hours, they indicated that they were deadlocked. The jury
persisted with its deliberations for another eight hours before
returning an unanimous verdict. Id. Given the nature of
the capital case involved, this Court determined that the judge
did not abuse his discretion in permitting the jury to deliberate
for twelve hours. Id.
Likewise, in
this case, the jury was charged with the task of answering
questions that determine whether appellant would receive a
sentence of life or death. When considering appellant's motion for
mistrial, the trial court explained that the guilt/innocence and
punishment phases of trial had produced three-and-a-half days
worth of evidence. Over this period of time, the jury heard
testimony from 27 witnesses for the State and defense. During the
punishment phase, the State produced evidence of the numerous
violent crimes appellant committed. Appellant countered with
testimony from an expert concerning his psychological profile,
from his parents that he was generally well behaved, and from his
TDCJ barber school teacher that he had adapted well to prison life,
was a good student, and had successfully completed 1400 hours of
course work. The jury had to sort through this evidence and
evidence presented at the guilt/innocence phase to determine
whether the mitigating evidence compelled a sentence of life
rather than death. See Art. 37.0711 § 3(e). We cannot say,
given these circumstances, that the trial court abused its
discretion by overruling appellant's motion for mistrial seven
hours into deliberations. Appellant's eighth point of
error is overruled.
In his final
point of error, appellant argues that the trial court should have
granted his challenge to the constitutionality of the Texas death
penalty scheme based on the "12-10" rule embodied in Article
37.0711, which prohibits the jury from learning that a hung jury
on punishment results in a life sentence. See Art.
37.0711 §§ 3(d), (f), and (i). He points out that in this case the
jury was deadlocked twice during deliberations and had inquired as
to the effect of a hung jury. Appellant is correct in his
concession that this Court has repeatedly rejected such an attack.
See, e.g.,Jackson v. State, 992 S.W.2d 469, 481
(Tex. Crim. App. 1999); Cantu v. State, 939 S.W.2d 627,
644 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 994
(1997); Green v. State, 912 S.W.2d 189, 194 (Tex. Crim.
App. 1995), cert. denied, 518 U.S. 1021 (1996).
We overrule appellant's ninth point of error.
Finding no
reversible error, we affirm the judgment of the trial court.
Price, J.
Date
Delivered: May 17, 2000
Publish
*****
1. Unless otherwise
indicated, all future references to Articles refer to Code of
Criminal Procedure.
3. Henderson's car was
involved in a burglary of a Montgomery Ward two to three days
later. Police engaged in a high speed chase with the perpetrators,
who wrecked the car and fled before police could catch them.
4. In keeping with this
argument, appellant must have entered the apartment after all of
this activity, left a bloody fingerprint on the bedroom door, cut
himself, wiped his wound on the bathroom towels, locked the door,
and left.
5. Two types of DNA analysis
were utilized in this case--PCR
and RFLP. "PCR," stands for "polymerase chain reaction," a method
of multiplying DNA so that a profile can be obtained from a very
small sample. "RFLP" stands for "restriction fragment length
polymorphism,"a method of DNA analysis that produces a more
discriminating profile but requires a larger DNA sample. See,
e.g.,
Campbell v. State, 910 S.W.2d 475, 479 n.6 (Tex. Crim.
App. 1995).
6. The Texas Rules of
Evidence (formed from the combined civil and criminal rules of
evidence) became effective on March 1, 1998.
7. Appellant does not
complain now of the match windows, protocol, or statistical
analysis used. At trial, the court afforded Dr. Johnson, the
defense expert, time to review the DNA type strips and statistical
figures that were in the State's possession. Presumably, Johnson
was satisfied with these because appellant did not call her to
testify before the jury.
8. We are authorized to
conduct a de novo review of this mixed question of law
and fact because the admissibility issue does not turn on the
credibility and demeanor of the State's witnesses. See Guzman
v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
9. Rule 103(a) provides that"[e]rror
may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected." Tex.
R. Evid. 103(a).
10. Joseph Chu testified
later that the statistical calculation based on the PCR test
conducted on this same blood source indicated that the DNA would
occur with a frequency of "one out of 7.2 million people among the
black population." Apparently no recalculations were performed on
the genetic profile resulting from the PCR analysis.
11. Defense counsel
interrupted with an objection that the State was shifting the
burden of proof to the defense, and the court overruled the
objection.
12. Appellant notes that
the prosecution possessed information that the jury did not--that
appellant would have become parole eligible in fifteen years if
given a life sentence. Appellant did not raise this parole issue
to the trial court; therefore, he has waived such an argument for
appeal. See Johnson v. State, 803 S.W.2d 272, 292 (Tex.
Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991).
13. Appellant concedes that
this error alone would not constitute reversible error but
contends that the statements challenged in points of error five,
six, and seven--when considered in combination--deprived him of a
fair trial. Finding no error in the prosecutor's argument, we
reject appellant's contention.
14. Appellant did not
reassert his motion for mistrial at this time.
Jackson v. Quarterman, 265 Fed.Appx.
352 (5th Cir. 2008). (Habeas)
Background: Following affirmance on direct
appeal of petitioner's state court capital murder conviction and
death sentence, 17 S.W.3d 664, he filed petition for writ of
habeas corpus. The United States District Court for the Southern
District of Texas, Ewing Werlein, Jr., J., 2007 WL 470643, denied
petition. Petitioner sought certificate of appealability (COA).
Holdings: The Court of Appeals held that: (1)
evidence was sufficient to support conviction; (2) evidence
supported determination that victims were killed during the course
of the same transaction; and (3) defense counsel was not
ineffective in failing to present certain character witnesses
during the sentencing phase. COA denied.
PER CURIAM:
Petitioner, Derrick Leon Jackson, requests a
certificate of appealability (“COA”). His request is DENIED.
I. FACTS AND PROCEEDINGS
Jackson, a prisoner sentenced to death and
currently in the custody of the Texas Department of Criminal
Justice (“TDCJ”), filed this application for a COA after his
petition for a writ of habeas corpus was denied by the district
court.
The victims, Forrest Henderson and Richard
Wrotenberry, were singers in the Houston Grand Opera. Wrotenberry
moved into Henderson's Houston apartment to housesit while
Henderson was out of the country and continued to live in the
apartment after Henderson had returned.
David Trujillo lived next door to Henderson and
Wrotenberry. At approximately 10:30 p.m. on Saturday, September
10, 1988, Trujillo heard music and Henderson's voice through the
common wall separating their apartments. Trujillo went to sleep
around 2:00 a.m. and was awakened at 4:45 a.m. by the sound of
Wrotenberry screaming several times, “Oh my God. No. No.” Trujillo
also heard what sounded like someone being hit numerous times with
a pipe or a baseball bat. After thirty minutes of silence, he
heard the water running for about forty-five minutes. Trujillo
never heard Henderson's front door open or anyone leave, but a
person could enter or leave Henderson's apartment via a separate
stairwell without passing by Trujillo's door. Trujillo testified
that he often saw “street trash” entering and leaving Henderson's
apartment before Wrotenberry moved in, that the apartment was a
rowdy place, and that screaming and fighting were common there.
The rowdiness subsided after Wrotenberry moved in.
Wrotenberry was a music teacher at Deer Park
Elementary School, and on Monday, September 12, 1988, he failed to
appear for work. At 9:00 a.m., the school principal contacted
Henderson's apartment manager and requested that he check on
Wrotenberry. The manager unlocked Henderson's apartment door and
found a body covered in blood in one of the bedrooms. He left and
called the police.
Police officers arrived at the apartment soon
thereafter and detected no sign of forced entry. They found
Henderson's and Wrotenberry's bodies in their respective bedrooms
at opposite ends of the apartment. Henderson's nude body was lying
face-down in his bed, and Wrotenberry's body, clad only in a pair
of swimming trunks, was lying on the floor of his bedroom. The
absence of significant blood in the hallway connecting the two
bedrooms indicated that neither victim left his room during or
after the attacks. Police found a bloody metal bar in the hallway
in front of the bathroom door and a bloody knife in the kitchen
sink. Blood was on the bedroom walls, doors, and curtains. Both
victims' wallets were missing, and Henderson's car was gone. Two
or three days later, the car was recovered. Following a chase
after a burglary at a mall, the car crashed and caught on fire.
The driver was not apprehended, and the police recovered no
evidence related to the murders from the car.
A forensic pathologist testified that Henderson
received a shallow non-fatal cut to the neck, defensive wounds on
both arms, a six-inch fracture of the skull from blunt force, and
multiple stab wounds to the torso. Wrotenberry suffered a severed
carotid artery, cuts to the vertebrae, and at least three blows to
the back of the head with a narrow blunt instrument, such as a
pipe. Fixed lividity in both bodies signified that the victims
were dead for more than eight hours before they were found. Tests
performed on both victims revealed no signs of drugs, alcohol, or
semen. Blood samples and twenty identifiable fingerprints were
collected from the crime scene, but the Houston Police Department
(“HPD”) was unable to identify a suspect.
In 1995, nearly seven years after the murders,
HPD upgraded to a new fingerprint system with an expanded database.
The new system matched Jackson with prints lifted from a beer can
and a glass tumbler in Henderson's bedroom. Blood spattered during
the attack covered Jackson's fingerprints on the front of the
tumbler. A bloody print found on Henderson's bedroom door also
matched Jackson's fingerprint. An expert in blood-spatter
interpretation testified that the bloody fingerprint could have
been formed only by touching a blood drop while the blood was
still wet, and could not have been the result of a blood drop
landing on an old fingerprint.
Police found only one blood sample in the
apartment capable of yielding blood type information. That sample
was taken from blood on one of the bedroom doors which an HPD
serologist testified was type-B blood. Jackson had type-B blood,
and both victims had type-A blood. A state DNA expert, Mary Henry,
testified that Jackson's DNA type matched DNA isolated from blood
stains on a red towel and a beige towel located in Henderson's
bathroom. That expert testified that Jackson's DNA type for that
specific test conducted on the samples from the two towels would
occur once out of every 224 people in the black population. FN1.
Jackson was black, Wrotenberry was white, and Henderson was black.
A second DNA expert, Joseph Chu, testified that
he conducted a different kind of DNA test on the DNA extracted
from the beige towel. He concluded that the DNA from the beige
towel came from a single source and matched Jackson's DNA type for
that test. By comparing Jackson's DNA type to databases of the
black population and using calculation methods approved at the
time of the DNA testing in March 1997, Chu calculated that the
odds that another black person would possess the DNA profile found
on the beige towel were one out of 7.2 million. By the time of
Jackson's trial in March 1998, the DNA forensic community had
endorsed making a calculation based on combining the probabilities
from the two different types of DNA tests that Chu and Henry had
conducted. Using that calculation method, Chu testified that the
probability of Jackson's DNA type appearing in the black
population would be one out of 1.6 billion. He testified that he
had compared Jackson's DNA type to the databases for the black
population because his race was already known. On cross-examination,
Chu testified that had he compared Jackson's DNA type to databases
of other races, he would have found similar results.
Chu also testified that he conducted DNA tests
on blood on the metal bar found in the apartment. The tests showed
a mixture of DNA from different people on the metal bar. He
compared Henderson's and Jackson's DNA, and Wrotenberry's parent's
DNA-a DNA type could not be determined from Allen Wrotenberry's
sample-to the mixture of DNA on the bar and could not eliminate
any of their DNA from the mixture. The tests concluded that the
mixture was consistent with all three individuals' DNA. However,
Chu could not determine an exact match of the DNA because of the
mixture, nor could he provide a mathematical calculation as to the
probability of each individual's DNA being in the mixture.
After considering this evidence, the jury found
Jackson guilty of capital murder.
During the penalty phase, the state presented
evidence that Jackson snatched a woman's purse in 1990. The state
also presented evidence that, in 1992, Jackson robbed two other
victims of their purses at gunpoint and attempted to steal a car.
For those robberies, he received a sentence of ten years which was
imposed on May 13, 1992.
Wrotenberry's father testified that Wrotenberry
was a vivacious young man. He played tennis and ping pong and was
a fan of the Houston Astros and Rockets. Wrotenberry was divorced
and had a one year-old daughter at the time of his death.
Wrotenberry had a close relationship with his father, mother, and
sister. His father testified that he and his family had difficulty
coming to grips with Wrotenberry's death and had undergone
counseling. Wrotenberry's sister was admitted to a psychiatric
hospital following the murder.
Leroy Smith testified for Jackson. Smith was a
barber instructor for the TDCJ. Jackson was Smith's student and
had completed over 1400 of the 1500 hours required for a barber
training course at the time he was brought back to Houston for his
capital murder trial. Smith testified that Jackson was a good
student who caused no problems and was respectful of TDCJ
personnel and other inmates. Smith never saw Jackson act violently
or misuse any of the barber equipment.
Dr. Ann Carolyn Wheeler, a clinical
psychologist, also testified for Jackson. She performed a
psychological evaluation of Jackson. She testified that Jackson
did well in a structured setting, such as prison. He was unlikely
to affiliate with a gang or engage in violence in prison. On
cross-examination, Dr. Wheeler conceded that Jackson's history of
criminal conduct suggested that he was dangerous.
Jackson's mother, Rita Everline, testified that
Jackson never knew his father because his father committed suicide
when he was a baby. Everline remarried when Jackson was nine
months old. Jackson has two younger half-brothers. He was a normal
child and got along well with his brothers. Jackson's stepfather
had a drinking problem. Sometimes, he and Everline fought, and she
fled the house. Jackson did not have any unusual discipline
problems at school. Jackson's stepfather's testimony agreed with
Everline's testimony.
The jury found that Jackson deliberately
committed acts that caused Wrotenberry's death with the reasonable
expectation that the death of Wrotenberry or another would result,
that there was a probability that Jackson would commit criminal
acts of violence that would constitute a continuing threat to
society, and that there was not sufficient mitigating evidence to
warrant a sentence of life imprisonment rather than death.
Accordingly, the jury determined that Jackson be sentenced to
death.
The state habeas court found that Jackson's
trial counsel interviewed witnesses, talked to his family, and
spoke to Jackson about his life and background. The defense
counsel contacted everyone that Jackson had requested him to
contact for the punishment phase of the trial. In an affidavit,
Jackson's trial counsel explained his actions as follows:
During punishment, the jury knew that the
defendant had been in prison for 10 years and our main strategy
was to establish that he was a good candidate for a life sentence
and that he did well in prison. We did not call employees who
worked with the defendant at the Luxeford Hotel because the
defendant was working there at the time of the offense. Witnesses
who knew the defendant during the ten-year period from the offense
to the trial would have been in a Catch-22 type of position. If
they testified about the defendant's good character, they would be
confronted with cross-examination that they didn't know the
defendant very well because they did not know that he committed
the offense ten years before trial. We presented evidence of the
defendant's family background, his good behavior in prison and his
psychological profile.
The Texas Court of Criminal Appeals affirmed
Jackson's conviction and sentence, Jackson v. State, 17 S.W.3d
664, 677 (Tex.Crim.App.2000), and denied his application for a
writ of habeas corpus. Ex parte Jackson, No. 60,124-01 (Tex.Crim.App.
Dec. 1, 2004). Jackson filed a federal petition for habeas corpus
on November 30, 2005. The district court granted Quarterman's
motion for summary judgment and denied Jackson a COA on February
12, 2007. Jackson v. Quarterman, No. H-05-4083, 2007 WL 470643 (S.D.Tex.
Feb.12, 2007).
Jackson raises two issues in this application
for a COA. He argues that reasonable jurists could debate whether
there was sufficient evidence to support his conviction for
capital murder. He also argues that reasonable jurists could
debate whether he was denied effective assistance of counsel.
II. STANDARD OF REVIEW
Jackson filed his federal habeas petition after
the effective date of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). Accordingly, the petition is subject to
AEDPA's requirement that Jackson obtain a COA before an appeal can
be taken to this Court. 28 U.S.C. § 2253(c); Miller-El v. Cockrell,
537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In
determining whether a COA should be issued, this Court limits its
examination to a “threshold inquiry into the underlying merit of [the
petitioner's] claims.” Id. at 327, 123 S.Ct. 1029. “This threshold
inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims. In fact, the statute
forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if
the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this
standard, a petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal
quotations omitted). The debatability of the underlying
constitutional claim is at issue, not the resolution of that
debate. Id. at 342, 123 S.Ct. 1029.
III. DISCUSSION
A. Sufficiency of the evidence
In deciding a sufficiency of the evidence claim,
the “relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (emphasis in original). Jackson claims
that reasonable jurists could debate whether there was sufficient
evidence to support his conviction for capital murder. He argues
that the evidence was constitutionally insufficient to prove his
identity as the one who committed the murders and that there was
insufficient evidence to prove that both murders were committed
during the course of the same transaction. Jackson points to the
fact that he was not identified as a suspect until seven years
after the crime and that there was no eyewitness, no sign of
forced entry, no proof of a prior relationship with the victims,
and no proof of a motive. He also states he was not found in
possession of any property taken from the murder scene. Jackson
relies on Gibson v. Collins, which accepted that where the only
evidence is the discovery of the defendant's fingerprints at the
scene of the crime, a reasonable juror may find guilt beyond a
reasonable doubt “only if the evidence indicates that the
imprinted object was generally inaccessible to the defendant
except during the commission of the crime.” 947 F.2d 780, 785 (5th
Cir.1991). Jackson also asks this Court to extend Gibson to DNA
evidence, specifically the DNA that was found on a towel in the
bathroom of the apartment where the murders occurred.
DNA, fingerprint, and blood-type evidence
placed Jackson at the apartment both before and immediately after
the murders. Jackson's fingerprints were found on a tumbler placed
on a stereo speaker in Henderson's room. Blood splatter landed on
top of the prints. Jackson's bloody fingerprint was found on
Henderson's bedroom door. This print could only have been formed
by touching a drop of blood while it was still wet. Therefore,
these fingerprints indicate that Jackson was in the apartment both
before and soon after the murders. Furthermore, a blood splatter
expert testified that the attacker suffered a bleeding wound
during the attack. Jackson's DNA was found on bloody towels in the
bathroom. Type-B blood, consistent with Jackson's blood, and not
consistent with the blood of either victim, was found on a bedroom
door. With such evidence, it is not debatable whether any rational
trier of fact could have found beyond a reasonable doubt that
Jackson's fingerprints and DNA were left at the time of the
murders and that Jackson had committed the murders.
Jackson also argues that the evidence was
insufficient to show that both murders were committed during the
course of the same transaction. This argument is without merit,
because of the characteristics of both murders. Both victims
suffered cuts to the neck. A bloody knife was found in the kitchen
sink. Both victims suffered wounds from blunt force. A bloody
metal bar with a mixture of DNA on it was found in the hallway. A
neighbor heard what sounded like someone being hit by a pipe or
baseball bat in Henderson's apartment. Both murders were committed
in that same apartment, separated only by a hallway. Both men's
wallets were missing. With such evidence, it is not debatable
whether any rational trier of fact could have found beyond a
reasonable doubt that both murders were committed during the
course of the same transaction.
B. Ineffective assistance of counsel
In deciding an ineffective assistance of
counsel claim, this Court first determines whether the counsel's
performance was deficient. Turner v. Quarterman, 481 F.3d 292, 298
(5th Cir.2007). “This requires [the defendant to show] that
counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
Second, this Court determines whether the deficient performance
prejudiced the defense. Id. “This requires [the defendant to show]
that counsel's errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. In
determining whether to grant Jackson's application for a COA, this
Court must determine whether reasonable jurists could debate
whether Jackson's counsel's performance was deficient, and, if so,
whether that performance prejudiced the defense.
Jackson argues that his counsel's performance
was deficient in failing to present certain character witnesses at
the punishment phase of the trial. He relies on Wiggins v. Smith,
539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where
the counsel's lack of investigation into the defendant's
background “did not reflect reasonable professional judgment.”
Jackson's reliance on Wiggins is misplaced. In Wiggins, the
defense counsel failed to expand the investigation of his client's
background beyond social services records and a presentence
investigation. Id. at 524, 123 S.Ct. 2527. Wiggins's counsel did
not have a social history report prepared as was standard practice
in Maryland, even though funds were available to have the report
made. Id. His performance fell short of the American Bar
Association's standards, and the information that he did have
about his client's background indicated that additional
investigation for mitigating circumstances was necessary. Id.
Unlike the counsel in Wiggins, Jackson's
counsel made a strategic decision not to seek out the witnesses
who knew Jackson before or at the time of the murders. Instead, he
chose to rely on witnesses who could testify to Jackson's
character while he was in prison, the period just before the trial.
He also relied on Jackson's mother and stepfather. The defense
counsel reasonably decided that witnesses who knew Jackson between
the time of the murders and the trial would lack credibility if
they testified to his nonviolent character, in light of the fact
that the jury had just convicted Jackson of beating two men with a
metal bar and cutting their throats. “This court will not question
a counsel's reasonable strategic decisions.” Bower v. Quarterman,
497 F.3d 459, 470 (5th Cir.2007). It is not debatable whether
Jackson's counsel acted reasonably in deciding not to seek out
testimony that Jackson was nonviolent before or at the time of the
murders. Therefore, Jackson's application for a COA on the claim
of ineffective assistance of counsel is denied.
